THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
I
55
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JANUARY 1973
WILLIAM D. RUCKELSHAUS
Administrator
U.S. Envlronmenta! Protection Agency
Region V, Library
230 South Dearborn Street
Chicago, Illinois 60604- '
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For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 • Price $27.25 per 7-part set. Sold in sets only.
Stock Number 5500-0068
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FOREWORD
It has been said that America is like a gigantic boiler in that once
the fire is lighted, there are no limits to the power it can generate.
Environmentally, the fire has been lit.
With a mandate from the President and an aroused public concern-
ing the environment, we are experiencing a new American Revolu-
tion, a revolution in our way of life. The era which began with the
industrial revolution is over and things will never be quite the same
again. We are moving slowly, perhaps even grudgingly at times, but
inexorably into an age when social, spiritual and aesthetic values
will be prized more than production and consumption. We have
reached a point where we must balance civilization and nature
through our technology.
The U.S. Environmental Protection Agency, formed by Reorganiza-
tion Plan No. 3 of 1970, was a major commitment to this new ethic.
It exists and acts in the public's name to ensure that due regard is
given to the environmental consequences of actions by public and
private institutions.
In a large measure, this is a regulatory role, one that encompasses
basic, applied, and effects research; setting and enforcing standards;
monitoring; and making delicate risks—benefit decisions aimed at
creating the kind of world the public desires.
The Agency was not created to harass industry or to act as a shield
behind which man could wreak havoc on nature. The greatest dis-
service the Environmental Protection Agency could do to American
industry is to be a poor regulator. The environment would suf-
fer, public trust would diminish and instead of free enterprise,
environmental anarchy would result.
It was once sufficient that the regulatory process produce wise and
well-founded courses of action. The public, largely indifferent to
regulatory activities, accepted agency actions as being for the "public
convenience and necessity." Credibility gaps and cynicism make it
essential not only that today's decisions bs wise and well-founded
but that the public know this to be true. Certitude, not faith, is
de rigueur.
In order to participate intelligently in regulatory proceedings, the
citizen should have access to the information available to the agency.
EPA's policy is to make the fullest possible disclosure of information,
iii
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iv FOREWORD
without unjustifiable expense or delay, to any interested party. With
this in mind, the EPA Compilation of Legal Authority was produced
not only for internal operations of EPA, but as a service to the public,
as we strive together to lead the way, through the law, to preserving
the earth as a place both habitable by and hospitable to man.
WILLIAM D. RUCKELSHAUS,
Administrator
U.S. Environmental Protection Agency
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PREFACE
Reorganization Plan No. 3 of 1970 transferred 15 governmental units
with their functions and legal authority to create the U.S. Environ-
mental Protection Agency. Since only the major laws were cited
in the Plan, the Administrator, William D. Ruckelshaus, requested
that a compilation of EPA legal authority be researched and published.
The publication has the primary function of providing a working
document for the Agency itself. Secondarily, it will serve as a re-
search tool for the public.
A permanent office in the Office of Legislation has baen established
to keep the publication updated by supplements.
It is the hope of EPA that this set will assist in the awesome task
of developing a better environment.
LANE WARD, J.D.,
Assistant Director for Field Operations
Office of Legislation
U.S. Environmental Protection Agency.
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ACKNOWLEDGMENT
The idea of producing a compilation of the legal authority of EPA
was conceived and commissioned by William D. Ruckelshaus, Admin-
istrator of EPA. The production of this compilation involved the
cooperation and effort of numerous sources, both within and outside
the Agency. The departmental libraries at Justice and Interior were
used extensively; therefore we express our appreciation to Marvin
P. Hogan, Librarian, Department of Justice; Arley E. Long, Land &
Natural Resources Division Librarian, Department of Justice; Fred-
eric E. Murray, Assistant Director, Library Services, Department of
the Interior.
For exceptional assistance and cooperation, my gratitude to: Gary
Baise, formerly Assistant to the Administrator, currently, Director,
Office of Legislation, who first began with me on this project; A. James
Barnes, Assistant to the Administrator; K. Kirke Harper, Jr., Special
Assistant for Executive Communications; John Dezzutti, Administra-
tive Assistant, Office of Executive Communications; Roland O. Soren-
sen, Chief, Printing Management Branch, and Jacqueline Gouge and
Thomas Green, Printing Management Staff; Ruth Simpkins, Janis
Collier, Wm. Lee Rawls, James G. Chandler, Jeffrey D. Light, Randy
Mott, Thomas H. Rawls, and John D. Whittaker, Peter J. McKenna,
Linda L. Payne, John M. Himmelberg, and Dana W. Smith, a beauti-
ful staff who gave unlimited effort; and to many others, behind the
scenes who rendered varied assistance.
LANE WARD, J.D.,
Assistant Director for Field Operations
Office of Legislation
U.S. Environmental Protection Agency.
VI
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INSTRUCTIONS
The goal of this text is to create a useful compilation of the legal
authority under which the U.S. Environmental Protection Agency
operates. These documents are for the general usa of personnel of
the EPA in assisting them in attaining the purposes set out by the
President in creating the Agency. This work is not intended and
should not be used for legal citations or any use other than as ref-
erence of a general nature. The author disclaims all responsibility
for liabilities growing out of the use of these materials contrary to
their intended purpose. Moreover, it should be noted that portions
of the Congressional Record from the 92nd Congress were extracted
from the "unofficial" daily version and are subject to subsequent
modification.
EPA Legal Compilation consists of the Statutes with their legisla-
tive history, Executive Orders, Regulations, Guidelines and Reports.
To facilitate the usefulness of this composite, the Legal Compilation
is divided into the eight following chapters:
A. General E. Pesticides
B. Air F. Radiation
C. Water G. Noise
D. Solid Waste H. International
WATER
The chapter labeled "Water" and color coded blue contains the
legal authority of the Agency as it applies to water pollution abate-
ment. It is well to note that any law which is applicable to more than
one chapter of the compilation will appear in each of the chapters;
however, its legislative history will be cross referenced into the
"General" chapter where it is printed in full.
SUBCHAPTERS:
Statutes and Legislative History
For convenience, the Statutes are listed throughout the Compila-
tion by a one-point system, i.e., 1.1, 1.2, 1.3, etc., and Legislative His-
tory begins wherever a letter follows the one-point system.
vu
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viii INSTRUCTIONS
Thtfsly, any l.la, Lib, 1.2a, etc., denotes the public laws comprising
the 1.1, 1.2 statute. Each public law is followed by its legislative his-
tory. The legislative history in each case consists of the House Report,
Senate Report, Conference Report (where applicable), the Con-
gressional Record beginning with the time the bill was reported from
committee.
Example: 1.4 Amortization of Pollution Control Facilities, as
amended, 26 U.S.C. §169 (1969).
1.4a Amortization of Pollution Control Facilities,
December 30, 1969, P.L. 91-172, §704, 83 Stat.
667.
(1) House Committee on Ways and Means,
H.R. REP. No. 91-413 (Part I), 91st
Cong., 1st Sess. (1969).
(2) House Committee on Ways and Means,
H.R. REP. No. 91-413 (Part II), 91st
Cong., 1st Sess. (1969).
(3) Senate Committee on Finance, S. REP.
No. 91-552, 91st Cong., 1st Sess. (1969).
(4) Committee of Conference, H.R. REP. No.
91-782, 91st Cong., 1st Sess. (1969).
(5) Congressional Record, Vol. 115 (1969):
(a) Aug. 7: Debated and passed House,
pp. 22746, 22774-22775;
(b) Nov. 24, Dec. 5, 8, 9: Debated and
passed Senate, pp. 35486, 37321-
37322, 37631-37633, 37884-37888;
(c) Dec. 22: Senate agrees to conference
report, p. 40718;*
(d) Dec. 22: House debates and agrees
to conference report, pp. 40820,
40900.
This example not only demonstrates the pattern followed for legisla-
tive history, but indicates the procedure where only one section of a
public law appears. You will note that the Congressional Record
cited pages are only those pages dealing with the discussion and/or
action taken pertinent to the section of law applicable to EPA. In the
event there is no discussion of the pertinent section, only action or
passage, then the asterisk (*) is used to so indicate, and no text is
reprinted in the Compilation. In regard to the situation where only
one section of a public law is applicable, then only the parts of the
report dealing with same are printed in the Compilation.
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INSTRUCTIONS
IX
Secondary Statutes
Many statutes make reference to other laws and rather than have
this manual serve only for major statutes, these secondary statutes
have been included where practical. These secondary statutes are
indicated in the table of contents to each chapter by a bracketed cite
to the particular section of the major act which made the reference.
Citations
The United States Code, being the official citation, is used through-
out the Statute section of the compilation. In four Statutes, a parallel
table to the Statutes at Large is provided for your convenience.
TABLE OF STATUTORY SOURCE
STATUTES SOURCE
1.1 River and Harbor Act of 1899, 33
U.S.C. §§403, 407, 411 (1899).
1.2 Federal Water Pollution Control
Act, as amended, 33 U.S.C. §1151
et seq. (1970).
1.3 Pollution of the Sea by Oil, as
amended, 33 U.S.C. §1001 et seq.
(1966).
1.4 Advances of Public Moneys, Pro-
hibition Against, as revised, 31
U.S.C. §529 (1946).
1.5 Public Contracts, Advertisements
for Proposals for Purchases and
Contracts for Supplies or Services
for Government Departments; App
Application to Government Sales
and Contracts to Sell and to Gov-
ernment Corporations, as amended,
41 U.S.C. §5 (1958).
1.6 Courts of Appeals, Certiorari;
Appeal; Certified Questions, as
amended, 28 U.S.C. §1254 (1948).
1.7 Davis-Bacon Act, as amended, 40
U.S.C. §276a-275a-5 (1964).
1.8 Per Diem, Travel and Transporta-
tion Expenses; Experts and
Consultants; Individuals Serving
Without Pay, as amended, 5 U.S.C.
§5703 (1966).
1.9 1909 Boundry Waters Treaty Be-
tween Canada and the United
States, and the Water Utilization
Treaty of 1944 Between Mexico and
the United States, 36 Stat. 2448
(1909), 59 Stat. 1219 (1944).
E.O. 11574 sets out EPA's function under
this Act.
Transferred to EPA in Reorg. Plan No. 3
of 1970.
Implements the Convention of
Referred to in the Federal Water Pollu-
tion Control Act at §1155 (g) (3) (A).
Referred to in Federal Water Pollution
Control Act in §1155(g) (3) (A).
Referred to in the Federal Water Pollu-
tion Control Act at §1157 (g) (2).
Referred to in the Federal Water Pollu-
tion Control Act at §1158(g).
Referred to in the Federal Water Pollu-
tion Control Act at §1159 (a) (2) (B),
1160 (c) (4), (i).
Referred to in the Federal Water Pollu-
tion Control Act at §1160 (d) (2).
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INSTRUCTIONS
STATUTES
SOURCE
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
Disclosure of Confidential Infor-
mation Generally, as amended, 18
U.S.C. §1905 (1948).
Convention on the Territorial Sea
and the Contiguous Zone, Article
XXIV, 5 U.S.T. 1612, 1613 (1958).
International Convention for the
Prevention of Pollution of the Sea
by Oil, 1954, Article IV, as
amended, 17 U.S.T. 1528 (1954) .
Granting Clearances, as amended,
46 U.S.C. §91 (1951).
Outer Continental Shelf Lands Act,
as amended, 43 U.S.C. §1331 et seq.
(1953) .
Administrative Procedure Act, as
amended, 5 U.S.C. §§551-559, 701-
705 (1968).
Higher Education General Provi-
sion, Definitions, as amended, 20
U.S.C. §1141 (1970).
National Environmental Policy Act
of 1969, 42 U.S.C. §4321 et seq.
(1970) .
Public Health Service Act, as
amended, 42 U.S.C. §§241, 243, 246
(1970) .
The Water Resource Planning Act,
as amended, 42 U.S.C. §1962 et seq.
(1970) .
Appalachian Regional Develop-
ment Act of 1965, as amended, 40
App. U.S.C. §§212, 214 (1971).
Referred to in the Federal Water Pollu-
tion Control Act at §§1160 (f) (2), (k),
1.22
The Disaster Relief Act, 42 U.S.C.
§4401 et seq. (1970) .
Department of Transportation Act,
49U.S.C. §1653 (f) (1968).
Referred to in the Federal Water Pollu-
tion Control Act at §1161 (a) (9).
Referred to in the Federal Water Pollu-
tion Control Act at §1161 (b) (2) (A) .
Referred to in the Federal Water Pollu-
tion Control Act at §1161 (b) (5).
Referred to in the Federal Water Pollu-
tion Control Act at §1161 (i) (2).
Referred to in the Federal Water Pollu-
tion Control Act at §§1162(b), 1163(e).
Referred to in the Federal Water Pollu-
tion Control Act at §1169(1) (B).
Direct reference in the Reorg. Plan No. 3
of 1970.
Directly cited in Reorg. Plan No. 3 of
1970.
E.O. 11613.
All functions of the Secretary of the
Interior and the Department of the Inte-
rior administrative to the Federal Water
Quality Administration, all functions
which were transferred to the Secretary
of the Interior by Reorg. Plan No. 2 of
1966, and all functions vested in the Sec-
retary of the Interior of the Department
of the Interior by the Federal Water Pol-
lution Control Act were transferred to
the Administrator of the Environmental
Protection Agency by Reorg. Plan No. 3
of 1970.
Direct reference made to the Water
Quality Administration at the Depart-
ment of the Interior by E.G. 11490,
§§703(3), 1102(1), 1103(2), etc., this
administration being transferred to EPA
through Reorg. Plan No. 3 of 1970.
The Federal Water Pollution Control Act
in section 1153 regarding the preserva-
tion of fish and wildlife.
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INSTRUCTIONS
XI
STATUTES
SOURCE
1.23 Federal Aid Highway Act, as
amended, 23 U.S.C. §109 (h) (1970).
1.24 Amortization of Pollution Control
Facilities, as amended, 26 U.S.C.
§169(d)(l)(B), (3) (1969).
1.25 Airport and Airway Development
Act, 49U.S.C. §§1712(1), 1716(c)(4),
(e) (1970).
Interest on Certain Government
1.26
Obligations, as amended, 26 U.S.C.
§103 (1969).
1.27 Fish and Wildlife Coordination
Act, as amended, 16 U.S.C. §§661-
666c (1965).
The Act at §109 (h) requires the Secre-
tary of Transportation to consult with
the appropriate agency dealing with
water pollution, in this case, the Admin-
istrator of EPA, before promulgating
guidelines for any proposed project on
any federal aid system.
The section cited in the Act refers di-
rectly to the Federal Water Pollution
Control Act and the Federal certifying
authority requirement filing to the Sec-
retary of the Interior in the case of
water pollution, both functions being
transferred through Reorg. Plan
Direct reference made to water pollution
and the appropriate agency to deal with
same in the Act.
The sections of the Act provide a tax re-
lief on industrial development bonds for
sewage or solid waste disposal facility
and water pollution control facilities, at
the section cited.
E.O. 11574, Administration of Refuse Act
Permit Program.
Executive Orders
The Executive Orders are listed by a two-point system (2.1, 2.2,
etc.). Executive Orders found in General are ones applying to more
than one area of the pollution chapters.
Regulations
The Regulations are noted by a three-point system (3.1, 3.2, 'etc.).
Included in the Regulations are those not only promulgated by the
Environmental Protection Agency, but those under which the Agency
has direct contact.
Guidelines and Reports
This subchapter is noted by a four-point system (4.1, 4.2, etc.). In
this subchapter is found the statutorily required reports of EPA, pub-
lished guidelines of EPA, selected reports other than EPA's and
inter-departmental agreements of note,
UPDATING:
Periodically, a supplement will be sent to the interagency distribu-
tion and made available through the U.S. Government Printing Office
in order to provide an accurate working set of EPA Legal Compilation.
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CONTENTS
C. WATER
VOLUME I
1. STATUTES AND LEGISLATIVE HISTORY
Page
1.1 River and Harbor Act of 1899, U.S.C, §§403, 407, 411
(1899) , . 3
l.la River and Harbor Act of 1886, August 5, 1886, P.L. 49-929,
§§2, 3, 24 Stat. 329. 6
(1) House Committee on Rivers and Harbors, H.R. REP.
No. 1448, 49th Cong., 1st Sess. (1886). 7
(2) House Committee on Rivers and Harbors, H.R. REP.
No. 1565, 49th Cong., 1st Sess. (1886). 8
(3) Senate Committee on Commerce, S. REP. No. 1391,
49th Cong., 1st Sess. (1886). 9
(4) Congressional Record, Vol. 17 (1886):
(a) May 6: Amended and passed House, pp.
4243-4247; 9
(b) July 16: Amended and passed Senate, pp. 7035,
7037; 14
(c) Aug. 3: Conference report agreed to by Senate,
p. 7906; 15
(d) Aug 3: Conference report agreed to by House,
p. 7934. 15
Lib New York Harbor Act of 1888, June 29, 1888, P.L. 50-469,
§1, 25 Stat. 209. 15
(1) Senate Committee on Commerce, S. REP. No. 224,
50th Cong., 1st Sess. (1888). 16
(2) House Committee on Commerce, H.R. REP. No. 1963,
50th Cong., 1st Sess. (1888). 16
(3) Congressional Record, Vol. 19 (1888):
(a) March 21: Debated, amended and passed Senate,
p. 2300; 16
(b) June 4: Debated, amended and passed House,
pp. 4889-4890; 17
(c) June 14: Senate concurs in House amendments,
p. 5239. . 19
lie River and Harbor Act of 1890, September 19, 1890, P.L.
51-907, §6 26, Stat. 453. 19
(1) House Committee on Rivers and Harbors, H.R. REP.
No. 1488, 51st Cong., 1st Sess. (1890). 20
(2) Senate Committee on Commerce, S. REP. No. 1378,
51st Cong., 1st Sess. (1890). 21
(3) Committee of Conference, 51st Cong., 1st Sess., Con-
gressional Record, Vol. 21 (1890), p. 9558. 21
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xiv CONTENTS
Page
(4) Congressional Record, Vol. 21 (1890):
(a) May 28: Passed House, p. 5412; 23
(b) Aug. 15, 16: Amended and passed Senate, pp.
8607, 8684-8685; 23
(c) Sept. 6: House agrees to conference report, p.
9822; . . 29
(d) Sept. 8: Senate agrees to conference report, p.
9830. . 29
l.ld River and Harbor Act of 1894, August 18,1894, P.L. 53-299,
§§6, 7, 8, 9, 28 Stat. 363. . .... 29
(1) Damage to Harbor Improvements, Letter from the
Acting Secretary of War, House Committee on Rivers
and Harbors, H.R. EX. DOC. No. 123, 53rd Cong., 2d
Sess. (1894). . 31
(2) House Committee on Rivers and Harbors, H.R. REP.
No. 639, 53rd Cong., 2d Sess. (1894). 34
(3) Senate Committee on Commerce, S. REP. No. 519,
53rd Cong., 2d Sess. (1894). . 35
(4) Committee of Conference, 53rd Cong., 2d Sess., Con-
gressional Record, Vol. 26, (1894), pp. 8173-8175. . 35
(5) Congressional Record, Vol. 26 (1894):
(a) May 4: Amended and passed House, p. 4430; 35
(b) July 13: Amended and passed Senate, p. 7414; 35
(c) Aug. 6: Senate agrees to conference report, p.
8230; .. . . 35
(d) Aug. 6: House agrees to conference report, p.
8251. . 35
lie River and Harbor Act of 1899, March 3, 1899, P.L. 55-425,
§§10, 13, 16, 30 Stat. 1151. 36
(1) House Committee on Rivers and Harbors, H.R. REP.
No. 1826, 55th Cong., 3rd Sess. (1899). ... 38
(2) Senate Committee on Commerce, S. REP. No. 1686,
55th Cong., 3rd Sess. (1899). 38
(3) Committee of Conference, H.R. REP. No. 2815-16,
55th Cong., 3rd Sess. (1899). 39
(4) Congressional Record, Vol. 32 (1899):
(a) Feb. 1, 2: Debated, amended and passed House,
pp. 1350; 1354; 1356-1357; 1410; 39
(b) Feb. 23, 24: Debated, amended and passed Sen-
ate, p. 2297; 41
(c) March 3: Senate agrees to conference report, pp.
2815-2816; 2843; 44
(d) March 3: House agrees to conference report, p.
2923. 44
l.lf Supplemental Appropriations Act of 1971, January 8,1971,
P.L. 91-665, 84 Stat. 1981. 45
(1) House Committee on Appropriations, H.R. REP. No.
91-1668, 91st Cong., 2d Sess. (1970). 46
(2) Senate Committee on Appropriations, S. REP. No.
91-1430, 91st Cong., 2d Sess. (1970). 47
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CONTENTS xv
Page
(3) Committee of Conference, H.R. REP. No. 91-1794; 91st
Cong., 2d Sess. (1970). 49
(4) Congressional Record, Vol. 116 (1970):
(a) Dec. 10: Passed House, p. 40926; 50
(b) Dec. 14: Amended and passed Senate, pp. 41317,
41322-41323, 41330; 50
(c) Dec. 22: House agrees to conference report, p.
43391; 52
(d) Dec. 28: Senate agrees to conference report, pp.
43706, 43709. 53
1.2 The Federal Water Pollution Control Act, as amended, 33 U.S.C.
§1151 etseq. (1970). ' 55
1.2a The Water Pollution Control Act, June 30, 1948, P.L.
80-845, 62 Stat. 1155. 132
(1) Senate Committee on Public Works, S. REP. No. 462,
80th Cong., 1st Sess. (1947). 141
(2) House Committee on Public Works, H.R. REP. No.
1829, 80th Cong., 2d Sess. (1948). 151
(3) Committee of Conference, H.R. REP. No. 2399, 80th
Cong., 2d Sess. (1948). 172
(4) Congressional Record:
(a) Vol. 93 (1947), July 16: Amended and passed
Senate, pp. 9032; 9034-9035; 175
(b) Vol. 94 (1948), June 14: Amended and passed
House, pp. 8192; 8195-8203; 176
(c) Vol. 94 (1948), June 15: Senate disagrees to
House amendments and demands conference, pp.
8295-8296; 196
(d) Vol. 94 (1948), June 16: House agrees to confer-
ence, p. 8458; 196
(e) Vol. 94 (1948), June 18: House agrees to confer-
ence report, p. 8864; 196
(f) Vol. 94 (1948), June 18: Conference report sub-
mitted in Senate, p. 8772; 198
(g) Vol. 94 (1948), June 19: Senate agrees to confer-
ence report, pp. 9002-9003. 199
1.2b Reorganization Plan No. 14 of 1950, May 24, 1950, 15 Fed.
Reg. 3176, 64 Stat. 1267. 200
1.2c Water Pollution Control Act Extension, July 17, 1952, P.L.
82-579, 66 Stat. 755. 200
(1) House Committee on Public Works, H.R. REP. No.
1990, 82nd Cong., 2d Sess. (1952). 201
(2) Senate Committee on Public Works, S. REP. No. 2092,
82nd Cong., 2d Sess. (1952). 205
(3) Congressional Record, Vol. 98 (1952):
(a) June 12: Passed House, pp. 6384-6365; 211
(b) July 4: Passed Senate, p. 9317. 213
1.2d Water Pollution Control Act of 1956, July 9, 1956, P.L.
84-660, 70 Stat. 498. 213
(1) Senate Committee on Public Works, S. REP. No. 543,
84th Cong., 1st Sess. (1955). 227
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xvi CONTENTS
V
Page
(2) House Committee on Public Works, H.R. REP. No.
1446, 84th Cong., 1st Sess. (1955). 250
(3) Committee of Conference, H.R. REP. No. 2479, 84th
Cong., 2d Sess. (1956). 272
(4) Congressional Record:
(a) Vol. 101 (1955), June 17: Amended and passed
Senate, pp. 8623, 8627; 292
(b) Vol. 102 (1956), June 13: Amended and passed
House; House insists on its amendments and
asks for conference, pp. 10278, 10281; 293
(c) Vol. 102 (1956), June 14: Senate disagrees to
House amendments and agrees to conference, pp.
10323, 10327; 293
(d) Vol. 102 (1956), June 27: Conference report sub-
mitted in House and agreed to, pp. 11149, 11154; 295
(e) Vol. 102 (1956), June 27: Conference report sub-
mitted in Senate, and agreed to, pp. 11075-11076. 296
1.2e Alaska's Water Pollution Control Act Amendments, June
25, 1959, P.L. 86-70, §28 (a), (b), 73 Stat. 148. 297
(1) House Committee on Interior and Insular Affairs,
H.R. REP. No. 369, 86th Cong., 1st Sess. (1959). 297
(2) Senate Committee on Interior and Insular Affairs, S.
REP. No. 331, 86th Cong., 1st Sess. (1959). 300
(3) Congressional Record, Vol. 105 (1959):
(a) June 1: Debated, amended and passed House, p.
9478; 302
(b) June 3: Amended and passed Senate, pp. 9676; 302
(c) June 11: House concurs in Senate amendments,
with amendment, p. 10570; 302
(d) June 12: Senate concurs in House amendments,
p. 10594. 302
1.2f Hawaii's Water Pollution Control Act Amendments, June
12, 1960, P.L. 86-624, §23 (a), 74 Stat. 417. 302
(1) House Committee on Interior and Insular Affairs,
H.R. REP No. 1564, 86th Cong., 2d Sess. (1960). 303
(2) Senate Committee on Interior and Insular Affairs, S.
REP. No. 1681, 86th Cong., 2d Sess. (1960). 305
(3) Congressional Record, Vol. 106 (1960):
(a) May 16: Passed House, p. 10355; . 307
(b) June 28: Amended and passed Senate, p. 14684; 307
(c) June 29: House concurs in Senate amendments,
p. 15009. 307
1.2g The Federal Water Pollution Control Act of 1931, July 20,
1961, P.L. 87-88, 75 Stat. 204. 307
(1) House Committee on Public Works, H.R. REP. No.
306, 87th Cong., 1st Sess. (1961). 316
(2) Senate Committee on Public Works, S. REP. No. 353,
87th Cong., 1st Sess. (1961). 368
(3) Committee of Conference, H.R. REP. No. 675, 87th
Cong., 1st Sess. (1961). 398
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CONTENTS xvii
Page
(4) Congressional Record, Vol. 107 (1961):
(a) May 3, Debated in House, pp. 7140-7162;
7165-7172; 415
(b) May 3: Amended and passed House, pp.
7195-7196; 483
(c) June 22: Amended and passed Senate; Senate
insisted on its amendments and asks for confer-
ence, p. 11074; 484
(d) July 13: Conference report submitted to House
and agreed to, pp. 12471; 12475-12496; 485
(e) July 13: Conference report submitted to Senate
and agreed to, pp. 12565-12567. 528
1.2h The Water Quality Act of 1965, October 2, 1985, P.L.
89-234, 79 Stat. 903. 533
(1) House Committee on Public Works, H.R. REP. No.
215, 89th Cong., 1st Sess. (1965). 544
VOLUME II
(2) Senate Committee on Public Works, S. REP. No. 10,
89th Cong., 1st Sess. (1965). 579
(3) Committee of Conference, HR. REP. No. 1022, 89th
Cong., 1st Sess. (1965). 622
(4) Congressional Record, Vol. Ill (1965):
(a) Jan. 28: Considered and passed Senate, pp.
1503-1519; 1521; 1525-1545; 638
(b) April 28: Considered and passed House,
amended, pp. 8652-8690; 8736-8737; 703
(c) Sept. 21: House and Senate agree to conference
report, pp. 24560-24562; 24583; 24587-24592. 790
1.2i 1966 Reorganization Plan No. 2, May 10, 1966, 31 Fed. Reg.
6857, 80 Stat. 1608. 805
(1) Interdepartmental Agreement Concerning Consulta-
tion on Health Aspects of Water Pollution Control,
Secretary of the Interior, Secretary of Health, Educa-
tion, and Welfare, July 1, 1966. 809
1.2j The Clean Water Restoration Act of 1966, November 3,
1966, P.L. 89-753, 80 Stat. 1246. 812
(1) House Committee on Public Works, H R. REP. No.
2021, 89th Cong., 2d Sess. (1966). 824
(2) Senate Committee on Public Works, S. REP. No. 1367,
89th Cong., 2d Sess. (1966). 944
(3) Committee of Conference, H.R. REP. No. 2289, 89th
Cong., 2d Sess. (1966). 1005
(4) Congressional Record, Vol. 112 (1986):
(a) July 13: Considered and passed Senate, pp.
15585-15603; 15605-15620; 15624-15633; . . 1033
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xviii CONTENTS
Page
(b) Sept. 30: Considered and passed House, pp.
24546-24547; 24592-24619; 24622-24624; 24629; 1124
VOLUME III
(c) Oct. 17: House and Senate agree to conference
report, pp. 27131; 27137-27141; 27244-27247. 1195
1.2k The Water Quality Improvement Act of 1970, April 3,1970,
P.L. 91-224, 84 Stat. 91. 1212
(1) House Committee on Public Works, H.R. REP. No.
91-127, 91st Cong., 1st Sess. (1969). 1247
(2) Senate Committee on Public Works, S. REP. No.
91-351, 91st Cong., 1st Sess. (1969). 1324
(3) Committee of Conference, H.R. REP. No. 91-940, 91st
Cong., 2d Sess. (1970). . . 1470
(4) Congressional Record:
(a) Vol. 115 (1969), April 15, 16: Considered and
passed House, pp. 9015-9052; 9259; 9264-9292; 1611
VOLUME IV
(b) Vol. 115 (1969), Oct. 7, 8: Considered and passed
Senate, amended, pp. 28947; 28953-29008; 29046-
29065; 29089-29102; 1762
(c) Vol. 116 (1970), March 24: Senate agreed to con-
ference report, pp. 8975; 8983-8984; 9003-9008; 1964
(d) Vol. 116 (1970), March 25: House agreed to con-
ference report, pp. 9325-9334. 1976
(5) Message from the President of the United States
"Conservation and Water Management," H.R. REP.
Doc. No. 273, 90th Cong., 2d Sess. (1968). 1997
1.21 Rivers and Harbors Act of 1970, December 31, 1970, P.L.
91-611, Title I, §§120, 123, 84 Stat. 1823. 2017
(1) House Committee on Public Works, H.R. REP. No.
91-1665, 91st Cong., 2d Sess. (1970). 2020
(2) Senate Committee on Public Works, S. REP. No.
91-1422, 91st Cong., 2d Sess. (1970). 2023
(3) Committee of Conference, H.R. REP. No. 91-1782,
91st Cong., 2d Sess. (1970). 2024
(4) Congressional Record, Vol. 116 (1970):
(a) Dec. 7: Passed House, pp. 40139; 40143; 40145-
40147; 40149; 2029
(b) Dec. 9: Amended and passed Senate, pp. 40594,
40598 2033
(c) Dec. 18: House agreed to conference report, pp.
42509, 42512; 2034
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CONTENTS xix
Page
(d) Dec. 19: Senate agreed to conference report, pp.
42724. 2035
1.2m Extension of Authorized Funds for Federal Water Pollu-
tior Control Act of 1971, July 9, 1971, P.L. 92-50, §§2, 3,
85 Stat. 124. 2035
(1) Senate Committee on Public Works, S. REP. No.
92-234, 92d Cong., 1st Sess. (1971). 2036
(2) CongrebSional Record, Vol. 117 (1971):
(a) June 23: Considered and passed Senate, p. S9807; 2037
(b) July 1: Considered and passed House, pp. H6229-
H6230. 2038
1.2n Extension of Federal Water Pollution Control Act of 1971,
October 13, 1971, P L. 92-137, 85 Stat. 379. 2040
(1) Senate Committee on Public Works, S. REP. No.
92-383, 92d Cong., 1st Sess. (1971). 2041
(2) Congressional Record, Vol. 117 (1971):
(a) Sept. 29: Passed Senate, p. S15406; 2042
(b) Sept. 30: Passed House, pp. H8939-H8940. 2043
1.2o Extension of Certain Provisions of Federal Water Pollu-
tion Control Act of 1971, March 1, 1972, P.L. 92-240, 86
Stat. 47. 2044
(1) Senate Committee on Public Works, S. REP. No.
92-602, 92d Cong., 2d Sess. (1972). 2045
(2) House Committee on Public Works, H.R. REP. No.
92-812, 92d Cong., 2d Sess. (1972). 2046
(3) Committee of Conference, H.R. REP. No. 92-834, 92d
Cong., 2d Sess. (1972). 2051
(4) Congressional Record, Vol. 118 (1972):
(a) Feb. 3: Considered and passed Senate, pp. S1165-
S1166; 2054
(b) Feb. 7: Considered and passed House, amended,
pp. H801-H808; 2055
(c) Feb. 16: House agreed to conference report, pp.
H1056-H1057; 2069
(d) Feb. 16: Senate agreed to Conference Report, p.
S1901. 2072
1.3 Pollution of the Sea by Oil, as amended, 33 U.S.C. §1001, et seq.
(1966). 2073
1.3a The Oil Pollution Control Act of 1961, August 30, 1961,
P.L. 87-167, 75 Stat. 402. 2080
(1) Senate Committee on Commerce, S, REP. No. 666,
87th Cong., 1st Sess. (1961). 2087
(2) House Committee on Merchant Marine and Fisheries,
H.R. REP. No. 838, 87th Cong., 1st Sess. (1961). 2099
(3) Congressional Record, Vol. 107 (1961):
(a) Aug. 14: Amended and passed Senate, pp. 15663-
15665; 2108
(b) Aug. 21: Passed House, pp. 16520-16521. 2109
1.3b 1966 Amendments to the Oil Pollution Act of 1961, Sep-
tember 1,1966, P.L. 89-551, 80 Stat. 372. 2109
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xx CONTENTS
Page
(1) House Committee on Merchant Marine and Fisheries,
H.R. REP. No. 1620, 89th Cong., 2d Sess. (1966). 2113
(2) Senate Committee on Commerce, S. REP. No. 1479,
89th Cong., 2d Sess. (1966). 2136
(3) Congressional Record, Vol. 112 (1966):
(a) June 20: Considered and passed House, p. 13839-
13640; 2158
(b) Aug. 19: Considered and passed Senate, p. 19991. 2158
1.4 Advances of Pubi.c Moneys, Prohibition Against, as revised,
31 U.S.C. §529 (1946). 2158
[Referred to in 33 U.S.C. §1155 (g) (3) (A) ]
1.4a Act of January 31, 1823, January 31, 1823, Chapter 9, §1,
3 Stat. 723. 2158
(1) House Committee on Public Expenditures, H.R. REP.
No. 100, 17th Cong., 1st Sess. (1822).» 2159
(2) Sente Committee on Finance, 17th Cong., 2d Sess.
(1823).2 2159
(3) Annals of Congress (1822-23):
(a) Dec. 9, 17: Debated, amended, passed House, pp.
336-338, 391-394; 2159
(b) Jan. 21, 23: Amended and passed Senate, pp.
147-150; 2163
(c) Jan. 27: House concurs in Senate amendments,
pp. 699-700. 2163
1.4b To Authorize Certain Administrative Expenses in the
Government Services, and for Other Purposes, August 2,
1946, P.L. 79-600, §11, 60 Stat. 809. 2163
(1) Committee on Expenditures in the Executive Depart-
ments, H.R. REP. No. 2186, 79th Cong., 2d Sess.
(1946). 2163
(2) Committee on Expenditures in the Executive Depart-
ments, S. REP. No. 1636, 79th Cong., 2d Sess. (1946). 2165
(3) Congressional Record, Vol. 92 (1946):
(a) June 3: Amended and passed House, p. 6166; 2166
(b) June 17: Amended and passed Senate, p. 9190; . 2166
(c) July 26: House concurs in Senate amendments,
p. 10186. 2166
1.5 Public Contracts, Advertisements for Proposals for Purchases
and Contracts for Supplies or Services for Government Depart-
ments; Application to Government Sales and Contracts to Sell
and to Government Corporations, as amended, 41 U.S.C. §5
(1958). 2166
[Referred to in 33 U.S.C. §1155(g) (3) (A)]
(See, "General 1.14a-1.14c(2) (b)" for legislative history)
1.6 Courts of Appeals, Certiorari; Appeal; Certified Questions, as
amended, 28 U.S.C. §1254 (1948). 2167
[Referred to in 33 U.S.C. §1157 (g) (2) ]
1.6a An Act to Codify, Revise and Amend the Laws Relating to
1 Document in Dept. of Interior Library, but in nonreproducible condition
2 Report unpublished.
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CONTENTS xxi
Page
the Judiciary, March 3, 1911, P.L. 61-475, §§239, 240, 36
Stat. 1157. 2168
1.6b Act to Amend the Judicial Code and to Further Define
the Jurisdiction of Circuit Courts of Appeal and of the
Supreme Court and for Other Purposes, February 13,1925,
P.L. 68-415, §1, 43 Stat. 933-939. 2168
(1) Senate Committee on the Judiciary, S. REP. No. 362,
68th Cong., 1st Sess (1924). 2174
(2) House Committee on the Judiciary, H.R. REP. No.
1075, 68th Cong., 2d Sess. (1925). 2178
(3) Congressional Record, Vol. 66 (1925):
(a) Feb. 2: Amended and passed House, p. 2880; 2188
(b) Feb. 3: Amended and passed Senate, p. 2928; 2188
(c) Feb. 4: House concurs in Senate amendments,
p. 3005. 2189
1.6c An Act in Reference to Writs of Error, January 31, 1928,
P.L. 70-10, §1, 45 Stat. 54. 2191
(1) House Committee on the Judiciary, H.R. REP. No.
370, 70th Cong., 1st Sess. (1928). 2191
(2) Congressional Record, Vol. 69 (1928):
(a) Jan. 14: Passed Senate, p. 1486; 2192
(b) Jan. 25: Passed House, p. 2040. 2192
1.6d 1934 Amendments to 1893 Act, June 7, 1934, P.L. 73-298,
48 Stat. 926. . 2192
(1) Senate Committee on the Judiciary, S. REP. No. 917,
73rd Cong., 2d Sess. (1934). 2193
(2) House Committee on the Judiciary, H.R. REP. No.
1748, 73rd Cong., 2d Sess. (1934). 2194
(3) Congressional Record, Vol. 78 (1934):
(a) May 10: Passed Senate, p. 8479; 2196
(b) June 5: Passed House, p. 10537. 2197
1.7 Davis-Bacon Act, as amended, 40 U.S.C. §§276a-276a-5 (1964). 2198
[Referred to in 33 U.S.C. §1158 (g) ]
(See, "General 1.13a-1.13h" for legislative history)
1.8 Per Diem, Travel, and Transportation Expenses; Experts and
Consultants; Individuals Serving Without Pay, as amended, 5
U.S.C. §5703 (1966). 2202
[Referred to in 33 U.S.C. §§1159(a) (2) (B), 1160(c) (4), (i)]
(See, "General 1.15a-1.15d(3) (c)" for legislative history)
1.9 1909 Boundary Waters Treaty Between Canada and the United
States and the Water Utilization Treaty of 1944 Between Mexico
and the United States, 36 Stat. 2448 (1909), 59 Stat. 1219 (1944). 2203
[Referred to in 33 U.S.C. §1160 (d) (2) ]
1.9a Congressional Record, Vol. 91 (1945), April 18: Senate
advises and consents to treaty and supplementary proto-
col, pp. 3480-3492. 2247
1.10 Disclosure of Confidential Information Generally, as amended,
18 U.S.C. §1905 (1948). 2273
[Referred to in 33 U.S.C. §§1160 (f) (2), (k) (1); 1163 (g) (3)]
(See, "General 1.16a-1.16a(3) (c)" for legislative history)
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Page
1.11 Convention on the Territorial Sea and the Contiguous Zone,
Article XXIV, 15 U.S.T. 1612, 1613 (1958). 2274
[Referred to in 33 U S.C. §1161 (a) (9)]
l.lla Congressional Record, Vol. 106 (1960), May 26: Ratifica-
tion Advised by Senate, pp. 11187, 11189-11192. 2274
1.12 International Convention for the Prevention of Pollution of the
Sea by Oil, 1954, Article IV, as amended, 17 U.S.T. 1528 (1954). 2278
[Referred to in 33 U.S.C. §1161 (b) (2) (A)]
1.12a Congressional Record, Vol. 110 (1964), Feb. 2: Ratifica-
tion Advised by Senate, pp 3471-3472, 3496. 2294
1.13 Granting Clearances, as amended, 46 U S C. §91 (1954). 2295
[Referred to in 33 U.S C. §1161 (b) (5) ]
1.13a Customs Enforcement Act of 1935, August 5, 1935, P.L.
74-238, Title II, §209, 49 Stat. 526. 2297
(1) House Committee on Ways and Means, H.R. REP. No.
868, 74th Cong., 1st Sess. (1935). 2297
(2) Senate Committee on Finance, S. REP. No. 1036, 74th
Cong , 1st Sess. (1935). 2300
(3) Congressional Record, Vol. 78 (1935):
(a) June 11: Amended and passed House, p 9077; 2302
(b) July 26: Passed Senate, p. 11939. 2302
1.13b 1938 Amendments to §§91, 92 of Title 46 U.S.C., June 16,
1938, P.L. 75-656, §1, 52 Stat. 758. 2302
(1) House Committee on Merchant Marine and Fisheries,
H R. REP. No. 2521, 75th Cong., 3rd Sess. (1938). 2304
(2) Senate Committee on Commerce, S. REP. No. 2020,
75th Cong., 3rd Sess. (1938). 2306
(3) Congressional Record, Vol. 83 (1938):
(a) June 6: Passed House, p. 8226; 2308
(b) June 13: Passed Senate, p 8492. 2308
1.13c 1946 Reorganization Plan No. 3, §§101-104, May 16, 1946,
11 Fed. Reg. 7875, 60 Stat. 1097. 2308
1.13d Customs Simplification Act of 1954, September 1, 1954,
P.L. 83-768, Title V, §501 (a), 68 Stat 1140. 2310
(1) House Committee on Ways and Means, H.R. REP. No.
2453, 83rd Cong., 2d Sess. (1954). 2310
(2) Senate Committee on Finance, S. REP. No. 2326, 83rd
Cong., 2d Sess. (1954). 2312
(3) Congressional Record, Vol. 100 (1954) :
(a) July 26: Passed House, p. 12036; 2312
(b) Aug. 12: Amended and passed Senate, p. 14264; 2312
(c) Aug. 16: House concurs in Senate amendments,
p. 14631.1 2312
1.14 Outer Continental Shelf Lands Act, 43 U.S.C. §1331 et seq.
(1953). 2313
[Referred to in 33 U.S.C. §1161 (i) (2)]
1.14a Outer Continental Shelf Lands Act, August 7, 1953, P.L.
82-212, §§2-15, 67 Stat. 462. 2328
(1) House Committee on the Judiciary, H.R. REP, No,
413, 83rd Cong., 1st Sess. (1953). 2340
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CONTENTS xxiii
Page
VOLUME V
(2) Senate Committee on Interior and Insular Affairs, S.
REP. No. 411, 83rd Cong., 1st Sess. (1953). 2349
(3) Committee of Conference, H.R. REP. No. 1031, 83rd
Cong., 1st Sess. (1953). 2434
(4) Congressional Record, Vol. 99 (1953):
(a) May 13: Amended and passed House, pp. 4881-
4895; 2450
(b) June 26: Amended and passed Senate, pp. 7250-
7265; 2481
(c) July 29: House agrees to conference report, p.
10420; 2514
(d) July 30: Senate agrees to conference report, pp.
10471-10476, 10478-10482, 10488-10490, 10492-
10500. 2514
1.15 Administrative Procedure, as amended, 5 U.S.C. §§551-559, 701-
705 (1968). 2556
[Referred to in 33 U.S.C. §§1162(b), 1163(e) ]
1.15a Act to Enact Title 5, United States Code, September 6,
1966, P.L. 89-554, 80 Stat. 381-388, 392-393. 2570
(1) House Committee on the Judiciary, H.R. REP, No.
901, 89th Cong., 1st Sess. (1965). 2581
(2) Senate Committee on the Judiciary, S. REP No. 1380,
89th Cong., 2d Sess. (1966). 2591
(3) Congressional Record:
(a) Vol. 112 (1965), Sept. 7: Passed House, p. 22954; 2600
(b) Vol. 113 (1966), July 25: Amended and passed
Senate, p. 17010; 2600
(c) Vol. 113 (1966), Aug. 11: House concurs in Sen-
ate amendments, p. 19077. 2600
1.15b To Amend Section 552 of Title 5, United States Code, June
5,1967, P.L. 90-23, §1, 81 Stat. 54. 2601
(1) House Committee on the Judiciary, H.R REP. No.
125, 90th Cong., 1st Sess. (1967). 2604
(2) Senate Committee on the Judiciary, S. REP. No. 248,
90th Cong., 1st Sess. (1967). 2611
(3) Congressional Record, Vol. 113 (1967):
(a) April 3: Passed House, pp. 8109^8110; 2620
(b) May 19: Amended and passed Senate, pp. 13253-
13254; 2621
(c) May 25: House concurs in Senate amendments,
p. 14056. 2621
1.15c Act to Amend Title 5, 10, and 37, United States Code to
Codify Recent Laws, October 22, 1938, P.L. 90-623, §1(1),
82 Stat. 1312. 2622
(1) House Committee on the Judiciary, H.R. REP. No.
1721, 90th Cong., 2d Sess. (1968). 2622
(2) Senate Committee on the Judiciary, S. REP. No. 1624,
90th Cong., 2d Sess. (1968). 2623
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xxiv CONTENTS
Page
(3) Congressional Record, Vol. 114 (1968):
(a) Sept. 16: Amended and passed House, pp. 26929-
26930; 2624
(b) Oct. 11: Passed Senate, p. 30832. 2624
1.16 Higher Education General Provisions, Definitions, as amended,
20 U.S.C. §1141 (1970). 2625
[Referred to in 33 U.S.C. §1169(1) (B) ]
1.16a Higher Education Act of 1985, November 8, 1965, P.L.
89-329, Title XII, §801, 79 Stat. 1269. 2627
(1) House Committee on Education and Labor, H.R. REP.
No. 621, 89th Cong., 1st Sess. (1965). 2628
(2) Senate Committee on Labor and Public Welfare, S.
REP. No. 673, 89th Cong., 1st Sess. (1965). 2629
(3) Committee of Conference, H.R. REP. No. 1178, 89th
Cong., 1st Sess. (1965). 2630
(4) Congressional Record, Vol. Ill (1965):
(a) Aug. 26: Debated, amended and passed House,
p. 21925; 2632
(b) Sept. 2: Debated, amended and passed Senate,
pp. 22714-22717; 2633
(c) Oct. 20: House agrees to conference report, p.
27678; 2633
(d) Oct. 20: Senate agrees to conference report, pp.
27595-27596. 2633
1.16b Higher Education Amendments of 1968, October 16, 1968,
P.L. 90-575, Title II, §§251, 293, 294, 82 Stat. 1042,1043,1050,
1051. 2633
(1) Senate Committee on Labor and Public Welfare, S.
REP. No. 1387, 90th Cong., 2d Sess. (1968). 2636
(2) House Committee on Education and Labor, H.R. REP.
No. 1649, 90th Cong., 2d Sess. (1968). 2644
(3) Committee of Conference, H.R. REP. No. 1919, 90th
Cong, 2d Sess. (1968). 2647
(4) Congressional Record, Vol. 114 (1968):
(a) July 15: Amended and passed Senate, p. 21272; 2651
(b) July 25: Amended and passed House, p. 23374; 2651
(c) Sept. 26: House agrees to conference report, pp.
28329, 28336-28337, 28339; 2651
(d) Oct. 1: Senate agrees to conference report, pp.
28975, 28982, 28983, 28985. . 2651
1.16c Higher Education Act Amendments of 1970, April 13,1970,
P.L. 91-230, Title VIII, §806 (b), 84 Stat. 192. 2651
(1) House Committee on Education and Labor H.R REP.
No. 91-114, 91st Cong., 1st Sess. (1969). 2652
(2) Senate Committee on Labor and Public Welfare, S.
REP. No. 91-634, 91st Cong., 2d Sess. (1970). 2653
(3) Committee of Conference, H.R. REP. No. 91-937, 91st
Cong, 2d Sess. (1970). 2654
(4) Congressional Record:
(a) Vol.115 (1969), April 23: Considered and passed
House, p. 10098; . . 2655
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CONTENTS xxv
Page
(b) Vol. 116 (1970), Feb. 19: Amended and passed
Senate, p. 4141; 2655
(c) Vol. 116 (1970), April 1: Senate agreed to con-
ference report, p. 9999; 2655
(d) Vol. 116 (1970), April 7: House agreed to con-
ference report, p. 10623. 2655
1.17 National Environmental Policy Act of 1969, 42 U.S.C. §4321 et
seq. (1970). 2656
[Referred to in 33 U.S.C. §1165a(a), (b) ]
(See, "General 1.2a-1.2a(4) (e)" for legislative history)
1.18 Public Health Service Act, as amended, 42 U.S.C. §§241, 243, 246
(1970). 2663
(See, "General 1.12a-1.12ae (3) (c)" for legislative history)
1.19 The Water Resource Planning Act, as amended, 42 U.S.C. §1962,
etseq. (1971). 2681
1.19a Water Resources Planning Act, July 22, 1965, P.L. 89-80,
79 Stat. 244. 2705
(1) House Committee on Interior and Insular Affairs,
H.R. REP. No. 169, 89th Cong, 1st Sess. (1965). 2709
(2) Senate Committee on Interior and Insular Affairs, S.
REP. No. 68, 89th Cong, 1st Sess. (1965). 2736
(3) Committee of Conference, H.R. REP. No. 603, 89th
Cong., 1st Sess. (1965). 2748
(4) Congressional Record, Vol. Ill (1965):
(a) Feb. 25: Passed Senate, pp. 3621, 3626; 2764
(b) March 31: Amended and passed House, pp. 6406,
6412; 2766
(c) April 9: Senate request conference, p. 7676; 2766
(d) April 13: House appoints conferees, pp. 7926; 2766
(e) July 13: House agrees to conference report, pp.
16540, 16553-16554; 2767
(f) July 14: Senate agrees to conference report, pp.
16733-16735. . 2769
1.19b Rivers and Harbors Act of 1970, December 31, 1970, P.L.
91-611, Title II, §§209, 221, 84 Stat. 1829, 1831. 2773
(1) House Committee on Public Works, H.R. REP. No.
91-1665, 91st Cong, 2d Sess. (1970). 2774
(2) Senate Committee on Public Works, S. REP. No. 91-
1422, 91st Cong, 2d Sess. (1970). 2777
(3) Committee of Conference, H.R. REP. No. 91-1782, 91st
Cong, 2d Sess. (1970). . 2778
(4) Congressional Record, Vol. 116 (1970):
(a) Dec. 7: Amended and passed House, p. 40148; 2780
(b) Dec. 19: Amended and passed Senate, pp. 40593-
40599, 40613, 40619-40620; 2782
(c) Dec. 18: House agrees to conference report, pp.
42509-42510, 42513-42514; 2782
(d) Dec. 19: Senate agrees to conference report, pp.
42724, 42727, 42728. 2786
1.19c Water Resources Planning Act Amendments of 1971, June
17, 1971, P.L. 92-27, 85 Stat. 77. 2787
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xxvi CONTENTS
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(1) House Committee on Interior and Insular Affairs,
H.R. REP. No. 92-197, 92d Cong., 1st Sess. (1971). 2787
(2) Ssnate Committee on Interior and Insular Affairs, S.
REP. No. 92-139, 92d Cong., 1st Sess. (1971). 2791
(3) Congressional Record, Vol. 117 (1971):
(a) May 17: Considered and passed House, pp.
H3981-H3982; 2795
(b) June 7: Considered and passed Senate, pp.
S8377-S8378. . 2796
1.20 Appalachian Regional Development Act of 1965, as amended,
40 App. U.S.C. §§212, 214 (1971). 2798
1.20a Appalachian Regional Development Act of 1965, March
9, 1965, P.L. 89-4, §§212, 214, 79 Stat. 16, 17. 2800
(1) Senate Committee on Public Works, S. REP. No. 13,
89th Cong., 1st Sess. (1965). . 2802
(2) House Committee on Public Works, H.R. REP. No.
51, 89th Cong., 1st Sess. (1965). - - 2807
(3) Congressional Record, Vol. Ill (1965):
(a) Feb. 1: Amended and passed Senate, p. 1715;* 2809
(b) March 3: Passed House, p. 4030.* 2809
1.20b 1966 Reorganization Plan No. 2, May 10, 1966, 80 Stat.
1608. 2809
1.20c To Revise and Extend the Appalachian Regional De-
velopment Act of 1965, and to Amend the Public Works
and Economic Development Act of 1965, October 11, 1967,
P.L. 90-103, Title I, §§114, 116, 81 Stat. 262, 263. 2812
(1) Senate Committee on Public Works, S. REP. No. 159,
90th Cong., 1st Sess. (1967). 2814
(2) House Committee on Public Works, H.R. REP. No.
548, 90th Cong., 1st Sess. (1967). 2820
(3) Committee of Conference, H.R. REP. No. 706, 90th
Cong., 1st Sess. (1967). 2829
(4) Congressional Record, Vol. 113 (1967):
(a) April 26, 27: Debated, amended and passed Sen-
ate, p. 10964; ' 2831
(b) Sept. 13, 14: Debated, amended and passed
House, pp. 25286, 25288-25290, 25316-25317, 25578-
25579, 25618-25620; 2832
(c) Sept. 28: House agrees to conference report, p.
27183; 2832
(d) Sept. 29: Senate agrees to conference report, pp.
27327-27328. 2832
1.20d 1969 Amendments to the Appalachian Regional Develop-
ment Act, November 25, 1969, P.L. 91-123, Title I, §107,
83 Stat. 215. 2833
(1) House Committee on Public Works, H.R. REP. No.
91-336, 91st Cong., 1st Sess. (1969). 2834
(2) Senate Committee on Public Works, S. REP. No. 91-
291, 91st Cong., 1st Sess. (1969). 2835
* Denotes pertinent section is not discussed—page number provided only as complete
legislative history.
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CONTENTS xxvii
Page
(3) Committee of Conference, H.R. REP. No. 91-614, 91st
Cong., 1st Sess. (1969). 2837
(4) Congressional Record, Vol. 115 (1969):
(a) July 8: Passed Senate, p. 18556;* 2838
(b) July 15: Amended and passed House, p. 19607;* 2838
(c) Nov. 5: Senate agrees to conference report, p.
33031;* 2838
(d) Nov. 19: House agrees to conference report, p.
34890.* 2838
1.20e Airport and Airway Development and Revenue Act of
1970, May 21, 1970, P.L. 91-258, Title I, §52 (b) (5), 84 Stat.
235. 2838
(1) House Committee on Interstate and Foreign Com-
merce, HR. REP. No. 91-601, 91st Cong., 1st Sess.
(1969). 2839
(2) Senate Committee on Commerce, S. REP. No. 91-565,
91st Cong, 1st Sess. (1969). . •, 2840
(3) Senate Finance Committee, S. REP. No. 91-706, 91st
Cong., 2d Sess. (1970). 2840
(4) Committee of Conference, H R. REP. No. 91-1074,
91st Cong, 2d Sess. (1970). 2841
(5) Congressional Record:
(a) Vol. 115 (1969), Nov. 6: Passed House, p. 33312;* 2841
(b) Vol. 116 (1970), Feb. 26: Amended and passed
Senate, p. 5083;* 2841
(c) Vol. 116 (1970), May 12: Senate agrees to con-
ference report, p. 1513S;* 2842
(d) Vol. 116 (1970), May 13: House agrees to con-
ference report, p. 15297.* 2842
1.20f Appalachian Regional Development Act Amendments of
1971, August 5, 1971, P.L. 92-65, Title II, §210, 85 Stat. 171. 2842
(1) Senate Committee on Public Works, S REP. No. 92-
273, 92d Cong., 1st Sess (1971). 2843
(2) House Committee on Public Works, H.R. REP. No.
92-372, 92d Cong, 1st Sess. (1971). 2844
(3) Congressional Record, Vol. 117 (1971):
(a) July 21: Passed Senate, p. S11769;* 2846
(b) July 28: Passed House, p. H7328;* 2846
(c) July 30: Senate agrees to House amendments, p.
S12558.* 2846
1.21 The Disaster Relief Act, 40 U.S.C. §4401, et seq. (1970). 2847
(See, "General 1.8a-1.8a(4) (f)" for legislative history)
1.22 Department of Transportation Act, 49 U.S.C. §1653(f) (1968). 2867
(See, "General 15a-1.5a(3) (f)" for legislative history)
1.23 Federal Aid Highway Act, as amended, 23 U S.C. §109 (h) (1970). 2868
(See, "General 1.6a-1.6d(3) (f)" for legislative history)
1.24 Amortization of Pollution Control Facilities, as amended, 26
U.S.C. §169(d)(l)(B), (3) (1969). 2871
(See, "General 1.4a-1.4a(5) (c)" for legislative history)
1.25 Airport and Airway Development Act, 49 U.S.C. §§1712(f),
1716(c) (4), (e) (1970). 2875
(See, "General 1.7a-1.7a(4) (d) " for legislative history)
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xxviii CONTENTS
Page
1.26 Interest on Certain Government Obligations, as amended, 26
U.S.C. §103 (1969). 2878
(See, "General 1.9a-1.9d(4) (d)" for legislative history)
1.27 Fish and Wildlife Coordination Act, as amended, 16 U.S.C.
§§661-666c (1965). 2880
1.27a To Promote the Conservation of Wildlife, Fish and Game,
and for Other Purposes, March 10, 1934, P.L. 73-121, 48
Stat. 401. 2889
(1) Senate Special Committee on Conservation of Wild-
life Resources, S. REP. No. 244, 73rd Cong., 2d Sess.
(1934). 2891
(2) House Committee on Agriculture, H.R. REP. No. 850,
73rd Cong., 2d Sess. (1934). 2892
(3) Congressional Record, Vol. 78 (1934):
(a) Feb. 6: Passed Senate, pp. 2010-2011; 2893
(b) March 5: Passed House, pp. 3725-3726. 2895
1.27b Reorganization Plan No. II, §4 (e), (f), 53 Stat. 1433. 2899
(1) Message from the President of the United States,
H.R. DOC. No. 288, 76th Cong., 1st Sess. (1939). 2900
1.27c 1940 Reorganization Plan No. Ill, §3, 54 Stat. 1232. 2901
(1) Message from the President of the United States,
H.R. DOC. No. 681, 76th Cong, 3rd Sess. (1940). 2902
1.27d To Amend the Act of March 10, 1934, August 14, 1946,
P.L. 79-732, 60 Stat. 1080. 2903
(1) House Committee on Agriculture, H.R. REP. No. 1944,
79th Cong, 2d Sess. (1946). 2907
(2) Senate Committee on Agriculture, S. REP. No. 1698,
79th Cong, 2d Sess. (1946). 2912
(3) Senate Committee on Agriculture, S. REP. No. 1748,
79th Cong, 2d Sess. (1946). 2916
(4) Congressional Record, Vol. 92 (1946):
(a) May 7: Passed House, pp. 4580-4561; 2920
(b) July 17: Senate recommits, p. 9205; 2923
(c) July 29: Amended and passed Senate, p. 10349; 2924
(d) July 30: House concurs in Senate amendments,
p. 10489. 2925
1.27e To Amend the Act of March 10,1934, as amended, June 19,
1948, P.L. 80-697, 62 Stat. 497. 2926
(1) House Committee on Merchant Marine and Fisheries,
H.R. REP. No. 504, 80th Cong, 1st Sess. (1947). 2927
(2) Senate Committee on Interstate and Foreign Com-
merce, S. REP. No. 1448, 80th Cong, 2d Sess. (1948). 2934
(3) Congressional Record:
(a) Vol. 93 (1947), June 16: Passed House, pp. 7086-
7087; 2938
(b) Vol. 94 (1948), June 10: Amended and passed
Senate, p. 7693; 2940
(c) Vol. 94 (1948), June 11: House concurs in Senate
amendments, p. 7889. 2940
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CONTENTS xxix
Page
1.27f To Amend the Act of March 10, 1934, as amended, August
12, 1958, P.L. 85-624, §2, 72 Stat. 563. . 2940
VOLUME VI
(1) House Committee on Merchant Marine and Fisheries,
H.R. REP. No. 2183, 85th Cong., 2d Sess. (1958). 2947
(2) Senate Committee on Interstate and Foreign Com-
merce, S. REP. No. 1981, 85th Cong., 2d Sess. (1958). 2958
(3) Congressional Record, Vol. 104 (1958):
(a) July 21: Passed House, pp. 1440-1442; 2979
(b) July 31: Passed Senate, p. 15713. 2979
1.27g Federal Water Project Recreation Act, July 9, 1965, P.L.
89-72, §6 (b), 79 Stat. 216. 2979
(1) Senate Committee on Interior and Insular Affairs, S.
REP. No. 149, 89th Cong., 1st Ssss. (1985). 2980
(2) House Committee on Interior and Insular Affairs,
H.R. REP. No. 254, 89th Cong., 1st Sess. (1965). . 2983
(3) Committee of Conference, H.R. REP. No. 538, 89th
Cong., 1st Sess. (1965). . 2984
(4) Congressional Record, Vol. Ill (1965):
(a) April 13: Amended and passed Senate, p. 7891; 2985
(b) May 18: Amended and passed House, p. 10881; 2985
(c) June 23: House agrees to conference report, p.
14464; . 2985
(d) June 25: Senate agrees to conference report, p.
14814.* . . . 2985
1.28 Public Works and Economic Development Act of 1965, 42 U.S.C.
§3136 (1965). 2986
1.28a Public Works and Economic Development Act of 1965,
August 26, 1965, P.L. 89-138, §106, 79 Stat. 554. 2986
(1) Senate Committee on Public Works, S. REP, No. 193,
89th Cong., 1st Sess. (1965) .* 2987
(2) House Committee on Public Works, H.R. REP. No.
539, 89th Cong., 1st Sess. (1965).* 2988
(3) Congressional Record, Vol. Ill (1965):
(a) June 1: Debated, amended and passed Senate,
p. 12183;* 2988
(b) Aug. 12: Debated, amended, and passed House,
pp. 20250-20251; 2988
(c) Aug. 16: Senate concurs in House amendments,
p. 20571.* 2988
1.28b Reorganization Plan No. 2 of 1966, 80 Stat. 1608. 2989
(1) Message from the President of the United States, H.R.
DOC. No. 388, 89th Cong., 2d Sess. (1966). 2991
1.29 River and Harbor Act of 1910, 33 U.S.C. §421. 2994
[Referred to in 33 U.S.C. §1371 (b)]
1.29a River and Harbor Act of 1910, June 23, 1910, P.L. 61-245,
36 Stat. 593. .. 2995
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(1) House Committee on Interstate and Foreign Com-
merce, H.R. REP. No. 1120, 61st Cong., 2d Sess.
(1910). . 29%
(2) Committee on Conference, H.R. REP. No. 1613, 61st
Cong., 2d Sess. (1910).* . 3003
(3) Congressional Record, Vol. 45 (1910):
(a) May 2: Amended and passed House, p. 5672;* 3003
(b) May 12: Amended and passed Senate, p. 6119;* 3003
(c) June 16: Senate agrees to conference report, p.
8219;* . 3003
(d) June 17: House agrees to conference report, p.
8439.* . . . 3003
1.30 Supervisory Harbors Act of 1888, as amended, 33 U.S.C. §§441-
451 (1958) . . 3003
[Referred to in 33 U.S.C. §1371.]
1.30a. New York Harbor Act of 1888, June 29, 1888, P.L. 50-496,
25 Stat. 209. 3010
(1) Senate Committee on Commerce, S. REP. No. 224,
50th Cong., 1st Sess. (1888). 3012
(2) House Committee on Commerce, H.R. REP. No. 1963,
50th Cong., 1st Sess. (1888). 3015
(3) Congressional Record, Vol. 19, (1888):
(a) March 21, April 6: Debated, amended and
passed Senate, pp. 2300-2301, 2775;* 3015
(b) June 4: Debated, amended and passed House,
pp. 4889-4890; . 3015
(c) June 14: Senate concurs in House amendments,
p. 5239.* 3018
1.30b River and Harbor Act of 1894, August 18, 1894, P.L.
53-299, §§3, 5, 28 Stat. 360 . 3018
(1) House Committee on Rivers and Harbors, H.R.
REP. No. 639, 53rd Cong., 2d Sess. (1894) .* 3023
(2) Senate Committee on Commerce, S. REP. No. 519,
53rd Cong., 2d Sess. (1894).* 3023
(3) Committee of Conference, 53rd Cong., 2d Sess., Con-
gressional Record, Vol. 26 (1894), pp. 8173-8175.* 3023
(4) Congressional Record, Vol. 26 (1894):
(a) May 4: Debated, amended and passed House,
pp. 4376,4430; 3023
(b) July 13: Amended and passed Senate, p. 7414;* 3024
(c) Aug. 6: Senate agreed to conference report, p.
8230;* . 3024
(d) Aug. 6: House agreed to conference report, p.
8251.* 3024
l.SOc 1908 Amendments to 1894 Act, May 28, 1908, P.L. 60-
152, §8, 35 Stat. 426. 3024
(1) House Committee on the Merchant Marine and
Fisheries, H.R. REP. No. 1672, 60th Cong., 1st Sess.
(1908). . . . 3028
(2) Senate Committee on Commerce, 60th Cong., 1st
Sess., Congressional Record, Vol. 42 (1908), p. 6963.* 3030
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CONTENTS xxxi
Page
(3) Congressional Record, Vol. 42 (1908):
(a) May 25: Considered and passed House, pp.
6901-6905; . . . 3030
(b) May 26: Considered and passed Senate, pp.
6963-6972.* . 3034
l.SOd 1909 Amendments to 1908 Act, February 16, 1909, P.L.
60-231, 35 Stat. 623. , 3034
(1) House Committee on the Merchant Marine and
Fisheries, H.R. REP. No. 2102, 60th Cong., 2d Sess.
(1909). . . 3035
(2) Congressional Record, Vol. 43 (1909) :
(a) Feb. 10: Amended and passed House, p. 2149;* 3036
(b) Feb. 11: Passed Senate, pp. 2195-2196.* 3036
l.SOe Repealing Certain Obsolete Provisions of Law Relating
to the Naval Service, June 29, 1949, P.L. 81-144, 63 Stat.
300. 3036
[No Relevant Discussion]
l.SOf 1952 Amendments to the New York Harbor Act of 1888,
July 12, 1952, P.L. 82-526, 66 Stat. 596. 3036
(1) House Committee on Public Works, H.R. REP. No.
2260, 82d Cong., 2d Sess. (1952). . 3037
(2) Senate Committee on Public Works, S. REP. No.
2088, 82d Cong., 2d Sess. (1952). 3039
(3) Congressional Record, Vol. 98 (1952):
(a) June 25: Passed House, p. 8079;* 3040
(b) July 4: Passed Senate, p. 9317.* 3040
1.30g 1958 Amendments to Act of 1888, August 28, 1958, P.L.
85-802, §1, 72 Stat. 970. 3040
(1) House Committee on Public Works, H.R. REP. No.
2233, 85th Cong., 2d Sess. (1958). 3042
(2) Senate Committee on Public Works, S. REP. No.
2383, 85th Cong., 2d Sess. (1958). 3050
(3) Congressional Record, Vol. 104 (1958):
(a) Aug. 4: Amended and passed House, pp. 16021-
16022.* 3052
(b) Aug. 18: Passed Senate, p. 18033.* 3052
1.31 Watershed Protection and Flood Prevention Act, as amended,
16 U.S.C. §1005 (1972). 3052
1.31a Rural Development Act of 1972, August 30, 1972, P.L.
92-419, §201 (g), 86 Stat. 669. . 3053
(1) House Committee on Agriculture, H.R. REP. No.
92-835, 92d Cong., 2d Sess. (1972). 3055
(2) Senate Committee on Agriculture and Forestry, S.
REP. No. 92-734, 92d Cong., 2d Sess. (1972). 3062
(3) Committee of Conference, H.R. REP. No. 92-1129,
92d Cong., 2d Sess. (1972). 3068
(4) Congressional Record, Vol. 118 (1972) :
(a) Feb. 23: Considered and passed House;* 3068
(b) April 19, 20: Considered and passed Senate,
amended, in lieu of S. 3462,* 3068
(c) July 27: House agreed to conference report;* 3068
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xxxii CONTENTS
Page
(d) Aug. 17: Senate agreed to conference report.* 3068
1.32 Reefs for Marine Life Conservation, 16 U.S.C. §1220 (1972). 3069
1.32a Commerce Department Maritime Programs, August 22,
1972, P.L. 92-402, §3(b), 86 Stat. 617 3069
(1) House Committee on Merchant Marine and Fish-
eries, H.R. REP. No. 92-934, 92d Cong., 2d Sess.
(1972).* . 3070
(2) Senate Committee on Commerce, S. REP. No. 92-
841, 92d Cong., 2d Sess. (1972).* 3071
(3) Congressional Record, Vol. 118 (1972):
(a) April 11: Considered and Passed House;* 3071
(b) July 26: Considered and passed Senate,
amended, S11935-S11937; 3071
(c) Aug. 14: House concurred in Senate amend-
ments.* 3077
1.33 Coastal Zone Management Act of 1972, 16 U.S.C. §1451 et seq.
(1972). 3377
1.33a Marine Resources and Engineering Development Act of
1966, Amendments, October 27, 1972, P.L. 92-583,
§307(3) (f), 86 Stat. 1286. . 3087
(1) Senate Committee on Commerce, S. REP. No. 92-
753, 92d Cong., 2d Sess. (1972). . 3099
(2) House Committee on Merchant Marine and Fish-
eries, H.R. REP. No. 92-1049, 92d Cong., 2d Sess.
(1972). . . . 3104
(3) Committee of Conference, H.R. REP. No. 92-1544,
92d Cong., 2d Sess. (1972). 3111
(4) Congressional Record, Vol. 118 (1972):
(a) April 25: Considered and passed Senate, pp.
S6654-S6673; . 3112
(b) Aug. 2: Considered and passed, House, amended,
in lieu of H.R. 14146;* 3142
(c) Oct. 12: House and Senate agreed to conference
report.* . 3142
2. EXECUTIVE ORDERS
2.1 E.O. 11490, Assigning of Emergency Preparedness Functions to
Federal Agencies and Departments, October 30, 1969, 34 Fed.
Reg. 17567. 3145
2.2 E.O. 11507, Prevention, Control, and Abatement of Air and
Water Pollution at Federal Facilities, February 4, 1970, 35 Fed.
Reg. 2573. 3197
2.3 E.O. 11514, Protection and Enhancement of Environmental
Quality, March 5, 1970, 35 Fed. Reg. 4247. 3203
2.4 E.O. 11548, Delegating Functions of the President Under the
Federal Water Pollution Control Act, as amended, July 20, 1970,
35 Fed. Reg. 11677. 3207
2.5 E.O. 11574, Administration of the Refuse Act Permit Program,
December 23, 1970, 35 Fed. Reg. 19627. 3211
2.5a Statement by the President on Signing an Executive
Order Providing for the Establishment of a Federal Permit
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CONTENTS xxxiii
Page
Program to Regulate the Discharge of Waste into the
Waters of the United States, Weekly Compilation of Presi-
dential Documents, December 23, 1970, p. 1724. 3212
2.5b Congressional Record, Vol. 117 (1971), Feb. 4: House dis-
cussion of the Refuse Act Permit Program, pp. 1754-1763. 3213
2.5c Congressional Record, Vol. 117 (1971), Feb. 4: Ssnate dis-
cussion of the 1899 Refuse Act, pp. 1673; 1679-1684; 3233
2.6 E.O. 11575, Administration of the Disaster Relief Act of 1970,
December 31, 1970, 36 Fed. Reg. 37. 3244
2.7 E.O. 11578, Ohio River Basin Commission, January 13, 1971, 38
Fed. Reg. 683. 3246
2.8 E.O. 11613, Membership of Environmental Protection Agency
on the Established River Basin Commissions, August 2, 1971,
36 Fed. Reg. 14299. 3248
2.9 E.O. 11331, Establishment of Pacific Northwest River Basins
Commission, March 6, 1967, 32 Fed. Reg. 3875, as amended by
E.O. 11613, Aug. 2, 1971, 36 Fed. Reg. 14299. 3249
2.10 E.O.11345, Establishment of the Great Lakes Basin Commission,
April 20, 1967, 32 Fed. Reg. 6329, as amended by E.O. 11613,
Aug. 2, 1971, 36 Fed. Reg. 14299; E.O. 11646, Feb. 8, 1972, 37
Fed. Reg. 2925. 3251
2.11 E.O. 11359, Establishment of the Souris-Red-Rainy River Basin
Commission, June 20, 1967, 32 Fed. Reg. 8851, as amended
by E.O. 11613, Aug. 2, 1971, 36 Fed. Reg. 14299; E.O. 11635, Dec.
9, 1971, 36 Fed. Reg. 23615. . 3253
2.12 E.O. 11371, Establishment of the New England River Basins
Commission, September 6, 1967, 32 Fed. Reg. 12903, as amended
by E.O. 11528, Apr. 24, 1970, 35 Fed. Reg. 6695; E.O. 11613,
Aug. 2, 1971. 3255
2.13 E.O. 11658, Establishment of the Missouri River Basin Commis-
sion, March 22, 1972, 37 Fed. Reg. 6045. 3257
2.14 E.O. 11659, Establishment of the Upper Mississippi River Basin
Commission, March 22, 1972, 37 Fed. Reg. 6047. 3259
3. REGULATIONS
3.1 Grants for Water Pollution Control, Environmental Protection
Agency, 18 C.F.R. §§501.1-601.125 (1971). 3261
3.2 Certification of Facilities, Environmental Protection Agency, 40
C.F.R. §§20.1-20.10 (1971).
3.3 Water Pollution Control Planning, Environmental Protection
Agency, 40 C.F.R. §§35.001-35.002, 35.150 (1972).
3.4 Water Quality Management Planning Grants, Environmental
Protection Agency, 40 C.F.R. §§35.200-35.240 (1972).
3.5 Water Pollution Control and Interstate Program Grants, Envi-
ronmental Protection Agency, 40 C.F.R. §§35.551-35.575 (1972).
3.6 Grants for Construction of Wastewater Treatment Works,
Environmental Protection Agency, 40 C.F.R. §§35.800-35.850
(1972).
3.7 Grants for Construction of Treatment Works—Federal Water
Pollution Control Act Amendments of 1972, Environmental
Protection Agency, 40 C.F.R. §§35.910 (1972).
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xxxiv CONTENTS
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3.8 Standard Setting Conferences, Hearings and Notification of
Alleged Violators of Water Quality Standards, Environmental
Protection Agency, 40 C.F.R. §§104.1-104.24 (1972).
3.9 Public Hearings Under Federal Water Pollution Control Act,
Environmental Protection Agency, 49 C.F.R. §§106.1-108.13
(1972).
3.10 Filing of Reports with the Administrator by Persons Whose
Alleged Activities Result in Discharges Causing or Contributing
to Water Pollution, Environmental Protection Agency, 40 C.F.R.
§§107.1-107.7 (1971).
3.11 Criteria for State, Local, and Regional Oil Removal Contingency
Plans, Environmental Protection Agency, 40 C.F.R. §§109.1-
109.6 (1971).
3.12 Discharge of Oil, Environmental Protection Agency, 40 C.F.R.
§§110.1-110.9 (1971).
3.13 Water Quality Standards, Environmental Protection Agency,
40 C.F.R. §§120.1-120.11 (1972).
3.14 Revision of Water Quality Standards, Environmental Protec-
tion Agency, 40 C.F.R. §§122.1-122.14 (1971).
3.15 State Certification of Activities Requiring a Federal License
or Permit, Enrivronment Protection Agency, 40 C.F.R. §123
(1972).
3.16 Marine Sanitation Device Standards, Environmental Protec-
tion Agency, 40 C.F.R. §§140.1-140.5 (1972).
3.17 Control of Pollution by Oil and Hazardous Substances, Dis-
charge Removal, Department of Transportation, 33 C.F.R.
§§153.01-153.105 (1970).
3.18 Corps of Engineers Regulations Under Refuse Act, Permit for
Discharge or Disposal Into Navigable Waters, 33 C.F.R. §§209.10-
209.13 (1971).
3.19 Drinking Water Standards, Public Health Service, 42 C.F.R.
§§72.201-72.207 (1971).
3.20 Financial Responsibility for Oil Pollution Cleanup, Federal
Maritime Commission, 46 C.F.R. §§542.1-542.9 (1971).
3.21 Delegation of Authority With Respect to the Administration of
Water Quality Improvement Act of 1970, Department of Trans-
portation, 49 C.F.R. §1.46 (1971). . ..
4. GUIDELINES AND REPORTS
4.1 EPA Annual Report on National Requirements and Costs of
Water Pollution Control, as required by 33 U.S.C. §1175 (a) as
amended (1970). ... .... 3267
4.1a Cost of Clean Water, Vol. I, Municipal Investment Needs,
Vol. II, Cost Effectiveness and Clean Water, Environ-
mental Protection Agency, March 1971. 3267
4.1b Economics of Clean Water, Vol. I & II, Environmental
Protection Agency, February 1972. . 3391
4.2 Selected Reports:
4.2a Federal Laws Affecting Rivers and Harbors Works, A
Lecture Given by Judge G. W. Koonce, O.C.E. Before the
Company Officers Class, the Engineering School, Ft.
Humphreys, Va., April 23,1926. . 3517
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CONTENTS xxxv
Page
VOLUME VII
4.2b Our Waters and Wetlands: How the Corps of Engineers
Can Help Prevent Their Destruction and Pollution, Com-
mittee on Government Operations, H.R. REP. No. 91-917,
91st Cong., 2d Sess. (1970). 3533
4.2c Qui tarn Actions and the 1899 Refuse Act, Citizen Law-
suits Against Polluters of the Nations Waterways, House
Subcommittee on Conservation and Natural Resources of
the Committee on Government Operations, 91st Cong.,
2d Sess. (1970). 3556
4.2d Clean Water for the 1970's, a Status Report, U.S. Depart-
ment of the Interior, Federal Water Quality Administra-
tion, June 1970. 3592
4.3 National Oil and Hazardous Material Pollution Contingency
Plan, Council on Environmental Quality, August 20, 1971. 3706
4.4 Guidelines for Litigation Under the Refuse Act Permit Program,
Department of Justice, April 7,1972. . . 3720
4.5 Water Quality Standards Summaries:
4.5a "Standards for Temperature," Environmental Protection
Agency, Division of Water Quality Standards, March 1971. 3722
4.5b "Standards for Disinfection," Environmental Protection
Agency, Division of Water Quality Standards, May 1971. 3732
4.5c "Standards for Mercury and Heavy Metals," Environ-
mental Protection Agency, Division of Water Quality
Standards, May 1971. 3739
4.5d "Standards for Radioactive Materials," Environmental
Protection Agency, Division of Water Quality Standards,
May 1971. 3747
4.5e "Standards for Phosphates," Environmental Protection
Agency, Division of Water Quality Standards, June 1971. 3750
4.5f "Standards for Mixing Zones," Environmental Protection
Agency, Division of Water Quality Standards, Ssptember
1971. 3767
4.5g "Standards for Radioactive Materials," Environmental
Protection Agency, Division of Water Quality Standards,
November 1971. 3775
4.5h "Standards for Nitrates," Environmental Protection
Agency, Division of Water Quality Standards, November
1971. 3782
4.5i "Standards for Antidegradation," Environmental Pro-
tection Agency, Division of Water Quality Standards,
April 1972. 3813
4.6 Memorandum of Understanding Between the Environmental
Protection Agency and the Department of Transportation, 36
Fed. Reg. 24080 (1971). 3831
4.7 Discharges of Oil for Research Development and Demonstra-
tion Purposes, Guidelines, Environmental Protection Agency, 36
Fed. Reg. 7326 (1971). 3834
4.8 Memorandum of Understanding Providing for Cooperation in
the Investigation of Violations of the Refuse Act Between Ad-
-------
xxxvi CONTENTS
ministrator of the Environmental Protection Agency and the
Secretary of the Army, 36 Fed. Reg. 3074 (1971). ... 3836
4.9 Report to Congress on Water Pollution Control Manpower De-
velopment and Training Activities, Environmental Protection
Agency, Office of Water Programs, March 1972. 3839
-------
STATUTES AND LEGISLATIVE HISTORY 2947
1.27f(l) HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES
H.R. REP. No. 2183, 85th Cong., 2d Sess. (1958)
TO AMEND THE COORDINATION ACT
JULY 16, 1958.—Committed to the Committee of the Whole House on the State of
the Union and ordered to be printed
Mr. BONNER, from the Committee on Merchant Marine and Fisheries,
submitted the following
REPORT
[To accompany H.R. 13138]
The Committee on Merchant Marine and Fisheries, to whom was
referred the bill (H.R. 13138) to amend the act of March 10, 1934, to
provide for more effective integration of a fish and wildlife conserva-
tion program with Federal water-resource developments, and for
other purposes, having considered the same, report favorably thereon
with amendments and recommend that the bill do pass.
The amendments are as follows:
On page 1, line 3 and 4, after the word "That", delete the words
"this Act may be cited as the 'Wildlife Coordination Act'." and insert
in lieu thereof the following: "the Act of March 10, 1934, as amended,
and as further amended by this Act, may be cited as the 'Fish and
Wildlife Coordination Act'."
On page 5, line 7, after the words "on the date of enactment of the",
insert the words "Fish and".
On page 5, line 13, after the words "of the", insert the words "Fish
and".
On page 7, line 18, delete the word "consevation" and insert in lieu
thereof the word "conservation".
On page 8, line 1, after the words "before or after the date of enact-
ment of the", insert the words "Fish and".
On page 8, line 4, after the words "the date of enactment of the",
insert the words "Fish and".
On page 12, line 15, after the word "SEC.", delete "2." and insert
in lieu thereof "3."
-------
2948 LEGAL COMPILATION—WATER
On page 13, after line 24, add the following new section:
SEC. 4. There is authorized to be appropriated and expended
such funds as may be necessary to carry out the purposes of this
Act.
[p. 1]
The purpose of the bill is to grant authority to construction agencies
like the Bureau of Reclamation and the Corps of Engineers to coop-
erate with Fish and Wildlife Service in planning and constructing,
as a part of Federal water-development projects, facilities necessary to
protect fish and wildlife values. Construction of projects of the
nature of Grand Coulee Dam and Bonneville Dam require consider-
able study and, in some cases, slight modification, to insure against
the loss of a valuable fish or wildlife resource, in that case, the salmon.
At present, there is no requirement that Fish and Wildlife Service
be consulted, with the result that at times the failure to secure infor-
mation as to future projects has had an adverse effect on fish and
wildlife values.
Studies conducted by the Service of the effect of a project on fish
and wildlife values require time. Measures necessary to minimize
the impact of such a project may entail changes in the overall plans.
In the past, suggestions for such changes may have been made too late
to permit of alternation with resultant adverse effects on fish and
wildlife. Under this bill, Fish and Wildlife Service must be consulted
and its plan, whether accepted or rejected by the constructing agency,
must be submitted to the Congress for its consideration as a part of
the authorizing legislation for each project.
To assure further protection to fish and wildlife, the bill amends the
Watershed Protection and Flood Prevention Act administered under
the Department of Agriculture. While leaving full control of the
so-called small watershed program with that Department and the
sponsoring organizations, the bill would extend the principle of
coordination to it so that work under the program will include
measures necessary to protect fish and wildlife values.
The governors of all 48 States have endorsed the objectives of the
bill, and conservation organizations heard by the committee were
unanimous in support. In addition, the Department of the Interior
unqualifiedly supports the bill and the Department of Defense and the
Department of Agriculture have stated that they have no objection to
its enactment.
The committee unanimously recommends its enactment.
While no estimate of cost is possible, since the studies and plans will
necessarily depend on the nature and location of individual future
projects, the opinion was expressed by a witness for the Department
-------
STATUTES AND LEGISLATIVE HISTORY 2949
of the Interior that the cost would be little above the amount presently
being spent on the studies which have been made on water-develop-
ment projects, but that the cost of such studies would be charged
under the bill to Department of the Interior appropriations.
The bill was amended to authorize reference to it as the Fish and
Wildlife Coordination Act to more accurately reflect its purposes and
to authorize appropriations necessary to effectuate its purposes.
Departmental reports on H.R. 12371, which is on the same subject,
follow.
DEPARTMENT OF AGRICULTURE,
Washington, D.C., June 26,1958.
Hon. HERBERT C. BONNER,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
DEAR CONGRESSMAN BONNER: This is in reply to your letter of May
9, 1958, requesting a report by this Department on H.R. 12371, a
[p. 2]
bill to amend the act of March 10, 1934, to provide for more effective
integration of a fish and wildlife conservation program with Federal
water-resource developments, and for other purposes.
The bill would amend the Coordination Act administered by the
Department of the Interior and the Watershed Protection and Flood
Prevention Act administered by the Department of Agriculture to
further promote the conservation of wildlife, fish, and game resources.
The provisions of the bill, with some minor differences in wording
and the omission of a section 3, to which we do not object, are the
same as the provisions of the text recommended by the Secretary of
the Interior on April 1, 1958, to the Committee on Merchant Marine
and Fisheries as a substitute for H.R. 8631, and concurred in by this
Department in its report dated May 2, 1958, to that committee in
which it also outlined its strong objections to H.R. 8631 as introduced
The Bureau of the Budget advises that there is no objection to the
submission of this report.
Sincerely yours,
TRUE D. MORSE,
Acting Secretary.
DEPARTMENT OF THE ARMY,
Washington, D.C., June 26,1958.
Hon. HERBERT C. BONNER,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
DEAR MR. CHAIRMAN: Reference is made to your request for the
views of the Department of the Army with respect to H.R. 12371,
-------
2950 LEGAL COMPILATION—WATER
85th Congress, a bill to amend the act of March 10, 1934, to provide
for more effective integration of a fish and wildlife conservation pro-
gram with Federal water-resource developments, and for other
purposes.
The Department of the Army by letter dated May 13, 1958, com-
mented upon a previous bill with respect to the amendment of the
act of Congress approved March 10, 1934, as amended by the act
approved August 14, 1946, pertaining to the conservation of wildlife.
Those comments indicated that this Department had no objection to
the amendments proposed in H.R. 8631 if modified to make the bill
consistent with certain proposals which were embodied in a substitute
draft bill submitted with the letter of May 13, 1958. H.R. 12371
contains the specific modifications suggested in the letter from this
Department, and accompanying substitute proposals. Accordingly
the Department of the Army has no objection to the enactment of
H.R. 12371.
The Bureau of the Budget advises that there is no objection to the
submission of this report.
Sincerely yours,
WILBER M. BRUCKER,
Secretary of the Army.
[p. 3]
CHANGES IN EXISTING LAW
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as
introduced, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman):
SECTIONS 1 THROUGH 4, INCLUSIVE, OF AN ACT To PROMOTE THE
CONSERVATION OF WILD LIFE, FISH, AND GAME, AND FOR OTHER
PURPOSES
(48 Stat. 401; 16 U.S.C., sees. 661 to 664, inclusive)
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, [That in order to
promote effectual planning, development, maintenance, and coordina-
tion of wildlife conservation and rehabilitation in the United States,
its Territories and possessions, the Secretary of the Interior, through
the Fish and Wildlife Service, is authorized (a) to provide assistance
to, and cooperate with, Federal, State, and public or private agencies
and organizations in the development, protection, rearing, and stock-
ing of all species of wildlife, resources thereof, and their habitat, in
-------
STATUTES AND LEGISLATIVE HISTORY 2951
controlling losses of the same from disease or other causes, in mini-
mizing damages from overabundant species, in providing public
shooting areas, and in carrying out other measures necessary to
effectuate the purposes of this Act; and (b) to make surveys and
investigations of the wildlife of the public domain, including lands
and waters or interests therein acquired or controlled by any agency
of the United States.
[SEC. 2. Whenever the waters of any stream or other body of water
are authorized to be impounded, diverted, or otherwise controlled for
any purpose whatever by any department or agency of the United
States, or by any public or private agency under Federal permit,
such department or agency first shall consult with the Fish and Wild-
life Service and the head of the agency exercising administration
over the wildlife resources of the State wherein the impoundment,
diversion, or other control facility is to be constructed with a view
to preventing loss of and damage to wildlife resources, and the reports
and recommendations of the Secretary of the Interior and of the head
of the agency exercising administration over the wildlife resources of
the State, based on surveys and investigations conducted by the
Fish and Wildlife Service and by the said head of the agency exercis-
ing administration over the wildlife resources of the State, for the
purpose of determining the possible damage to wildlife resources and
of the means and measures that should be adopted to prevent loss of
and damage to wildlife resources, shall be made an integral part of
any report submitted by any agency of the Federal Government
responsible for engineering surveys and construction of such projects.
[The cost of planning for and the construction or installation and
maintenance of any such means and measures shall be included in
and shall constitute an integral part of the costs of such projects:
Provided, That, in the case of projects after August 14, 1946, author-
ized to be constructed, operated, and maintained in accordance with
the Federal reclamation laws (Act of June 17, 1902, 32 Stat. 388,
[p. 4]
and Acts amendatory thereof or supplementary thereto), the Secre-
tary of the Interior shall, in addition to allocations to be made under
section 9 of the Reclamation Project Act of 1939 (53 Stat. 1187),
make findings on the part of the estimated cost of the project which
can properly be allocated to the preservation and propagation of fish
and wildlife, and costs allocated pursuant to such findings shall not
be reimbursable. In the case of construction by a Federal agency,
that agency is authorized to transfer, out of appropriations or other
funds made available for surveying, engineering, or construction to
the Fish and Wildlife Service, such funds as may be necessary to con-
-------
2952 LEGAL COMPILATION—WATER
duct the investigations required by this section to be made by it.
[SEC. 3. Whenever the waters of any stream or other body of water
are impounded, diverted, or otherwise controlled for any purpose
whatever by any department or agency of the United States, adequate
provision consistent with the primary purposes of such impoundment,
diversion, or other control shall be made for the use thereof, together
with any areas of land, or interest therein, acquired or administered
in connection therewith, for the conservation, maintenance, and man-
agement of wildlife, resources thereof, and its habitat thereon. In
accordance with general plans, covering the use of such waters and
other interests for these purposes, approved jointly by the head of
the department or agency exercising primary administration thereof,
the Secretary of the Interior, and the head of the agency exercising
administration over the wildlife resources of the State wherein the
waters and areas lie, such waters and other interests shall be made
available without cost for administration (a) by such State agency,
if the management thereof for the conservation of wildlife relates to
other than migratory birds; (b) by the Secretary of the Interior, if
the waters and other interests have particular value in carrying out
the national migratory bird management program.
[SEC. 4. Such areas as are made available to the Secretary of the
Interior for the purposes of this Act under sections 1 and 3, or by any
other law, proclamation, or Executive order, shall be administered
directly or under cooperative agreements entered into pursuant to the
provisions of section 1 by the Secretary of the Interior under such
rules and regulations for the conservation, maintenance, and manage-
ment of wildlife, resources thereof, and its habitat thereon, as may be
adopted by him in accordance with general plans approved jointly
by the Secretary of the Interior and the head of the department or
agency exercising primary administration of such areas: Provided,
That such rules and regulations shall not be inconsistent with the laws
for the protection of fish and game of the States in which such area is
situated.]
For the purpose of recognizing the vital contribution of our wildlife
resources to the Nation, the increasing public interest and significance
thereof due to expansion of our national economy and other factors,
and to provide that wildlife conservation shall receive equal consid-
eration and be coordinated with other features of water-resource
development programs through the effectual and harmonious plan-
ning, development, maintenance, and coordination of wildlife con-
servation and rehabilitation for the purposes of this Act in the United
States, its Territories and possessions, the Secretary of the Interior is
authorized (1) to provide assistance to, and cooperate with, Federal,
State, and public or private agencies and organizations in the develop-
-------
STATUTES AND LEGISLATIVE HISTORY 2953
merit, protection, rearing, and stocking of all species of wildlife,
resources thereof, and their habitat, in controlling
[p. 5]
losses of the same from disease or other causes, in minimizing dam-
ages from overabundant species, in providing public shooting and
fishing areas, including easements across public lands for access
thereto, and in carrying out other measures necessary to effectuate
the purposes of this Act; (2) to make surveys and investigations of
the wildlife of the public domain, including lands and waters or in-
terests therein acquired or controlled by any agency of the United
States; and (3) to accept donations of land and contributions of funds
in furtherance of the purposes of this Act.
Sec. 2. (a) Except as hereafter stated in subsection (h) of this
section, whenever the waters of any stream or other body of water
are proposed or authorized to be impounded, diverted, the channel
deepened, or the stream or other body of water otherwise controlled
or modified for any purpose whatever, including navigation and
drainage, by any department or agency of the United States, or by
any public or private agency under Federal permit or license, such
department or agency first shall consult with the United States Fish
and Wildlife Service, Department of the Interior, and with the head
of the agency exercising administration over the wildlife resources of
the particular State wherein the impoundment, diversion, or other
control facility is to be constructed, with a view to the conservation
of wildlife resources by preventing loss of and damage to such re-
sources as well as providing for the development and improvement
thereof in connection with such water-resource development.
(b) In furtherance of such purposes, the reports and recommenda-
tions of the Secretary of the Interior on the wildlife aspects of such
projects, and any report of the head of the State agency exercising
administration over the wildlife resources of the State, based on sur-
veys and investigations conducted by the United States Fish and
Wildlife Service and such State agency for the purpose of determining
the possible damage to wildlife resources and for the purpose of deter-
mining means and measures that should be adopted to prevent the
loss of or damage to such wildlife resources, as well as to provide con-
currently for the development and improvement of such resources,
shall be made an integral part of any report prepared or submitted
by any agency of the Federal Government responsible for engineering
surveys and construction of such projects when such reports are
presented to the Congress or to any agency or person having the
authority or the power, by administrative action, or otherwise, (1)
to authorize the construction of water-resource development projects
-------
2954 LEGAL COMPILATION—WATER
or (2) to approve a report on the modification or supplementation of
plans for previously authorized projects, to which this Act applies.
Recommendations of the Secretary of the Interior shall be as specific
as is practicable with respect to features recommended for wildlife
conservation and development, lands to be utilized or acquired for
such purposes, the results expected, and shall describe the damage to
wildlife attributable to the project and the measures proposed for
mitigating or compensating for these damages. The reporting officers
in project reports of the Federal agencies shall give full consideration
to the report and recommendations of the Secretary of the Interior
and to any report of the State agency, on the wildlife aspects of such
projects and the project plan shall include such justifiable means and
measures for wildlife purposes as the reporting agency finds should
be adopted to obtain maximum overall project benefits.
(c) Federal agencies authorized to construct or operate water-
control projects are hereby authorized to modify or add to the struc-
tures and operations of such projects, the construction of which has
not been substantially completed on the date of enactment of the
Wildlife Coordination Act,
[p. 6]
and to acquire lands in accordance with section 3 of this Act, in
order to accommodate the means and measures for such conservation
of wildlife resources as an integral part of such projects: Provided,
That for projects authorized by a specific Act of Congress before
the date of enactment of the Wildlife Coordination Act (1) such
modification or land acquisition shall be compatible with the pur-
poses for which the project was authorized; (2) t7ie cost of such
modifications or land acquisition, as means and measures to pre-
vent loss of and damage to wildlife resources to the extent justifi-
able, shall be an integral part of the cost of such projects; and (3) the
cost of such, modifications or land acquisition for the development or
improvement of wildlife resources may be included in the extent justi-
fiable, and an appropriate share of the cost of any project may be
allocated for this purpose with a finding as to the part of such
allocated cost, if any, to be reimbursed by non-Federal interests.
(d) The cost of planning for and the construction or installation
and maintenance of such means and measures adopted to carry out
the conservation purposes of this section shall constitute an integral
part of the cost of such projects: Provided, That such cost attributable
to the development and improvement of wildlife shall not extend
beyond those necessary for (1) land acquisition, (2) modification of
the project, and (3) modification of project operations; but shall not
include the operation of wildlife facilities nor the construction of such
-------
STATUTES AND LEGISLATIVE HISTORY 2955
facilities beyond those herein described: And provided further, That,
in the case of projects authorized to be constructed, operated, and
maintained in accordance with the Federal reclamation laws (Act of
June 17, 1902, 32 Stat. 388, and Acts amendatory thereof or supple-
mentary thereto), the Secretary of the Interior, in addition to alloca-
tions made under section 9 of the Reclamation Project Act of 1939
(53 Stat. 1187), shall make findings on the part of the estimated cost
of the project which can properly be allocated to means and measures
to prevent loss of and damage to wildlife resources, which costs shall
not be reimbursable, and an appropriate share of the project costs may
be allocated to development and improvement of wildlife resources,
with a finding as to the part of such allocated costs, if any, to be
reimbursed by non-Federal fish and wildlife agencies or interests.
(e) In the case of construction by a Federal agency, that agency is
authorized to transfer to the United States Fish and Wildlife Service,
out of appropriations or other funds made available for investigations,
engineering, or construction, such funds as may be necessary to con-
duct all or part of the investigations required to carry out the
purposes of this section.
(f) In addition to other requirements, there shall be included in
any report submitted to Congress supporting a recommendation for
authorization of any new project for the control or use of water as
described herein (including any new division of such project or new
supplemental works of such project) an estimation of the wildlife
benefits or losses to be derived therefrom including benefits to be
derived from measures recommended specifically for the development
and improvement of wildlife resources, the cost of providing wildlife
benefits (including the cost of additional facilities to be installed or
lands to be acquired specifically for that particular phase of wildlife
conservation relating to the development and improvement of wild-
life) , the part of the cost of joint-use facilities allocated to wildlife,
and the part of such costs, if any, to be reimbursed by non-Federal
interests.
(g) The provisions of this section shall be applicable with respect
to any project for the control or use of water as prescribed herein,
or any unit
[p. 7]
of such project authorized before or after the date of enactment
of the Wildlife Coordination Act for planning or construction, but
shall not be applicable to any project or unit thereof authorized
before the date of enactment of the Wildlife Coordination Act if the
construction of the particular project or unit thereof has been sub-
stantially completed. A project or unit thereof shall be considered to
-------
2956 LEGAL COMPILATION—WATER
be substantially completed when sixty percent or more of the
estimated construction cost has been obligated for, expenditure.
(h) The provisions of this Act shall not be applicable to those proj-
ects for the impoundment of water where the maximum surface area
of such impoundments is less than ten acres, nor to activities for or
in connection with programs primarily for land management and use
carried out by Federal agencies with respect to Federal lands under
their jurisdiction.
Sec. 3 (a) Subject to the exceptions prescribed in section 2 (h) of
this Act, whenever the waters of any stream or other body of water
are impounded, diverted, the channel deepened, or the stream or
other body of water otherwise controlled or modified for any purpose
whatever, including navigation and drainage, by any department or
agency of the United States, adequate provision, consistent with the
primary purposes of such impoundment, diversion, or other control,
shall be made for the use thereof, together with any areas of land,
water, or interests therein, acquired or administered by a Federal
agency in connection therewith, for the conservation, maintenance,
and management of wildlife resources thereof, and its habitat thereon,
including the development and improvement of such wildlife
resources pursuant to the provisions of section 2 of this Act.
(b) The use of such waters, land, or interests therein for wildlife
conservation purposes shall be in accordance with general plans ap-
proved jointly (1) by the head of the particular department or agency
exercising primary administration in each instance, (2) by the Secre-
tary of the Interior, and (3) by the head of the agency exercising the
administration of the wildlife resources of the particular State
wherein the waters and areas lie. Such waters and other interests
shall be made available, without cost for administration, by such
State agency, if the management of the properties relate to the con-
servation of wildlife other than migratory birds, or by the Secretary
of the Interior, for administration in such manner as he may deem
advisable, where the particular properties have value in carrying out
the national migratory bird management program: Provided, That
nothing in this section shall be construed as affecting the authority of
the Secretary of Agriculture to cooperate with the States or in mak-
ing lands available to the States with respect to the management of
wildlife and wildlife habitat on lands administered by him.
(c) When consistent with the purposes of this Act and the reports
and findings of the Secretary of the Interior prepared in accordance
with section 2, land, waters, and interests therein may be acquired by
Federal construction agencies for the wildlife conservation and devel-
opment purposes of this Act in connection with a project as reason-
ably needed to preserve and assure for the public benefit the wildlife
-------
STATUTES AND LEGISLATIVE HISTORY 2957
potentials of the particular project area: Provided, That before prop-
erties are acquired for this purpose, the probable extent of such acqui-
sition shall be set forth, along with other data necessary for project
authorization, in a report submitted to the Congress, or in the case of
a project previously authorized, no such properties shall be acquired
unless specifically authorized by Congress, if specific authority for
such acquisition is recommended by the construction agency.
[p. 8]
(d) Properties acquired for the purposes of this section shall con-
tinue to be used for such purposes, and shall not become the subject
of exchange or other transactions if such exchange or other trans-
action would defeat the initial purpose of their acquisition;
(e) Federal lands acquired or withdrawn for Federal water-re-
source purposes and made available to the States or to the Secretary
of the Interior for wildlife management purposes, shall be made avail-
able for such purposes in accordance with this Act, notwithstanding
other provisions of law.
(f) Any lands acquired pursuant to this section by any Federal
agency within the exterior boundaries of a national forest shall, upon
acquisition, be added to and become national forest lands, and shall be
administered as a part of the forest within which they are situated,
subject to all laws applicable to lands acquired under the provisions
of the Act of March 1, 1911 (36 Stat. 961), unless such lands are
acquired to carry out the National Migratory Bird Management
Program.
Sec. 4. Such areas as are made available to the Secretary of the
Interior for the purposes of this Act, pursuant to sections 1 and 3 or
pursuant to any other authorization, shall be administered by him
directly or in accordance with cooperative agreements entered into
pursuant to the provisions of the first section of this Act and in accord-
ance with such rules and regulations for the conservation, mainte-
nance, and management of wildlife, resources thereof, and its habitat
thereon, as may be adopted by the Secretary in accordance with gen-
eral plans approved jointly by the Secretary of the Interior and the
head of the department or agency exercising primary administration
of such areas: Provided, That such rules and regulations shall not be
inconsistent with the laws for the protection of fish and game of the
States in which such area is situated (16 U.S.C., sec. 664): Provided
further, That lands having value to the National Migratory Bird
Management Program may, pursuant to general plans, be made avail-
able without cost directly to the State agency having control over
wildlife resources, if it is jointly determined by the Secretary of the
Interior and such State agency that this would be in the public
-------
2958 LEGAL COMPILATION—WATER
interest: And provided further, That the Secretary of the Interior
shall have the right to assume the management and administration
of such lands in behalf of the National Migratory Bird Management
Program if the Secretary finds that the State agency has withdrawn
from or otherwise relinquished such management and administration.
[p. 9]
1.27f (2) SENATE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE
S. REP. No. 1981, 85th Cong., 2d Sess. (1958)
AMENDING THE COORDINATION ACT
JULY 28, 1958.—Ordered to be printed
Mr. MAGNUSON, from the Committee on Interstate and Foreign
Commerce, submitted the following
REPORT
[To accompany H.R. 13138]
The Committee on Interstate and Foreign Commerce, to whom was
referred the bill (H.R. 13138) to amend the act of March 10, 1934,
to provide for more effective integration of a fish and wildlife con-
servation program with Federal water-resource developments, and
for other purposes, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
This amendment to the Coordination Act would grant authority to
the agencies of Government engaged in construction to consult with
the Fish and Wildlife Service before and during the building of
Federal water development projects.
The Fish and Wildlife Service would make known to these con-
struction agencies, such as the Corps of Engineers and the Bureau of
Reclamation, the project necessary to protect fish and wildlife. Con-
siderable study would be required in some cases, with suggested
changes in construction plans to the great advantage to our wildlife
resource. Under the bill suggestions regarding changes could be
made previous to the commencement of construction. Such plans, or
-------
STATUTES AND LEGISLATIVE HISTORY 2959
recommendations, whether accepted or rejected by the construction
agency, would be submitted to the Congress at the time authorization
legislation for the project was under consideration.
The bill would amend the Watershed Protection and Flood Preven-
tion Act which is administered by the Department of Agriculture. It
is designed to provide for greater consideration of fish and wildlife
conservation in the Federal water-resource development program.
Enactment of the bill would not retard that program but should help
significantly in permitting Federal water development to serve the
interests of a much larger share of our population.
[p. 1]
The Secretary of Agriculture would be required to notify the
Department of the Interior on any construction plans which concern
the conservation and development of wildlife resources. The Secre-
tary of Agriculture would give full consideration to any plans sub-
mitted to him by the Fish and Wildlife Service.
The Congress recognized the need for greater emphasis on fish and
wildlife conservation through the enactment of the Fish and Wildlife
Act of August 8, 1956 (70 Stat. 1119). This act specifically pointed
to the need to maintain and increase these resources through proper
development and management. The Congress also directed the
Secretary of the Interior to take such steps as may be required for
the betterment of fish and wildlife resources, and to make such
recommendations for additional legislation as deemed necessary.
H.R. 13138 in the form reported by your committee is based on the
recommendations of the Secretary of the Interior contained in a
letter to the Committee dated April 1, 1958. That letter stated, in
part:
* * * we have discussed this proposed legislation with other
interested departments, including particularly, the Department
of Agriculture and the Department of the Army. The bill as
transmitted herewith has their concurrence.
The bill enjoys exceptionally enthusiastic and widespread support.
Every one of the 48 State governors, or their authorized represen-
tatives, had expressed general endorsement of an earlier version of
this bill, according to the Secretary of the Interior. Every major
national conservation organization supports it. The bill has the
wholehearted endorsement of the commercial fishing industry. As
noted above, the Secretary of the Interior sponsored the bill and
states that the administration, including all of the other affected
Federal departments, supports the bill. The committee has received
a very large number of written endorsements from all parts of the
country.
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2960 LEGAL COMPILATION—WATER
COSTS
The Department of the Interior is of the opinion that the cost of
this bill will be little above the amounts now being spent on studies
of water development projects.
GENERAL DISCUSSION
The fish and wildlife resources of the Nation are tremendously
important, not only to the physical and spiritual well-being of our
people, but to our national economy as well. A survey made by
an independent sampling organization in 1955 found that 1 out of
every 3 of all the households in this Nation contains at least 1 person
who hunts, fishes, or both. These people spent in that year some
$3 billion in pursuit of their sports. One in every 5 persons, 12
years of age or over—a total of 25 million in this age group—hunts
or fishes, or both. In addition to the business these activities generate
to provide profits and wages in the sporting goods, recreation and
related industries, these 25 million people gained much in physical
and spiritual health.
[p. 2]
Not all of the recreational benefits from fish and wildlife accrue
to those who hunt and fish. It has been estimated, for example,
that 66 million people find recreation and release from tension in
wildlife photography, bird watching, and other forms of nature study
based on fish and wildlife resources.
Commercial fisheries are of major importance to our Nation. This
industry provides employment, both direct and indirect, for about
half a million workers. The commercial fisheries industry supplies
somewhat more than 5 billion pounds of fish to our markets each year,
nearly 3 billion pounds of which are used for human food, providing
proteins and vitamins of great value in the national diet.
The remainder, as well as most of the waste from filleting, canning,
and otherwise preparing food fish for market, is used in the produc-
tion of supplements to animal feeds and as special-purpose materials
in industry and the arts.
Fishmeals, when incorporated in poultry diets, enable the farmer
to bring his birds to market weight in a period of 8 weeks, resulting
in a significant saving in feed and a significant improvement in
poultry quality. Fish solubles, another product derived from the
fish wastes, are an acknowledged superior source of vitamins, min-
erals, and unknown growth factors and are universally used in feeds
prepared for use by the poultry and swine-raising industries.
The commercial fish catch, when processed into human food and
industrial products, is valued at well over a billion dollars annually
at the retail level.
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STATUTES AND LEGISLATIVE HISTORY 2961
Some of the more desirable and most valuable commercial fishes
such as salmon, striped bass, menhaden, shrimp, and other shellfish,
are affected by water-use projects. The anadromous fishes, which
include the salmon, striped bass, and shad, must migrate to locations
in streams to perform their spawning act. After the eggs have
hatched, the resulting young fish must make their way downstream to
the ocean to achieve their growth. This two-way migration is partic-
ularly vulnerable to interference by dams. In some instances, shell-
fish may also be affected by dams, as these dams may alter the salinity
of the water in river estuaries. Finally, the nursery and feeding
grounds of valuable crustaceans, such as shrimp, as well as the young
of valuable marine fishes, may be affected by dredging, filling, and
diking operations often carried out to improve navigation and provide
new industrial or residential land.
It is particularly important that adequate provision be made for fish
and wildlife conservation in the water resource program, in view of
the very great increases in demand for water in the Nation's expand-
ing population and economy.
Since 1950, water demands for use by humans have increased by
35 to 40 percent. This is roughly three times the increase in popula-
tion, even though the population itself is increasing very rapidly.
Fish and wildlife species, like other living things, need land and water.
Adequate provision must be made for the conservation and preserva-
tion of fish and wildlife in our water program if we are to continue to
have them as part of our economy and way of life. _H.R. 13138, as
reported, is intended to provide more adequately for the conservation
and preservation of fish and wildlife without unduly restricting
needed development of our water resources to meet man's various
requirements. Despite the considerable accomplishments under the
[p. 3]
1946 Coordination Act, the results have fallen far short of the results
anticipated by the conservationists who sponsored the 1946 law. The
limitations and deficiencies of that act will not permit the Fish
and Wildlife Service and the State fish and game departments to
accomplish the objectives of fish and wildlife conservation and river
basin development that are clearly essential if we are to preserve our
fish and wildlife resources on a scale demanded by the people of the
Nation.
Principally the 1946 act does not provide clear, general authority
for the Federal agencies who construct water-resource projects to
incorporate in project construction and operation plans the needed
measures for fish and wildlife conservation. The act is mainly
concerned with compensatory measures to mitigate the loss of or
damage to fish and wildlife resources; it contains no clear authority
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2962 LEGAL COMPILATION—WATER
to permit the planning of installations of appropriate means and
measures to take advantage of opportunities provided by water
projects for enhancement or improvement for fish and wildlife
resources.
Existing law is of questionable application to many authorized
projects, a very serious shortcoming. The Corps of Engineers, for
example, has a backlog of 650 active authorized projects with an
estimated cost of about $6 billion on which construction has not yet
started. Many of these cover vast areas, containing some of the
most important fish and wildlife resources of the Nation. The Bureau
of Reclamation has about 150 projects or units at an estimated cost
of $3.7 billion in this category. Most of these projects have never
been investigated from the standpoint of their effects on fish and
wildlife resources. Many of them were authorized 15 or 20 years
ago or more. It would make good sense to have the policies and
procedures of the Coordination Act applicable to them in order that
the wishes of the Congress in enacting the 1946 statute and the
proposed amendments can be observed.
The bill provides for the inclusion of fish and wildlife conservation
features in these authorized projects so long as they are "compatible
with the purposes for which the project was authorized." It is
understood that some benefits from authorized project purposes may
have to be diminished in some slight degree in order to obtain benefits
from fish and wildlife conservation measures adopted to compensate
for losses to these resources or to enhance and develop fish and
wildlife.
The legislation would provide that conservation measures for the
prevention of losses to fish and wildlife should be included "to the
extent justifiable" in authorized projects. It is the understanding of
your committee, however, that these measures would not have to be
justified under the usual benefit-cost type of analysis. They would
not produce "benefits." These measures would be for reducing or
compensating for losses.
Similarly, it is the understanding of your committee that the
"estimation of wildlife * * * losses" provided for in the bill would
not require a dollar evaluation.
Existing law has questionable application to projects of the Corps
of Engineers for the^dredging of bays and estuaries for navigation and
filling purposes. 'More seriously, existing law has no application
whatsoever to the dredging and filling of bays and estuaries by
private interests or other non-Federal entities in navigable waters
[p. 4]
under permit from the Corps of Engineers. This is a particularly
serious deficiency from the standpoint of commercial fishing interests.
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STATUTES AND LEGISLATIVE HISTORY 2963
The dredging of these bays and estuaries along the coastlines to aid
navigation and also to provide land fills for real estate and similar
developments, both by Federal agencies, or other agencies under
permit from the Corps of Engineers, has increased tremendously in
the last 5 years. Obviously, dredging activity of this sort has a
profound disturbing effect on aquatic life, including shrimp and other
species of tremendous significance to the commercial fishing industry.
The bays, estuaries, and related marsh areas are highly important as
spawning and nursery grounds for many commercial species of fish
and shellfish". ,\
Also existing law contains no reference to the authority of the
water-project construction agencies to acquire land around water-use
projects for fish and wildlife conservation purposes. In very many
cases, the availability of lands to the Fish and Wildlife Service or the
State fish and game departments for these purposes is the key to
adequate and satisfactory project measures to compensate for losses
and to provide, for the enhancement and improvement of fish and
wildlife. The conservation agencies are restricted and hampered by
this lack of authority, particularly where the land acquisition neces-
sary for flood control and other so-called primary purposes of projects
results in little or no land being available for conservation purposes.
The amendments proposed by this bill would remedy these deficien-
cies and have several other important advantages. "The amendments
would provide that wildlife conservation shall receive equal consid-
eration with other features in the planning of Federal water resource
development programs. This would have the effect of putting fish
and wildlife on the basis of equality with flood control, irrigation,
navigation, and hydroelectric power in our water resource programs,
which is highly desirable and proper, and represents an objective long
sought by conservationists of the Nation. )
The amendments would also provide the Department of the Interior
with authority to accept lands and funds for fish and wildlife conser-
vation purposes given by individuals and other non-Federal entities.
They would grant authority for the withdrawal of public lands to
provide areas for fishing purposes and access to areas to be utilized
by the public for both hunting and fishing. (The present act con-
tains authority for withdrawal of public lands to provide areas for
hunting purposes.) Much public land has been withdrawn for
hunting purposes and large areas have been made available to State
fish and game departments for administration and mangement.
Finally, the amendments to existing law would simplify procedures,
for the assumption of management by the States of project lands
found to be of particular value to the national migratory bird pro-
gram. Under other existing law, the Department of the Interior has
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2964 LEGAL COMPILATION—WATER
jurisdiction of this program, but frequently it is found to be in the
public interest for the States to take over the management of certain
lands particularly valuable for migratory birds. Today these lands
must be assigned by the project construction agency first to the Fish
and Wildlife Service, who in turn, assigns them to State fish and game
departments. The bill would permit the assignment directly to the
States, while safeguarding the Federal interest in migratory birds.
[p. 5]
The legislation would be a permissive law so far as it concerns re-
lationship between water project construction agencies and fish and
wildlife conservation agencies. The latter would not be given any
veto power over any part of the water resource development program.
The legislation would establish in law the provisions of a memo-
randum of understanding, dated May 12, 1955, entered into by the
Fish and Wildlife Service and the Soil Conservation Service of the
Department of Agriculture. It would provide for study of projects
in the small watershed program by the Fish and Wildlife Service on a
fully cooperative basis, leaving full control of the program with local
groups, the Secretary of Agriculture, and the Congress, as at present.
These studies could be made to determine desirable means of en-
hancing fish and wildlife resources in these small watershed projects
as well as the mitigation of damages.
Unquestionably, the bill, if enacted, would result in the Congress
having better information on the effects of water projects on fish and
wildlife resources while considering project-authorizing legislation.
It will then, of course, be for the Congress to decide what conservation
measures should be incorporated in any project.
The Congress, moreover, would retain full control, through its
consideration of project-authorizing legislation, and the review of
supplemental reports, in the case of projects already authorized, of
any costs incurred for fish and wildlife conservation purposes.
AGENCY COMMENT
Departmental reports on S. 3725, the Senate version of H. R. 13138,
follow:
DEPARTMENT OF AGRICULTURE,
Washington, D.C., June 9,1958.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Interstate and Foreign Commerce,
United States Senate.
DEAR SENATOR MAGNUSON: This is in reply to your request of
April 30, 1958, for the comments of this Department on S. 3725, a
bill to amend the Coordination and Watershed Protection and Flood
Prevention Acts, to promote the conservation of wildlife, fish, and
-------
STATUTES AND LEGISLATIVE HISTORY 2965
game, and for other purposes.
The bill would amend the Coordination Act administered by the
Department of the Interior and the Watershed Protection and Flood
Prevention Act administered by the Department of Agriculture to
further promote the conservation of wildlife, fish, and game resources.
The provisions of this bill are identical, except for two added sub-
sections, to the provisions of the text recommended by the Secretary
of the Interior on April 1, 1958, to the Committee on Interstate and
Foreign Commerce as a substitute for S. 2496 and concurred in by this
Department in its report dated April 30, 1958, to that committee in
which it also outlined its strong objections to S. 2496 as introduced.
The 2 added subsections consist of a further proposed identical amend-
ment to each of the 2 acts to be amended by the bill which would
require that any acquisition, withdrawal, administration, or transfer
of water, water resources, or water rights necessary to carry out the
provisions of those acts shall be accomplished in accordance with the
water laws of the State or States in which such action is taken. This
[p. 6]
Department feels that the proposed added subsection 12 (b) to the
Watershed Protection and Flood Prevention Act beginning on page
13, line 23 of the bill does not appear to be necessary in view of the
existing provisions in section 4 (4) of that act, which provides that
local organizations shall acquire or provide assurance that landowners
or water uses have acquired needed water rights, pursuant to State
law.
The Bureau of the Budget advises that there is no objection to the
submission of this report.
Sincerely yours,
TRUE D. MORSK, Acting Secretary.
FEDERAL POWER COMMISSION,
Washington, June 26, 1958.
S. 3725, 85th Congress, 2d session, to amend the Coordination and
Watershed Protection * * * Act * * *.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington, D.C.
DEAR MR. CHAIRMAN: In response to your request of April 30,
1958, there are enclosed copies of the report of the Federal Power
Commission on the subject bill.
Sincerely yours,
JEROME K. KUYKENDALL,
Chairman.
-------
2966 LEGAL COMPILATION—WATER
Enclosure No. 104472.
FEDERAL POWER COMMISSION REPORT ON S. 3725, 85th CONGRESS, A
BILL To AMEND THE COORDINATION AND WATERSHED PROTECTION
AND FLOOD PREVENTION ACTS, To PROMOTE THE CONSERVATION OF
WILDLIFE, FISH, AND GAME, AND FOR OTHER PURPOSES
The amendments to the Wildlife Resources Coordination and Water-
shed Protection and Flood Prevention Acts (16 U. S. C. 661, 1001)
proposed by this bill appear to be designed to secure more effective
cooperation between State and Federal agencies and between Federal
agencies themselves in planning for the preservation, improvement,
and use of fish and wildlife resources in connection with water re-
source projects to be constructed by or under authority of the United
States or with Federal financial or technical assistance. The amend-
ments would also place an affirmative responsibility upon Federal
agencies, not only to prevent loss or damage to wildlife resources as
presently contemplated by the Coordination Act, but to integrate
wildlife conservation programs for the enhancement of wildlife with
other water resource development programs whether carried out by
Federal or non-Federal agencies.
There is much to be gained by an affirmative approach to wildlife
protection and preservation. In the issuance of licenses under the
Federal Power Act for water-power development by non-Federal
agencies, the Federal Power Commission regards the Wildlife Re-
sources Coordination Act as calling not only for protection but also
for the enhancement of fish and wildlife resources whenever such en-
hancement can be reasonably achieved. It appears, therefore, that
[p. 7]
the amendments carried by the bill would merely apply the same
principle to Federal programs as is now applied to non-Federal
developments under the Federal Power Act.
In this connection subsection 1 (c) of the bill would authorize the
Secretary of the Interior "to accept donations of land and contribu-
tions of funds in furtherance of the purposes of this act." In issuing
licenses the Commission has required in appropriate cases that licen-
sees make funds available to the Secretary to conduct studies to
determine measures and facilities required to conserve and enhance
fish and wildlife resources. In addition, the Commission has required
licensees to acquire or provide funds for acquiring lands for wildlife
management programs. If any doubt exists as to the authority of
the Secretary of the Interior to accept such donations and contribu-
tions, it appears desirable to expressly grant such authority as pro-
posed by the bill.
-------
STATUTES AND LEGISLATIVE HISTORY 2967
We understand that the Secretary of the Interior in his report on
this bill urges that Congress consider separately from this bill the
matter of compliance with State laws covered by the two subsections
appearing on page 11, lines 7 through 11, and on page 13, line 23,
through line 2 on page 14, because of their controversial nature.1
The matter of compliance with State water laws is presently before
the Congress in other bills directly dealing with that subject. While
we do not construe these two subsections as superseding any of the
licensing provisions of the Federal Power Act, we also believe that
the question of compliance with State laws might better be considered
separately from S. 3725. Consequently, we recommend that the two
subsections be deleted from the bill.
With the amendment recommended above the Commission is in
favor of this bill.
FEDERAL POWER COMMISSION,
BY JEROME K. KUYKENDALL, Chairman.
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, May 16, 1958.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Interstate and Foreign Commerce,
United States Senate.
DEAR MR. CHAIRMAN: Further reference is made to your letter
dated April 30, 1958, acknowledged May 2, requesting our comments
on S. 3725, 85th Congress, 2nd session.
S. 3725 would amend the Coordination Act of 1934, as amended
(16 U. S. C. 661-667), and the Watershed Protection and Flood Pre-
vention Act, as amended (16 U. S. C. 1001-1007), to provide for the
integration of fish and wildlife conservation programs with water-
resource development projects in which a Federal interest exists.
We find nothing in this bill which is objectionable from an account-
ing and auditing viewpoint. However, we have no information,
other than that contained in the remarks of the sponsor upon intro-
duction of the bill, with respect to the necessity for, or advisability of,
legislation of this nature. We therefore make no recommendation
with respect to its enactment.
[p. 8]
'These lines were deleted by amendments.
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2968 LEGAL COMPILATION—WATER
Your attention is invited to the reference to "section o" in line 17,
page 11, which apparently should read "section 3 (b)."
Sincerely yours,
JOSEPH CAMPBELL,
Comptroller General of the United States.
GENERAL SERVICES ADMINISTRATION,
Washington, D.C., July 9,1958.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington, D.C.
DEAR MR. CHAIRMAN: Your letter of April 30 requested the views
of the General Services Administration on S. 3725, 85th Congress, a
bill to amend the Coordination and Watershed Protection and Flood
Prevention Acts, to promote the conservation of wildlife, fish, and
game, and for other purposes.
Inasmuch as the subject matter of this measure does not concern
the operations and functions of GSA, we do not believe an expression
of our views would be appropriate.
Enactment of this measure will not affect the budgetary require-
ments of GSA.
The Bureau of the Budget has advised that there is no objection
to the submission of this report to your committee.
Sincerely yours,
FRANKLIN FLOETE, Administrator.
DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., June 11,1958.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Interstate and Foreign Commerce,
United States Senate, Washington, D.C.
DEAR SENATOR MAGNUSON: We invite your attention to S. 3725, a
bill to amend the Coordination and Watershed Protection and Flood
Prevention Acts, to promote the conservation of wildlife, fish, and
game, and for other purposes. In this connection, we refer also to
S. 2496, a bill to amend the act entitled "AN ACT To promote the
conservation of wildlife, fish, and game, and for other purposes,"
approved March 10, 1934, as amended, known as the Coordination
Act. On April 1, we transmitted to you our report on S. 2496. Our
report was accompanied by suggested revisions of that bill.
S. 3725, which has been introduced following our report on S. 2496,
contains the suggested amendments that we transmitted to you with
-------
STATUTES AND LEGISLATIVE HISTORY 2969
our report. However, it includes also two new subsections, on page
11, lines 7 through 11, and on page 13, line 23 through line 2, page 14,
dealing with the matter of compliance with State water laws along the
lines of S. 863, 85th Congress. This Department in the past has
recommended the enactment of legislation similar to S. 863, and we so
reported to the chairman, Committee on Interior and Insular Affairs,
United States Senate, by our letter of March 20, 1956, on S. 863 of the
[p. 9]
84th Congress. We recognize, however, that there is considerable
difference of opinion concerning such legislation. We recommend,
therefore, that the controversy over S. 863 and similar bills not be
injected into the consideration of the proposed legislation to amend
the Fish and Wildlife Coordination Act. Accordingly, we urge that
the Congress consider S. 863 separately. If enacted, that legislation
would, of course, have the general application that its terms prescribe.
For the foregoing reasons, we recommend that S. 3725 be enacted
in the form transmitted with our report on S. 2496. We recommend
that S. 3725 be amended as follows:
(1) On page 11, strike out lines 7 through 11.
(2) On page 13, beginning with line 23, strike out the text through
line 2 on page 14.
The Bureau of the Budget has advised us that there is no objection
to the submission of this report to your committee.
Sincerely yours,
Ross LEFFLER,
Assistant Secretary of the Interior.
DEPARTMENT OF THE ARMY,
Washington, D.C., April 29,1958.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Interstate and Foreign Commerce,
United States Senate.
DEAR MR. CHAIRMAN: Reference is made to your request to the
Secretary of Defense for the views of the Department of Defense with
respect to S. 2496, 85th Congress, a bill to amend the act entitled
"AN ACT To promote the conservation of wildlife, fish, and game,
and for other purposes," approved March 10, 1934, as amended,
known as the Coordination Act." The Secretary of Defense has
assigned to the Department of the Army the responsibility for the
preparation of a report.
The Department of the Army has considered the above-mentioned
bill, the purpose of which, stated generally, is to amend sections 1-3
-------
2970 LEGAL COMPILATION—WATER
of the act of Congress approved March 10, 1934, as amended by the
act approved August 14, 1946 (16 U. S. C. 661-663), pertaining to the
conservation of wildlife.
The primary interest of this Department in the proposed amend-
ments pertains to the civil works water resource development pro-
gram. The Department is in complete agreement with the objective of
promoting effective coordination of wildlife conservation with re-
source development programs and equal consideration of wildlife
conservation in planning and carrying out such programs. All
purposes must be considered in any comprehensive and coordinated
development if the maximum sustained benefits are to be obtained
for each public dollar invested in the development of our natural
resources. This will involve the active participation of all responsible
State and Federal agencies in the planning, development and mainte-
nance of water resources programs. Experience shows that each
interest cannot be given everything it wants. There usually must be
adjustments in balancing the degree to which the various purposes
can be served considering the overall needs in the areas benefited.
Full
[p. 10]
consideration can be given to all conservation matters only with
the active help of all responsible agencies concerned on a coopera-
tive basis.
There is a strong implication in the modifications proposed in
S. 2496, however, that wildlife conservation shall be given more than
equal treatment. The costs of means and measures to prevent loss of
and damage to wildlife, and • to provide for the development and
improvement of wildlife, do not have to be justified by the results
expected. The bill implies that provisions for wildlife shall be
included irrespective of other project considerations.
This Department is agreeable to the inclusion, in the project work
to be performed and budgeted by it, of facilities and modifications for
wildlife which are attached to or form an integral part of other project
features. It is considered essential to the proper operation of the
project that such facilities should be operated by the agency respon-
sible for operation and maintenance of the project. However, it is
considered that facilities and improvements which can be undertaken
separately for wildlife conservation should be undertaken as a part of
wildlife conservation programs by the agencies responsible for those
programs.
The bill, S. 2496, in its present form, is inconsistent as to cost
sharing. It provides that for projects under reclamation law all costs
allocated to conservation of wildlife, including those for prevention of
-------
STATUTES AND LEGISLATIVE HISTORY 2971
loss or damage, shall be nonreimbursable. On the other hand, for
other Federal projects costs of measures for prevention of loss would
be joint or integral project costs chargeable to other project functions
such as hydro-power or flood control), and for costs allocated to
improvement of the resource the bill would require a finding of the
amount which should be reimbursed by non-Federal interests. It is
believed to be essential that whatever cost sharing procedure the
Congress adopts as a matter of policy for wildlife conservation be
uniformly applicable to programs of all Federal agencies.
S. 2496 would give broad authority for acquisition of lands for
prevention of damage to wildlife resources and for improvement of
such resources, in accordance with recommendations of the Fish and
Wildlife Service and subject to approval by the Secretary of the
Interior. No specific action by the Congress thereon would be
required nor would affected States necessarily have an opportunity
to comment on the appropriateness of such acquisition. It is consid-
ered essential to the accomplishment of such acquisition that before
properties are acquired for this purpose, the extent of such acquisition
be described as accurately as practicable and be set forth, along with
other data necessary for project authorization, in a report submitted
to the Congress, and that no such properties be acquired unless
specifically authorized by the Congress, if specific authority for such
acquisition is recommended by the construction agency.
Modification of the basic legislation of this matter has been the
subject of extensive coordination among the Departments of the In-
terior, Army and Agriculture and the Bureau of the Budget as it
relates to the various Federal programs that would be affected. As
a result of these endeavors, the Department of the Interior has
proposed certain modifications of the law on which substantial
agreement has been reached among the agencies. A copy of those
proposals is inclosed. If the amendments proposed in S. 2496 were
modified to make the bill consistent with the inclosed proposals, the
[p.11]
Department of the Army would interpose no objection to its
enactment.
The Bureau of the Budget advises that there is no objection to the
submission of this report.
Sincerely yours,
WILBER M. BRUCKER,
Secretary of the Army.
CHANGES IN EXISTING LAW
In compliance with subsection 4 of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill are
-------
2972 LEGAL COMPILATION—WATER
shown as follows (existing law proposed to be omitted is enclosed in
brackets; new matter is printed in italic; existing law in which no
change is proposed is shown in roman):
SECTIONS 1 THROUGH 4, INCLUSIVE, OF AN ACT To PROMOTE THE
CONSERVATION OF WILDLIFE, FISH, AND GAME, AND FOR OTHER
PURPOSES
(48 Stat. 401; 16 U. S. C., sees. 661 to 664, inclusive)
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, [That in order to
promote effectual planning, development, maintenance, and coordi-
nation of wildlife conservation and rehabilitation in the United States,
its Territories and possessions, the Secretary of the Interior, through
the Fish and Wildlife Service, is authorized (a) to provide assistance
to, and cooperate with, Federal, State, and public or private agencies
and organizations in the development, protection, rearing, and stock-
ing of all species of wildlife, resources thereof, and their habitat, in
controlling losses of the same from disease or other causes, in mini-
mizing damages from overabundant species, in providing public
shooting areas, and in carrying out other measures necessary to
effectuate the purpose of this Act; and (b) to make surveys and
investigations of the wildlife of the public domain, including lands
and waters or interests therein acquired or controlled by any agency
of the United States.
[SEC. 2. Whenever the waters of any stream or other body of water
are authorized to be impounded, diverted, or otherwise controlled for
any purpose whatever by any department or agency of the United
States, or by any public or private agency under Federal permit,
such department or agency first shall consult with the Fish and
Wildlife Service and the head of the agency exercising administration
over the wildlife resources of the State wherein the impoundment,
diversion, or other control facility is to be constructed with a view
to preventing loss of and damage to wildlife resources, and the reports
and recommendations of the Secretary of the Interior and of the head
of the agency exercising administration over the wildlife resources of
the State, based on surveys and investigations conducted by the Fish
and Wildlife Service and by the said head of the agency exercising
administration over the wildlife resources of the State, for the purpose
of determining the possible damage to wildlife resources and of the
means and measures that should be adopted to prevent loss of and
damage to wildlife resources, shall be made an integral part of any
[p!2]
-------
STATUTES AND LEGISLATIVE HISTORY 2973
report submitted by any agency of the Federal Government respon-
sible for engineering surveys and construction of such projects.
[The cost of planning for and the construction or installation and
maintenance of any such means and measures shall be included in
and shall constitute an integral part of the costs of such projects:
Provided, That, in the case of projects after August 14, 1946, author-
ized to be constructed, operated, and maintained in accordance with
the Federal reclamation laws (Act of June 17, 1902, 32 Stat. 388,
and Acts amendatory thereof or supplementary thereto), the Secre-
tary of the Interior shall, in addition to allocations to be made under
section 9 of the Reclamation Project Act of 1939 (53 Stat. 1187),
make findings on the part of the estimated cost of the project which
can properly be allocated to the preservation and propagation of fish
and wildlife, and costs allocated pursuant to such findings shall not
be reimbursable. In the case of construction by a Federal agency,
that agency is authorized to transfer, out of appropriations or other
funds made available for surveying, engineering, or construction to
the Fish and Wildlife Service, such funds as may be necessary to con-
duct the investigations required by this section to be made by it.
[SEC. 3. Whenever the waters of any stream or other body of water
are impounded, diverted, or otherwise controlled for any purpose
whatever by any department or agency of the United States, adequate
provision consistent with the primary purposes of such impound-
ment, diversion, or other control shall be made for the use thereof,
together with any areas of land, or interest therein, acquired or ad-
ministered in connection therewith, for the conservation, mainte-
nance, and management of wildlife, resources thereof, and its habitat
thereon. In accordance with general plans, covering the use of such
waters and other interests for these purposes, approved jointly by the
head of the department or agency exercising primary administration
thereof, the Secretary of the Interior, and the head of the agency
exercising administration over the wildlife resources of the State
wherein the waters and areas lie, such waters and other interests
shall be made available without cost for administration (a) by such
State agency, if the management thereof for the conservation of wild-
life relates to other than migratory birds; (b) by the Secretary of the
Interior, if the waters and other interests have particular value in
carrying out the national migratory bird management program.
[SEC. 4. Such areas as are made available to the Secretary of the
Interior for the purposes of this Act under sections 1 and 3, or by any
other law, proclamation, or Executive order, shall be administered
directly or under cooperative agreements entered into pursuant to the
provisions of section 1 by the Secretary of the Interior under such
rules and regulations for the conservation, maintenance, and manage-
-------
2974 LEGAL COMPILATION—WATER
ment of wildlife, resources thereof, and its habitat thereon, as may be
adopted by him in accordance with general plans approved jointly by
the Secretary of the Interior and the head of the department or
agency exercising primary administration of such areas: Provided,
That such rules and regulations shall not be inconsistent with the laws
for the protection of fish and game of the States in which such area is
situated.]
For the purpose of recognizing the vital contribution of our wildlife
resources to the Nation, the increasing public interest and significance
thereof due to expansion of our national economy and other factors,
and
[p. 13]
to provide that wildlife conservation shall receive equal consid-
eration and be coordinated with other features of water-resource
development programs through the effectual and harmonious plan-
ning, development, maintenance, and coordination of wildlife con-
servation and rehabilitation for the purposes of this Act in the United
States, its Territories and possessions, the Secretary of the Interior
is authorized (1) to provide assistance to, and cooperate with, Federal,
State, and public or private agencies and organizations in the develop-
ment, protection, rearing, and stocking of all species of loildlife, re-
sources thereof, and their habitat, in controlling losses of the same
from disease or other causes, in minimizing damages from overabun-
dant species, in providing public shooting and fishing areas, including
easements across public lands for access thereto, and in carrying out
other measures necessary to effectuate the purposes of this Act; (2)
to make surveys and investigations of the wildlife of the public do-
main, including lands and waters or interests therein acquired or
controlled by any agency of the United States; and (3) to accept
donations of land and contributions of funds in furtherance of the
purposes of this Act.
Sec. 2 (a) Except as hereafter stated in subsection (h) of this
section, whenever the waters of any stream or other body of water
are proposed or authorized to be impounded, diverted, the channel
deepened, or the stream or other body of water otherwise controlled
or modified for any purpose whatever, including navigation and
drainage, by any department or agency of the United States, or by any
public or private agency under Federal permit or license, such de-
partment or agency first shall consult with the United States Fish and
Wildlife Service, Department of the Interior, and with the head of the
agency exercising administration over the wildlife resources of the
particular State wherein the impoundment, diversion, or other con-
trol facility is to be constructed, with a view to the conservation of
-------
STATUTES AND LEGISLATIVE HISTORY 2975
wildlife resources by preventing loss of and damage to such resources
as well as providing for the development and improvement thereof
in connection with such water-resource development.
(b) In furtherance of such purposes, the reports and recommenda-
tions of the Secretary of the Interior on the wildlife aspects of such
projects, and any report of the head of the State agency exercising
administration over the wildlife resources of the State, based on
surveys and investigations conducted by the United States Fish and
Wildlife Service and such State agency for the purpose of determining
the possible damage to wildlife resources and for the purposes of
determining means and measures that should be adopted to prevent
the loss of or damage to such wildlife resources, as well as to provide
concurrently for the development and improvement of such resources,
shall be made an integral part of any report prepared or submitted
by any agency of the Federal Government responsible for engineering
surveys and construction of such projects when such reports are
presented to the Congress or to any agency or person having the
authority or the power, by administrative action, or otherwise,
(1) to authorize the construction of water-resource development
projects or (2) to approve a report on the modification or supple-
mentation of plans for previously authorized projects, to which this
Act applies. Recommendations of the Secretary of the Interior shall
be as specific as is practicable with respect to features recommended
for wildlife conservation and development, lands to be utilized or
acquired for such purposes, the results expected, and shall describe
the damage to wildlife attributable to the project and the measures
proposed for mitigating or compensating for these damages. The re-
ly. 14]
porting officers in project reports of the Federal agencies shall give
full consideration to the report and recommendations of the Secretary
of the Interior and to any report of the State agency on the wildlife
aspects of such projects, and the project plan shall include such
justifiable means and measures for wildlife purposes as the reporting
agency finds should be adopted to obtain maximum overall project
benefits.
(c) Federal agencies authorized to construct or operate water-
control projects are hereby authorized to modify or add to the
structures and operations of such projects, the construction of which
has not been substantially completed on the date of enactment of the
Fish and Wildlife Coordination Act, and to acquire lands in accord-
ance with section 3 of this Act, in order to accommodate the means
and measures for such conservation of wildlife resources as an
integral part of such projects: Provided, That for projects authorized
-------
2976 LEGAL COMPILATION—WATER
for a specific Act of Congress before the date of enactment of the Fish
and Wildlife Coordination Act (1) such modification or land acquisi-
tion shall be compatible with the purposes for which the project was
authorized; (2) the cost of such modifications or land acquisition, as
means and measures to prevent loss of and damage to wildlife
resources to the extent justifiable, shall be an integral part of the cost
of such projects; and (3) the cost of such modifications or land
acquisition for the development or improvement of wildlife resources
may be included to the extent justifiable, and an appropriate share of
the cost of any project may be allocated for this purpose with a finding
as to the part of such allocated cost, if any, to be reimbursed by non-
Federal interests.
(d) The cost of planning for and the construction or installation
and maintenance of such, means and measures adopted to carry out
the conservation purposes of this section shall constitute an integral
part of the cost of such projects: Provided, That such cost attributable
to the development and improvement of wildlife shall not extend be-
yond those necessary for (I) land acquisition, (2) modification of the
project, and (3) modification of project operations; but shall not in-
clude the operation of wildlife facilities nor the construction of such
facilities beyond those herein described: And provided further, That,
in the case of projects authorized to be constructed, operated, and
maintained in accordance with the Federal reclamation laws (Act of
June 17, 1902, 32 Stat. 388, and Acts amendatory thereof or supple-
mentary thereto), the Secretary of the Interior, in addition to alloca-
tions made under section 9 of the Reclamation Project Act of 1939
(53 Stat. 1187), shall make findings on the part of the estimated cost
of the project which can properly be allocated to means and measures
to prevent loss of and damage to wildlife resources, which costs shall
not be reimbursable, and an appropriate share of the project costs
may be allocated to development and improvement of wildlife
resources, with a finding as to the part of such allocated costs, if any,
to be reimbursed by non-Federal fish and wildlife agencies or interests.
(e) In the case of construction by a Federal agency, that agency is
authorized to transfer to the United States Fish and Wildlife Service,
out of appropriations or other funds made available for investigations,
engineering, or construction, such funds as may be necessary to con-
duct all or part of the investigations required to carry out the pur-
poses of this section.
(f) In addition to other requirements, there shall be included in
any report submitted to Congress supporting a recommendation for
authorization of any new project for the control or use of water as
described herein
[P. 15]
-------
STATUTES AND LEGISLATIVE HISTORY 2977
(including any new division of such project or new supplemental
works on such project) an estimation of the wildlife benefits or
losses to be derived therefrom including benefits to be derived
from measures recommended specifically for the development and
improvement of wildlife resources, the cost of providing wildlife
benefits (including the cost of additional facilities to be installed or
lands to be acquired specifically for that particular phase of wildlife
conservation relating to the development and improvement of wild-
life) , the part of the cost of joint-use facilities allocated to wildlife,
and the part of such costs, if any, to be reimbursed by non-Federal
interests.
(g) The provisions of this section shall be applicable with respect
to any project for the control or use of water as prescribed herein, or
any unit of such project authorized before or after the date of enact-
ment of the Fish and Wildlife Coordination Act for planning or
construction, but shall not be applicable to any project or unit thereof
authorized before the date of enactment of the Fish and Wildlife
Coordination Act if the construction of the particular project or unit
thereof has been substantially completed. A project or unit thereof
shall be considered to be substantially completed when sixty percent
or more of the estimated construction cost has been obligated for
expenditure.
(h) The provisions of this Act shall not be applicable to those
projects for the impoundment of water where the maximum surface
area of such impoundments is less than ten acres, nor to activities
for or in connection with programs primarily for land management
and use carried out by Federal agencies with respect to Federal
lands under their jurisdiction.
Sec. 3 (a) Subject to the exceptions prescribed in section 2 (h) of
this Act, whenever the waters of any stream or other body of water
are impounded, diverted, the channel deepened, or the stream or
other body of water otherwise controlled or modified for any purpose
whatever, including navigation and drainage, by any department or
agency of the United States, adequate provision, consistent with the
primary purposes of such impoundment, diversion, or other control,
shall be made for the use thereof, together with any areas of land,
water, or interests therein, acquired or administered by a Federal
agency in connection therewith, for the conservation, maintenance,
and management of wildlife resources thereof, and its habitat thereon,
including the development and improvement of such wildlife re-
sources pursuant to the provisions of section 2 of this Act.
(b) The use of such waters, land, or interests therein for wildlife
conservation purposes shall be in accordance with general plans
approved jointly (1) by the head of the particular department or
-------
2978 LEGAL COMPILATION—WATER
agency exercising primary administration in each instance, (2) by
the Secretary of the Interior, and (3) by the head of the agency
exercising the administration of the wildlife resources of the particular
State wherein the waters and areas lie. Such waters and other in-
terests shall be made available, without cost for administration, by
such State agency, if the management of the properties relate to the
conservation of wildlife other than migratory birds, or by the Secre-
tary of the Interior, for administration in such manner as he may
deem advisable, where the particular properties have value in carry-
ing out the national migratory bird management program: Provided,
That nothing in this section shall be construed as affecting the
authority of the Secretary of Agriculture to cooperate with the States
or in making lands available to the States with respect to the
management of wildlife and wildlife habitat on lands administered
by him.
[p. 16]
(c) When consistent with the purposes of this Act and the reports
and findings of the Secretary of the Interior prepared in accordance
with section 2, land, waters, and interests therein may be acquired by
Federal construction agencies for the wildlife conservation and
development purposes of this Act in connection with a project as
reasonably needed to preserve and assure for the public benefit the
wildlife potentials of the particular project area: Provided, That
before properties are acquired for this purpose, the probable extent
of such acquisition shall be set forth, along with other data necessary
for project authorization, in a report submitted to the Congress, or in
the case of a project previously authorized, no such properties shall
be acquired unless specifically authorized by Congress, if specific
authority for such acquisition is recommended by the construction
agency.
(d) Properties acquired for the purposes of this section shall con-
tinue to be used for such, purposes, and shall not become the subject
of exchange or other transactions if such exchange or other transaction
would defeat the initial purpose of their acquisition.
(e) Federal lands acquired or withdrawn for Federal water-
resource purposes and made available to the States or to the Secre-
tary of the Interior for wildlife management purposes, shall be made
available for such purposes in accordance with this Act, notwith-
standing other provisions of law.
(f) Any lands acquired pursuant to this section by any Federal
agency within the exterior boundaries of a national forest shall, upon
acquisition, be added to and become national forest lands, and shall be
administered as a part of the forest within which they are situated,
subject to all laws applicable to lands acquired under the provisions
-------
STATUTES AND LEGISLATIVE HISTORY 2979
of the Act of March 1, 1911 (36 Stat. 961), unless such lands are
acquired to carry out the National Migratory Bird Management
Program.
Sec. 4. Such areas as are made available to the Secretary of the In-
terior for the purposes of this Act, pursuant to sections 1 and 3 or
pursuant to any other authorization, shall be administered by him
directly or in accordance with cooperative agreements entered into
pursuant to the provisions of the first section of this Act and in ac-
cordance with such rules and regulations for the conservation, main-
tenance, and management of wildlife, resources thereof, and its habitat
thereon, as may be adopted by the Secretary in accordance with
general plans approved jointly by the Secretary of the Interior and the
head of the department or agency exercising primary administration
of such areas: Provided, That such rules and regulations shall not
be inconsistent with the laws for the protection of fish and game of
the States in which such area is situated (16 U.S.C., sec. 664):
Provided further, That lands having value to the National Migratory
Bird Management Program may, pursuant to general plans, be made
available without cost directly to the State agency having control over
wildlife resources, if it is jointly determined by the Secretary of the
Interior and such State agency that this would be in the public
interest: And provided further, That the Secretary of the Interior
shall have the right to assume the management and administration of
such lands in behalf of the National Migratory Bird Management
Program if the Secretary finds that the State agency has withdrawn
from or otherwise relinquished such management and administration.
[p. 17]
1.27f(3) CONGRESSIONAL RECORD, VOL. 104 (1958)
1.27f(3)(a) July 21: Passed House, pp. 1440-1442
[No Relevant Discussion on Pertinent Section]
1.27f (3) (b) July 31: Passed Senate, p. 15713
[No Relevant Discussion on Pertinent Section]
1.27g FEDERAL WATER PROJECT RECREATION ACT
July 9, 1965, P.L. 89-72, §6(b), 79 Stat. 216
SEC. 6.
*******
(b) The first proviso of subsection 2 (d) of the Act of August 12,
-------
2980 LEGAL COMPILATION—WATER
1958 (72 Stat. 563; 16 U.S.C. 662 (d)), is amended to read as follows:
"Provided, That such cost attributable to the development and im-
provement of wildlife shall not extend beyond that necessary for (1)
land acquisition, (2) facilities as specifically recommended in water
resource project reports, (3) modification of the project, and (4)
modification of project operations, but shall not include the operation
of wildlife facilities." The second proviso of subsection 2 (d) of said
Act is hereby repealed.
*******
[p. 216]
1.27g(l) SENATE COMMITTEE ON INTERIOR AND
INSULAR AFFAIRS
S. REP. No. 149, 89th Cong., 1st Sess. (1965)
FEDERAL WATER PROJECT RECREATION ACT
APRIL 7,1965.—Ordered to be printed
Mr. JACKSON, from the Committee on Interior and Insular Affairs,
submitted the following
REPORT
[To accompany S. 1229]
The Committee on Interior and Insular Affairs, to whom was
referred the bill (S. 1229) to provide uniform policies with respect to
recreation and fish and wildlife benefits and cost of Federal multiple-
purpose water resource projects, and to provide the Secretary of the
Interior with authority for recreation development of projects under
his control, having considered the same, report favorably thereon
with amendments and recommend that the bill, as amended, do pass.
BACKGROUND OF MEASURE
The Congress, the Bureau of the Budget, the Department of the
Army, and the Department of the Interior have for some time been
giving formal study to the subject of uniform cost allocations on
water resource projects.
At the request of the Bureau of the Budget, Senator Jackson
-------
STATUTES AND LEGISLATIVE HISTORY 2981
introduced S. 1229 dealing with recreation and fish and wildlife
policies in reclamation projects.
PURPOSE OF MEASURE
The principal purpose of S. 1229, as reported, is to establish prospec-
tive standard guidelines on the allocation of and the reimbursability
of recreation and fish and wildlife costs on Federal multiple-purpose
water-resource projects.
The bill also gives the Secretary of the Interior certain limited
authority for recreation development on existing projects under his
control.
The committee wishes to encourage, through its action on S. 1229,
non-Federal development and operation of recreation and fish and
wildlife enhancement features of Federal water resources projects
except where such features meet the criteria for Federal administra-
tion.
[p. 1]
The committee finds the cost-sharing provisions proposed by the
Bureau of the Budget to be reasonable. The committee recognizes
that in a few instances, unusual circumstances may compel the
Federal water resource agencies to recommend to the Congress ex-
ceptions to the general cost-sharing and reimbursement policy
enunciated in this bill.
These cost-sharing provisions contemplate the Federal Government
bearing all joint project costs allocated to recreation and fish and wild-
life enhancement. The Federal Government, under the bill, could
also bear up to one-half of the separable project costs allocated to
these functions. The States, or local public bodies thereof, would
reimburse the Federal Government for the remaining separable costs.
Joint costs, for example, include the cost of a dam to the extent it
is common to all project purposes. Illustrations of separable costs
are the costs of picnic tables, boat-launching ramps, lands, roads, or
such project modifications as increasing the height of a dam or provid-
ing a subimpoundment specifically for recreation or fish and wildlife
enhancement.
States, or local public bodies thereof, may pay or repay their share
of the separable costs either through (1) payment in cost or by provi-
sion of lands or facilities needed for the project or through (2) repay-
ment, within 50 years and with interest, from entrance and user fees
collected at the projects by these entities.
The committee, not only in its examination of the more novel func-
tions of Federal water projects such as recreation, but also in its
review of such traditional project functions as power and irrigation,
-------
2982 LEGAL COMPILATION—WATER
believes that the Congress can better meet its responsibilities by
requiring the specific approval by law or by direction of one of its
Interior and Insular Affairs Committees before any major Depart-
ment of the Interior water-project feasibility investigation may be
undertaken.
The committee believes that the active participation of these com-
mittees in the Department of the Interior's project investigations
process will substantially strengthen the Department's water-resource
program and be to the mutual benefit of both that agency and the
Congress.
[p. 2]
COMMITTEE AMENDMENTS
*******
SEC. 6.
(b) Nothing in this Act shall be construed as amending the first
proviso of subsection 2 (d) of the Act of August 12,1958 (72 Stat. 563;
16 U.S.C. 662 (d)), and the second proviso of subsection 2 (d) of that
Act is hereby repealed.
*******
[p-8]
Subsection 6 (b) confirms the limitations of the first proviso of
subsection 2 (d) of the Fish and Wildlife Coordination Act (72 Stat.
563; 16 U.S.C. 622 (d)) with respect to measures for the enhancement
of fish and wildlife properly includeable in a Federal water resource
project; it repeals the second proviso of that subsection of the Fish
and Wildlife Coordination Act, which applies to projects constructed
under reclamation law. The effect of the repeal of the second proviso
is twofold: First, it will result in the costs of mitigation of project-
occasioned damage to fish and wildlife being distributed among all
project purposes the same as any other project cost; and, second, it
will terminate the reimbursement policy for costs allocated to fish and
wildlife enhancement now set out in the Fish and Wildlife Coordina-
tion Act so that the reimbursement policy established by this bill
may take effect.
[p. 13]
-------
STATUTES AND LEGISLATIVE HISTORY 2983
1.27g(2) HOUSE COMMITTEE ON INTERIOR AND INSULAR
AFFAIRS
H.B. REP. No. 254, 89th Cong., 1st Sess. (1965)
FEDERAL WATER PROJECT RECREATION ACT
APRIL 27, 1965.—Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. ASPINALL, from the Committee on Interior and Insular Affairs,
submitted the following
REPORT
[To accompany H.R. 5269]
The Committee on Interior and Insular Affairs, to whom was re-
ferred the bill (H.R. 5269) to provide uniform policies with respect
to recreation and fish and wildlife benefits and costs of Federal mul-
tiple-purpose water resource projects, and to provide the Secretary
of the Interior with authority for recreation development of projects
under his control, having considered the same, report favorably
thereon with an amendment and recommend that the bill as amended
do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert the following
language:
*******
[p. 1]
SEC. 6.
*******
(b) The first proviso of subsection 2 (d) of the Act of August 21, 1958 (72 Stat.
563; 16 U.S.C. 662 (d)) is amended to read as follows: "Provided, That such cost
attributable to the development and improvement of wildlife shall not extend
beyond that necessary for (1) land acquisition, (2) facilities as specifically recom-
mended in water resource project reports, (3) modification of the project, and
(4) modification of project operations, but shall not include the operation of wild-
life facilities." The second proviso of subsection 2(d) of said Act is hereby
repealed.
[P. 3]
Subsection 6 (b) amends the first proviso of subsection 2 (d) of the
-------
2984 LEGAL COMPILATION—WATER
Fish and Wildlife Coordination Act (72 Stat. 563; 16 U.S.C. 622 (d))
to make it clear that facilities recommended in project reports for
fish and wildlife enhancement may be provided in accordance with
the terms of this legislation and it repeals the second proviso of that
subsection of the Fish and Wildlife Coordination Act, which applies
to projects constructed under reclamation law. The effect of the
repeal of the second proviso is twofold: first, it will result in the costs
of mitigation of project-occasioned damage to fish and wildlife being
distributed among all project purposes the same as other project
costs; and, second, it will terminate the reimbursement policy for
costs allocated to fish and wildlife enhancement now set out in the
Fish and Wildlife Coordination Act so that the reimbursement policy
established by this bill may take effect.
[p. 15]
SEC. 6.
*******
(b) Nothing in this Act shall be construed as amending the first
proviso of subsection 2 (d) of the Act of August 12, 1958 (72 Stat. 563;
16 U.S.C. 662 (d)), and the second proviso of subsection 2 (d) of that
Act is hereby repealed.
[p. 21]
1.27g(3) COMMITTEE OF CONFERENCE
H.B. REP. No. 538, 89th Cong., 1st Sess. (1965)
UNIFORM POLICIES ON MULTIPLE-PURPOSE WATER
RESOURCE PROJECTS
JUNE 22,1965.—Ordered to be printed
Mr. ASPINALL, from the committee of conference, submitted the
following
CONFERENCE REPORT
[To accompany S. 1229]
REPORT
The committee of conference on the disagreeing votes of the two
Houses on the amendments of the House to the bill (S. 1229) to pro-
-------
STATUTES AND LEGISLATIVE HISTORY 2985
vide uniform policies with respect to recreation and fish and wildlife
benefits and costs of Federal multiple-purpose water resource projects,
and for other purposes, having met, after full and free conference,
have agreed to recommend and do recommend to their respective
Houses as follows:
That the Senate recede from its disagreement to the amendment of
the House and agree to the same with an amendment as follows:
In lieu of the matter inserted by the House amendment insert the
following:
SEC. 6.
*******
(b) The first proviso of subsection 2 (d) of the Act of August 12,
1958 (72 Stat. 563; 16 U.S.C. 662 (d)), is amended to read as follows:
"Provided, That such cost attributable to the development and im-
provement of wildlife shall not extend beyond that necessary for (1)
land acquisition, (2) facilities as specifically recommended in water
resource project reports, (3) modification of the project, and (4)
modification of project operations, but shall not include the operation
of wildlife facilities." The second proviso of subsection 2 (d) oj said
Act is hereby repealed.
[p. 4]
1.27g(4) CONGRESSIONAL RECORD, VOL. Ill (1965)
1.27g(4) (a) April 13: Amended and passed Senate, p. 7891
[No Relevant Discussion on Pertinent Section]
1.27g(4)(b) May 18: Amended and passed House, p. 10881
Mr. ROGERS of Texas.
legislation.
Subsection 6(b) amends the Fish and
Wildlife Coordination Act in certain
respects to make it consistent with this
[p. 10881]
1.27g(4)(c) June 23: House agrees to conference report, p. 14464
[No Relevant Discussion on Pertinent Section]
1.27g(4)(d) June 25: Senate agrees to conference report, p. 14814
[No Relevant Discussion on Pertinent Section]
-------
2986 LEGAL COMPILATION—WATER
1.28 PUBLIC WORKS AND ECONOMIC DEVELOPMENT
ACT OF 1965
42 U.S.C. §3136 (1965)
§3136. Sewer and other waste disposal facilities; certification by
Secretary of the Interior regarding adequate treatment
prior to discharge into streams
No financial assistance, through grants, loans, guarantees, or other-
wise, shall be made under this chapter to be used directly or in-
directly for sewer or other waste disposal facilities unless the
Secretary of the Interior certifies to the Secretary that any waste ma-
terial carried by such facilities will be adequately treated before it is
discharged into any public waterway so as to meet applicable Federal,
State, interstate, or local water quality standards.
Pub.L. 89-136, Title I, §106, Aug. 26, 1965, 79 Stat. 554; 1966 Reorg.
Plan No. 2, §1 (h) (3), eff. May 10, 1966, 31 F.R. 6857, 80 Stat. 1608.
Transfer of Functions. The functions of the Secretary of the Interior under this section
which had been transferred to the Secretary of the Interior from the Secretary of Health,
Education, and Welfare by Reorg.Plan No. 2 of 1966 were transferred to the Administrator
of the Environmental Protection Agency by Reorg.Plan No. 3 of 1970, §2 (a) (1), eff. Dec. 2,
1970, 35 F.R. 15623.
1.28a PUBLIC WORKS AND ECONOMIC DEVELOPMENT
ACT OF 1965
August 26, 1965, P.L. 89-136, §106, 79 Stat. 554
FINANCIAL ASSISTANCE FOR SEWER FACILITIES
SEC. 106. No financial assistance, through grants, loans, guarantees,
or otherwise, shall be made under this Act to be used directly or indi-
rectly for sewer or other waste disposal facilities unless the Secretary
of Health, Education, and Welfare certifies to the Secretary that any
waste material carried by such facilities will be adequately treated
before it is discharged into any public waterway so as to meet appli-
cable Federal, State, interstate, or local water quality standards.
[p. 554]
-------
STATUTES AND LEGISLATIVE HISTORY 2987
1.28a(l) SENATE COMMITTEE ON PUBLIC WORKS
S. REP. No. 193, 89th Cong., 1st Sess. (1965)
PUBLIC WORKS AND ECONOMIC DEVELOPMENT ACT
OF 1965
MAY 14,1965.—Ordered to be printed
Filed under authority of the order of the Senate of May 14,1965
Mr. McNAMARA, from the Committee on Public Works, submitted
the following
REPORT
[To accompany S. 1648]
The Committee on Public Works to whom was referred the bill
(S. 1648) to provide grants for public works and development facili-
ties, other financial assistance, and the planning and coordination
needed to alleviate conditions of substantial and persistent unemploy-
ment and underemployment in economically distressed areas and
regions, and for other purposes, having considered the same report
favorably thereon with amendments and recommend that the bill as
amended do pass.
[p. 1]
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2988 LEGAL COMPILATION—WATER
1.28a(2) HOUSE COMMITTEE ON PUBLIC WORKS
H.R. REP. No. 539, 89th Cong., 1st Sess. (1965)
PUBLIC WORKS AND ECONOMIC DEVELOPMENT ACT
OF 1965
JUNE 22, 1965.—Committeed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. BLATNIK, from the Committee on Public Works,
submitted the following
REPORT
[To accompany S. 1648]
The Committee on Public Works, to whom was referred the bill
(S. 1648) to provide grants for public works and development facili-
ties, other financial assistance and the planning and coordination
needed to alleviate conditions of substantial and persistent unemploy-
ment and underemployment in economically distressed areas and
regions, having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
The amendment strikes out all of the Senate bill and inserts in lieu
thereof a substitute which appears in the reported bill in italic type.
[p. 1]
1.28a(3) CONGRESSIONAL RECORD, VOL. Ill (1965)
1.28a(3)(a) June 1: Debated, amended and passed Senate, p. 12183
[No Relevant Discussion on Pertinent Section]
1.28a(3)(b) Aug. 12: Debated, amended, and passed House, pp.
20250-20251
[No Relevant Discussion on Pertinent Section]
1.28a(3) (c) Aug. 16: Senate concurs in House amendments, p. 20571
[No Relevant Discussion on Pertinent Section]
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STATUTES AND LEGISLATIVE HISTORY 2989
1.28b REORGANIZATION PLAN NO. 2 OF 1966
80 Stat. 1608
Prepared by the President and transmitted to the Senate and the
House of Representatives in Congress assembled, February 28,
1966, pursuant to the provisions of the Reorganization Act oj
1949, 63 Stat. 203, as amended.
WATER POLLUTION CONTROL
SECTION 1. Transfers of functions and agencies, (a) Except as
otherwise provided in this section, all functions of the Secretary of
Health, Education, and Welfare and of the Department of Health,
Education, and Welfare under the Federal Water Pollution Control
Act, as amended, hereinafter referred to as the Act (33 U.S.C. 466
et seq.), including all functions of other officers, or of employees or
agencies, of that Department under the Act, are hereby transferred
to the Secretary of the Interior.
(b) The Federal Water Pollution Control Administration is hereby
transferred to the Department of the Interior.
(c) (1) The Water Pollution Control Advisory Board, together
with its functions, is hereby transferred to the Department of the
Interior.
(2) The functions of the Secretary of Health, Education, and Wel-
fare (including those of his designee) under section 9 of the Act shall
be deemed to be hereby transferred to the Secretary of the Interior.
(3) The Secretary of Health, Education, and Welfare shall be an
additional member of the said Board as provided for by section 9 of
the Act and as modified by this reorganization plan.
(d) (1) The Hearing Boards provided for in sections 10 (c) (4)
and 10 (f) of the Act, including any Boards so provided for which may
be in existence on the effective date of this reorganization plan, to-
gether with their respective functions, are hereby transferred to the
Department of the Interior.
(2) The functions of the Secretary of Health, Education, and Wel-
fare under the said sections 10 (c) (4) and 10 (f) shall be deemed to be
hereby transferred to the Secretary of the Interior.
(3) The Secretary of the Interior shall give the Secretary of Health,
Education, and Welfare opportunity to select a member of each Hear-
ing Board appointed pursuant to sections 10 (c) (4) and 10 (f) of the
Act as modified by this reorganization plan.
(e) There are excepted from the transfers effected by subsection
(a) of this section (1) the functions of the Secretary of Health, Edu-
cation, and Welfare and the Assistant Secretary of Health, Education,
and Welfare under clause (2) of the second sentence of 1 (b) of the
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2990 LEGAL COMPILATION—WATER
Act, and (2) so much of the functions of the Secretary of Health,
Education, and Welfare under section 3 (b) (2) of the Act as relates to
public health aspects.
(f) The functions of the Surgeon General under section 2 (k) of
the Water Quality Act of 1965 (79 Stat. 905) are transferred to the
Secretary of Health, Education, and Welfare. Within 90 days after
this reorganization plan becomes effective, the Secretary of the
Interior and the Secretary of Health, Education, and Welfare shall
present to the President for his approval an interdepartmental agree-
ment providing in detail for the implementation of the consultations
provided for by said section 2 (k). Such interdepartmental agreement
may be modified from time to time by the two Secretaries with the
approval of the President.
[p. 1608]
(g) The functions of the Secretary of Health, Education, and Wel-
fare under sections 2 (b), (c), and (g) of the Water Quality Act of
1965 are hereby transferred to the Secretary of the Interior: Provided,
That the Secretary of the Interior may exercise the authority to pro-
vide further periods for the transfer to classified positions in the Fed-
eral Water Pollution Control Administration of commissioned officers
of the Public Health Service under said section 2 (b) only with the
concurrence of the Secretary of Health, Education, and Welfare.
(h) The functions of the Secretary of Health, Education, and
Welfare under the following provisions of law are hereby transferred
to the Secretary of the Interior:
(1) Section 702 (a) of the Housing and Urban Development Act of
1965 (79 Stat. 490).
(2) Section 212 of the Appalachian Regional Development Act of
1965 (79 Stat. 16).
(3) Section 106 of the Public Works and Economic Development
Act of 1965 (79 Stat. 554).
SEC. 2. Assistant Secretary of the Interior. There shall be in the
Department of the Interior one additional Assistant Secretary of the
Interior, who shall be appointed by the President, by and with the
advice and consent of the Senate, who shall, except as the Secretary of
the Interior may direct otherwise, assist the Secretary in the discharge
of the functions transferred to him hereunder, who shall perform such
other duties as the Secretary shall from time to time prescribe, and
who shall receive compensation at the rate now or hereafter prescribed
by law for Assistant Secretaries of the Interior.
SEC. 3. Performance of transferred functions. The provisions of
sections 2 and 5 of Reorganization Plan No. 3 of 1950 (64 Stat. 1262)
shall be applicable to the functions transferred hereunder to the
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STATUTES AND LEGISLATIVE HISTORY 2991
Secretary of the Interior to the same extent as they are applicable to
the functions transferred to the Secretary thereunder.
SEC. 4. Incidental provisions, (a) So much of the personnel, prop-
erty, records, and unexpended balances of appropriations, allocations,
and other funds, employed, used, held, available, or to be made avail-
able in connection with the functions transferred to the Secretary of
the Interior or the Department of the Interior by this reorganization
plan as the Director of the Bureau of the Budget shall determine shall
be transferred to the Department of the Interior at such time or times
as the Director shall direct.
(b) Such further measures and dispositions as the Director of the
Bureau of the Budget shall deem to be necessary in order to effectuate
the transfers referred to in subsection (a) of this section shall be car-
ried out in such manner as he shall direct and by such agencies as he
shall designate.
(c) This reorganization plan shall not impair the transfer rights
and benefits of commissioned officers of the Public Health Service
provided by section 2 of the Water Quality Act of 1965.
SEC. 5. Abolition of office, (a) There is hereby abolished that office
of Assistant Secretary of Health, Education, and Welfare the incum-
bent of which is on date of the transmittal of this reorganization plan
to the Congress the Assistant Secretary of Health, Education, and
Welfare designated by the Secretary of Health, Education, and Wel-
fare under the provisions of section 1 (b) of the Act.
[p. 1609]
(b) The Secretary of Health, Education, and Welfare shall make
such provisions as he shall deem to be necessary respecting the wind-
ing up of any outstanding affairs of the Assistant Secretary whose
office is abolished by subsection (a) of this section.
[p. 1610]
1.28b(l) MESSAGE FROM THE PRESIDENT OF THE
UNITED STATES
H.R. DOC. No. 388, 89th Cong., 2d Sess. (1966)
LETTER OF TRANSMITTAL
To the Congress of the United States:
I transmit herewith Reorganization Plan No. 2 of 1966, prepared in
accordance with the provisions of the Reorganization Act of 1949, as
amended, and providing for reorganization of certain water pollution
control functions.
Thirty-five years ago Justice Oliver Wendell Holmes said: "A river
is more than an amenity, it is a treasure."
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2992 LEGAL COMPILATION—WATER
Only recently has the truth of this observation entered the public
conscience. For we now recognize that the Nation's rivers, far from
being treasured, have been carelessly neglected for too long.
Today we face a harsh reality. Our waters are burdened with
blight. We know that every river system in America suffers from
some degree of pollution. This menace is growing more serious with
every passing day.
We have just begun to take the steps to clean and restore our
waters.
The task is immense. The journey will be long.
If our new programs are to succeed we must combine our efforts—
Federal, State, local, and private—in new and creative partnerships.
The attack against water pollution should be unified and
coordinated.
It should be carried forward as an integral part of comprehensive
planning for the development of river basins.
But, most importantly, the Government's management structure
must be strengthened and reshaped to meet the challenges that lie
ahead.
In my February 23 message on the quality of our environment I
stated:
* * * we must reorganize the Federal effort. In the past, the Federal anti-pol-
lution effort has been organizationally separate from water conservation and use
programs.
One agency should assume leadership in our clean water effort.
That agency should be the Department of the Interior.
The Department of the Interior, for many years, has been con-
cerned with the comprehensive management and development of the
Nation's water resources.
It plans, constructs, and operates multiple-purpose water and
related land resources projects.
It carries on research and development on the removal of minerals
from water.
It administers the Water Resources Research Act.
The Secretary of the Interior also serves as Chairman of the Water
Resources Council responsible for coordinating river basin planning.
Under the Clean Rivers Restoration Act of 1966 and other legislation
[p. Ill]
which I have recently proposed, the Secretary will become the focal
point for Federal efforts in this area.
It is wise management to place under his control the related re-
sources and authority now in the Department of Health, Education,
and Welfare.
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STATUTES AND LEGISLATIVE HISTORY 2993
The reorganization plan maintains a proper and effective role for
the Department of Health, Education, and Welfare with respect to
the health aspects of pollution. At the same time it places in the
Department of the Interior all of the necessary tools to move forward
and drive to clean America's waters.
The reorganization plan herewith transmitted will transfer to the
Secretary of the Interior the functions of the Department of Health,
Education, and Welfare under the Federal Water Pollution Control
Act except for responsibilities relating to public health for which the
Department of Health, Education, and Welfare has special com-
petence. That Department will retain responsibility under section
3 (b) of the act for advising on public health questions involved in
determinations by Federal agencies of the need for and value of the
inclusion of storage for water quality control in Federal reservoirs.
The Federal Water Pollution Control Administration would be trans-
ferred to the Department of the Interior.
The Secretary of the Interior in administering the act will also be
required to consult with the Secretary of Health, Education, and
Welfare on public health aspects relating to water pollution. This
consultative responsibility is now vested in the Surgeon General
by section 2 (k) of the Water Quality Act of 1965. The plan transfers
that responsibility to the Secretary of Health, Education, and Welfare.
The Water Pollution Control Advisory Board and the hearing
boards provided for in the act would be transferred to the Department
of the Interior, together with their respective functions. The re-
organization plan also makes the Secretary of Health, Education, and
Welfare a member of the Advisory Board and gives him the oppor-
tunity to select a member of each hearing board.
The reorganization plan would in no way impair the rights and
benefits of commissioned officers of the Public Health Service who
may transfer to the Water Pollution Control Administration.
The reorganization to be accomplished by the plan transmitted
herewith will enable the Federal Government to organize for action
against pollution on a river basin basis under the unified leadership
of the Secretary of the Interior.
After investigation, I have found and hereby declare that each
reorganization included in the accompanying reorganization plan is
necessary to accomplish one or more of the purposes set forth in sec-
tion 2 (a) of the Reorganization Act of 1949, as amended. I have also
found and hereby declare that it is necessary to include in the accom-
panying reorganization plan, by reason of the reorganizations made
thereby, provision for the membership of the Secretary of Health,
Education, and Welfare on the Water Pollution Control Advisory
Board and for the appointment and compensation of an additional
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2994 LEGAL COMPILATION—WATER
Assistant Secretary of the Interior. The rate of compensation fixed
for that officer is that which I have found to prevail in respect of
comparable officers in the executive branch of the Government.
[p. IV]
The reorganizations provided for in the reorganization plan trans-
mitted herewith will produce significant long-range savings and
economies by reason of the efficiencies in organization and in the
elimination of duplication of effort it will bring about. It is, however,
impracticable to specify or itemize at this time the reductions of
expenditures which it is probable will be brought about by the taking
effect of the reorganizations included in the reorganization plan.
I recommend that the Congress allow the accompanying plan to
become effective.
LYNDON B. JOHNSON.
THE WHITE HOUSE, February 28, 1966.
[P-V]
1.29 RIVER AND HARBOR ACT OF 1910
33 U.S.C. §421 (1910)
33 §421. Deposit of refuse, etc., in Lake Michigan near Chicago
It shall not be lawful to throw, discharge, dump, or deposit, or
cause, suffer, or procure, to be thrown, discharged, dumped, or de-
posited, any refuse matter of any kind or description whatever other
than that flowing from streets and sewers and passing therefrom in
a liquid state into Lake Michigan, at any point opposite or in front
of the county of Cook, in the State of Illinois, or the county of Lake
in the State of Indiana, within eight miles from the shore of said lake,
unless said material shall be placed inside of a breakwater so ar-
ranged as not to permit the escape of such refuse material into the
body of the lake and cause contamination thereof; and no officer of
the Government shall dump or cause or authorize to be dumped any
material contrary to the provisions of this section: Provided, however,
That the provisions of this section shall not apply to work in connec-
tion with the construction, repair, and protection of breakwaters and
other structures built in aid of navigation, or for the purpose of ob-
taining water supply. Any person violating any provision of this
section shall be guilty of a misdemeanor, and on conviction thereof
shall be fined for each offense not exceeding $1,000.
June 23,1910, c. 359, 36 Stat. 593.
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STATUTES AND LEGISLATIVE HISTORY 2995
1.29a RIVER AND HARBOR ACT OF 1910
June 23,1910, P.L. 61-245, 36 Stat. 593
CHAP. 359.—An Act To prevent the dumping of refuse material in Lake
Michigan at or near Chicago.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That it shall not be
lawful to throw, discharge, dump, or deposit, or cause, suffer, or pro-
cure, to be thrown, discharged, dumped, or deposited, any refuse
matter of any kind or description whatever other than that flowing
from streets and sewers and passing therefrom in a liquid state into
Lake Michigan, at any point opposite or in front of the county of
Cook, in the State of Illinois, or the county of Lake in the State of
Indiana, within eight miles from the shore of said lake, unless said
material shall be placed inside of a breakwater so arranged as not to
permit the escape of such refuse material into the body of the lake
and cause contamination thereof; and no officer of the Government
shall dump or cause or authorize to be dumped any material con-
trary to the provisions of this Act: Provided, however, That the pro-
visions of this Act shall not apply to work in connection with the
construction, repair, and protection of breakwaters and other struc-
tures built in aid of navigation, or for the purpose of obtaining water
supply. Any person violating any provision of this Act shall be
guilty of a misdemeanor, and on conviction thereof shall be fined for
each offense not exceeding one thousand dollars.
Approved, June 23,1910.
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2996 LEGAL COMPILATION—WATER
1.29a(l) HOUSE COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE
H. R. REP. No. 1120, 61st Cong., 2d Sess. (1910)
TO PREVENT DUMPING OF REFUSE MATERIAL INTO LAKE
MICHIGAN
APRIL 26, 1910.—Referred to the House Calendar and ordered to be printed.
Mr. STEVENS, from the Committee on Interstate and Foreign Com-
merce, submitted the following
REPORT:
[To accompany H. R. 18700.]
The Committee on Interstate and Foreign Commerce, to which was
referred the bill (H.R. 18700) to prevent the dumping of refuse ma-
terial in Lake Michigan at or near Chicago, having considered the
same, beg leave to report the bill back with a recommendation that
it be amended by inserting after the word "act," where it first occurs
in line 1, page 2, the following:
Provided, however, That the provisions of this act shall not apply to work in
connection with the construction, repair, and protection of breakwaters and other
structures built in aid of navigation, or for the purpose of obtaining water supply.
As thus amended the committee recommend that the bill do pass.
The statement is made by the health authorities of the city of
Chicago that at the present time about 2,000,000 cubic yards of ma-
terial are dumped each year in Lake Michigan contiguous to Chicago,
Hammond, Whiting, and East Chicago. A part of this is dredging
done under contract between the United States, through the engineer
office of the War Department, and dredging contractors. A part of
it is done under contracts of various sorts between various people.
Some of it is removed from water courses, placed on boats, and
dumped in the lake. Most of it is removed from the land to boats and
dumped into the lake for reasons of cheapness of disposition. A part
of it represents trade waste so unpleasant that land disposition is ob-
jected to.
This material is dumped in areas in the lake established by the
War Department engineer office. The two areas so designated are
1,000 feet offshore, opposite Fourteenth to Thirty-ninth streets, in
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STATUTES AND LEGISLATIVE HISTORY 2997
12 feet of water, and offshore near the mouth of the Calumet River.
The authority for the establishment of such dumps is set forth in
the law as interpreted by Attorney-General Griggs under date of
December 4, 1899. These locations were made some years ago and
[p. l]
were determined upon after various conferences between the au-
thorities representing the city of Chicago and the engineer office of
the War Department.
The consideration responsible for the selection of these grounds on
the part of the engineer office was economy of disposition. The con-
sideration responsible for the acquiescence of the city of Chicago was
that the sewers of the city were at that time emptying into Lake
Michigan at various points along the shore from Evanston to Indiana
Harbor; that therefore all of the water close inshore was polluted at
that time, and that to further pollute that which was already polluted
was better than to pollute waters which were free from pollution.
These dumping grounds having been established by the United
States Government, and control of them being vested in the Gov-
ernment, they are made use of by other parties who deposit material
in bulk in excess of that deposited by the Government, and much
more offensive. In fact, there is no present proper control by which
material of any character could be excluded from such dumping
grounds.
In the last three years conditions have changed. No Chicago
sewage now goes into Lake Michigan within miles of the Fourteenth
to Thirty-ninth streets dumping ground in any direction. The shal-
low shore waters off the city are not materially polluted, as the char-
acter of the banks does not lead to the discharge of storm water into
the lake.
We have, then, the south side dumping polluting waters which are
relatively free from pollution. Many analyses demonstrate the truth
of this statement. The Calumet dumping is done sometimes within
1,000 feet of the Hammond intake. When the wind is from the west
most of this pollution is swept directly to the intakes of Hammond,
East Chicago, and Whiting. When it is from the east it is swept di-
rectly to the Sixty-eighth street intake. Abundant analyses prove
the truth of these statements.
The municipalities of northern Indiana located on Lake Michigan
are planning to take care of their sewage. Their typhoid death rate
is very high. They are meeting with some opposition from people
who oppose the necessary expenditures, because it will be rendered
futile by the dumping allowed by the Government. If this dumping
ground is so placed as to be safe for the people of northern Indiana
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2998 LEGAL COMPILATION—WATER
then they will be willing to proceed with the necessary improvements.
At least this is the judgment of those most in touch with the people
of these towns.
This dumping zone is partly off the shore of Illinois and partly off
the shore of Indiana. The water is 12 to 15 feet deep. At least once
a month there is wind enough to stir the water to the entire depth
and to scatter whatever may be lying loose on the bed of the lake.
The deposited material is carried in part to the water intakes of
Illinois and in part to the water intakes of Indiana.
The health authorities made their request to the engineer office of
the War Department that these dumping grounds be changed to
points 8 miles in the lake or else behind breakwaters. Their plea was
that the water 8 miles out was more than 65 feet deep and that this is
the greatest depth to which the waters of the lake are ever stirred;
that therefore the dumped material would speedily sink to a
[p. 2]
depth where it would not be disseminated into the waters from which
drinking water is taken; and that, lying beyond these depths, the
organic part of it would be destroyed by fish, oxygen, and by those
saprophytic bacteria tenacious of life at a temperature at which
typhoid and the diarrhea organisms but feebly exist. Where the
other alternative was used, the breakwater would serve to protect
the general water area far better than it is at present protected.
On the presentation of their petition to General Marshall, Chief of
Engineers, they were told that he sympathized with them in their
desire to protect the lives and health of those under their care, but
that the obligations of his office demanded that he pay attention to
the economy of disposal. He suggested that they would have two
remedies: The first, an appeal to Congress; the second, an appeal to
the administrative discretion of the Secretary of War.
Section 13 of the rivers and harbors act of March 3, 1899, provided
as follows:
That it shall not be lawful to throw, discharge, or deposit, or cause, suffer, or
procure to be thrown, discharged, or deposited either from or out of any ship,
barge, or other floating craft of any kind, or from the shore, wharf, manufacturing
establishment, or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and passing therefrom
in a liquid state, into any navigable water of the United States, or into any tribu-
tary of any navigable water from which the same shall float or be washed into
such navigable water; and it shall not be lawful to deposit or cause, suffer, or pro-
cure to be deposited material of any kind in any place on the bank of any naviga-
ble water or on the bank of any tributary of any navigable water, where the same
shall be liable to be washed into such navigable water, either by ordinary or high
tides or by storms or floods or otherwise, whereby navigation shall or may be im-
peded or obstructed: Provided, That nothing herein contained shall extend to, ap-
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STATUTES AND LEGISLATIVE HISTORY 2999
ply to, or prohibit the operations in connection with the improvement of navigable
waters or construction of public works considered necessary and proper by the
United States officers supervising such improvement or public work: And pro-
vided further, That the Secretary of War, whenever in the judgment of the Chief
of Engineers anchorage and navigation will not be injured thereby, may permit
the deposit of any material above mentioned in navigable waters within limits to
be defined and under conditions to. be prescribed by him, provided application is
made to him prior to depositing such material; and whenever any permit is so
granted the conditions thereof shall be strictly complied with, and any violation
thereof shall be unlawful.
Section 4 of the rivers and harbors act of March 3, 1905, provided
as follows:
That the Secretary of War is hereby authorized and empowered to prescribe
regulations to govern the transportation and dumping into any navigable water
or waters adjacent thereto of dredgings, earth, garbage, and other refuse ma-
terials of every kind or description, whenever in his judgment such regulations
are required in the interest of navigation.
Under these provisions of law dumping is permitted in Lake Michi-
gan in front of Chicago, within 1,000 feet of the shore line south of
Sixteenth street, and also just outside of the harbor at South Chicago.
There are now no sewers emptying into the lake at Chicago, except
those which empty into the Calumet River. That river now flows
into the lake, but the War Department has declined to issue a permit
to the local authorities to reverse the flow of the river, and the right
of the local authorities to reverse the flow of the Calumet River, with-
out obtaining a permit from the General Government, is now in
litigation in the federal court.
There are several small sewers emptying into Lake Michigan from
cities in Indiana, which cities are now studying the subject of the
proper disposal of sewage. Chicago and other cities along the lake
[p. 3]
in the vicinity of Chicago depend upon Lake Michigan for their water
supply. The local authorities at Chicago have expended upward of
$60,000,000 for the purpose of maintaining a pure-water supply in
Lake Michigan and are now offering to spend further sums for the
purpose of reversing the flow of the Calumet River, in order to pre-
vent the sewage of that stream going into the lake. Where the refuse
material, consisting often of rotten and decomposed matter, is dumped
into the lake near the shore, it is washed up from the bottom with
every storm and is spread in the water until at present it may and
does reach the water tunnel intakes which supply the city with
water.
No one will question the desirability of preventing the ordinary
dumping of refuse in the lake, but some objection has been made to
the requirement that contractors dredging the harbors and rivers at
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3000 LEGAL COMPILATION—WATER
government expense shall be required to carry their excavated ma-
terial into the lake a distance of 8 miles, and the Chief of Engineers
has suggested that this should only be required if the city of Chicago
or other local authorities bear the added expense.
The provision of the bill is that such material shall be dumped
either a distance of 8 miles from the shore or else behind closed break-
waters. The 8-mile limit is fixed by the bill, because that will carry
the dumping out to where the water is about 65 feet in depth, and at
that depth material on the bottom of the lake will not be disturbed by
the wave action caused by storms. There is no way of ascertaining
the increased expense in definite figures. Most of the excavated earth
has been dumped behind breakwaters. The dumping in the open lake
has usually been a character of material which was not suitable for
filling. It would be impossible to correctly ascertain what would be
the added expense by reason of the passage of this bill in case con-
tracts shall hereafter be let for excavating in the harbors and rivers,
but it is not likely that the added expense will be great.
Congress can if it chooses, when it provides for such improvements,
make provision in regard to any supposed added expense.
The necessity for the passage of this bill is obvious and urgent.
The water of Lake Michigan adjacent to several of the principal water
tunnel intakes is becoming foul and dangerous to health, because of
the dumping of refuse material in the lake. Delay is unsafe and
extremely dangerous to health.
The passage of this bill is urged by the health authorities of the
cities of Chicago; Lansing, Mich.; Grand Rapids, Mich.; Whiting,
Ind.; La Fayette, Ind.; Milwaukee, Wis.; Evanston, 111.; Wilmette,
111.; and Garry and Hammond, Ind.; and other cities, and by the
board of health of Michigan, Indiana, Wisconsin, and Illinois; by
the Public Health and Marine-Hospital Service hospital at Chicago;
the Illinois state water survey, sanitary district of Chicago; Chicago
River and Harbor Association, and many others.
DEPARTMENT OF HEALTH,
Chicago, March 29, 1910.
MY DEAR SIR: We are sending you some photographs of scows that are loaded
with refuse material. These scows are hauled out into the lake and their contents
are dumped. The other set of photographs consists of pictures offshore at Jackson
Park. They were furnished us by Superintendent Foster. This is stuff that has
been dumped in the lake and that washes up on their shore.
[p. 4]
We get similar complaints from the Chicago Beach Hotel. They have brought
us in letters bearing the address of Chicago firms. These letters were a part of
the store refuse which had been dumped in the lake from scows and later
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STATUTES AND LEGISLATIVE HISTORY 3001
washed on the beach at Fifty-first street.
We have just had a telephone complaint that scows are dumping a greasy,
tarry manufacturing waste.
Some part of this we are able to control under our present ordinances, and yet
it is difficult. The other parts we can not think of controlling without additional
legislation and your bill is just the type of legislation that is most needed.
We have other material to furnish you, should you desire it.
Yours, very truly,
W. A. EVANS, Commissioner of Health.
Hon. JAMES R. MANN.
WAH DEPARTMENT,
OFFICE OP THE CHIEF OF ENGINEERS,
Washington, April 2,1910.
SIR: 1. I have the honor to return herewith a letter dated January 20, 1910,
from the Committee on Interstate and Foreign Commerce of the House of Rep-
resentatives, inclosing, for the views of the War Department thereon, H. R. 18700,
Sixty-first Congress, second session, "A bill to prevent the dumping of refuse
material in Lake Michigan at or near Chicago."
2. It is proposed by the bill to make it unlawful to deposit refuse matter of
any kind, other than that flowing in a liquid state from streets and sewers, into
Lake Michigan within 8 miles of the shore opposite Cook County, 111., and Lake
County, Ind., unless such matter is inclosed within bulkheads so arranged as
to prevent its escape into the body of the lake and cause contamination thereof.
3. The enactment of this measure is not needed in the interest of commerce
and navigation, but its object is thought to be to protect the health of the local
community which obtains its water supply from the lake.
4. The present general law, section 13 of the river and harbor act of March 3,
1899, makes it unlawful to deposit refuse matter into any navigable water of the
United States, but provides that it shall not apply to the operations of the Fed-
eral Government in connection with the improvement of navigable waters, and
that the Secretary of War, whenever in the judgment of the Chief of Engineers
anchorage and navigation will not be injured thereby, may permit the deposit
of such refuse matter within limits to be defined and under conditions to be
prescribed by him. This law was intended for the protection of the interests
of navigation and commerce and is thought to be sufficient for that purpose. It
is also competent for the Secretary of War, in the exercise of the powers con-
ferred upon him in respect to defining the limits and prescribing the conditions
within and under which deposits of material may be allowed, to give considera-
tion to questions of sanitation, and it has been his practice to do so. In pursuance
of this law, he has from time to time defined the limits and prescribed the
conditions for the deposit of refuse matter in the locality named in the bill,
and the question of changing existing regulations to meet the wishes of the
health authorities of the city of Chicago is now pending in the department.
5. A pure water supply is unquestionably a desideratum in any community
and whatever tends to prevent its pollution and promote the health of the public
is deserving of commendation. This has been universally recognized by the
officers of the Federal Government charged with the prosecution of works of
river and harbor improvement in the vicinity of Chicago, but lines 14 and 15,
page 1, and part of line 1, page 2, appear to apply specifically to them. On the
other hand, matter flowing from streets and sewers, a prolific source of contami-
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3002 LEGAL COMPILATION—WATER
nation, is expressly excepted from the material prohibited; this permits the
local authorities to discharge disease-laden sewage into the waters of the lake
without restriction.
6. The Federal Government has expended large sums of money for river and
harbor improvement at this locality, and the river and harbor bill now pending
in Congress carries appropriations for such work aggregating more than
$600,000. The cost to the Government of this and all future work of this kind
will be materially increased should the bill under consideration be passed in
its present form. Moreover, the proper enforcement of the law would call for
constant and vigilant inspection, requiring a special organization of employees
and vessels such as is provided for New York Harbor.
7. In the absence of suitable provision by Congress or the local authorities
for such an organization, it is believed the actual pollution of the water supplies
of the cities concerned, due to dumping near the intakes, particularly at night
and in thick weather, would be greater than is possible under present conditions.
[p. 5]
8. As the present dumping grounds are unobjectionable from the standpoint
of anchorage and navigation, an important question to consider in connection
with the bill is to what extent the people of the United States should be taxed,
not for the benefit of general commerce and navigation, but solely in the in-
terest of local sanitation. If Congress should, in its wisdom, favor the bill it
should be so amended as to provide that it shall not apply to the operations of
the United States in connection with the repair and protection of breakwaters
and other structures built in aid of navigation, nor prohibit the deposit around
such structures of rock excavated in the vicinity, even though such material
may not be entirely free from contamination. And, further, it is thought that
the act should not become effective until the city of Chicago has made provision
satisfactory to the Secretary of War for paying the cost of proper inspection
and has either provided suitable dumping grounds behind bulkheads accessible
to dump scows in which to deposit material dredged in the execution of gov-
ernment work, or has made provision for the extra expense of long hauls to
which the Government will be subjected.
Very respectfully, W. L. MARSHALL,
Chief of Engineers, U.S. Army.
THE SECRETARY OF WAR.
DEPARTMENT OF HEALTH,
Chicago, April 13, 1910.
MY DEAB SIR: Some days ago we sent you some pictures bearing on the mattsr
of dumping in the lake.
Yesterday we attended a meeting of the Illinois Manufacturers' Association.
This meeting was for the purpose of discussing disposal of city waste. The talk
of greatest interest from our standpoint was that of Mr. Jackson. He told them
that his disposal plant could take care of 10,000 cubic yards of waste a day; that
they were now taking care of 3,000 a day, and that 1,500 of this 3,000 was factory
and store waste which was hauled to the scows and then taken out into the lake.
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STATUTES AND LEGISLATIVE HISTORY 3003
The association did not go on record as favoring this disposal of waste, nor
was anything said by anybody other than Mr. Jackson in its favor.
How is your bill coming on?
Yours, very truly, W. A. EVANS,
Commissioner of Health.
Hon. JAMES R. MANN.
[p. 6]
1.29a(2) COMMITTEE ON CONFERENCE
H. R. REP. No. 1613, 61st Cong., 2nd Sess. (1910)
[No Relevant Discussion of Pertinent Section]
1.29a(3) CONGRESSIONAL RECORD, VOL. 45 (1910):
1.29a(3) (a) May 2: Amended and passed House, p. 5672
[No Relevant Discussion of Pertinent Section]
1.29a(3)(b) May 12: Amended and passed Senate, p. 6119
[No Relevant Discussion of Pertinent Section]
1.29a(3)(c) June 16: Senate agreed to conference report, p. 8219
[No Relevant Discussion of Pertinent Section]
1.29a(3)(d) June 17: House agrees to conference report, p. 8439
[No Relevant Discussion of Pertinent Section]
1.30 SUPERVISORY HARBORS ACT OF 1888, AS
AMENDED
33 U.S.C. g§ 441-451b (1958)
NEW YORK HARBOR, HARBOR OF HAMPTON ROADS,
AND HARBOR OF BALTIMORE
§441. Deposit of refuse prohibited; penalty
The placing, discharging, or depositing, by any process or in any
manner, of refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge,
acid, or any other matter of any kind, other than that flowing from
streets, sewers, and passing therefrom in a liquid state, in the waters
of any harbor subject to sections 441 to 451b of this title, within the
limits which shall be prescribed by the supervisor of the harbor, is
strictly forbidden, and every such act is made a misdemeanor, and
every person engaged in or who shall aid, abet, authorize, or instigate
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3004 LEGAL COMPILATION—WATER
a violation of this section, shall, upon conviction, be punishable by
fine or imprisonment, or both, such fine to be not less than $250 nor
more than $2,500, and the imprisonment to be not less than thirty
days nor more than one year, either or both united, as the judge
before whom conviction is obtained shall decide, one-half of said fine
to be paid to the person or persons giving information which shall
lead to conviction of this misdemeanor.
June 29, 1888, c. 496, §1, 25 Stat. 209; Aug. 28, 1958, Pub.L. 85-802,
§1 (1), 72 Stat. 970.
§442. Liability of officers of towing vessel
Any and every master and engineer, or person or persons acting in
such capacity, respectively, on board of any boat or vessel, who shall
knowingly engage in towing any scow, boat, or vessel loaded with
any such prohibited matter to any point or place of deposit, or dis-
charge in the waters of any harbor subject to sections 441 to 451b of
this title, or to any point or place elsewhere than within the limits de-
fined and permitted by the supervisor of the harbor, shall be deemed
guilty of a violation of section 441 of this title, and shall, upon con-
viction, be punishable as provided for offenses in violation of section
441 of this title, and shall also have his license revoked or suspended
for a term to be fixed by the judge before whom tried and convicted.
June 29, 1888, c. 496, §2, 25 Stat. 209; Aug. 28, 1958, Pub.L. 85-802,
§1 (2), 72 Stat. 970.
§443. Permit for dumping; penalty for taking or towing boat or scow
without permit
In all cases of receiving on board of any scows or boats such for-
bidden matter or substance as described in section 441 of this title,
the owner or master, or person acting in such capacity on board of
such scows or boats, before proceeding to take or tow the same to
the place of deposit, shall apply for and obtain from the supervisor of
the harbor appointed, as provided in section 451 of this title, a permit
defining the precise limits within which the discharge of such scows
or boats may be made; and it shall not be lawful for the owner or
master, or person acting in such capacity, of any tug or towboat to
tow or move any scow or boat so loaded with such forbidden matter
until such permit shall have been obtained; and every person violat-
ing the foregoing provisions of this section shall be deemed guilty of
a misdemeanor, and on conviction thereof shall be punished by a fine
of not more than $1,000 nor less than $500, and in addition thereto the
master of any tug or towboat so offending shall have his license re-
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STATUTES AND LEGISLATIVE HISTORY 3005
voked or suspended for a term to be fixed by the judge before whom
tried and convicted.
June 29, 1888, c. 496, §3, 25 Stat. 209; Aug. 18, 1894, c. 299, §3, 28
Stat. 360; May 28,1908, c. 212, §8, 35 Stat. 426.
§444. Dumping at other place than designated dumping grounds;
penalty; person liable; excuses for deviation
Any deviation from such dumping or discharging place specified
in such permit shall be a misdemeanor, and the owner and master, or
person acting in the capacity of master, of any scows or boats dump-
ing or discharging such forbidden matter in any place other than
that specified in such permit shall be liable to punishment therefor
as provided in section 441 of this title; and the owner and master, or
person acting in the capacity of master, of any tug or towboat towing
such scows or boats shall be liable to equal punishment with the
owner and master, or person acting in the capacity of master, of the
scows or boats; and, further, every scowman or other employee on
board of both scows and towboats shall be deemed to have knowledge
of the place of dumping specified in such permit, and the owners and
masters, or persons acting in the capacity of masters, shall be liable
to punishment, as aforesaid, for any unlawful dumping, within the
meaning of sections 441 to 452 of this title, which may be caused by
the negligence or ignorance of such scowman or other employee;
and, further, neither defect in machinery nor avoidable accidents to
scows or towboats, nor unfavorable weather, nor improper handling
or moving of scows or boats of any kind whatsoever shall operate to
release the owners and master and employees of scows and towboats
from the penalties mentioned in section 441 of this title.
June 29, 1888, c. 496, §3, 25 Stat. 209; Aug. 18, 1894, c. 299, §3, 28
Stat. 360; May 28, 1908, c. 212, §8, 35 Stat. 426.
§445. Equipment and marking of boats or scows
Every scow or boat engaged in the transportation of dredgings,
earth, sand, mud, cellar dirt, garbage, or other offensive material of
any description shall have its name or number and owner's name
painted in letters and numbers at least fourteen inches long on both
sides of the scow or boat; these names and numbers shall be kept
distinctly legible at all times, and no scow or boat not so marked
shall be used to transport or dump any such material. Each such
scow or boat shall be equipped at all times with a life line or rope
extending at least the length of and three feet above the deck thereof,
such rope to be attached to the coaming thereof, also with a life pre-
server and a life buoy for each person on board thereof, also with
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3006 LEGAL COMPILATION—WATER
anchor to weigh not less than two hundred and seventy-five pounds,
and at least one hundred feet of cable attached thereto; a list of the
names of all men employed on any such scow or boat shall be kept
by the owner or master thereof and the said list shall be open to the
inspection of all parties. Failure to comply with any of the foregoing
provisions shall render the owner of such scow or boat liable upon
conviction thereof to a penalty of not more than $500: Provided, That
the requirements in regard to life line or rope contained in this section
shall not apply to any scow or boat the deck outside the coaming or
rail of which shall not exceed one foot in width: And provided
further, That on any such scow or boat its name or number and own-
er's name painted in letters and numbers, at least fourteen inches
long on both ends of such scow or boat, shall be a compliance with
the provisions of this section in regard to name, number, and owner's
name.
June 29, 1888, c. 496, §3, 25 Stat. 209; Aug. 18, 1894, c. 299, §3, 28
Stat. 360; May 28, 1908, c. 212, §8, 35 Stat. 426; Feb. 16, 1909, c. 132,
35 Stat. 623.
§446. Inspectors; appointment, powers, and duties
Each supervisor of a harbor is authorized and directed to appoint
inspectors and deputy inspectors, and, for the purposes of enforcing
sections 441 to 452 of this title, and of detecting and bringing to
punishment offenders against the same, the said supervisor of the
harbor, and the inspectors and deputy inspectors so appointed by him,
shall have power and authority:
First. To arrest and take into custody, with or without process,
any person or persons who may commit any of the acts or offenses
prohibited by sections 441 to 451b of this title, or who may violate
any of the provisions of the same: Provided, That no person shall
be arrested without process for any offense not committed in the
presence of the supervisor or his inspectors or deputy inspectors, or
either of them: And provided jurther, That whenever any such ar-
rest is made the person or persons so arrested shall be brought
forthwith before a commissioner, judge, or court of the United
States for examination of the offenses alleged against him; and
such commissioner, judge, or court shall proceed in respect thereto
as authorized by law in case of crimes against the United States.
Second. To go on board of any scow or towboat engaged in un-
lawful dumping of prohibited material, or in moving the same with-
out a permit, as required in section 443 of this title, or otherwise
violating any of the provisions of sections 443 to 448 of this title, and
to seize and hold said boats until they are discharged by action of
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STATUTES AND LEGISLATIVE HISTORY 3007
the commissioner, judge, or court of the United States before whom
the offending persons are brought.
Third. To arrest and take into custody any witness or witnesses
to such unlawful dumping of prohibited material, the said witnesses
to be released under proper bonds.
Fourth. To go on board of any towboat having in tow scows or
boats loaded with such prohibited material, and accompany the same
to the place of dumping, whenever such action appears to be neces-
sary to secure compliance with the requirements of sections 441 to
452 of this title.
Fifth. To enter gas and oil works and all other manufacturing
works for the purpose of discovering the disposition made of sludge,
acid, or other injurious material, whenever there is good reason to
believe that such sludge, acid, or other injurious material is allowed
to run into tidal waters of the harbor in violation of section 441 of
this title.
June 29, 1888, c. 496, § 3, 25 Stat. 209; Aug. 18, 1894, c. 299, § 3, 28
Stat. 360; May 28, 1908, c. 212, § 8, 35 Stat. 426; Aug. 28, 1958,
Pub.L. 85-802, § 1 (3), 72 Stat. 970.
§447. Bribery of inspector; penalty
Every person who, directly or indirectly, gives any sum of money
or other bribe, present, or reward, or makes any offer of the same to
any inspector, deputy inspector, or other employee of the office of
any supervisor of a harbor with intent to influence such inspector,
deputy inspector, or other employee to permit or overlook any viola-
tion of the provisions of sections 441 to 451b of this title, shall, on
conviction thereof, be fined not less than $500 nor more than $1,000,
and be imprisoned not less than six months nor more than one year.
June 29, 1888, c. 496, § 3, 25 Stat. 209; Aug. 18, 1894, c. 299, § 3, 28
Stat. 360; May 28, 1908, c. 212, § 8, 35 Stat. 426; Aug. 28, 1958,
Pub.L. 85-802, § 1(4), 72 Stat. 970.
§448. Return of permit; penalty for failure to return
Every permit issued in accordance with the provisions of section
443 of this title, which may not be taken up by an inspector or depu-
ty inspector, shall be returned within four days after issuance to
the office of the supervisor of the harbor; such permit shall bear
an indorsement by the master of the towboat, or the person acting
in such capacity, stating whether the permit has been used, and, if
so, the time and place of dumping. Any person violating the provi-
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3008 LEGAL COMPILATION—WATER
sions of this section shall be liable to a fine of not more than $500
nor less than $100.
June 29, 1888, c. 496, § 3, 25 Stat. 209; Aug. 18, 1894, c. 299, § 3, 28
Stat. 360; May 28, 1908, c. 212, § 8, 35 Stat. 426.
§449. Disposition of dredged matter; persons liable; penalty
All mud, dirt, sand, dredgings, and material of every kind and de-
scription whatever taken, dredged, or excavated from any slip, ba-
sin, or shoal in any harbor subject to sections 441 to 451b of this ti-
tle, and placed on any boat, scow, or vessel for the purpose of being
taken or towed upon the waters of that harbor to a place of deposit,
shall be deposited and discharged at such place or within such lim-
its as shall be defined and specified by the supervisor of the harbor,
as in section 443 of this title prescribed, and not otherwise. Every
person, firm, or corporation being the owner of any slip, basin, or
shoal, from which such mud, dirt, sand, dredgings, and material
shall be taken, dredged, or excavated, and every person, firm, or cor-
poration in any manner engaged in the work of dredging or excavat-
ing any such slip, basin, or shoal, or of removing such mud, dirt,
sand, or dredgings therefrom, shall severally be responsible for the
deposit and discharge of all such mud, dirt, sand, or dredgings at
such place or within such limits so defined and prescribed by said
supervisor of the harbor; and for every violation of the provisions
of this section the person offending shall be guilty of an offense,
and shall be punished by a fine equal to the sum of $5 for every cu-
bic yard of mud, dirt, sand, dredgings, or material not deposited or
discharged as required by this section.
June 29, 1888, c. 496, § 4, 25 Stat. 210; Aug. 28, 1958, Pub.L. 85-802,
§ 1(5), 72 Stat. 970.
§450. Liability of vessel
Any boat or vessel used or employed in violating any provision of
sections 441 to 451b of this title, shall be liable to the pecuniary
penalties imposed thereby, and may be proceeded against, summarily
by way of libel in any district court of the United States having ju-
risdiction thereof.
June 29, 1888, c. 496, § 4, 25 Stat. 210.
§451. Supervisor of harbor; appointment and duties
An officer of the Corps of Engineers shall, for each harbor sub-
ject to sections 441 to 451b of this title, be designated by the Secre-
tary of the Army as supervisor of the harbor, to act under the
direction of the Chief of Engineers in enforcing the provisions of sec-
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STATUTES AND LEGISLATIVE HISTORY 3009
tions 441 to 451b of this title, and in detecting offenders against the
same. Each such officer shall have personal charge and supervi-
sion under the Chief of Engineers, and shall direct the patrol boats
and other means to detect and bring to punishment offenders against
the provisions of said sections.
June 29, 1888, c. 496, § 5, 25 Stat. 210; June 29, 1949, c. 278, 63
Stat. 300; July 12, 1952, c. 707, 66 Stat. 596; Aug. 28, 1958, Pub.L.
85-802, § 1(6), 72 Stat. 970.
§451a. Harbors subject to sections 441 to 451b of this title
The following harbors shall be subject to sections 441 to 451b of
this title:
(1) The harbor of New York.
(2) The harbor of Hampton Roads.
(3) The harbor of Baltimore.
June 29, 1888, c. 496, § 6, 25 Stat. 210; Aug. 28, 1958, Pub.L. 85-802,
§ 1(7), 72 Stat. 970.
§451b. Same; waters included
For the purposes of sections 441 to 451b of this title—
(1) The term "harbor of New York" means the tidal waters of the
harbor of New York, its adjacent and tributary waters, and those of
Long Island Sound.
(2) The term "harbor of Hampton Roads" means the tidal waters
of the harbors of Norfolk, Portsmouth, Newport News, Hampton
Roads, and their adjacent and tributary waters, so much of the
Chesapeake Bay and its tributaries as lies within the State of Vir-
ginia, and so much of the Atlantic Ocean and its tributaries as lies
within the jurisdiction of the United States within or to the east of
the State of Virginia.
(3) The term "harbor of Baltimore" means the tidal waters of the
harbor of Baltimore and its adjacent and tributary waters, and so
much of Chesapeake Bay and its tributaries as lie within the State
of Maryland.
June 29, 1888, c. 496, § 7, as added Aug. 28, 1958, Pub.L. 85-802, §
1(8), 72 Stat. 970.
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3010 LEGAL COMPILATION—WATER
1.30a NEW YORK HARBOR ACT OF 1888
June 29, 1888, P.L. 50-496, 25 Stat. 209
CHAP. 496.—An act to prevent obstructive and injurious deposits within the
harbor and adjacent waters of New York City, by dumping or otherwise, and to
punish and prevent such offenses.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the placing,
discharging, or depositing, by any process or in any manner, of refuse,
dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other
matter of any kind, other than that flowing from streets, sewers, and
passing therefrom in a liquid state, in the tidal waters of the harbor
of New York, or its adjacent or tributary waters, or in those of Long
Island Sound, within the limits which shall be prescribed by the su-
pervisor of the harbor, is hereby strictly forbidden, and every such
act is made a misdemeanor, and every person engaged in or who shall
aid, abet, authorize, or instigate a violation of this section, shall, upon
conviction, be punishable by fine or imprisonment, or both, such fine
to be not less than two hundred and fifty dollars nor more than two
thousand five hundred dollars, and the imprisonment to be not less
than thirty days nor more than one year, either or both united, as the
judge before whom conviction is obtained shall decide, one half of
said fine to be paid to the person or persons giving information which
shall lead to conviction of this misdemeanor.
SEC. 2. That any and every master and engineer, or person or per-
sons acting in such capacity, respectively, on board of any boat or
vessel, who shall knowingly engage in towing any scow, boat, or ves-
sel loaded with any such prohibited matter to any point or place of
deposit, or discharge in the waters of the harbor of New York, or in
its adjacent, or tributary waters, or in those of Long Island Sound,
or to any point or place elsewhere than within the limits defined and
permitted by the supervisor of the harbor hereinafter mentioned,
shall be deemed guilty of a violation of this act, and shall, upon con-
viction, be punishable as hereinbefore provided for offenses in viola-
tion of section one of this act, and shall also have his license revoked
or suspended for a term to be fixed by the judge before whom tried
and convicted.
SEC. 3. That in all cases of receiving on board of any scows or boats
such forbidden matter or substance as herein described, it shall be
the duty of the owner or master, or person acting in such capacity,
on board of such scows or boats, before proceeding to take or tow the
same to the place of deposit, to apply for and obtain from the super-
visor of the harbor appointed hereunder a permit defining the precise
limits within which the discharge of such scows or boats may be
-------
STATUTES AND LEGISLATIVE HISTORY 3011
made; and any deviation from such dumping or discharging place
specified in such permit shall be a misdemeanor within the meaning
of this act; and the master and engineer, or person or persons acting
in such capacity, on board of any tow-boat towing such scows or
boats, shall be equally guilty of such offense with the master or per-
son acting in the capacity of master of the scow, and be liable to equal
punishment.
SEC. 4. That all mud, dirt, sand, dredgings, and material of every
kind and description whatever taken, dredged, or excavated from any
slip, basin, or shoal in the harbor of New York, or the waters adjacent
or tributary thereto, and placed on any boat, scow, or vessel for the
purpose of being taken or towed upon the waters of the harbor of
New York to a place of deposit, shall be deposited and discharged at
such place or within such limits as shall be denned and specified by
the supervisor of the harbor, as in the third section of this act pre-
scribed, and not otherwise. Every person, firm, or corporation being
the owner of any slip, basin, or shoal, from which such mud, dirt,
sand, dredgings, and material shall be taken, dredged, or excavated,
and every person, firm, or corporation in any manner engaged in the
work of dredging or excavating any such slip, basin, or shoal, or of
removing such mud, dirt, sand, or dredgings therefrom, shall severally
be responsible for the deposit and discharge of all such mud, dirt,
sand, or dredgings at such place or within such limits so defined and
prescribed by said supervisor of the harbor; and for every violation
of the provisions of this section the person offending shall be guilty
of an offense against this act, and shall be punished by a fine equal to
the sum of five dollars for every cubic yard of mud, dirt, sand, dredg-
ings, or material not deposited or discharged as required by this sec-
tion. Any boat or vessel used or employed in violating any provision
of this act, shall be liable to the pecuniary penalties imposed thereby,
and may be proceeded against, summarily by way of libel in any dis-
trict court of the United States, having jurisdiction thereof.
SEC. 5. That a line officer of the Navy shall be designated by the
President of the United States as supervisor of the harbor, to act
under the direction of the Secretary of War in enforcing the provi-
sions of this act, and in detecting offenders against the same. This
officer shall receive the sea-pay of his grade, and shall have personal
charge and supervision under the Secretary of War, and shall direct
the patrol boats and other means to detect and bring to punishment
offenders against the provisions of this act.
SEC. 6. That the sum of thirty thousand dollars or so much thereof
as may be necessary, is hereby appropriated to carry out the provi-
sions of this act; and the Secretary of the Treasury is hereby author-
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3012 LEGAL COMPILATION—WATER
ized to pay that sum from moneys in the Treasury not otherwise
appropriated.
Approved, June 29,1888.
1.30a(l) SENATE COMMITTEE ON COMMERCE
S. REP. No. 224, 50th Cong., 1st Sess. (1888)
IN THE SENATE OF THE UNITED STATES.
FEBRUARY 9, 1888.—Ordered to be printed.
Mr. DOLPH, from the Committee on Commerce, submitted the follow-
ing
REPORT:
[To accompany bill S. 27.]
The Committee on Commerce, to whom was referred the bill
(S. 27) to prevent the obstruction of navigable waters and to pro-
tect public works against trespass or injury, having had the same
under consideration, respectfully report the same back favorably with
amendments.
The bill is substantially like one reported favorably from the Sen-
ate Committee on Commerce at the Forty-ninth Congress. It has
been referred to the Secretary of War and meets with his approval,
as will appear from the following letter:
WAR DEPARTMENT,
Washington City, December 29, 1887.
SIR: I have the honor to acknowledge the receipt of a letter of the 15th instant
from the clerk of your committee, inclosing, for such suggestions as may be
deemed proper, Senate bill 27, Fiftieth Congress, first session, "to prevent the
obstruction of navigable waters, and to protect public works against trespass or
injury."
In reply I beg to advise you that the Chief of Engineers reports that the bill
is substantially in accord with the draft of a bill for the same purpose, submitted
from his office to comply with the requirements of section 3 of the river and
harbor act of August 14, 1876, and that it is believed that it will accomplish the
purpose for which it is designed.
A copy of Appendix W of the annual report of the Chief of Engineers for 1877,
containing his letter in reference to the subject and the draft of the bill referred
to, are inclosed.
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STATUTES AND LEGISLATIVE HISTORY 3013
The views of the Chief of Engineers are concurred in by the Department.
Very respectfully, your obedient servant,
WILLIAM C. ENDICOTT,
Secretary of War.
Hon. W. P. FRYE,
Chairman Committee on Commerce, United States Senate.
The following is a copy of Appendix W of the Annual Report of the
Chief of Engineers for 1877 referred to in the above letter:
W 3.
PROTECTION OF PUBLIC WORKS AGAINST TRESPASS OR INJURY.
OFFICE OF THE CHIEF OF ENGINEERS,
Washington, D. C., January 13, 1877.
SIR: With the view to a compliance with the third section of the river and
harbor act of August 14, 1876, which requires a report to Congress of all the
instances in which piers, breakwaters, or other structures built by the United
States in aid of
[p. 1]
commerce or navigation are used, occupied, or injured by a corporation or an
individual, and the extent and mode of such use or injury, and the facts touch-
ing the same, and also what legislation is necessary to protect public works con-
structed by the United States against trespass or injury thereto, I instructed
the officers and agents of this office in charge of public works to report all such
instances within their knowledge, and also their views as to the legislation which
would best prevent the evils in question.
It appears that, with the exception of the occupancy of the East Pier at
Cleveland, Ohio, by the Pittsburgh and Cleveland Railroad Company, the terms
of which are now being adjusted, there has not been to any serious or great
extent injurious use or occupation of structures or works built by the United
States to report to this office.
There have been instances of temporary occupation of piers as landing-places
for cargoes which, by their weight, might injure the works; but in most cases the
practice was discontinued upon notification.
There are instances of injury to piers from collision of vessels, from careless-
ness as well as from unavoidable causes.
There are also instances of willful injury arising from the pulling up of the
deck-planks of wooden piers for the purpose of tying vessels.
There are instances of serious injury to navigable waters by the discharge of
sawmill waste into streams; also from booms for logs being placed in such a
way as to seriously, and sometimes totally, impede navigation, and also instances
of removal of stone from wing-dams, and of breaking openings through them for
the passage of small boats or running of logs, thus rendering the dams in-
capable of effecting the object for which they were built.
There are instances of injury to water-gauges permanently established for
the record of fluctuations of water-surface.
In fair-ways of harbors, channels are injured from deposits of ballast, steam-
boat ashes, oysters, and rubbish from passing vessels.
In some instances the local authorities have exercised a control over the public
-------
3014 LEGAL COMPILATION—WATER
works in their vicinity, and in most cases the trespass or injury has been cor-
rected upon notification.
So long as works are in progress and in charge of an officer or agent these evils
are rare, but as they pass out of his hands they are at the mercy of evil-disposed
persons, and it would be well under those circumstances to make it the duty
of all officers of the Government, especially custom-house and revenue officers
and light-house keepers, to report all cases of trespass or injury coming under
their observation, either to their own department or to the nearest United States
district attorney.
In many cases of harbor improvements on the lakes the Government has not
acquired title to the land on which the structure is built, so that it is a question
as to the right of the Government to prevent the use of the piers by the owners
of the adjacent land and prevent them from having access to the stream. In the
case of breakwaters isolated from the shore and resting on land owned by the
United States, or State, the question of control is simple.
The object of these works being for the benefit of commerce, there should be
no objection to their occupancy by private parties or corporations when fin-
ished, provided that the improvement of navigation for which they were built
is unimpaired and the Government relieved of the expense of maintaining them.
A majority of the officers and agents of this office in charge of public works
deem the penalty inflicted by the concluding paragraph of section 3 of the act
of August 14, 1876, a sufficient protection, but it has also been suggested that its
provisions should be extended so as—
(1) To cover all cases of trespass on United States grounds and structures.
(2) To cover all cases of negligent as well as willful injury.
(3) To cover not only river, harbor, and navigation works, but also all struc-
tures or marks established by the United States, so as to include all boundary-
marks, tide-gauges, stations, buoys, etc.
The special act of Congress (see vol. 18, Statutes at Large, part 3, p. 50) for
the protection of the work in progress for the improvement of the navigation
of the mouths of the Mississippi by dredging has proved defective, inasmuch
as it requires proof of malice or intention, instead of simple proof of fact of
injury or impediment to navigation.
In the case of the Louisville and Portland Canal, and at the Harbor of Refuge
at Sand Beach, Lake Huron, experience has shown the necessity of some en-
actment to regulate the movement of vessels therein, to avoid danger to vessels
and injury to the works. I have already, on the 29th February last, submitted
a letter from Major Weitzel, Corps of Engineers, with inclosed form of an act
which he recommends should be enacted by Congress for the government and
control of this harbor of refuge. This was embodied in bill H. R. No. 2927 of
last session of Congress.
[p. 2]
To cover all cases of trespass and injury herein mentioned, and to conform as
near as may be to the conditions required, I beg leave to suggest, as a modifica-
tion of House bill No. 1079, of the last session of Congress, the inclosed form of
an act which may cover all cases likely to arise, including the control of the
Harbor of Refuge on Lake Huron, and of the Louisville and Portland Canal.
Very respectfully, your obedient servant,
A. A. HUMPHREYS,
Brig. Gen. and Chief of Engineers.
Hon. J. D. CAMERON,
Secretary of War.
[P. 3]
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STATUTES AND LEGISLATIVE HISTORY 3015
1.30a(2) HOUSE COMMITTEE ON COMMERCE
H.R. REP. No. 1963, 50th Cong., 1st Sess. (1888)
NEW YORK HARBOR.
APRIL 27, 1888.—Committed to the Committee of the Whole House on the state of
the Union and ordered to be printed.
Mr. BRYCE, from the Committee on Commerce,1 submitted the
following
REPORT:
[To accompany bill S. 1241.]
The Committee on Commerce, to whom was referred the bill (S.
1241) "to prevent obstructive and injurious deposits in the harbor and
adjacent waters of New York City, by dumping or otherwise, and to
punish and prevent such offenses," have had same under considera-
tion, and beg leave to report it back to the House with amendments,
which makes its provisions similar to those of the House bill hereto-
fore reported, and already on the Calendar of the House, with a
favorable recommendation from your committee.
[p- 1]
1.30a(3) CONGRESSIONAL RECORD, VOL. 19 (1888):
1.30a(3)(a) March 21, April 6: Debated, amended and passed Senate,
pp. 2300-2301, 2775
[No Relevant Discussion of Pertinent Section]
1.30a(3)(b) June 4: Debated, amended and passed House, pp. 4889-
4890
DEPOSITS IN NEW YORK HARBOR.
Mr. COX. I ask unanimous consent that the Committee of the Whole on the
state of the Union be discharged from the further consideration of Senate bill
1241, to prevent obstructive and injurious deposits in the harbor and adjacent
waters of New York. A similar bill has been reported from the Committee on
Commerce of this House, and I now ask unanimous consent that the Senate bill
be substituted for the House bill and be put upon its passage.
*****
The SPEAKER pro tempore. Is there objection to the request of the gentle-
man from New York?
-------
3016 LEGAL COMPILATION—WATER
Mr. ROGERS. Mr. Speaker, I reserve the point of order, for the purpose
of trying to learn something about this bill. I do not want to object at this
time, but I would like to know what committee reported this bill.
Mr. COX. A bill for this purpose has been reported by my colleague [Mr.
BRYCE] from the Committee on Commerce. Several times in several Congresses
this measure substantially has been reported. The Senate bill which I ask to
have substituted is almost identical with the House bill reported by my col-
league. A bill almost similar with this—introduced by myself—passed this
House in the Forty-seventh Congress. It was upon a river and harbor bill,
and was eliminated from it in the Senate as being rather incongruous upon
that bill.
Mr. ROGERS. Has it passed the Senate?
Mr. COX. It has.
Mr. ROGERS. What committee reported it there?
Mr. COX. The Committee on Commerce.
Mr. ROGERS. Let me make another inquiry: What court has jurisdiction
of the offenses described in the bill?
Mr. SPINOLA. Any district court of the United States.
Mr. COX. I will state for the information of the House that a Federal bill,
like this, is rendered necessary, because these waters come within the jurisdic-
tion of two States—New Jersey and New York; and unless we have Federal
jurisdiction over them we can never protect the harbor from the continual dump-
ing that is shoaling it to its ruin. The Committees on Commerce of the House
and of the Senate have approved and reported this bill.
Mr. BLANCHARD. In what respect does the Senate bill, which the gentle-
man proposes to substitute, differ from the House bill?
Mr. COX. It does not differ except in the situation—the Senate has passed
the bill and we have not.
[p. 4889]
Mr. FARQUHAR. Does it not differ also in respect to the commission? The
original bill proposed a commission. The Senate bill puts the matter under
the control of the supervisor of the harbor.
Mr. COX. The House bill introduced by myself struck out the commission,
and left the matter under the control of the supervisor of the harbor. He is to
be under the control of the War Department, because the engineers have control
of harbor improvements, and harmony of action is a desideratum.
Mr. ROGERS. Mr. Speaker, the object of this bill is undoubtedly very
laudable, and I am in favor of it so far as I understand the measure; but I think
this is a most important matter and that we ought to hear the Senate bill read.
I make that suggestion because of the great confusion that was in the Hall
while the bill was being read.
The SPEAKER pro tempore. It was the Senate bill that was read.
Mr. ROGERS. Then I have got the wrong bill. I still reserve the point
of order until I can hear further from the gentleman from New York.
Mr. REED. What is the meaning of section 5?
Mr. SPINOLA. Section 5 is wrong in the Senate bill.
Mr. REED. Section 5 can not mean anything.
Mr. COX. I desire to have the Senate bill pass.
Mr. REED. But the Senate bill has a section, section 5, providing for the
meetings of a board, and there is no board provided for in the bill.
Mr. COX. That has been stricken out in the Senate. It has no place in the
bill before us. It is a mistake.
-------
STATUTES AND LEGISLATIVE HISTORY 3017
Mr. BLAND called for the regular order, but subsequently withdrew the call.
Mr. SPINOLA. I ask that section 5 of the Senate bill be read.
The Clerk read as follows:
That a suitable office for the meetings of the board shall be provided in some building
of the General Government in New York City or its vicinity.
Mr. COX. That has been stricken out.
Mr. BLANCHARD. Let the amendment relating to that section be read.
The SPEAKER pro tempore. The Clerk informs the Chair that there is no
amendment relating to that section.
Mr. COX. What we want is the Senate bill in its entirety.
Mr. BLANCHARD. Does section 5 provide for a commission?
Mr. COX. It does not.
Mr. BLANCHARD. Then what is the meaning of the language which has
been read?
Several MEMBERS. It ought to be struck out.
Mr. COX. I desire to move to strike out section 5 if it is in the bill.
The SPEAKER pro tempore. The bill is not before the House.
Mr. COX. I am aware of that. I ask unanimous consent that the Senate bill
and this amendment be considered as pending.
Mr. ROGERS. Mr. Speaker, what I am most interested in with reference
to this bill is a point which has recently come before the Judiciary Committee
of the House and has had a most careful consideration by it. It is the question
whether or not Congress has constitutional power to confer upon the courts
of the United States criminal jurisdiction over the inland waters of the country.
If we have complete jurisdiction it must extend, I take it, to every navigable
river of the United States upon which there is any interstate commerce. It
certainly goes this far, if it does not extend to all the navigable waters. Now,
I regard this as an exceedingly doubtful power. Our Government has now been
in existence a hundred years, and we have never until the present Congress
undertaken to exercise criminal jurisdiction over the Great Lakes.
Mr. COX. This bill has reference to maritime cases—to Federal waters.
Mr. ROGERS. I am referring to criminal jurisdiction. The maritime juris-
diction of the United States extends over the Great Lakes, of course.
Several MEMBERS. No doubt of that.
Mr. COX. This bill only proposes to extend jurisdiction over tide-water.
Mr. ROGERS. But you say "the harbor of New York or its adjacent or tribu-
tary waters or those of Long Island Sound."
Mr. COX. Those are tide-waters. The tide runs nearly a hundred miles up the
Hudson, certainly as far as Poughkeepsie.
Mr. ROGERS. I do not profess to be very familiar with the geography of that
part of the country, and upon the assurance of the gentleman from New York I
withdraw my objection to the consideration of the bill.
There being no objection, the House proceeded to the consideration of the bill.
Mr. COX. I move to amend by striking out section 5.
The amendment was agreed to.
The SPEAKER pro tempore. Several amendments to this bill have been re-
ported by the Committee on Commerce.
The amendments reported by the Committee on Commerce were read, as
follows:
After the word "waters," in line 8, section 1, insert "or in those of Long Island Sound."
At the end of section 1, add "one-half of said fine to be paid to the person or persons
giving information which shall lead to conviction of this misdemeanor."
-------
3018 LEGAL COMPILATION—WATER
After the words "harbor of New York," in line 6, section 2, insert "or in its adjacent
or tributary waters or in those of Long Island Sound."
The SPEAKER pro tempore. If there be no objection, the question on these
amendments will be taken in gross.
The amendments were agreed to.
Mr. SPINOLA. I move to amend the fourth section by adding the provision
which I send to the desk.
The Clerk read as follows:
Any boat or vessel used or employed in violating any provision of this act shall be liable
to the pecuniary penalties imposed thereby, and may be proceeded against summarily by
way of libel in any district court of the United States having jurisdiction thereof.
Mr. COX. I have no objection to that amendment. It strengthens the bill. It
gives it a vigorous penalty which will assist its enforcement.
Mr. FARQUHAR. And makes it more clear.
The amendment was agreed to.
Mr. SOWDEN. I move to amend by inserting after the word "dollars," in line
1, section 7, the words "or so much thereof as may be necessary."
Mr. COX. There is no objection to that amendment.
Mr. FARQUHAR. That is correct.
The amendment was agreed to.
Mr. BUCHANAN. My observation has been that the prescribing of minimum
terms of imprisonment very often prevents conviction. I therefore move to
amend section 1 by striking out, in line 17, the words "less than thirty days nor;"
so that the clause will read "and the imprisonment not to be more than one
year," etc.
Mr. ROGERS and others. That is right.
The amendment was agreed to.
Mr. COX. I now call the previous question.
The previous question was ordered; and under the operation thereof the bill
as amended was ordered to a third reading, was accordingly read the third time,
and passed.
Mr. COX moved to reconsider the vote by which the bill was passed; and also
moved that the motion to reconsider be laid on the table.
The latter motion was agreed to.
The SPEAKER pro tempore. If there be no objection, House bill No. 8947, now
on the Calendar, and similar in substance to the Senate bill just passed, will be
laid on the table.
There was no objection, and it was ordered accordingly.
[p. 4890]
1.30a(3)(c) June 14: Senate concurs in House amendments, p. 5239
[No Relevant Discussion of Pertinent Section]
l.SOb RIVER AND HARBOR ACT OF 1894
August 18, 1894, P.L. 53-299, §§3, 5, 28 Stat. 360
SEC. 3. That section three of the "Act to prevent obstructive and
injurious deposits within the harbor and adjacent waters of New
York City, by dumping or otherwise, and to punish and prevent such
-------
STATUTES AND LEGISLATIVE HISTORY 3019
offenses," approved June twenty-ninth, eighteen hundred and eighty-
eight, shall be, and hereby is, amended so as to read as follows:
"SEC. 3. That in all cases of receiving on board of any scows or boats
such forbidden matter or substance as herein described, the owner or
master, or person acting in such capacity on board of such scows or
boats, before proceeding to take or tow the same to the place of de-
posit, shall apply for and obtain from the supervisor of the harbor
appointed hereunder a permit defining the precise limits within which
the discharge of such scows or boats may be made; and it shall not be
lawful for the owner or master, or person acting in such capacity, of
any tug or towboat to tow or move any scow or boat so loaded with
such forbidden matter until such permit shall have been obtained;
and every person violating the foregoing provisions of this section
shall be deemed guilty of a misdemeanor, and on conviction thereof
shall be punished by a fine of not more than one thousand nor less
than five hundred dollars, and in addition thereto the master of any
tug or towboat so offending shall have his license revoked, or sus-
pended for a term to be fixed by the judge before whom tried and
convicted.
"And any deviation from such dumping or discharging place speci-
fied in such permit shall be a misdemeanor, and the owner and mas-
ter, or person acting in the capacity of master, of any scows or boats
dumping or discharging such forbidden matter in any place other than
that specified in such permit shall be liable to punishment therefor as
provided in section one of the said Act of June twenty-ninth, eighteen
hundred and eighty-eight; and the owner and master, or person acting
in the capacity of master, of any tug or towboat towing such scows or
boats shall be liable to equal punishment with the owner and master,
or person acting in the capacity of master, of the scows or boats; and,
further, every scowman or other employee on board of both scows
and towboats shall be deemed to have knowledge of the place of
dumping specified in such permit, and the owners and masters, or
persons acting in the capacity of masters, shall be liable to punish-
ment, as aforesaid, for any unlawful dumping, within the meaning of
this Act or of the said Act of June twenty-ninth, eighteen hundred
and eighty-eight, which may be caused by the negligence or ignorance
of such scowman or other employee; and, further, neither defect in
machinery nor avoidable accidents to scows or towboats, nor unfavor-
able weather, nor improper handling or moving of scows or boats of
any kind whatsoever, shall operate to release the owners and masters
and employees of scows and towboats from the penalties hereinbefore
mentioned."
Every scow or boat engaged in the transportation of dredgings,
earth, sand, mud, cellar dirt, garbage, or other offensive material of
-------
3020 LEGAL COMPILATION—WATER
any description shall have its name or number and owner's name
painted in letters and numbers at least fourteen inches long on both
sides of the scow or boat; these names and numbers shall be kept
distinctly legible at all times, and no scow or boat not so marked shall
be used to transport or dump any such material.
The supervisor of the harbor of New York, designated as provided
in section five of the said Act of June twenty-ninth, eighteen hundred
and eighty-eight, is authorized and directed to appoint inspectors and
deputy inspectors, and, for the purpose of enforcing the provisions of
this Act and of the Act aforesaid, and of detecting and bringing to
punishment offenders against the same, the said supervisor of the har-
bor, and the inspectors and deputy inspectors so appointed by him,
shall have power and authority:
First. To arrest and take into custody, with or without process, any
person or persons who may commit any of the acts or offenses pro-
hibited by this section and by the Act of June twenty-ninth, eighteen
hundred and eighty-eight, aforesaid, or who may violate any of the
provisions of the same: Provided, That no person shall be arrested
without process for any offense not committed in the presence of the
supervisor or his inspectors or deputy inspectors, or either of them:
And provided further, That whenever any such arrest is made the
person or persons so arrested shall be brought forthwith before a
commissioner, judge, or court of the United States for examination of
the offenses alleged against him; and such commissioner, judge, or
court shall proceed in respect thereto as authorized by law in case of
crimes against the United States.
Second. To go on board of any scow or towboat engaged in unlaw-
ful dumping of prohibited material, or in moving the same without
a permit as required in this section of this Act, and to seize and hold
said boats until they are discharged by action of the commissioner,
judge, or court of the United States before whom the offending
persons are brought.
Third. To arrest and take into custody any witness or witnesses to
such unlawful dumping of prohibited material, the said witnesses to
be released under proper bonds.
Fourth. To go on board of any towboat having in tow scows or
boats loaded with such prohibited material, and accompany the same
to the place of dumping, whenever such action appears to be neces-
sary to secure compliance with the requirements of this Act and of
the Act aforesaid.
Fifth. To enter gas and oil works and all other manufacturing works
for the purpose of discovering the disposition made of sludge, acid, or
other injurious material, whenever there is good reason to believe
that such sludge, acid, or other injurious material is allowed to run
-------
STATUTES AND LEGISLATIVE HISTORY 3021
into the tidal waters of the harbor in violation of section one of the
aforesaid Act of June twenty-ninth, eighteen hundred and eighty-
eight.
Every person who, directly or indirectly, gives any sum of money or
other bribe, present, or reward or makes any offer of the same to
any inspector, deputy inspector, or other employee of the office of the
supervisor of the harbor with intent to influence such inspector, dep-
uty inspector, or other employee to permit or overlook any violation
of the provisions of this section or of the said Act of June twenty-
ninth, eighteen hundred and eighty-eight, shall, on conviction thereof,
be fined not less than five hundred dollars nor more than one thou-
sand dollars, and be imprisoned not less than six months nor more
than one year.
Every permit issued in accordance with the provisions of this sec-
tion of this Act which may not be taken up by an inspector or deputy
inspector shall be returned within forty-eight hours after issuance to
the office of the supervisor of the harbor; such permit shall bear an
indorsement by the master of the towboat, or the person acting in
such capacity, stating whether the permit has been used, and if so the
time and place of dumping. Any person violating the provisions of
this section shall be liable to a fine of not more than five hundred dol-
lars nor less than one hundred dollars.
SEC. 5. That it shall be the duty of all persons owning, operating,
and tending the drawbridges now built, or which may hereafter be
built across the navigable rivers and other waters of the United
States, to open, or cause to be opened, the draws of such bridges under
such rules and regulations as in the opinion of the Secretary of War
the public interests require to govern the opening of drawbridges for
the passage of vessels and other water crafts, and such rules and regu-
lations, when so made and published, shall have the force of law.
Every such person who shall willfully fail or refuse to open, or cause
to be opened, the draw of any such bridge for the passage of a boat or
boats, or who shall unreasonably delay the opening of said draw after
reasonable signal shall have been given, as provided in such regula-
tions, shall be deemed guilty of a misdemeanor, and on conviction
thereof shall be punished by a fine of not more than two thousand
dollars nor less than one thousand dollars, or by imprisonment (in
the case of a natural person) for not exceeding one year, or by both
such fine and imprisonment, in the discretion of the court: Provided,
That the proper action to enforce the provisions of this section may
be commenced before any commissioner, judge, or court of the United
States, and such commissioner, judge, or court shall proceed in
respect thereto as authorized by law in case of crimes against the
United States: Provided further, That whenever, in the opinion of
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3022 LEGAL COMPILATION—WATER
the Secretary of War, the public interests require it, he may make
rules and regulations to govern the opening of drawbridges for the
passage of vessels and other water crafts, and such rules and regula-
tions, when so made and published, shall have the force of law, and
any violation thereof shall be punished as hereinbefore provided.
SEC. 6. That it shall not be lawful to place, discharge, or deposit, by
any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud,
sand, dredgings, sludge, acid, or any other matter of any kind other
than that flowing from streets, sewers, and passing therefrom in a
liquid state, in the waters of any harbor or river of the United States,
for the improvement of which money has been appropriated by Con-
gress, elsewhere than within the limits defined and permitted by the
Secretary of War; neither shall it be lawful for any person or persons
to move, destroy, or injure in any manner whatever any sea wall, bulk-
head, jetty, dike, levee, wharf, pier, or other work built by the United
States, in whole or in part, for the preservation and improvement of
any of its navigable waters, or to prevent floods, or as boundary
marks, tide gauges, surveying stations, buoys, or other established
marks; any and every such act is made a misdemeanor, and every
person knowingly engaged in or who shall knowingly aid, abet, au-
thorize, or instigate a violation of this section shall, upon conviction,
be punishable by fine or imprisonment, or both, such fine to be not
less than two hundred and fifty dollars nor more than twenty-five
hundred dollars, and the imprisonment to be not less than thirty days
nor more than one year, either or both united, as the judge before
whom conviction is obtained shall decide, one-half of said fine to be
paid to the person or persons giving information which shall lead to
conviction of this misdemeanor.
SEC. 7. That any and every master, pilot, and engineer, or person or
persons acting in such capacity, respectively, on board of any boat or
vessel who may willfully injure or destroy any work of the United
States contemplated in section six of this Act, or who shall knowingly
engage in towing any scow, boat, or vessel loaded with any such pro-
hibited matter to any point or place of deposit or discharge in any
harbor contemplated in section six of this Act, elsewhere than within
the limits defined and permitted by the Secretary of War, shall be
deemed guilty of a violation of this Act and shall, upon conviction, be
punishable as hereinbefore provided for offenses in violation of sec-
tion six of this Act, and shall also have his license revoked or sus-
pended for a term to be fixed by the judge before whom tried and
convicted.
SEC. 8. Any boat, vessel, scow or other craft used or employed in
violating any of the provisions of sections six and seven of this Act
shall be liable to the pecuniary penalties imposed thereby, and in
-------
STATUTES AND LEGISLATIVE HISTORY 3023
addition thereto to the amount of the damages done by said boat, ves-
sel, scow, or other craft, which latter sum shall be placed to the credit
of the appropriation for the improvement of the harbor in which the
damage occurred, and said boat, vessel, scow, or other craft may be
proceeded against summarily by way of libel in any district court of
the United States having jurisdiction thereof.
1.30b(l) HOUSE COMMITTEE ON RIVERS AND HARBORS
H.R. REP. No. 639, 53rd Cong., 2d Sess. (1894)
[No Relevant Discussion on Pertinent Section]
1.30b(2) SENATE COMMITTEE ON COMMERCE
S. REP. No. 519, 53rd Cong., 2d Sess. (1894)
[No Relevant Discussion on Pertinent Section]
1.30b(3) COMMITTEE OF CONFERENCE, 53RD CONG., 2D
SESS.
Congressional Record, Vol. 26 (1894), pp. 8173-8175
[No Relevant Discussion on Pertinent Section]
1.30b (4) CONGRESSIONAL RECORD, VOL. 26 (1894):
1.30b(4)(a) May 4: Debated, amended and passed House, pp. 4376,
4430
Mr. CATCHINGS. Now, Mr. Chairman, another feature of the general legisla-
tion embraced in this bill is a further provision for enforcing the act approved
June 29, 1888, to prevent obstructive and injurious deposits within the harbor and
adjacent waters of New York City by dumping or otherwise and to punish and
prevent such offenses. Experience has shown that this law in its details is en-
tirely ineffective. It has been evaded by various contrivances so as to make it
impossible to enforce it by any sort of legal proceedings. By the supplementary
legislation now proposed it is hoped that the law can be made more effective.
The danger is much more serious than is generally known. The Government of
the United States has expended, according to the report, over $8,000,000 in im-
proving the harbor of New York and its tributary waters, and we have now on
hand projects which will involve the expenditure of several million dollars more.
The total amount of dredging which was estimated as necessary for improving
the main entrance of New York Harbor was 4,300,000 cubic yards. The report
of the supervisor of the harbor for the fiscal year 1893 shows that permits were
issued by his office during that period for depositing over 9,000,000 cubic yards
of city refuse, cellar dirt, garbage, ashes, etc. In other words, the report for 1893
shows that in that single year permits were issued for dumping more cubic yards
of refuse material than the estimates required to be removed in order to perfect
the channel. From this will be seen the absolute importance of controlling this
vast deposit. The amount of refuse matter from a great city like New York is
-------
3024 LEGAL COMPILATION—WATER
almost inconceivable. I repeat, that nearly twice as much was dumped into the
ocean last year as it will be necessary to remove in order to perfect the entrance
and channel ways of New York Harbor. The provision in the pending bill is
intended simply to regulate the disposition of that enormous mass of refuse
material.
Another provision of general legislation is intended to enable the Secretary of
War to make such rules and regulations for the use, administration, and naviga-
tion of all canals and other works under the control of the Government as in his
judgment may be necessary and proper. By special act we did confer that power
on him in regard to the Des Moines Rapids Canal, the St. Marys Falls Canal, the
Louisville and Portland Canal, the St. Clair Flats Canal, the South Pass of the
Mississippi River, and the Des Moines River Rapids Dry Dock. This is a pro-
vision to extend similar authority under the same circumstances over all similar
works, and I presume that there can be no objection on the part of any gentleman
to that.
Another feature of the general legislation embodied in the bill is designed to
control the dumping of refuse matter in the harbors of the country which the
Government is improving and on which it has established dock lines. Special
regulations were required for dealing with a great harbor like that of New York,
and we have inserted a general provision applicable to all the harbors of the
country. I presume no gentleman can dispute the propriety of suitable legislation
to control the deposit of refuse matter in these harbors, on which we are expend-
ing money.
I believe, Mr. Chairman, I have about gone over the general legislation in the
bill in a rapid way. I will state that all of it has been recommended by Gen.
Casey—every bit of it. Not a line of it was suggested by the committee itself; but
after hearing him we considered his proposed legislation and agreed to it, believ-
ing it wise and proper to do so.
Now, unless some gentleman desires to ask a further question, I will yield the
floor.
[p. 4376]
1.30b(4)(b) July 13: Amended and passed Senate, p. 7414
[No Relevant Discussion on Pertinent Section]
1.30b(4) (c) Aug. 6: Senate agreed to conference report, p. 8230
[No Relevant Discussion on Pertinent Section]
1.30b(4) (d) Aug. 6: House agreed to conference report, p. 8251
[No Relevant Discussion on Pertinent Section]
1.30c 1908 AMENDMENTS TO 1894 ACT
May 28, 1908, P.L. 60-152, §8, 35 Stat. 426
SEC. 8. That section three of the Act of August eighteenth, eighteen
hundred and ninety-four, entitled "An Act making appropriations for
the construction, repair, and preservation of certain public works on
-------
STATUTES AND LEGISLATIVE HISTORY 3025
rivers and harbors, and for other purposes," be, and the same hereby
is, amended so as to read as follows, sixty days after the passage of
this Act:
"SEC. 3. That section three of the Act to prevent obstructive and
injurious deposits within the harbor and adjacent waters of New York
City, by dumping or otherwise, and to punish and prevent such
offenses, approved June twenty-ninth, eighteen hundred and eighty-
eight, shall be, and hereby is, amended so as to read as follows:
" 'SEC. 3. That in all cases of receiving on board of any scows or
boats such forbidden matter or substance as herein described, the
owner or master, or person acting in such capacity on board of such
scows or boats, before proceeding to take or tow the same to the place
of deposit, shall apply for and obtain from the supervisor of the harbor
appointed hereunder a permit defining the precise limits within which
the discharge of such scows or boats may be made; and it shall not be
lawful for the owner or master, or person acting in such capacity, of
any tug or towboat to tow or move any scow or boat so loaded with
such forbidden matter until such permit shall have been obtained; and
every person violating the foregoing provisions of this section shall
be deemed guilty of a misdemeanor, and on conviction thereof shall
be punished by a fine of not more than one thousand nor less than
five hundred dollars, and in addition thereto the master of any tug or
towboat so offending shall have his license revoked or suspended for
a term to be fixed by the judge before whom tried and convicted.
" 'And any deviation from such dumping or discharging place spec-
ified in such permit shall be a misdemeanor, and the owner and mas-
ter, or person acting in the capacity of master, of any scows or boats
dumping or discharging such forbidden matter in any place other
than that specified in such permit shall be liable to punishment there-
for as provided in section one of the said Act of June twenty-ninth,
eighteen hundred and eighty-eight; and the owner and master, or per-
son acting in the capacity of master, of any tug or towboat towing such
scows or boats shall be liable to equal punishment with the owner and
master, or person acting in the capacity of master, of the scows or
boats; and, further, every scowman or other employee on board of
both scows and towboats shall be deemed to have knowledge of the
place of dumping specified in such permit, and the owners and mas-
ters, or persons acting in the capacity of masters, shall be liable to
punishment, as aforesaid, for any unlawful dumping, within the mean-
ing of this Act or of the said Act of June twenty-ninth, eighteen hun-
dred and eighty-eight, which may be caused by the negligence or igno-
rance of such scowman or other employee; and, further, neither defect
in machinery nor avoidable accidents to scows or towboats, nor un-
favorable weather, nor improper handling or moving of scows or
-------
3026 LEGAL COMPILATION—WATER
boats of any kind whatsoever shall operate to release the owners and
master and employees of scows and towboats from the penalties here-
inbefore mentioned.
" 'Every scow or boat engaged in the transportation of dredgings,
earth, sand, mud, cellar dirt, garbage, or other offensive material of
any description shall have its name or number and owner's name
painted in letters and numbers at least fourteen inches long on both
sides of the scow or boat; these names and numbers shall be kept dis-
tinctly legible at all times, and no scow or boat not so marked shall be
used to transport or dump any such material. Each such scow or
boat shall be equipped at all times with a life line or rope extending
at least the length of and three feet above the deck thereof, such rope
to be attached to the coaming thereof, also with a life-preserver and a
life buoy for each person on board thereof, also with anchor to weigh
not less than two hundred and seventy-five pounds, and at least one
hundred feet of cable attached thereto; a list of the names of all men
employed on any such scow or boat shall be kept by the owner or
master thereof and the said list shall be open to the inspection of all
parties. Failure to comply with any of the foregoing provisions shall
render the owner of such scow or boat liable upon conviction thereof
to a penalty of not more than five hundred dollars.
" 'The supervisor of the harbor of New York, designated as pro-
vided in section five of the said Act of June twenty-ninth, eighteen
hundred and eighty-eight, is authorized and directed to appoint in-
spectors and deputy inspectors, and, for the purpose of enforcing the
provisions of this Act and of the Act aforesaid, and of detecting and
bringing to punishment offenders against the same, the said super-
visor of the harbor, and the inspectors and deputy inspectors so
appointed by him, shall have power and authority:
" 'First. To arrest and take into custody, with or without process,
any person or persons who may commit any of the acts or offenses
prohibited by this section and by the Act of June twenty-ninth,
eighteen hundred and eighty-eight, aforesaid, or who may violate any
of the provisions of the same: Provided, That no person shall be
arrested without process for any offense not committed in the pres-
ence of the supervisor or his inspsctors or deputy inspectors, or either
of them: And provided further, That whenever any such arrest is
made the person or persons so arrested shall be brought forthwith
before a commissioner, judge, or court of the United States for ex-
amination of the offenses alleged against him; and such commissioner,
judge, or court shall proceed in respect thereto as authorized by law
in case of crimes against the United States.
" 'Second. To go on board of any scow or towboat engaged in un-
lawful dumping of prohibited material, or in moving the same with-
-------
STATUTES AND LEGISLATIVE HISTORY 3027
out a permit, as required in this section of this Act, or otherwise
violating any of the provisions of this section of this Act, and to
seize and hold said boats until they are discharged by action of the
commissioner, judge, or court of the United States before whom the
offending persons are brought.
" 'Third. To arrest and take into custody any witness or witnesses
to such unlawful dumping of prohibited material, the said witnesses
to be released under proper bonds.
" 'Fourth. To go on board of any towboat having in tow scows or
boats loaded with such prohibited material, and accompany the same
to the place of dumping, whenever such action appears to be neces-
sary to secure compliance with the requirements of this Act and of
the Act aforesaid.
" 'Fifth. To enter gas and oil works and all other manufacturing
works for the purpose of discovering the disposition made of sludge.
acid, or other injurious material, whenever there is good reason to
believe that such sludge, acid, or other injurious material is allowed to
run into the tidal waters of the harbor in violation of section one of
the aforesaid Act of June twenty-ninth, eighteen hundred and eighty-
eight.
" 'Every person who, directly or indirectly, gives any sum of money
or other bribs, present, or reward, or makes any offer of the same to
any inspector, deputy inspector, or other employee of the office of the
supervisor of the harbor with intent to influence such inspector,
deputy inspector, or other employee to permit or overlook any viola-
tion of the provisions of this section or of the said Act of June twenty-
ninth, eighteen hundred and eighty-eight, shall, on conviction thereof,
be fined not less than five hundred dollars nor more than one thou-
sand dollars, and be imprisoned not less than six months nor more
than one year.
" 'Every permit issued in accordance with the provisions of this
section of this Act, which may not be taken up by an inspector or
deputy inspector, shall be returned within four days after issuance
to the office of the supervisor of the harbor; such permit shall bear an
indorsement by the master of the towboat, or the person acting in
such capacity, stating whether the permit has been used, and, if so,
the time and place of dumping. Any person violating the provisions
of this section shall be liable to a fine of not more than five hundred
dollars nor less than one hundred dollars.' "
-------
3028 LEGAL COMPILATION—WATER
1.30c(l) HOUSE COMMITTEE ON THE MERCHANT MARINE
AND FISHERIES
H.R. REP. No. 1672, 60th Cong., 1st Sess. (1908)
TO AMEND LAWS RELATING TO NAVIGATION, AND FOR
OTHER PURPOSES
MAY 12, 1908.—Referred to the House Calendar and ordered to be printed.
Mr. GREENE, from the Committee on the Merchant Marine and
Fisheries, submitted the following
REPORT.
[To accompany H. R. 21815]
The Committee on the Merchant Marine and Fisheries, to whom
was referred the bill (H. R. 21815) to amend the laws relating to
navigation, and for other purposes, having considered the same,
recommend that it pass with the following amendments:
*******
[p. 1]
Section 8: This section is S. 7023, introduced by Senator Depew and
passed by the Senate, and is similar to H. R. 21005, introduced by
Mr. Parsons. It applies exclusively to New York Bay and Harbor.
Although the section is voluminous, the only change from existing
law is the insertion of the following words, beginning at page 7, line
20, after the word "material," and ending at page 8, line 5, inclusive:
Each such scow or boat shall be equipped at all times with a life line or rope
extending at least the length of and three feet above the deck thereof, such rope
to be attached to the coaming thereof; also with a life-preserver and a life buoy
for each person on board thereof; also with anchor to weigh not less than two
hundred and seventy-five pounds, and at least one hundred feet of cable attached
thereto. A list of the names of all men employed on any such scow or boat shall
be kept by the owner or master thereof and the said list shall be open to the
inspection of all parties. Failure to comply with any of the foregoing provisions
shall render the owner of such scow or boat liable upon conviction thereof to a
penalty of not more than five hundred dollars.
To conform to this amendment, for obvious reasons, at page 9, lines
7 and 8, the following words are inserted:
or otherwise violating any of the provisions of this section of this act.
-------
STATUTES AND LEGISLATIVE HISTORY 3029
In reporting in favor of the bill included in this section, the Secre-
tary of Commerce and Labor states:
The bill compels scows and similar vessels carrying the refuse of New York
City out to sea to be dumped to be equipped with rails or ropes, life buoys, and
simple appliances necessary to safety to life.
The situation which the amendment is designed to meet is doubtless familiar to
members of the committee who have visited the harbor of New York. When
loaded these mud or garbage scows have practically no free board, and the decks
are awash at times merely from the passing swells of large ocean steamers
entering or leaving the port. In the rough weather which at times prevails in
the lower bay and out at sea, where refuse must be dumped, the condition of
those on board is pitifully perilous. There is no accurate record of the number
of men washed overboard from these scows and drowned, but the press of New
York shows such casualties are not infrequent. The need of the guard rail or
rope and life-preserver and life buoy are thus evident.
The scows are taken to sea often in long tows, and if the line parts a scow
drifts helplessly, a menace to other vessels in the thronged approaches to New
York. The anchor will help to reduce this danger.
This section accordingly serves two useful purposes, (1) the protec-
tion of unguarded lives on these scows in the harbor and bay of New
York, and (2) it decreases the danger of collisions between tows of
these scows or barges and incoming or outgoing steamers. The sea-
borne traffic of New York is growing so rapidly and the water area is
so restricted that the commercial value of the water is approaching
the commercial value of the land, and every reasonable measure must
be taken to secure safe navigation.
At page 8, the substitute for lines 1 to 5, inclusive, is a more exact
penalty than the vague penalties prescribed in the text of the Senate
and House bills as introduced.
[p. 4]
At page 10, lines 17 and 18, the words "forty-eight hours" are
changed to "four days" to secure a wider margin of time between the
issuance of a dumping permit and the return of the permit, to accord
better with the present conditions and requirements of the business.
[p. 5]
-------
3030 LEGAL COMPILATION—WATER
1.30c(2) SENATE COMMITTEE ON COMMERCE, GOTH CONG.,
1ST SESS.
Congressional Record, Vol. 42 (1908), p. 6963
[No Relevant Discussion on Pertinent Section]
1.30c(3) CONGRESSIONAL RECORD, VOL. 42 (1908):
1.30c(3)(a) May 25: Considered and passed House, pp. 6901-6905
Mr. GREENE.
*****
Section 8 embodies the provisions of a bill introduced by the gentleman from
New York [Mr. PARSONS], and I now yield to him three minutes.
Mr. PARSONS. Mr. Speaker, section 8 consists of a bill introduced by me.
It is a long section, but the only part of it that is new law is the part in italics
on page 8. It relates entirely to the mud scows or boats in the harbor of New
York that take garbage out to sea, and the object of the amendment is to require
on each one of these scows a life line or rope, which they are now not required
to have, and a life-preserver and life buoy for each person on board, and a drag
anchor, so that if they get adrift the anchor will retard the progress of the scow,
and it will be possible to overtake it. It also requires them to keep a list of all
the men employed.
This section was recommended by the Legal Aid Society and the Seamen's
Church Institute in New York, which have done a great deal of work among the
seamen and which were active a couple of years ago in behalf of the bill that
we passed to prevent shanghaiing. There was a hearing before the committee,
where the scow people were represented, and the provision that is now in the
bill is the compromise provision that was evolved at that time.
*****
Mr. GOULDEN.
*****
The second part to which I wish to direct the attention of the House is that in
relation to providing safety lines aboard the mud scows and sea barges that go
out, particularly from New York Harbor. All of the refuse of the city of New
York is taken out of New York and dumped into the sea, and scores of men are
drowned each year by not having the necessary protection on these boats. It
provides that life lines shall be put on each scow and barge, kept there at all
times, extending the length of the boat and 3 feet above the deck, such rope to be
attached to the coaming, and also that a life-preserver and a life buoy shall be
kept for each person on board; also an anchor, to weigh not less than 275 pounds
and with at least 100 feet of cable attached thereto. Then a list of the names of
all the men employed on any such scow or boat shall be kept by the owner or the
master thereof, and said list shall be open to the inspection of all parties. Failure
to comply with any of the foregoing provisions shall render the owner of any
such scow or boat liable upon conviction thereof to a penalty of not more than
$500. Now, this has been found absolutely necessary for the protection of human
life. As I said, scores of men are drowned or lost or missing each year who work
aboard these boats. Something therefore must be done in the cause of humanity
and the safety to human life. This was thought to be the best and simplest
method of protecting life and giving it some degree of safety. The anchor pro-
-------
STATUTES AND LEGISLATIVE HISTORY 3031
vision is intended in case the scow breaks loose from its tow, that they can throw
out the anchor and drag. We do not mean to say for a moment that they would
be able perhaps to keep off the shore, but they would drag slowly so that some
tugboat could pick them up and save them from being wrecked.
The other parts of the bill, Mr. Speaker, containing fifteen amendments, have
met with the approval of the minority members of the committee, and we believe,
upon the whole, that the entire bill is entitled to a favorable consideration on the
part of the Members of the House. I commend it to their support and hope that
it will pass. [Applause.]
Mr. SPIGHT. Mr. Speaker, the gentleman from New York [Mr. GOULDEN] has
discussed the most important feature of this bill, the question of the protection of
life on the scows in
[p. 6903]
New York Harbor. There is another provision of the bill, however, which seems
to me to be objectionable. It is a provision which discriminates against yachts
constructed in foreign yards and not acquired by American citizens prior to
1897. I think that is objectionable. I think that the provision ought to apply
to all American owners of yachts at the time of the passage of this bill, if it is
going to apply to any, without regard to when they were built or when acquired.
In the main, I think the bill is a good one and ought to pass.
I now yield five minutes to the gentleman from Indiana [Mr. Cox].
Mr. COX of Indiana. Mr. Speaker, as was said by the gentleman from New
York, there is no opposition to this bill from any of the minority members of the
committee. One part of this bill I do not approve of; however, upon the main, I
am going to vote for the bill as it is presented. The part of the bill which I do not
approve of is the part which provides for the exemption of foreign yacht owners
from paying tonnage taxes and clearance dues. I do not approve of that, because
I can see no reason why the class of people who are able to own and equip
yachts should be permitted to enter and clear without paying tonnage taxes and
clearance dues; but upon the principle of comity between this Government and
other nations, if they extend to our people the same privilege, probably there
is not so much serious objection to it after all. The most important section of
this bill, as I consider it, is that part of the bill which relates to New York Harbor.
The evidence disclosed before the committee from whence this bill comes is
that for years and years there has been a practice going on in New York Harbor
of dumping the refuse of New York City out into the ocean, where a great many
human lives have been lost. An opposition was disclosed before the committee
upon this part of the bill upon the ground, as usual, that if the scow owners were
compelled to safeguard them, so as to protect the lives of their employees, it
would add greatly to the expense of the scows. The committee determined that
when the question of cost was upon one side and the question of human life
upon the other, that the argument in favor of the preservation of human life
far outweighed that of the cost of taking such precautions upon the other so as
to preserve human life. The evidence failed to disclose the number of people
who were lost every year who are engaged in this occupation, but according to
the best evidence that we could get hold of not less than one person was lost
every month in this hazardous employment by reason of the fact that the scows
were not safeguarded with proper safety equipment. Therefore I regard that part
of the bill as being the most important, purely, however, of a local nature, affect-
ing only the city of New York, and if there was nothing else in the bill except
this it would commend itself to me very strongly. Up until this bill was reported,
as I understand the navigation laws, there has been no Federal statute in force
-------
3032 LEGAL COMPILATION—WATER
giving to the inspectors power to inspect seagoing barges of 100 tons and over.
This bill gives to the inspectors power to inspect seagoing barges of 100 tons and
over, and the right to inspect each with a view of seeing whether or not they
are seaworthy and are safe to operate upon the high seas. The evidence dis-
closed that by reason of failure to have a Federal statute conferring upon the
local inspectors power to inspect seagoing barges the loss of property heretofore
has been considerable, as well as the loss of life. These two measures taken
together, in my judgment, commends the bill to its passage and appeals to the
Members of this House. There is another section of the bill which adds likewise
a delinquent statute, as it were
The SPEAKER pro tempore. The time of the gentleman from Indiana has
expired.
Mr. SPIGHT. I yield the gentleman two more minutes.
Mr. COX of Indiana. And that is the section of the statute which authorizes
the Commissioner of Navigation to appoint a board of inspectors at Hawaii and
Porto Rico. While that is going to add some additional expense to the Govern-
ment in maintaining those two boards, yet the proof disclosed the fact that it was
exceedingly necessary that he be given the power to appoint these boards of
inspectors for Hawaii and for Porto Rico, because the evidence disclosed the fact
that for as much as two weeks at a time vessels had been tied up in Hawaii and
in Porto Rico awaiting inspectors to be sent from the continent of the United
States to inspect the hulls and the vessels, with a view of seeing whether or not
they were seaworthy. Therefore, in the main, I believe, the entire bill commends
itself to the support of every Member in this House. [Applause.]
Mr. SPIGHT. I yield two minutes to the gentleman from New York [Mr.
SULZER].
Mr. SULZER. Mr. Speaker, all I desire to say is that, in my judgment, this
is a most commendable bill, and it ought to receive the unanimous approval of
the Members of this House. The bill is designed to regulate, so far as may be
feasible at this time, the most dangerous form of navigation along our seaboard.
There are between 400 and 450 seagoing barges of over 100 gross tons employed
at present. During the past two fiscal years 60 of these barges were lost. Of
the 60 vessels lost 49 were built before 1898, and nearly half were over 30 years
old. Many of thess barges years ago were staunch ships and barks. As they
have deteriorated they have been dismantled, and large hatches have been cut
in them, rendering them structurally even weaker. When from any cause these
towed barges break loose from the towing steamer those on board are practically
helpless. Of 192 persons on board these 60 barges 49 lost their lives, or over 25
per cent, a death rate far in excess of the rate in other classes of marine casualties
here or abroad. A great demand in favor of this legislation comes from prominent
people of New York desirous to more carefully safeguard life on these seagoing
barges. It should have been done long ago, and I hope this bill will now pass
and go over to the Senate and meet the approval of that body before we adjourn.
Mr. SPIGHT. How much time have I remaining, Mr. Speaker?
The SPEAKER pro tempore. The gentleman from Mississippi has five minutes
remaining.
Mr. SPIGHT. Well, I yield two minutes to the gentleman from New Jersey
[Mr. HUGHES].
Mr. HUGHES of New Jersey. It has been impossible, of course, for me or any
other Member of the House not specially interested in this bill to make himself
familiar with all its provisions. There is one section, however, with the pro-
visions of which I am familiar, and so far as it is concerned it commends itself
-------
STATUTES AND LEGISLATIVE HISTORY 3033
to me. Of course I do not like to pass upon the other provisions. I do not like
to vote upon the whole bill without having had an opportunity to examine into
its provisions and hearing it freely discussed and debated before this House. The
situation as it now exists with regard to sailing vessels of any tonnage, as I
understand it, is that they are now and may be lawfully in charge of a man
who is not a master, not a licensed inspector, or who has not any particular
knowledge of navigation. For instance, at the present time there is nothing
that I know of to prevent a man from going upon a sailing vessel in the harbor
of New York, and if circumstances were such that he could get control of it
lawfully, to navigate it up and down that very important highway to the great
risk and detriment of other men who are engaged in navigation and are familiar
with the rules that obtain upon the waters of the harbors and the high seas. I
have sailed small craft myself, and I know the grave danger involved, and how
the danger increases as the size of the craft and the traffic increases.
The SPEAKER pro tempore. The gentleman's time has expired.
Mr. GREENE. I yield one minute more.
Mr. HUGHES of New Jersey. It is really a matter of surprise to me that this
very important subject has not long before this had the consideration of Congress.
This section provides:
The boards of local inspectors shall license and classify the masters, chief mates, and
second and third mates, If in charge of a watch, engineers, and pilots of all steam vessels,
and masters of sail vessels of over 700 gross tons, and all other vessels of over 100 gross
tons carrying passengers for hire.
So the very language of the act shows that up to this time it has not been
necessary for a man, in order to sail a vessel of that tonnage and to carry pas-
sengers for hire on the high seas or on any harbor over which we have control or
jurisdiction, to pass any sort of an examination at all. I propose to vote for
this bill in order to place this provision upon the statute books.
The SPEAKER pro tempore. The gentleman's time has again expired.
Mr. GREENE. Will the gentleman from Mississippi [Mr. SPIGHT] kindly use his
time now?
Mr. SPIGHT. Mr. Speaker, I yield my time to the gentleman from Washington
[Mr. HUMPHREY].
The SPEAKER pro tempore. The gentleman from Washington [Mr. HUMPHREY]
is recognized for two minutes.
Mr. HUMPHREY of Washington. Mr. Speaker, I just wish to say this to the
House: There is not time to discuss the details of the bill, but it was reported
unanimously. It contains a great deal of very valuable legislation, for which
there is great necessity for immediate action. There is no one on the committee
who is opposed to the bill, and I trust that the House will pass it, so that it can
get to the Senate and become a law before Congress adjourns.
[p. 6904]
Mr. MANN. Does not the gentleman think that the House ought to know what
the important legislation is that is brought in in a bill of this sort?
Mr. HUMPHREY of Washington. I think the majority of the House do, ex-
cluding the gentleman from Illinois [Mr. MANN] in that statement.
Mr. MANN. I know the gentleman from Washington always knows more than
anyone else, but I have asked a dozen gentlemen on the floor of the House as to
what is in the bill, and I have found no one that knew.
Mr. HUMPHREY of Washington. I will say to the gentleman that in two
minutes I would not undertake to explain to him.
Mr. MANN. I do not think the gentleman could.
-------
3034 LEGAL COMPILATION—WATER
The SPEAKER pro tempore. The question, is on suspending the rules and
passing the bill.
The question was taken, and the Speaker pro tempore announced that the
ayes seemed to have it.
Mr. SPIGHT. The yeas and nays, Mr. Speaker.
The yeas and nays were ordered.
Mr. WANGER. Mr. Speaker, I make the point that there is no quorum present.
The SPEAKER pro tempore. There is evidently no quorum present. The
Doorkeeper will close the doors and the Sergeant-at-Arms will notify absent
Members. Those in favor of suspending the rules and passing this bill will, as
their names are called, answer "yea." those opposed will answer "nay," those
present and not voting will answer "present," and the Clerk will call the roll.
The question was taken, and there were—yeas 230, nays 7, answered "present"
14, not voting, 136, as follows:
*****
[p. 6905]
1.30c(3)(b) May 26: Considered and passed Senate, pp. 6963-6972
[No Relevant Discussion on Pertinent Section]
l.SOd 1909 AMENDMENTS TO 1908 ACT
February 16, 1909, P.L. 60-231, 35 Stat. 623
CHAP. 132. An Act To amend section eight of the Act approved May twenty-
eighth, nineteen hundred and eight, entitled "An Act to amend the laws relating
to navigation, and for other purposes."
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the require-
ments in regard to life line or rope contained in section eight of the
Act approved May twenty-eighth, nineteen hundred and eight (being
chapter two hundred and twelve of the Statutes at Large, first session
Sixtieth Congress) entitled "An Act to amend the laws relating to
navigation, and for other purposes," shall not apply to any scow or
boat the deck outside the coaming or rail of which shall not exceed
one foot in width. On any such scow or boat its name or number
and owner's name painted in letters and numbers, at least fourteen
inches long on both ends of such scow or boat, shall be a compliance
with the provisions of the said section in regard to name, number,
and owner's name.
Approved, February 16,1909.
-------
STATUTES AND LEGISLATIVE HISTORY 3035
1.30d(l) HOUSE COMMITTEE ON THE MERCHANT MARINE
AND FISHERIES
H.R. REP. No. 2102, 60th Cong., 2d Sess. (1909)
AMENDING LAWS RELATING TO NAVIGATION
FEBRUARY 9, 1909.—Referred to the House Calendar and ordered to be printed.
Mr. CALDER, from the Committee on the Merchant Marine and
Fisheries, submitted the following
REPORT
[To accompany H. R. 27970.]
The Committee on the Merchant Marine and Fisheries, to whom
was referred the bill (H. R. 27970) to amend section 8 of the act
approved May 28, 1908, entithd "An act to amend the laws relating
to navigation, and for other purposes," having considered the same,
report the following substitute and recommend that it do pass:
That the requirements in regard to life line or rope contained in section eight
of the act approved May twenty-eighth, nineteen hundred and eight (being
chapter two hundred and twelve of the Statutes at Large, first session Sixtieth
Congress), entitled "An act to amend the laws relating to navigation, and for
other purposes," shall not apply to any scow or boat the deck outside the coaming
or rail of which shall not exceed one foot in width. On any such scow or boat its
name or number and owner's name painted in letters and numbers, at least
fourteen inches long, on both ends of such scow or boat shall be a compliance
with the provisions of the said section in regard to name, number, and owner's
name.
This bill applies exclusively to scows or boats operated in New
York Harbor and seeks to permit the owners of these scows to place
their name and number on the ends rather than the sides, and
eliminates from the operation of the law flat-deck scows or boats,
in so far as it applies to the life line or rope. These flat-deck scows
and boats rarely go outside of the landlocked harbor, and the way
in which they are loaded renders the life line or rope not only
impracticable, but absolutely useless, and even dangerous.
This bill is recommended by the Chief of Engineers of the War
Department and the supervisor of the port of New York
[p. 1]
-------
3036 LEGAL COMPILATION—WATER
1.30d(2) CONGRESSIONAL RECORD, VOL. 43 (1909):
1.30d(2)(a) Feb. 10: Amended and passed House, p. 2149
[No Relevant Discussion on Pertinent Section]
1.30d(2)(b) Feb. 11: Passed Senate, pp. 2195-2196
[No Relevant Discussion on Pertinent Section]
l.SOe REPEALING CERTAIN OBSOLETE PROVISIONS OF
LAW RELATING TO THE NAVAL SERVICE
June 29, 1949, P.L. 81-144, 63 Stat. 300
[No Relevant Discussion]
1.30f 1952 AMENDMENTS TO NEW YORK HARBOR ACT OF
1888
July 12,1952, P.L. 82-526, 66 Stat. 596
Public Law 526 CHAPTER 707
AN ACT
To amend section 5 of the Act of June 29, 1888, relating to the office of Supervisor
of New York Harbor.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That section 5 of
the Act entitled "An Act to prevent obstructive and injurious deposits
within the harbor and adjacent waters of New York City, by dumping
or otherwise, and to punish and prevent such offenses", approved
June 29, 1888, as amended (33 U. S. C. 451), is hereby amended to
read as follows:
"SEC. 5. That an officer of the Corps of Engineers shall be desig-
nated by the Secretary of the Army as supervisor of the harbor, to
New York Har-
bor, supervisor.
25 Stat. 210.
act under the direction of the Chief of Engineers in enforcing the
provisions of this Act, and in detecting offenders against the same.
This officer shall have personal charge and supervision under the
Chief of Engineers, and shall direct the patrol boats and other means
to detect and bring to punishment offenders against the provisions of
this Act."
Approved July 12,1952.
-------
STATUTES AND LEGISLATIVE HISTORY 3037
1.30f(l) HOUSE COMMITTEE ON PUBLIC WORKS
H.R. REP. No. 2260, 82d Cong., 2d Sess. (1952)
AMENDING SECTION 5 OF THE ACT OF JUNE 29, 1888,
RELATING TO THE OFFICE OF SUPERVISOR OF NEW
YORK HARBOR
JUNE 20, 1952.—Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. BUCKLEY, from the Committee on Public Works, submitted the
following
REPORT
[To accompany H. R. 8234]
The Committee on Public Works, to whom was referred the bill
(H. R. 8234) to amend section 5 of the act of June 29, 1888, relating
to the office of supervisor of New York Harbor, having considered
the same, report favorably thereon without amendment and recom-
mend that the bill do pass.
The act of June 29, 1888, referred to in this bill, is now enforced
by a line officer of the Navy under the direction of the Secretary of
the Army, and the purpose of H. R. 8234 is to eliminate the need for
assignment of a Navy officer by adding the responsibility of enforce-
ment to the present duties of the district engineer at New York.
The Department of Defense has requested the enactment of this
legislation and in support thereof has submitted a letter from the
Assistant Secretary of Defense to the Speaker of the House of Repre-
sentatives, advising that this proposal is a part of the Department of
Defense legislative program for 1952 and has been approved by the
Bureau of the Budget.
No expenditure of Federal funds is involved in this bill.
The comments of the Department of Defense are contained in the
following communication:
-------
3038 LEGAL COMPILATION—WATER
ASSISTANT SECRETARY OF DEFENSE,
Washington 25 D.C., June 11,1952.
HON. SAM RAYBURN.
Speaker of the House of Representatives.
DEAR MR. SPEAKER: There is forwarded herewith a draft of proposed legisla-
tion to amend section 5 of the act of June 29, 1888, relating to the office of super-
visor of New York Harbor.
This proposal is a part of the Department of Defense legislative program for
1952, and it has been approved by the Bureau of the Budget. The Department
of Defense recommends that it be enacted by the Congress.
[p. 1]
PURPOSE OF THE LEGISLATION
The 1888 act is now enforced by a line officer of the Navy under the direction of
the Secretary of the Army and the purpose of the proposed legislation is to elimi-
nate the need for assignment of a Navy officer by adding the responsibility of
enforcement to the present duties of the district engineer at New York. The act
prohibits the deposits of any matter which would be injurious to navigation ex-
cept as may be permitted by the supervisor of the harbor. It applies only to
New York Harbor and adjacent waters. Subsequently, the Congress enacted
similar but general legislation in the River and Harbor Act of March 3, 1899
(33 U.S.C. 403-407) applying to all the navigable waters of the United States,
administered by the Chief of Engineers under the direction of the Secretary of
the Army. In practice, close liaison has been maintained by the district engi-
neer at New York with the supervisor to avoid any duplication and the prin-
cipal value of the proposed legislation would be in eliminating the need for
assignment of a naval officer to perform the duties of the supervisor. Sub-
stantial monetary savings, however, would also result mainly because certain
plant and equipment presently engaged in river and harbor work under the
district engineer could be used in a dual capacity.
COST AND BUDGET DATA
The present annual operating budget of the office of the supervisor of New
York Harbor is about $400,000, and it is believed that a saving of about 25 per-
cent could be effected by the proposed legislation.
DEPARTMENT OF DEFENSE ACTION AGENCY
The Department of the Army has been designated as the representative of the
Department of Defense for this legislation.
Sincerely yours,
CHARLES A. COOLJDGE.
[P. 2]
-------
STATUTES AND LEGISLATIVE HISTORY 3039
l.SOf (2) SENATE COMMITTEE ON PUBLIC WORKS
S. REP. No. 2088, 82d Cong., 2d Sess. (1952)
AMENDING SECTION 5 OF THE ACT OF JUNE 29, 1888,
RELATING TO THE OFFICE OF SUPERVISOR OF NEW
YORK HARBOR
JULY 3 (legislative day, JUNE 27), 1952.—Ordered to be printed
Mr. CHAVEZ, from the Committee on Public Works, submitted the
following
REPORT
[To accompany H. R. 8234]
The Committee on Public Works, to whom was referred the bill
(H. R. 8234) to amend section 5 of the act of June 29, 1888, relating to
the office of Supervisor of New York Harbor, having considered the
same, report favorably thereon without amendment and recommend
that the bill do pass.
The act of June 29, 1888, referred to in this bill, is now enforced by
a line officer of the Navy under the direction of the Secretary of the
Army, and the purpose of H. R. 8234 is to eliminate the need for
assignment of a Navy officer by adding the responsibility of enforce-
ment to the present duties of the district engineer at New York.
The Department of Defense has requested the enactment of this
legislation and in support thereof has submitted a letter from the
Assistant Secretary of Defense to the Speaker of the House of Repre-
sentatives, advising that this proposal is a part of the Department of
Defense legislative program for 1952 and has been approved by the
Bureau of the Budget.
Enactment of this bill would effect a saving in Federal funds and
permit more efficient operations. The Department of Defense and
the Bureau of the Budget approve this legislation.
-------
3040 LEGAL COMPILATION—WATER
1.30f(3) CONGRESSIONAL RECORD, VOL. 98 (1952):
1.30f (3) (a) June 25: Passed House, p. 8079
[No Relevant Discussion on Pertinent Section]
1.30f(3)(b) July 4: Passed Senate, p. 9317
[No Relevant Discussion on Pertinent Section]
1.30g 1958 AMENDMENTS TO ACT OF 1888
August 28, 1958, P.L. 85-802, §1, 72 Stat. 970
AN ACT
To amend the Act of June 29, 1888, relating to the prevention of obstructive and
injurious deposits in the harbor of New York, to extend the application of that
Act to the harbor of Hampton Roads.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Act en-
titled "An Act to prevent obstructive and injurious deposits within
the harbor and adjacent waters of New York, by dumping or other-
wise, and to punish and prevent such offenses", approved June 29,
1888 (25 Stat. 209; 33 U. S. C. 441-451), as amended, is amended as
follows:
(1) The first section (33 U. S. C. 441) is amended by striking
out "tidal waters of the harbor of New York, or its adjacent or
tributary waters, or in those of Long Island Sound,", and inserting
in lieu thereof "waters of any harbor subject to this Act,".
(2) Section 2 (33 U. S. C. 442) is amended—
(A) by striking out "the harbor of New York, or in its ad-
jacent or tributary waters, or in those of Long Island Sound,",
and inserting in lieu thereof "any harbor subject to this Act,";
and
(B) by striking out "hereinafter mentioned".
(3) The fourth paragraph of section 3 (33 U. S. C. 446) is amended
by striking out "The supervisor of the harbor of New York, desig-
nated as provided in section 5 of the said Act of June twenty-nine,
eighteen hundred and eighty-eight, is authorized and directed to ap-
point inspectors and deputy inspectors, and, for the purpose of
enforcing the provisions of this Act and of the Act aforesaid,", and
inserting in lieu thereof "Each supervisor of a harbor is authorized
and directed to appoint inspectors and deputy inspectors, and, for
the purposes of enforcing this Act and the Act of August 18, 1894,
entitled 'An Act making appropriations for the construction, repair,
and preservation of certain public works on rivers and harbors, and
for other purposes' (28 Stat. 338),".
-------
STATUTES AND LEGISLATIVE HISTORY 3041
(4) The fifth full paragraph of section 3 (33 U. S. C. 447) (relating
to bribery of employees of the supervisor of the harbor) is amended
by striking out "the supervisor of the harbor" and inserting in lieu
thereof "any supervisor of a harbor".
(5) Section 4 (33 U. S. C. 449) is amended—
(A) by striking out "the harbor of New York, or the waters
adjacent or tributary thereto", and inserting in lieu thereof "any
harbor subject to this Act"; and
(B) by striking out "the waters of the harbor of New York",
and inserting in lieu thereof "the waters of that harbor".
(6) Section 5 (33 U. S. C. 451) is amended—
(A) by inserting after "That an officer of the Corps of Engi-
neers shall" a comma and the following: "for each harbor subject
to this Act,"; and
(B) by striking out "This officer" and inserting in lieu thereof
"Each such officer".
(7) Section 6 is amended to read as follows:
"SEC. 6. That the following harbors shall be subject to this Act:
" (1) The harbor of New York.
" (2) The harbor of Hampton Roads.
" (3) The harbor of Baltimore."
(8) The following new section is added at the end:
"SEC. 7. That for the purposes of this Act—
" (1) The term 'harbor of New York' means the tidal waters of the
harbor of New York, its adjacent and tributary waters, and those of
Long Island Sound.
" (2) The term 'harbor of Hampton Roads' means the tidal waters
of the harbors of Norfolk, Portsmouth, Newport News, Hampton
Roads, and their adjacent and tributary waters, so much of the Chesa-
peake Bay and its tributaries as lies within the State of Virginia, and
so much of the Atlantic Ocean and its tributaries as lies within the
jurisdiction of the United States within or to the east of the State of
Virginia.
" (3) The term 'harbor of Baltimore' means the tidal waters of the
harbor of Baltimore and its adjacent and tributary waters, and so
much of Chesapeake Bay and its tributaries as lie within the State of
Maryland."
SEC. 2. This Act shall take effect on the sixtieth day after the date
of its enactment.
Approved August 28,1958.
-------
3042 LEGAL COMPILATION—WATER
1.30g(l) HOUSE COMMITTEE ON PUBLIC WORKS
H. R. REP. No. 2233,85th Cong., 2d Sess. (1958)
AMENDING THE ACT OF JUNE 29, 1888, RELATING TO THE
PREVENTION OF OBSTRUCTIVE AND INJURIOUS DE-
POSITS IN THE HARBOR OF NEW YORK, TO EXTEND THE
APPLICATION OF THAT ACT TO THE HARBOR OF
HAMPTON ROADS.
JULY 21, 1958.—Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. BLATNIK, from the Committee on Public Works, submitted the
following
REPORT
[To accompany H. R. 11697]
The Committee on Public Works, to whom was referred the bill
(H. R. 11697) to amend the act of June 29, 1888, relating to the pre-
vention of obstructive and injurious deposits in the harbor of New
York, to extend the application of that act to the harbor of Hampton
Roads, having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of this bill is to further amend the act of June 29, 1888
(25 Stat. 209; 33 U. S. C. 441-451), as amended, relating to the pre-
vention of obstructions and injurious deposits in the harbor of New
York, to extend the application of that act to the harbor of Hampton
Roads, Va.
GENERAL STATEMENT
The act of 1888, as amended, prohibits the deposit of waste or other
kinds of matter in the tidal waters of New York Harbor and certain
adjacent waters, including Long Island Sound.
An officer of the Corps of Engineers designated by the Secretary of
the Army as supervisor of the harbor is charged with the enforce-
ment of the provisions of the act. This supervisor has the duty of
preventing any obstructive or injurious deposits in all waters under
his jurisdiction and preventing fishing and dredging of shell fish and
-------
STATUTES AND LEGISLATIVE HISTORY 3043
other activity which would interfere with navigation of the entrance
channels of the harbor by ships of deep draft.
[p. 1]
H. R. 11697 would apply the provisions of act of June 29, 1888, to
the tidal waters of the Hampton Roads area, including Norfolk Har-
bor, Portsmouth Harbor, Newport News, and Chesapeake Bay within
the State of Virginia.
Testimony received by the committee pointed up the fact that the
principal problem in the Hampton Roads area is one of oil pollution.
This condition is created by the discharge of oil from vessels at anchor
or at piers into the tidal waters of Hampton Roads. This discharge
creates a hazardous situation from a fire standpoint. It also has the
effect of fouling the condensers of vessels navigating in the waters.
The application of the 1888 act to the Hampton Roads area would
permit the Corps of Engineers to patrol the affected waters; make
periodic inspections to detect violations and more rigidly enforce the
provisions of the various laws for preservation of navigable waters.
In addition, before any type of material could be discharged into the
waters a permit for such discharge would be required. This permit
would require the discharge of the material at a specific location which
would not be detrimental to commerce. At the present time the
policy of the Corps of Engineers is to act in connection with local
polluted waters only on a specific complaint from the community
involved. This bill would permit all year round supervision of the
Hampton Roads area at an estimated average yearly cost of $150,000
to the Federal Government. This estimate of cost was included in
testimony presented by the Corps of Engineers.
The committee believes that this is desirable legislation and recom-
mends its enactment.
The Department of the Army has no objection to the enactment of
H. R. 11697 and report of the Secretary to the chairman of the com-
mittee is hereinbelow set forth in full and made a part of this report.
JULY 2, 1958.
Hon. CHARLES A. BUCKLEY,
Chairman, Committee on Public Works,
House of Representatives.
DEAR MR. CHAIRMAN: Reference is made to your request for the
views of the Department of the Army with respect to H. R. 11697,
85th Congress, a bill to amend the act of June 29, 1888, relating to
the prevention of obstructive and injurious deposits in the harbor
of New York, to extend the application of that act to the harbor of
Hampton Roads.
-------
3044 LEGAL COMPILATION—WATER
The act of June 29, 1888, as amended (33 U. S. C. 441-451), pro-
hibits the deposit of refuse or other kinds of matter in the tidal waters
New York Harbor and certain adjacent waters. An officer of the
Corps of Engineers designated by the Secretary of the Army as super-
visor of the harbor is charged with enforcement of the provisions of
the act. This bill, H. R. 11697, would amend the act of 1888 by
extending the application thereof to the harbor of Hampton Roads,
Va., and adjacent waters.
The Department of the Army interposes no objection to the enact-
ment of the above-mentioned bill.
Enactment of this bill would cause no apparent increase in the
budgetary requirements of the Department.
[p. 2]
The Bureau of the Budget advises that there is no objection to the
submission of this report.
Sincerely yours,
WILBER M. BRUCKER,
Secretary of the Army.
CHANGES IN EXISTING LAW
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as intro-
duced, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman):
THE ACT OF JUNE 29, 1888, AS AMENDED (25 STAT. 209; 33 U. S. C.
441 THROUGH 451)
AN ACT To prevent obstructive and injurious deposits within the harbor and
adjacent waters of New York City, by dumping or otherwise, and to punish
and prevent such offenses
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the placing,
discharging, or depositing, by any process or in any manner, of refuse,
dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other
matter of any kind, other than that flowing from streets, sewers, and
passing therefrom in a liquid state, in the [tidal waters of the harbor
of New York, or its adjacent or tributary waters, or in those of Long
Island Sound,] waters of any harbor subject to this Act, within the
limits which shall be prescribed by the supervisor of the harbor, is
hereby strictly forbidden, and every such act is made a misdemeanor,
and every person engaged in or who shall aid, abet, authorize, or
instigate a violation of this section, shall, upon conviction, be pun-
-------
STATUTES AND LEGISLATIVE HISTORY 3045
ishable by fine or imprisonment, or both, such fine to be not less
than two hundred and fifty dollars nor more than two thousand five
hundred dollars, and the imprisonment to be not less than thirty days
nor more than one year, either or both united, as the judge before
whom conviction is obtained shall decide, one half of said fine to be
paid to the person or persons giving information which shall lead to
conviction of this misdemeanor.
SEC. 2. That any and every master and engineer, or person or
persons acting in such capacity, respectively, on board of any boat or
vessel, who shall knowingly engage in towing any scow, boat, or
vessel loaded with any such prohibited matter to any point or place
of deposit, or discharge in the waters of [the harbor of New York, or
in its adjacent, or tributary waters, or in those of Long Island Sound,]
any harbor subject to this Act, or to any point or place elsewhere than
within the limits defined and permitted by the supervisor of the har-
bor [hereinafter mentioned], shall be deemed guilty of a violation of
this act, and shall, upon conviction, be punishable as hereinbefore
provided for offenses in violation of section one of this act, and shall
also have his license revoked or suspended for a term to be fixed
by the judge before whom tried and convicted.
SEC. 3. That in all cases of receiving on board of any scows or boats
such forbidden matter or substance as herein described, the owner
or master, or person acting in such capacity on board of such scows
or boats, before proceeding to take or tow the same to the place
[p. 3]
of deposit, shall apply for and obtain from the supervisor of the harbor
appointed hereunder a permit defining the precise limits within which
the discharge of such scows or boats may be made; and it shall not be
lawful for the owner or master, or person acting in such capacity, of
any tug or towboat to tow or move any scow or boat so loaded with
such forbidden matter until such permit shall have been obtained; and
every person violating the foregoing provisions of this section shall
be deemed guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine of not more than one thousand nor less than five
hundred dollars, and in addition thereto the master of any tug or tow-
boat so offending shall have his license revoked or suspended for a
term to be fixed by the judge before whom tried and convicted.
And any deviation from such dumping or discharging place speci-
fied in such permit shall be a misdemeanor, and the owner and mas-
ter, or person acting in the capacity of master, of any scows or boats
dumping or discharging such forbidden matter in any place other
than that specified in such permit shall be liable to punishment
therefor as provided in section one of the said Act of June twenty-
-------
3046 LEGAL COMPILATION—WATER
ninth, eighteen hundred and eight-eight; and the owner and master,
or person acting in the capacity of master, of any tug or towboat tow-
ing such scows or boats shall be liable to equal punishment with the
owner and master, or person acting in the capacity of master, of the
scows or boats; and, further, every scowman or other employee on
board of both scows and towboats shall be deemed to have knowledge
of the place of dumping specified in such permit, and the owners and
masters, or persons acting in the capacity of masters, shall be liable to
punishment, as aforesaid, for any unlawful dumping, within the mean-
ing of this Act or of the said Act of June twenty-ninth, eighteen
hundred and eighty-eight, which may be caused by the negligence or
ignorance of such scowman or other employee; and, further, neither
defect in machinery nor avoidable accidents to scows or towboats, nor
unfavorable weather, nor improper handling or moving of scows or
boats of any kind whatsoever shall operate to release the owners and
master and employees of scows and towboats from the penalties
hereinbefore mentioned.
Every scow or boat engaged in the transportation of dredgings,
earth, sand, mud, cellar dirt, garbage, or other offensive material of
any description shall have its name or number and owner's name
painted in letters and numbers at least fourteen inches long on both
sides of the scow or boat; these names and numbers shall be kept dis-
tinctly legible at all times, and no scow or boat not so marked shall be
used to transport or dump any such material. Each such scow or
boat shall be equipped at all times with a life line or rope extending
at least the length of and three feet above the deck thereof, such rope
to be attached to the coaming thereof, also with a life-preserver and a
life buoy for each person on board thereof, also with anchor to weigh
not less than two hundred and seventy-five pounds, and at least one
hundred feet of cable attached thereto; a list of the names of all men
employed on any such scow or boat shall be kept by the owner or
master thereof and the said list shall be open to the inspection of
all parties. Failure to comply with any of the foregoing provisions
shall render the owner of such scow or boat liable upon conviction
thereof to a penalty of not more than five hundred dollars.
[The supervisor of the harbor of New York, designated as provided
in section five of the said Act of June twenty-ninth, eighteen hundred
[p. 4]
and eighty-eight, is authorized and directed to appoint inspectors and
deputy inspectors, and, for the purpose of enforcing the provisions of
this Act and of the Act aforesaid,] Each supervisor of a harbor is
authorized and directed to appoint inspectors and deputy inspectors,
and, for the purposes of enforcing this Act and the Act of August 18,
-------
STATUTES AND LEGISLATIVE HISTORY 3047
1894, entitled "An Act making appropriations for the construction,
repair, and preservation of certain public works on rivers and har-
bors, and for other purposes" (28 Stat. 338), and of detecting and
bringing to punishment offenders against the same, the said super-
visor of the harbor, and the inspectors and deputy inspectors so ap-
pointed by him, shall have power and authority:
First. To arrest and take into custody, with or without process,
any person or persons who may commit any of the acts or offenses
prohibited by this section and by the Act of June twenty-ninth,
eighteen hundred and eighty-eight, aforesaid, or who may violate any
of the provisions of the same: Provided, That no person shall be
arrested without process for any offense not committed in the pres-
ence of the supervisor or his inspectors or deputy inspectors, or either
of them: And provided further, That whenever any such arrest is
made the person or persons so arrested shall be brought forthwith
before a commissioner, judge, or court of the United States for
examination of the offenses alleged against him; and such commis-
sioner, judge, or court shall proceed in respect thereto as authorized
by law in case of crimes against the United States.
Second. To go on board of any scow or towboat engaged in unlaw-
ful dumping of prohibited material, or in moving the same without a
permit, as required in this section of this Act, or otherwise violating
any of the provisions of this section of this Act, and to seize and hold
said boats until they are discharged by action of the commissioner,
judge, or court of the United States before whom the offending per-
sons are brought.
Third. To arrest and take into custody any witness or witnesses
to such unlawful dumping of prohibited material, the said witnesses
to be released under proper bonds.
Fourth. To go on board of any towboat having in tow scows or
boats loaded with such prohibited material, and accompany the same
to the place of dumping, whenever such action appears to be neces-
sary to secure compliance with the requirements of this Act and of
the Act aforesaid.
Fifth. To enter gas and oil works and all other manufacturing
works for the purpose of discovering the disposition made of sludge,
acid, or other injurious material, whenever there is good reason to
believe that such sludge, acid, or other injurious material is allowed
to run into the tidal waters of the harbor in violation of section one
of the aforesaid Act of June twenty-ninth, eighteen hundred and
eighty-eight.
Every person who, directly or indirectly, gives any sum of money
or other bribe, present, or reward, or makes any offer of the same to
any inspector, deputy inspector, or other employee of the office of
-------
3048 LEGAL COMPILATION—WATER
[the supervisor of the harbor] any supervisor of a harbor with intent
to influence such inspector, deputy inspector, or other employee to
permit or overlook any violation of the provisions of this section or
of the said Act of June twenty-ninth, eighteen hundred and eighty-
eight, shall, on conviction thereof, be fined not less than five hundred
dollars nor more
[P. 5]
than one thousand dollars, and be imprisoned not less than six
months nor more than one year.
Every permit issued in accordance with the provisions of this sec-
tion of this Act, which may not be taken up by an inspector or deputy
inspector, shall be returned within four days after issuance to the
office of the supervisor of the harbor; such permit shall bear an in-
dorsement by the master of the towboat, or the person acting in such
capacity, stating whether the permit has been used, and, if so, the
time and place of dumping. Any person violating the provisions of
this section shall be liable to a fine of not more than five hundred
dollars nor less than one hundred dollars.
SEC. 4. That all mud, dirt, sand, dredgings, and material of every
kind and description whatever taken, dredged, or excavated from
any slip, basin, or shoal in [the harbor of New York, or the waters
adjacent or tributary thereto,] any harbor subject to this Act and
placed on any boat, scow, or vessel for the purpose of being taken
or towed upon [the waters of the harbor of New York] the waters of
that harbor to a place of deposit, shall be deposited and discharged at
such place or within such limits as shall be defined and specified by
the supervisor of the harbor, as in the third section of this act pre-
scribed, and not otherwise. Every person, firm, or corporation being
the owner of any slip, basin, or shoal, from which such mud, dirt,
sand, dredgings, and material shall be taken, dredged, or excavated,
and every person, firm, or corporation in any manner engaged in the
work of dredging or excavating any such slip, basin, or shoal, or of
removing such mud, dirt, sand, or dredgings therefrom, shall sev-
erally be responsible for the deposit and discharge of all such mud,
dirt, sand, or dredgings at such place or within such limits so defined
and prescribed by said supervisor of the harbor; and for every vio-
lation of the provisions of this section the person offending shall be
guilty of an offense against this act, and shall be punished by a fine
equal to the sum of five dollars for every cubic yard of mud, dirt,
sand, dredgings, or material not deposited or discharged as required
by this section. Any boat or vessel used or employed in violating
any provision of this act, shall be liable to the pecuniary penalties
imposed thereby, and may be proceeded against, summarily by way
-------
STATUTES AND LEGISLATIVE HISTORY 3049
of libel in any district court of the United States, having jurisdiction
thereof.
SEC. 5. That an officer of the Corps of Engineers shall, for each
harbor subject to this Act, be designated by the Secretary of the
Army as supervisor of the harbor, to act under the direction of the
Chief of Engineers in enforcing the provisions of this Act, and in
detecting offenders against the same. [This officer] Each such officer
shall have personal charge and supervision under the Chief of Engi-
neers, and shall direct the patrol boats and other means to detect
and bring to punishment offenders against the provisions of this Act.
[SEC. 6. That the sum of thirty thousand dollars or so much thereof
as may be necessary, is hereby appropriated to carry out the provi-
sions of this act; and the Secretary of the Treasury is hereby author-
ized to pay that sum from moneys in the Treasury not otherwise
appropriated.]
Sec. 6. That the following harbors shall be subject to this Act:
(1) The harbor of New York.
(2) The harbor of Hampton Roads.
[p. 6]
Sec. 7. That for the purposes of this Act—
(1) The term "harbor of New York" means the tidal waters of the
harbor of New York, its adjacent and tributary waters, and those of
Long Island Sound.
(2) The term "harbor of Hampton Roads" means the tidal waters
of the harbors of Norfolk, Portsmouth, Newport News, Hampton
Roads, and their adjacent and tributary waters, so much of the
Chesapeake Bay and its tributaries as lies within the State of Virginia,
and so much of the Atlantic Ocean and its tributaries as lies within
the jurisdiction of the United States within or to the east of the
State of Virginia.
[p. 7]
-------
3050 LEGAL COMPILATION—WATER
1.30g(2) SENATE COMMITTEE ON PUBLIC WORKS
S. REP. No. 2383, 85th Cong., 2d Sess. (1958)
EXTENDING TO THE HARBORS OF HAMPTON ROADS AND
BALTIMORE THE APPLICATION OF THE ACT OF JUNE
29, 1888, RELATING TO THE PREVENTION OF OBSTRUC-
TIVE AND INJURIOUS DEPOSITS IN THE HARBOR OF
NEW YORK.
AUGUST 14, 1958.—Ordered to be printed
Mr. CHAVEZ, from the Committee on Public Works, submitted the
following
REPORT
[To accompany H. R. 11697]
The Committee on Public Works, to whom was referred the bill
(H. R. 11697) to amend the act of June 29, 1888, relating to the pre-
vention of obstructive and injurious deposits in the harbor of New
York, to extend the application of that act to the harbor of Hampton
Roads, having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of this bill is to further amend the act of June 29,
1888 (25 Stat. 209; 33 U. S. C. 441-451), as amended, relating to the
prevention of obstructions and injurious deposits in the harbor of
New York, to extend the application of that act to the harbor of
Hampton Roads, Va., and Baltimore, Md.
GENERAL STATEMENT
The act of 1888, as amended, prohibits placing, discharging, or
depositing, by any process or in any manner, waste, sludge, acid or
any other matter of any kind, other than that in a liquid state passing
from streets or sewers, that might be obstructive and injurious to the
use of the tidal waters of New York Harbor and certain adjacent
waters, including Long Island Sound, for navigation and related
purposes.
An officer of the Corps of Engineers designated by the Secretary of
the Army as supervisor of the harbor is charged with the enforcement
-------
STATUTES AND LEGISLATIVE HISTORY 3051
of the provisions of the act, This supervisor has the duty of prevent-
[P- 1]
ing any obstructive or injurious deposits in all waters under his juris-
diction and preventing fishing and dredging of shellfish and other
activity which would interfere with navigation of the entrance chan-
nels of the harbor by ships of deep draft. Penalties are provided for
violation of the provisions of the act.
H. R. 11697 would make the provisions of the act of June 29, 1888,
applicable to the tidal waters of the Hampton Roads area, including
Norfolk Harbor, Portsmouth Harbor, Newport News Harbor, Hamp-
ton Roads, and so much of the Chesapeake Bay and its tributary
waters and adjacent areas as lie within the State of Virginia, and so
much of the Atlantic Ocean and tributaries as lie within the juris-
diction of the United States within or to the east of the State of
Virginia, and to the tidal waters of the Baltimore Harbor and its
adjacent and tributary waters, and so much of Chesapeake Bay and
its tributaries as lie within the State of Maryland.
The committee was advised that the principal problem in the
Hampton Roads and Baltimore areas is one of oil pollution. This
condition is created by the promiscuous discharge of bilge oil from
vessels at anchor or at piers into the tidal waters of these harbors.
This discharge creates a hazardous situation from a fire standpoint.
It also has the effect of fouling the condensers of vessels navigating
in these waters and, when washed up on the beaches, interferes with
their normal use for recreational purposes.
The application of the 1888 act to the Hampton Roads and Balti-
more Harbor areas would permit the Corps of Engineers to patrol
the affected waters, make periodic inspections to detect violations,
and more rigidly enforce the provisions of the various laws for preser-
vation of navigable waters. In addition, before any type of material
could be discharged into the waters a permit for such discharge would
be required. This permit would require the discharge of the material
at a specific location which would not be detrimental to commerce.
At the present time, the policy of the Corps of Engineers is to act in
connection with local polluted waters only on a specific complaint
from the community involved. This bill would permit all-year-
round supervision of the Hampton Roads and Baltimore Harbor
areas at an estimated average annual cost of $300,000 to the Federal
Government.
The committee was advised that officials of the cities, towns, and
counties in the affected areas have held conferences and made studies
of the oil-pollution problem, but it appears to be growing, in spite
of the excellent cooperation from naval and shipping authorities.
-------
3052 LEGAL COMPILATION—WATER
The committee believes this legislation to be highly desirable and
recommends its enactment.
The Department of the Army and the Bureau of the Budget have
no objection to the enactment of H. R. 11697, as outlined in the
following communication:
[P-2]
1.30g(3) CONGRESSIONAL RECORD, VOL. 104 (1958):
1.30g(3) (a) August 4: Amended and passed House, pp. 16021-16022
[No Relevant Discussion on Pertinent Section]
1.30g(3)(b) August 18: Passed Senate, p. 18083
[No Relevant Discussion on Pertinent Section]
1.31 WATERSHED PROTECTION AND FLOOD PREVENTION
ACT, AS AMENDED
16 U. S. C. § 1005(4) (1972)
§ 1005. Works of improvement—Engineering and other services; reimburse-
ment; advances
(1) At such time as the Secretary and the interested local organization have
agreed on a plan for works of improvement, and the Secretary has determined
that the benefits exceed the costs, and the local organization has met the require-
ments for participation in carrying out the works of improvement as set forth
in section 1004 of this title, the local organization may secure engineering and
other services, including the design, preparation of contracts and specifications,
awarding of contracts, and supervision of construction, in connection with such
works of improvement, by retaining or employing a professional engineer or en-
gineers satisfactory to the Secretary or may request the Secretary to provide such
services: Provided, That if the local organization elects to employ a professional
engineer or engineers, the Secretary shall reimburse the local organization for
the costs of such engineering and other services secured by the local organization
as are properly chargeable to such works of improvement in an amount not to
exceed the amount agreed upon in the plan for works of improvement or any
modification thereof: Provided further, That the Secretary may advance such
amounts as may be necessary to pay for such services, but such advances with
respect to any works of improvement shall not exceed 5 per centum of the esti-
mated installation cost of such works.
Federal construction; request by local organization
(2) Except as to the installation of works of improvement on Federal lands,
the Secretary shall not construct or enter into any contract for the construction
of any structure: Provided, That, if requested to do so by the local organization,
the Secretary may enter into contracts for the construction of structures.
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STATUTES AND LEGISLATIVE HISTORY 3053
Transmission of certain plans to Congress
(3) Whenever the estimated Federal contribution to the construction cost of
works of improvement in the plan for any watershed or subwatershed area shall
exceed $250,000 or the works of improvement include any structure having a total
capacity in excess of twenty-five hundred acre-feet, the Secretary shall transmit
a copy of the plan and the justification therefor to the Congress through the
President.
Transmission of certain plans and recommendations to Congress
(4) Any plans for works of improvement involving an estimated Federal con-
tribution to construction costs in excess of $250,000 or including any structure
having a total capacity in excess of twenty-five hundred acre-feet (a) which
includes works of improvement for reclamation or irrigation, or which affects
public or other lands or wildlife under the jurisdiction of the Secretary of the
Interior, (b) which includes Federal assistance for goodwater1 detention struc-
tures, (c) which includes features which may affect the public health, or (d)
which includes measures for control or abatement of water pollution, shall be
submitted to the Secretary of the Interior, the Secretary of the Army, the Sec-
retary of Health, Education, and Welfare, or the Administrator of the Environ-
mental Protection Agency, respectively, for his views and recommendations at
least thirty days prior to transmission of the plan to the Congress through the
President. The views and recommendations of the Secretary of the Interior, the
Secretary of the Army, the Secretary of Health, Education, and Welfare, and the
Administrator of the Environmental Protection Agency, if received by the Sec-
retary prior to the expiration of the above thirty-day period, shall accompany the
plan transmitted by the Secretary to the Congress through the President.
Rules and regulations
(5) Prior to any Federal participation in the works of improvement under this
chapter, the President shall issue such rules and regulations as he deems neces-
sary or desirable to carry out the purposes of this chapter, and to assure the coor-
dination of the work authorized under this chapter and related work of other
agencies, including the Department of the Interior and the Department of the
Army.
As amended Sept. 27, 1962, Pub.L. 87-703, Title I, § 105, 76 Stat. 609; June 27,
1968, Pub.L. 90-361, 82 Stat. 250; Aug. 30, 1972, Pub.L. 92-419, Title II, § 201 (g), 86
Stat. 669.
l.Sla RURAL DEVELOPMENT ACT OF 1972
August 30,1972, P.L. 92-419, § 201(g), 86 Stat. 669
AN ACT
To provide for improving the economy and living conditions in rural America.
Be it enacted by the Senate and House of Representatives of the
1 So In original. Probably should read
"floodwater" as originally enacted.
-------
3054 LEGAL COMPILATION—WATER
United States of America in Congress assembled, That this Act may
be cited as the "Rural Development Act of 1972".
[p. 1]
TITLE II—AMENDMENTS TO THE WATERSHED PROTEC-
TION AND FLOOD PREVENTION ACT, AS AMENDED
SEC. 201. AMENDMENTS TO PUBLIC LAW 83-566.—The Watershed
Protection and Flood Prevention Act (68 Stat. 666), as amended, is
amended as follows:
*******
[p. 101
(g) Subsection (4) of section 5 is amended to read as follows: " (4)
Any plans for works of improvement involving an estimated Federal
contribution to construction costs in excess of $250,000 or including
any structure having a total capacity in excess of twenty-five hundred
acre-feet (a) which includes works of improvement for reclamation or
irrigation, or which affects public or other lands or wildlife under the
jurisdiction of the Secretary of the Interior, (b) which includes Fed-
eral assistance for goodwater detention structures, (c) which includes
features which may affect the public health, or (d) which includes
measures for control or abatement of water pollution, shall be sub-
mitted to the Secretary of the Interior, the Secretary of the Army, the
Secretary of Health, Education, and Welfare, or the Administrator
of the Environmental Protection Agency, respectively, for his views
and recommendations at least thirty days prior to transmission of the
plan to the Congress through the President. The views and recommen-
dations of the Secretary of the Interior, the Secretary of the Army, the
Secretary of Health, Education, and Welfare, and the Administrator
of the Environmental Protection Agency, if received by the Secretary
prior to the expiration of the above thirty-day period, shall accompany
the plan transmitted by the Secretary to the Congress through the
President."
[p. 12]
-------
STATUTES AND LEGISLATIVE HISTORY 3055
1.31a(l) HOUSE COMMITTEE ON AGRICULTURE
H. R. REP. No. 92-835, 92d Cong., 2d Sess. (1972)
RURAL DEVELOPMENT ACT OF 1972
FEBRUARY 16, 1972.—Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed.
Mr. POAGE, from the Committee on Agriculture, submitted the
following
REPORT
together with
ADDITIONAL VIEWS, MINORITY VIEWS, AND
SUPPLEMENTARY VIEWS
[To accompany H.R. 12931]
The Committee on Agriculture, to whom was referred the bill
(H. R. 12931) to provide for improving the economy and living con-
ditions in rural America, having considered the same, report favor-
ably thereon with amendments and recommend that the bill do pass.
[p. 1]
*******
Title II of the bill would amend the Watershed Protection and
Flood Prevention Act (Public Law 83-566) as amended, (1) to au-
thorize the Secretary of Agriculture to cost share in watershed proj-
ects for needed measures planned and installed in cooperation with
public agencies and local organizations that would restore, improve
and maintain the quality of the environment, and storage for water
quality management, (2) to authorize the Secretary of Agriculture
to enter into long-term contracts with landowners and operators for
making changes in cropping systems and land uses and for installing
needed soil and water conservation practices in watershed projects,
(3) to authorize local organizations to use Federal funds available to
them other than those appropriated for the purposes of the Watershed
Protection and Flood Prevention Act, in acquisition of land, ease-
ments, and rights-of-way needed in connection with works of im-
provement in watershed projects, and (4) to authorize the Secretary
-------
3056 LEGAL COMPILATION—WATER
of Agriculture to bear not to exceed one-half the cost of storage of
water added to any reservoir constructed or modified under the Act
to meet present demands for municipal, industrial or rural develop-
ment needs. Also included are provisions for coordination with the
Administrator of the Environmental Protection Agency and the Sec-
retary of Health, Education and Welfare, respectively, on work plans
which would include works of improvement for the prevention, con-
trol and abatement of water pollution or which include features
which may affect the public health.
We support those amendments relating to storage for water quality
and long-term contracting, and oppose those amendments relating to
cost sharing for pollution abatement facilities, municipal and indus-
trial water storage, and permitting the use of other Federal funds.
Our position is explained in the attached supplemental material.
SUPPLEMENTAL MATERIAL—TITLE II—H.R. 10867
1. Water Quality Management
The Administration endorses the amendment to provide Federal
cost sharing in watershed projects for needed measures planned and
installed in cooperation with public agencies and local organizations
for water quality management.
The National Environmental Policy Act of 1969 requires Federal
agencies to administer existing policies, regulations, and laws in the
broadest sense possible to improve, maintain, and preserve the qual-
ity of the environment. Steps have been taken to implement this
policy. Nevertheless, it would in specific cases be desirable to add
water quality management to watershed projects.
Federal cost sharing for water quality management is now author-
ized for mainstem developments under other Federal programs. This
amendment would remove this inconsistency and improve the effec-
tive-
[p. 9]
ness of the upstream watershed program. It would help to round
out a successful ongoing program under which multiple-purpose
works of improvement are developed for each watershed on a pack-
age basis. The Federal cost share would be such proportionate share
of the cost of providing storage for water quality management as the
Secretary of Agriculture determines to be equitable in consideration
of national needs and the assistance authorized for providing storage
for this purpose under other Federal programs.
Comments received from various agencies during interagency re-
view of watershed project work plans clearly indicates that the need
exists in a number of watersheds for including water quality manage-
-------
STATUTES AND LEGISLATIVE HISTORY 3057
ment as a project purpose.
Just as management and control of runoff and waterflows for opti-
mum use should begin in the upstream areas where rain and snow
falls, so should provision for maintenance of good water quality begin
at the farthest possible upstream points.
By this coordinated approach in upstream areas, optimum use can
be made of available water and related land resources in these areas
and feasible contributions also can be made to downstream water
quality management. Benefits will accrue to municipalities, indus-
tries, recreation, fish and wildlife, irrigators, and other water users.
Consideration needs to be given to all storage needs during the project
formulation stage if truly comprehensive resource planning and
development is to be achieved. Otherwise, the fullest feasible poten-
tial use of the limited number of available reservoir sites will not be
made. Where the need is evident for water quality management in
a watershed, it would be given full consideration along with other
objectives.
2. Long-Term Contracting in Watersheds
The Administration endorses the amendment which would enable
the Department of Agriculture to enter into long-term contracts (up
to 10 years) with owners of watershed lands in order to assure the
orderly establishment of needed conservation measures.
The timely installation of needed land treatment measures on a
planned, systematic basis with assured cost sharing and technical as-
sistance, such as the bill would authorize for Public Law 566 water-
shed projects has proven its value in the Great Plains Conservation
Program. This demonstrated effective approach would assist local
sponsors and the Department to more effectively plan and install the
works of improvement in approved watershed projects. The addi-
tional authority for entering into long-term contracts for conservation
cost sharing would supplement, but not supplant, the cost sharing
authorized under the Rural Environmental Assistance Program, the
Great Plains Conservation Program, or other programs which pro-
vide conservation practice cost sharing in those areas.
Experience has demonstrated that an agreement that is based on a
conservation farm plan and that allows the landowner or operator to
install land treatment with known and assured cost sharing for
planned conservation work, lessens the uncertainties of farmers in
planning and programming their activities with a resulting improve-
ment in the conservation program. This, in turn, would reduce the
construction costs of the works of improvement. It also would
reduce the cost of
[p. 10]
-------
3058 LEGAL COMPILATION—WATER
operation and maintenance of the structures and further insure their
useful life expectancy. This is especially important in watershed areas
above reservoir structures installed with Federal assistance. In these
areas, local organizations are required by the Watershed Protection
and Flood Prevention Act to obtain agreements from owners of not
less than 50 percentum of the lands to carry out recommended soil
conservation measures and proper farm plans.
—Land treatment constitutes the initial increment of sound water-
shed development and management.
—Delays in completion of watershed projects oftentimes are due to
slow progress in installation of needed land treatment measures.
—When land treatment measures can be planned and installed on a
definite schedule, the installation of needed structural works of
improvement can be accelerated.
—Installation of project works of improvement on a planned time
schedule reduces installation costs and the costs of operation and
maintenance, thereby assuring their useful life expectancy.
3. Use of Available Federal Funds
The Administration opposes the amendment which would permit
the use of Federal funds available to local sponsoring organizations
under other Federal programs to be used for acquiring land, ease-
ments, and rights-of-way needed in connection with works of im-
provement installed in watershed projects.
The land rights acquisition is a significant part of local cost and
it is not termed appropriate in that it might result in a 100 percent
financing of these projects.
4. Municipal and Industrial Water Supply
The Administration opposes the amendment which would provide
Federal cost sharing (up to 50%) to meet present municipal, indus-
trial, and rural community water supply needs in watershed projects.
Under the existing provision for storage for future municipal or
industrial water supply needs, brought about by enactment of Public
Law 87-703, amending Public Law 83-566, the local interests must
bear, but are granted deferred repayment of the entire cost of storage
capacity for future use of water supply purposes incorporated in any
reservoir.
The Administration believes that the provisions in the Act as they
relate to water supply storage to meet municipal or industrial needs
are adequate.
5. Pollution Abatement Facilities
The Administration opposes the amendment which would provide
technical and cost sharing assistance for pollution abatement facili-
-------
STATUTES AND LEGISLATIVE HISTORY 3059
ties, including solid wastes in Public Law 566 watersheds. The Envi-
ronmental Protection Agency has research and technical assistance
programs for solid wastes disposal, and is charged with the general
responsibility of pollution abatement. Also, there is no provision in
this bill for recovery of funds when industrial wastes go through
municipal systems.
Title III, Section 601 and 602 of the bill provides for "amending
the Bankhead-Jones Farm Tenant Act, as amended." These amend-
[p. 11]
ments would add to the present authorizations in the Act by authoriz-
ing the Secretary of Agriculture to assist State and local public
agencies and local non-profit organizations by (1) providing technical
and cost sharing assistance (up to 50%) for the storage of water to
meet rural community water supply needs; (2) providing technical
and cost sharing assistance for installing measures and facilities for
water quality management, for the control and abatement of agricul-
ture-related pollution, and for the disposal of solid wastes; (3) pro-
viding technical and cost sharing assistance for the storage of water
in reservoirs, farm ponds, or other impoundments having community
benefits, together with the necessary water withdrawal appurtenances
for the purpose of rural fire protection; and (4) carrying out a land
inventory and monitoring program to include studies and surveys of
erosion and sediment damages, land use changes and trends, and
environmental degradation resulting from improper use of soil, water
and related resources. A land inventory report shall be issued at not
less than five-year intervals reflecting soil, water and related resource
conditions.
We support those amendments relating to storage for water quality
and inventorying and monitoring, and oppose the remaining provi-
sions of Title III. Our position is explained in the attached supple-
mental material.
SUPPLEMENTAL MATERIAL—TITLE III—H.R. 10867
1. Rural Community Water Supply
The Administration opposes the amendment which would provide
Federal cost sharing assistance (up to 50%) for the storage of water
to meet rural community water supply needs.
The Administration feels that assistance from other Federal pro-
grams are adequate at this time to deal with this problem.
2. Water Quality Management
The Administration endorses the amendment which would author-
ize the Secretary to cooperate with State and local public agencies in
-------
3060 LEGAL COMPILATION—WATER
RC&D projects by providing technical and financial assistance for
installing works of improvement for the purpose of water quality
management. These improvements would consist mostly of water
retention reservoirs constructed under this authority, to release water
during low stream flow periods or other critical periods to improve
fish and aquatic habitat, reduce odor, improve the quality of water,
lessen biodegradation, and to provide sustained water flows to water
users downstream.
3. Control and Abatement of Agriculture-Related Pollution
The Administration opposes the amendment which would provide
cost sharing for the abatement of agriculture-related pollution. The
Administration, through the Environmental Protection Agency
(EPA), is charged with this general responsibility. EPA has no
such cost sharing arrangements.
4. Solid Waste Disposal in Rural Areas
The Administration opposes the amendment which would provide
technical and cost sharing assistance for the disposal of solid wastes
in rural areas. The Administration, through the Environmental Pro-
[p. 12]
tection Agency, has a research and technical assistance program for
solid wastes, but it does not have a cost sharing program for solid
wastes disposal.
[p. 13]
COMMITTEE INTENT
1. Definition of public body. The term "public body" is intended to
include not only the conventional units of State and local government,
such as cities and counties, but government organizations created by
State or local laws, such as, for example, conservation districts.
2. Third party treatment on pollution abatement and control. The
committee intends that pollution abatement and control grants au-
thority be administered in such a manner that the recipient of the
grant will be directly responsible for carrying out the practice or
action for which the grant was made. The committee does not intend
that these grants be used, directly or indirectly, by third parties not
eligible to receive the grants themselves.
[p. 19]
-------
STATUTES AND LEGISLATIVE HISTORY 3061
SECTION-BY-SECTION ANALYSIS
*******
TITLE II—AMENDMENTS TO THE WATERSHED PROTECTION AND FLOOD
PREVENTION ACT
Section 201. This section makes the following changes in the small
watershed program:
1. Restoring, Improving, and Maintaining Environmental Quality—
This amendment for the first time would provide cost sharing for
water quality management, land utilization, and agricultural waste
management. The proposed amendment would provide an effective
means to plan and install desirable measures and works that would
restore, improve, and maintain the quality of the environment within
the watersheds involved. Works of improvement for water quality
management would consist primarily of water storage capacity in
reservoirs for streamflow regulation and would not be in substitution
for controlling waste at its source. Cost sharing would be consistent
with standards and regulations adopted by the Water Resources
Council.
2. Municipal and Industrial Water Supply—This amendment would
authorize the Secretary of Agriculture to bear up to one-half the cost
of the storage of water for present use, for municipal and industrial
water that may be provided in any reservoir structure constructed or
modified under the provisions of Public Law 83-566.
3. Use of Available Federal Funds—This amendment would permit
local sponsoring organizations to utilize any funds that may be avail-
able to them under other Federal programs that might be used in the
purchase of land rights within a watershed.
4. Long-Term Contracting in Watersheds—This amendment would
authorize the Secretary of Agriculture to enter into agreements for
periods of not to exceed ten years with land owners and operators,
individually or collectively, to share the cost of carrying out conserva-
tion plans within watershed projects. Such plans will be developed in
[p. 25]
cooperation with and approval by the soil and water conservation
district involved.
[p. 26]
-------
3062 LEGAL COMPILATION—WATER
1.31a(2) SENATE COMMITTEE ON AGRICULTURE
AND FORESTRY
S. REP. No. 92-734, 92 Cong., 2d Sess. (1972)
RURAL DEVELOPMENT ACT OF 1972
APRIL 7, 1972.—Ordered to be printed
Mr. TALMADGE, from the Committee on Agriculture and Forestry,
submitted the following
REPORT
together with additional and
INDIVIDUAL VIEWS
[To accompany S. 3462]
The Committee on Agriculture and Forestry, reported an original
bill ( ), to provide for the development of rural areas, with a
recommendation that it do pass.
[p. 1]
TITLE IV—AMENDMENTS TO THE WATERSHED PROTECTION AND FLOOD
PREVENTION ACT
SHORT EXPLANATION
This title would amend the Watershed Protection and Flood
Prevention Act to—
(1) extend the definition of "works of improvement" to any
undertaking for the conservation and proper utilization of land
and permit cost-sharing therefor; (Section 1301 (a), (b) and (f))
(2) provide for up to ten year agreements under which the
Secretary would share the cost of soil and water conservation
practices on lands within the areas covered by watershed projects
under that act or section 13 of the act of December 22, 1944;
(Section 1301 (c))
(3) permit funds appropriated for other acts to be used in the
acquisition of lands now required to be acquired by the local
-------
STATUTES AND LEGISLATIVE HISTORY 3063
organization without cost to the Federal government; (Section
1301 (d))
(4) authorize the Secretary to pay the cost of Indian lands
needed for works of improvement thereon; (Section 1301 (e))
(5) permit the Secretary to assume an appropriate part of the
cost of installing any work of improvement applicable to water
quality management; (Section 1301 (f))
(6) permit the Secretary to pay up to 50 percent of the cost of
storage for present municipal and industrial water demands;
(Section 1301 (g))
(7) require plans which include (a) features which may affect
the public health, or (b) water pollution control measures, to be
submitted to the Secretary of Health, Education and Welfare or
the Administrator of the Environmental Protection Agency,
respectively. (Section 1301 (h))
[p. 53]
Title IV would further broaden and increase the usefulness of the
watershed program under Public Law 83-566. The watershed pro-
gram has been a major force in meeting the water, land, and related
resource needs in watersheds and in improving the economy of rural
communities. There are two related areas in which the program can
make a greater contribution toward meeting broad national needs.
These are in dealing with problems relating to (1) rural develop-
ment and (2) the total environment.
Title IV would amend the Watershed Protection and Flood Preven-
tion Act (Public Law 83-566) as amended, to (1) authorize the
Secretary of Agriculture to cost-share in watershed projects for
needed measures planned and installed in cooperation with public
agencies and local organizations that would restore, improve, and
maintain the quality of the environment, and cost-share for reservoir
storage for water quality management; (2) authorize the Secretary
of Agriculture to enter into long-term contracts with landowners and
operators for making changes in cropping systems and land uses and
for installing needed soil and water conservation practices in water-
shed projects; (3) authorize local organizations to use federal funds
available to them, other than those appropriated for the purposes of
the Watershed Protection and Flood Prevention Act, in acquisition
of land, easements, and rights-of-way needed in connection with
works of improvement in watershed projects; (4) authorize the Sec-
retary of Agriculture to pay the cost of lands, easements, and rights-
of-way needed for works of improvement to be installed on privately
owned Indian lands; (5) authorize the Secretary of Agriculture to
bear not to exceed one-half the cost of storage of water added to any
-------
3064 LEGAL COMPILATION—WATER
reservoir constructed or modified under the Act to meet present
demands for municipal, industrial, or rural development needs; and
(6) modify the language in the Act with respect to assurances for
repayment of costs of water supply for anticipated future needs by
requiring a reasonable showing that there is an anticipated need for
the water and that the local organization or an authorized state
agency gives assurances satisfactory to the Secretary of Agriculture
that the federal government will be reimbursed the cost of such water
supply. Also included are provisions for coordination with the Admin-
istrator of the Environmental Protection Agency and the Secretary
of Health, Education, and Welfare, respectively, on work plans which
would include works of improvement for the prevention, control, and
abatement of water pollution or which include features which may
affect the public health.
Acquisition of Land Rights on Privately Owned Indian Lands.—
In some states, Indian holdings are owned by private individuals
although the Indians are under the jurisdiction of the Bureau of
Indian Affairs, U.S. Department of the Interior. It is the policy of
that Department that no Indian can convey an interest in rights to
such land without being reimbursed. This requirement has hindered,
or in some cases, prevented, the carrying out of needed project meas-
ures. Since this requirement stems from a federal agency policy, the
Committee thinks it reasonable that the Secretary of Agriculture be
authorized to pay for needed land, easements, and rights-of-way
involving such privately owned Indian lands.
[p. 54]
Long-term Contracting in Watersheds.—This amendment would
authorize the Secretary of Agriculture to enter into agreements for
periods of not to exceed ten years with landowners and operators to
share the cost of carrying out conservation plans within watershed
projects. It would result in accelerated and intensified application of
practices and measures for erosion control and otherwise to conserve
and develop the soil and water resources of farms, ranches, and other
lands in project areas. It would assist in bringing about orderly com-
munity and resource development. Cost-sharing contracts between
landowners and the Department of Agriculture, based on plans devel-
oped in cooperation with and approved by the soil and water con-
servation district involved, would assure application of planned
measures on a definite time schedule. This arrangement would
accelerate establishment of needed land treatment and speed up
scheduling of structural works of improvement. Similar cost-sharing
arrangements have already proved their effectiveness in the Great
-------
STATUTES AND LEGISLATIVE HISTORY 3065
Plains Conservation Program administered by the Soil Conservation
Service.
Municipal, Industrial, or Rural Community Water Supply
The Secretary of Agriculture would be authorized by this title to
bear up to one half of the cost of the storage of water for present
use, for municipal, industrial, or rural community water that may be
provided in any reservoir structure constructed or modified under
the provisions of Public Law 83-566. At the present time, local
interests are required to bear the entire cost allocated to that purpose
from sources other than funds appropriated under the Act.
An adequate, dependable supply of good quality water is basic to
the stability and potential for growth of any rural community, town,
or industry. Reservoirs with the amount of capacity authorized for
inclusion in watershed projects can provide a dependable supply of
water to meet the needs in rural America. Unfortunately, many
rural communities lack sufficient funds and legal authority to pro-
vide the needed water supply facilities by themselves.
Broadening the authority of Public Law 83-566 to provide federal
cost-sharing for water supply to rural communities can have a major
impact in producing economic growth, providing jobs, and developing
a more comfortable and better way of life in many town and country
areas. In addition, improvement of the economy of these areas should
help to reduce the migration of rural residents to already crowded
urban centers. This amendment will do a great deal to increase the
already large contribution of this program to rural community
development.
STATUS OF WATERSHED PROGRAMS
The 1968 revision of the Soil and Water Conservation Needs In-
ventory shows over 19,000 upstream watershed areas with resource
problems. About 8,900 containing over 726 million acres, or about
one-third of all land in the United States and Puerto Rico, are con-
sidered feasible for project action at this time. As of March 1972,
applications under Public Law 83-566 had been received on 2,937
watersheds. Planning assistance had been authorized on 1,643, and
1,059 projects—slightly under 12 percent of the potential—had been
approved for operations.
[p. 55]
The 5,788 floodwater-retarding and multipurpose dams, 6,646 miles
of channel improvement, and other structural and land treatment
measures already installed provide increasing benefits each year as
they continue to function. They have upgraded the living conditions
of many thousands of people by preventing an estimated $220 million
-------
3066 LEGAL COMPILATION—WATER
in flood and sediment damages. The quality of downstream waters
has been maintained or improved through soil conserving practices
which keep an estimated 208 million tons of productive topsoil in
place. In addition, about 15 million tons of sediment have been
trapped in floodwater-retarding dams to date and thus removed from
further travel downstream.
Equally important to rural residents are the water supply and
recreational developments they have built into their projects. Some
78 communities and 464,300 people no longer have to worry about
adequacy of municipal water supplies. Water-based recreation is a
reality in terms of more than 5 million visitor-days of use on 94 lakes
behind dams which also serve to hold floodwaters when needed. Most
of these 94 lakes are ones on which the Soil Conservation Service has
provided cost-sharing for recreation facilities. They do not include
the hundreds of others where incidental recreation has developed in
the sediment pools of floodwater-retarding structures.
*******
SECTION-BY-SECTION EXPLANATION
Section 1301 amends the Watershed Protection and Flood Preven-
tion Act, as amended.
Subsection (a) amends section 1 of the Act to broaden its purposes
to include the conservation and utilization of land, as well as the con-
servation, development, utilization and disposal of water. The inclu-
sion of these purposes recognizes the interrelationship between land
[p. 56]
and water resources, and will permit greater utilization of this Act
in the enhancement of the quality of the environment.
Subsection (b) amends section 2 of the Act to include in the defini-
tion of "works of improvement" authorized to be included in plans,
works of improvement for the conservation and proper utilization of
land. This amendment is needed to assure that all authorities under
the Act will be consonant with the broadened purposes of the Act.
Subsection (c) amends section 3 of the Act to authorize the Secre-
tary to enter into long term agreements of not to exceed 10 years with
landowners, operators, and occupiers in the development and carrying
out of conservation plans in project areas which are needed to fully
implement the land treatment aspects of work plans required by the
Act. Such authority would also be extended to the eleven watershed
improvement programs authorized by section 13 of the Flood Control
Act of December 22, 1944. Provision is included which would permit
the Secretary to preserve cropland, crop acreage, and allotment his-
tories in connection with such agreements.
-------
STATUTES AND LEGISLATIVE HISTORY 3067
Subsection (d) amends the strict requirements of paragraph (1) of
section 4 of the Act to permit local organizations in the furnishing of
required lands, easements, and rights-of-way for projects to use Fed-
eral funds which otherwise could be made available to them under
other Federal programs.
Subsection (e) also amends the strict requirements of paragraph
(1) of section 4 with respect to the acquisition of lands, easements, and
rights-of-way, and would permit the Secretary to pay from funds
appropriated for purposes of the Act the cost of such lands, easements,
and rights-of-way needed for project works of improvement which are
located on privately owned Indian lands.
Subsection (f) amends clause (A) of paragraph (2) of section 4 to
include works of improvement for water quality management as
eligible for cost-sharing assistance by the Secretary. Such works of
improvement currently may be included in plans, but are not eligible
for cost-sharing assistance. It also adds as eligible for cost-sharing
assistance works of improvement for the conservation and proper
utilization of land, which is consistent with the broadened objectives
of the Act.
Subsection (g) would authorize the Secretary to bear up to 50
percent of the cost of water storage included in any reservoir for
present municipal and industrial use. It would also amend the Act
to provide, with respect to future water supply, that the Secretary
may also accept assurances of repayment by an authorized State
agency, which assurances need not be supported by the immediate
issuance of bonds or other obligations.
Subsection (h) amends subsection (4) of section 5 of the Act which
presently provides interagency consultation on watershed work plans
developed under the Act. In addition to consultations presently
provided for, consonant with the broadened environmental and rural
development purposes of the Act, plans which include features which
will affect the public health will receive a review by the Secretary
of Health, Education, and Welfare, and plans which include measures
for the control and abatement of water pollution will receive the
review of the Environmental Protection Agency.
[p. 57]
-------
3068 LEGAL COMPILATION—WATER
1.31a(3) COMMITTEE OF CONFERENCE
H. R. REP. No. 92-1129, 92d Cong., 2d Sess. (1972)
RURAL DEVELOPMENT
JUNE 14, 1972.—Ordered to be printed
Mr. POAGE, from the committee of conference, submitted the following
CONFERENCE REPORT
[To accompany H.R. 12931]
The committee of conference on the disagreeing votes of the two
Houses on the Amendment of the Senate to the bill (H.R. 12931) to
provide for improving the economy and living conditions in rural
America, having met, after full and free conference, have agreed to
recommend and do recommend to their respective Houses as follows:
That the House recede from its disagreement to the amendment of
the Senate and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following:
That this Act may be cited as the "Rural Development Act of 1972"
*******
[p. 1]
1.31a(4) CONGRESSIONAL RECORD, VOL. 118 (1972):
1.31a(4) (a) Feb. 23: Considered and passed House
[No Relevant Discussion on Pertinent Section]
1.31a(4) (b) April 19, 20: Considered and passed Senate; amended in
lieu of S. 3462
[No Relevant Discussion on Pertinent Section]
1.31a(4)(c) July 27: House agreed to conference report
[No Relevant Discussion on Pertinent Section]
1.31a(4) (d) Aug. 17: Senate agreed to conference report
[No Relevant Discussion on Pertinent Section]
-------
STATUTES AND LEGISLATIVE HISTORY 3069
1.32 REEFS FOR MARINE LIFE CONSERVATION
16 U.S.C. § 1220 (1972)
CHAPTER 25B.—REEFS FOR MARINE LIFE
CONSERVATION
§ 1220. State applications for Liberty ships for use as offshore reefs—Conser-
vation of marine life
(a) Any State may apply to the Secretary of Commerce (hereafter re-
ferred to in this chapter as the "Secretary") for Liberty ships which, but
for the operation of this chapter, would be designated by the Secretary for
scrapping if the State intends to sink such ships for use as an offshore
artificial reef for the conservation of marine life.
Manner and form of applications; minimum requirements
(b) A State shall apply for Liberty ships under this chapter in such
manner and form as the Secretary shall prescribe, but such application
shall include at least (1) the location at which the State proposes to sink
the ships, (2) a certificate from the Administrator, Environmental Pro-
tection Agency, that the proposed use of the particular vessel or vessels re-
quested by the State will be compatible with water quality standards and
other appropriate environmental protection requirements, and (3) state-
ments and estimates with respect to the conservation goals which are
sought to be achieved by use of the ships.
Copies to Federal officers for official comments and views
(c) Before taking any action with respect to an application submitted
under this chapter, the Secretary shall provide copies of the application
to the Secretary of the Interior, the Secretary of Defense, and any other
appropriate Federal officer, and shall consider comments and views of such
officers with respect to the application.
Pub.L. 92-402, § 3, Aug. 22, 1972, 86 Stat. 618.
1.32a COMMERCE DEPARTMENT MARITIME PROGRAMS
August 22, 1972, P.L. 92-402, § 3, 86 Stat. 617
APPROPRIATIONS AUTHORIZATIONS—MARITIME
PROGRAMS
[H.R. 13324]
An Act to authorize appropriations for the fiscal year 1973 for certain maritime
programs of the Department of Commerce, and for related purposes.
SEC. 3. (a) Any State may apply to the Secretary of Commerce
(hereafter referred to in this Act as the "Secretary") for Liberty
ships which, but for the operation of this Act, would be designated
by the Secretary for scrapping if the State intends to sink such ships
for use as an offshore artificial reef for the conservation of marine life.
(b) A State shall apply for Liberty ships under this Act in such
manner and form as the Secretary shall prescribe, but such applica-
-------
3070 LEGAL COMPILATION—WATER
tion shall include at least (1) the location at which the State pro-
poses to sink the ships, (2) a certificate from the Administrator,
Environmental Protection Agency, that the proposed use of the par-
ticular vessel or vessels requested by the State will be compatible
with water quality standards and other appropriate environmental
protection requirements, and (3) statements and estimates with re-
spect to the conservation goals which are sought to be achieved by
use of the ships.
(c) Before taking any action with respect to an application sub-
mitted under this Act, the Secretary shall provide copies of the ap-
plication to the Secretary of the Interior, the Secretary of Defense,
and any other appropriate Federal officer, and shall consider com-
ments and views of such officers with respect to the application.
1.32a(l) HOUSE COMMITTEE ON MERCHANT MARINE
AND FISHERIES
H. B. REP. No. 92-934, 92d Cong., 2d Sess. (1972)
MARITIME AUTHORIZATION, 1973
MARCH 20, 1972.—Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. GARMATZ, from the Committee on Merchant Marine and Fisheries,
submitted the following
REPORT
[To accompany H.R. 13324]
The Committee on Merchant Marine and Fisheries, to whom was
referred the bill (H.R. 13324), to authorize certain appropriations
for programs of the Maritime Administration within the Department
of Commerce for fiscal year 1973, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
[p. 1]
[No Relevant Discussion on Pertinent Section]
-------
STATUTES AND LEGISLATIVE HISTORY
3071
1.32a(2) SENATE COMMITTEE ON COMMERCE
S. REP. No. 92-841, 92d Cong., 2d Sess. (1972)
MARITIME PROGRAMS
JUNE 8, 1972.—Ordered to be printed
Mr. LONG, from the Committee on Commerce,
submitted the following
REPORT
[To accompany H.R. 13324]
The Committee on Commerce, to which was referred the bill (H.R.
13324), to authorize appropriations for the fiscal year 1973 for certain
maritime programs of the Department of Commerce, having con-
sidered the same, reports favorably thereon with amendments and
recommends that the bill as amended do pass.
[p. 1]
[No Relevant Discussion on Pertinent Section]
1.32a(3) CONGRESSIONAL RECORD, VOL. 118 (1972):
1.32a(3) (a) April 11: Considered and passed House
[No Relevant Discussion on Pertinent Section]
1.32a(3)(b) July 26: Considered and passed Senate, amended, pp.
S11935-S11938
AMENDMENT NO. 1355
Mr. SPARKMAN. Mr. President, I
call up my amendment No. 1355 and ask
that it be stated.
The PRESIDING OFFICER (Mr.
MclNTYRE). The amendment will be
stated.
The assistant legislative clerk read as
follows:
Add at the end of the bill the
following:
SEC. 4 (a) Any State may apply to the
Secretary of Commerce (hereafter referred
to in this Act as the "Secretary") for Liberty
ships which, but for the operation of this
Act, would be designated by the Secretary
for scrapping if the State Intends to sink
such ships for use as an offshore artificial
reef for the conservation of marine life.
(b) A State shall apply for liberty ships
under this Act in such manner and form
as the Secretary shall prescribe, but such
application shall include at least (1) the
location at which the State proposes to
sink the ships, (2) a certificate from the
-------
3072
LEGAL COMPILATION—WATER
Administrator, Environmental Protection
Agency, that the proposed use of the partic-
ular vessel or vessels requested by the State
will be compatible with water quality stand-
ards and other appropriate environmental
protection requirements, and (3) statements
and estimates with respect to the conserva-
tion goals which are sought to be achieved
by use of the ships.
(c) Before taking any action with respect
to an application submitted under this Act,
the Secretary shall provide copies of the ap-
plication to the Secretary of the Interior,
the Secretary of Defense, and any other ap-
propriate Federal officer, and shall consider
comments and views of such officers with
respect to the application.
SEC. 5. If, after consideration of such com-
ments and views as are received pursuant
to section 4(c), the Secretary finds that the
use of Liberty ships proposed by a State will
not violate any Federal law, contribute to
degradation of the marine environment, cre-
ate undue interference with commercial flsh-
ing or navigation, and is not frivolous, he
shall transfer without consideration to the
State all right, title, and interest of the
United States in and to any Liberty ships
which are available for transfer under this
Act if—
(1) the State gives to the Secretary such
assurances as he deems necessary that such
ships will be utilized and maintained only
for the purposes stated in the application
and, when sunk, will be charted and marked
as a hazard to navigation;
(2) the State agrees to secure any licenses
or permits which may be required under the
provisions of any other applicable Federal
law;
(3) the State agrees to such other terms
and conditions as the Secretary shall require
in order to protect the marine environment
and other interests of the United States; and
(4) the transfer would be at no cost to the
Government with the State taking delivery
of such Liberty ships at fleetside of the Na-
tional Defense Reserve Fleet in an "as is—
where is" condition.
SEC. 6. A State may apply for more than
one Liberty ship under this Act. The Secre-
tary shall, however, taking into account the
number of Liberty ships which may be or
become available for transfer under this Act,
administer this Act in an equitable manner
with respect to the various States.
SEC. 7. A decision by the Secretary denying
any application for a Liberty ship under this
Act is final.
Mr. LONG. Mr. President, for the
benefit of Senators who have worked so
long and hard today, I do not anticipate
that we will have any more rollcall votes
unless someone wants to insist on one on
final passage. So far as I am concerned,
the bill will pass on a voice vote. Other-
wise, if I thought it would not, I would
put the vote off until tomorrow.
I make this statement so that Senators
can make their plans. I know of no
more controversial amendments.
Mr. SPARKMAN. Mr. President, last
year along with my colleague, Senator
ALLEN, I introduced a bill, S. 2243, which
would authorize the Secretary of Com-
merce to transfer surplus Liberty ships
to a State for use by the State in pro-
moting marine life conservation. Spe-
cifically, under our bill, States would be
authorized to sink these old ships off-
shore for the purpose of creating an arti-
ficial fishing reef. The ships that will be
made available for this purpose will be
those that are designated by the Secre-
tary of Commerce to be scrapped.
Similar bills were introduced in the
House of Representatives. Hearings
were held by the Subcommittee on Mer-
chant Marine of the House Committee on
Merchant Marine and Fisheries, and the
committee reported the bill late last
month. As yet, no further action has
been taken in the House.
Mr. President, the amendment that we
are offering at this time would accom-
plish the same purpose as the bill we in-
troduced earlier and the bill which is
now pending in the House of Represent-
atives. Our bill was referred here in the
Senate to the Commerce Committee.
That committee requested comments
from the Department of Commerce, the
Department of Interior, the Department
of the Navy, the General Accounting
Office, and the Justice Department. Re-
sponses were received from these agen-
cies, and I ask unanimous consent to
have these five responses printed in the
RECORD.
There being no objection, the letters
were ordered to be printed in the RECORD,
as follows:
[p. S 11935]
-------
STATUTES AND LEGISLATIVE HISTORY
3073
GENERAL COUNSEL OF THE
DEPARTMENT or COMMERCE,
Washington, D.C., November 10, 1971.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce, U.S.
Senate, Washington, D.C.
DEAR MR. CHAIRMAN: This is in further
reply to your request for the views of this
Department concerning S. 2243, a bill—
"To authorize the Secretary of Commerce
to transfer surplus Liberty ships to States for
use in marine life conservation programs."
S. 2243 would authorize the Secretary of
Commerce to transfer certain Liberty ships,
otherwise scheduled to be scrapped, to States
for use as offshore artificial reefs for the
conservation of marine life. A State would
apply for these Liberty ships in accordance
with regulations to be prescribed by the Sec-
retary of Commerce. Information on the lo-
cation where the State proposes to sink the
ships and the conservation goals sought to
be achieved would be required to be in-
cluded in such application. Prior to taking
any action, the Secretary of Commerce would
provide copies of the application to the Sec-
retary of the Interior, the Secretary of the
Army and any other appropriate Federal
officer, and obtain their comments and views.
If the Secretary of Commerce finds that such
use of these Liberty ships does not violate
Federal law and is not frivolous, and the
State agrees to the required terms and con-
ditions, including the furnishing of assur-
ances that the vessels will be used for the
stated purpose, he would be authorized to
transfer without consideration to the appli-
cant State all right, title, and interest of the
United States in such vessels.
This Department generally supports S. 2243
as we have vessels in the National Defense
Reserve Fleet that would be suitable for the
purpose of the bill. Further, sunken ships
are known to concentrate fish and other
marine life The deliberate creation of such
artificial reefs could enhance marine life
habitat, thus providing benefits to sport fish-
ermen and some commercial fishing activ-
ities. Such reefs may also be attractive to
scuba divers. However, if such structures
are not located properly, they can interfere
with commercial fishing activities, naviga-
tion, or offshore drilling and mining.
Sunken ships could also present a special
hazard if pollutants, such as lubricants and
the remnants of toxic cargoes, were not
removed prior to scuttling.
The responsibility to set specific terms
and conditions would be assigned to the Sec-
retary of Commerce under section 3 of the
proposed bill. However, to assure proper
consideration by the Secretary of Commerce
of situations such as noted above and to
stipulate where, how, and in what condition
the vessels would be transferred to applicant
States, we suggest the following additions
and changes:
Page 2, lines 2 and 3—strike "and (2)" and
insert in lieu thereof " (2) a certificate from
the Administrator, Environmental Protection
Agency, that the proposed use of the par-
ticular vessel or vessels requested by the
State will be compatible with water quality
standards and other appropriate environmen-
tal protection requirements, and (3)"
Page 2, line 9—substitute the word "con-
sider" for the word "obtain"
Page 2, lines 11 through 13—revise to read
"Sec. 3. If, after consideration of such com-
ments and views as are received pursuant to
section 2(b), the Secretary finds that the
use of Liberty ships proposed by a State will
not violate any Federal law, contribute to
degradation of the marine environment, cre-
ate undue interference with commercial fish-
ing or navigation, and is not frivolous, he
shall transfer without consideration to"
Page 2, lines 17 through 20—revise to read
"(1) the State gives to the Secretary such
assurances as he deems necessary that such
ships will be utilized and maintained only for
the purposes stated in the application and,
when sunk, will be charted and marked as a
hazard to navigation."
Page 2, line 21—revise to read "(2) the
State agrees to secure any licenses or per-
mits which may be required under the pro-
visions of any other applicable Federal law
and (3) the State agrees to such other terms
and condi-"
Page 3, line 2—insert between the words
"the" and "interests" the words "marine en-
vironment and other" and add "and" after
the words "United States."
Page 3, after line 2—add "(4) the transfer
would be at no cost to the Government with
the State taking delivery of such Liberty
ships at fleetsite of the National Defense Re-
serve Fleet in an "as is-where is" condition."
There is enclosed an environmental impact
statement with respect to this legislation as
required by Public Law 91-190.
We have been advised by the Office of
Management and Budget that there would
be no objection to the submission of this
report to your Committee from the stand-
point of the Administration's program.
Sincerely,
KARL E. BAKKE,
Acting General Counsel.
[U.S. Department of Commerce]
ENVIRONMENTAL IMPACT STATEMENT—USE OF
SURPLUS LIBERTY SHIPS AS ARTIFICIAL REEFS
The legislation proposed to allow surplus
Liberty ships to be used by States in marine
life conservation programs, would authorize
the Secretary of Commerce to transfer cer-
tain Liberty ships, otherwise scheduled to be
-------
3074
LEGAL COMPILATION—WATER
scrapped, to States for use as offshore artifi-
cial reefs. These vessels would be placed on
the continental shelf in designated reef sites
selected by the States with technical assist-
ance from the National Marine Fisheries
Service and with proper authorization from
the U.S. Army Corps of Engineers.
The environmental impact of the proposed
action: The environmental impact of using
these vessels to build artificial reefs on the
continental shelf would be beneficial if prop-
erly located. The shelf off the Atlantic and
Gulf States, an expanse of shallow ocean
bottom stretching from the coast out to a
depth of about 600 feet, is the area inhabited
by the majority of our valuable sport and
commercial fish. However, much of this shelf
area is relatively unproductive with little or
no irregular, hard substrate (relief). Such
hard substrate, or relief, is necessary for the
encrusting organisms such as barnacles, hy-
droids, corals, and mussels to settle. It also
provides protective areas, food sources, and
spawning sites for finfish.
Many marine animals need solid substrates
to complete their life cycles and it is well
known that coral reefs, rock ledges, and
other areas of relief on the shelf are effective
habitats for numbers of fishes and inverte-
brates.
These ships could form the nucleus of
large artificial reefs which would increase
the area of favorable habitat and provide
more food and shelter for finfish and in-
vertebrates. The increase in favorable habi-
tat should effectively increase the carrying
capacity of the shelf and would potentially
increase the survival rate of both fish and
some shellfish in these areas.
Most Liberty ships are more than 250 feet
long and as much as 80 feet high. Since the
Coast Guard regulations require 60 feet clear-
ance for surface vessels, such artificial reef
sites must necessarily be located at depths
of 150 feet or more. Some reefs ranging up
to 200 feet deep have been effective for sport
fishing. While the possibility exists that such
artificial reefs might conflict with commer-
cial fishing, offshore mining activities, or
other potential uses, it is felt that the review
mechanism for site selection provided in
the proposed bill, as well as legal controls
already in existence, can insure adequate
resolution of such conflicts. If this bill is
enacted, the Department of Commerce would
assume the responsibility to assure adequate
review of reef sites at the State level.
It should also be noted that there already
exist a number of areas where there is no
commercial fishing but which meet other
requirements for sport fishing reefs. In cre-
ating artificial reefs, sites would be selected
in areas where there is 1) adequate water
over the reef; 2) no interference with com-
mercial fishing; and 3) assured accessibility
to sport fishermen and divers. Such require-
ments would tend to make these carefully
sunken vessels beneficial rather than harm-
ful, or at least no more harmful than natural
reefs or accidentally sunken wrecks.
In addition, it should be stated that the
creation of reefs using surplus ships does
not constitute a violation of the Govern-
ment's anti-dumping policy. Dumping tends
to be random, a "non-use" of surplus prod-
ucts. Reef sites, on the other hand, are de-
liberately selected with definite criteria for
use. Construction of a reef requires a permit
from either the Coast Guard or Army Corps
of Engineers depending on the location. At
this time, the reef site is informally identi-
fied on all pertinent charts. Before such a
permit can be issued, practice in accord-
ance with the Fish and Wildlife Coordination
Act requires that the application be reviewed
by the Bureau of Sport Fisheries and Wildlife
(Department of Interior) and the National
Marine Fisheries Service (Department of
Commerce). Furthermore, in the case of any
Federal, or Federally-sponsored project such
as this would be, the Environmental Pro-
tection Act requires the prior filing of en-
vironmental impact statements, which again
ultimately would receive review by both
N.M.F.S. and B.S.F.W.
Coupled with the above criteria for reef
site selection, it is important that the final
attitude of the sunken vessel on the ocean
floor be predetermined to provide the most
efficient position as an effective habitat for
fish and invertebrates. In the case of Liberty
ships, sinking them in an upright position
at a precise location will require the flooding
of at least two watertight compartments.
Opening sea cocks in the machinery must
be augmented by additional flooding holes
in the forward transverse bulkhead so that
the cargo compartment forward of the ma-
chinery space will flood progressively. Under
such flooding conditions, in which the ship
could possibly capsize and land on her side,
it may be necessary to flood additional for-
ward and aft compartments to insure that
sinking will occur in a reasonably upright
position. This could be accomplished by ex-
plosive charges in each compartment holing
in the shell plating, a procedure which would
also permit access for fish into the ship's
interior.
In studying this proposal, the National
Marine Fisheries Service recommends scut-
tling by explosion. However, if explosive
holing in the shell plating is deemed undesir-
ab'e from an ecologic point of view, flooding
valves can be installed in each hold, fitted
with reach rods to the main deck. Before
sinking, the vessels should first be detoxified,
all portholes and floatables should be re-
moved, and hatches and passages opened.
All of these steps will facilitate the later
-------
STATUTES AND LEGISLATIVE HISTORY
3075
entry of fish. It should be added that scut-
tling would necessarily take place only in
calm weather.
Any adverse environmental effects which
cannot be avoided should the proposal be im-
plemented: The activities proposed should
not have any significant adverse effect on
the environment as long as proper precau-
tions are followed. All hulks made available
for this purpose would be carefully inspected
[p. S11936]
to assure that all toxic materials, fuels, or
other contaminants have been removed or
rendered non-toxic.
Alternatives to the proposed action: In
many areas along the Atlantic and Gulf
coasts where 202 of the total Reserve Fleet
of 219 Liberty ships are located, the shelf
slopes very gradually and the real need is
for nearshore reefs in shallow water. For
such sites, use of smaller surplus vessels,
such as small naval craft, would be more
desirable. As noted earlier, Coast Guard reg-
ulations would necessarily preclude sinking
of Liberty ships in shallow seas.
Other reef materials have been proven to
be as good as, or superior to, metal vessels.
These include large rocks, concrete block,
certain types of building rubble, special con-
crete structures, and rubber tires. Most of
these can be used effectively in shallow
water, which would provide reefs more ac-
cessible to sport fishermen. In constructing
deep water reefs, however, we find no better
alternative than surplus Liberty ships, par-
ticularly when the cost to the State govern-
ment is considered.
The relationships between local short-term
uses of man's environment and the mainte-
nance and enhancement of long-term pro-
ductivity: These artificial reefs would pro-
vide almost immediate benefit in terms of
increased catches by anglers and also help
to maintain and enhance long-term produc-
tivity of the marine environment by provid-
ing more areas of favorable habitat for fish
and invertebrates It is not possible to affix
a dollar value to this estimated increase in
human well being and marine productivity,
however. Ultimately, much of these hulks
would disintegrate or be buried in the sub-
strate after which the area would return to
its original condition unless additional reef
materials were provided.
Any irreversible and irretrievable commit-
ments of resources which would be involved
in the proposed action should it be imple-
mented: In using these vessels, we are scut-
tling scrap metal which could be reused in
industry. The scrap sale value of one of
these ships on the world market is estimated
to be about $100,000. In addition, it is esti-
mated that the costs to a State receiving Lib-
erty ships to construct deep water reefs
would average $40,000 per ship, which In-
cludes detoxification, towage and actual sink-
ing operations.
Use of Liberty ships for the formation of
artificial reefs may increase our fishery re-
sources. However, at this time it is not
possible to project a specific dollar value to
the resulting increases to compare with the
scrap value of the ships.
DEPARTMENT OF THE INTERIOR,
Washington, D.C., July 29, 1971.
HON. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: Your Committee has
recently requested the comments of this De-
partment on S. 2243, a bill "To authorize the
Secretary of Commerce to transfer surplus
Liberty ships to States for use in marine life
conservation programs".
The Department has no objection to en-
actment of S. 2243, if amended as suggested
by the Department of Commerce.
S. 2243 would make possible the acquisi-
tion by States of surplus Liberty ships for
use in the construction of artificial reefs.
Upon application by a State, the Secretary
of Commerce would be authorized to trans-
fer title without consideration and to impose
upon the transfer such terms and conditions
as he deems appropriate to protect the in-
terests of the United States. It is further
provided that each application would be
submitted by the Secretary of Commerce for
comments of the Secretary of the Interior,
the Secretary of the Army, and other in-
terested Federal officers.
Sunken ships are valued as points of con-
centration for fish and other marine life
The deliberate creation of artificial reefs
could enhance marine life habitat, provid-
ing benefits to sport and commercial fisher-
men. Such reefs may also be attractive to
scuba divers Unfortunately, iron and steel
are among the least satisfactory materials
for construction of artificial reefs because of
their tendency to disintegrate and despoil
the marine environment. Sunken ships
would present a special hazard if pollu-
tants such as lubricants and the remnants
of toxic cargoes were not removed prior to
scuttling.
For these reasons, we would suggest that
no such transfer as Is contemplated by S.
2243 be authorized without careful consider-
ation of the environmental consequences.
We also recommend that participating States
be required to chart and mark such vessels,
once sunken. These precautions would mini-
mize the hazard to navigation and protect
against damage to fishing equipment.
We believe that amendments proposed by
the Department of Commerce would afford
an opportunity to review the environmental
-------
3076
LEGAL COMPILATION—WATER
consequences of each transfer, and assure
that no ship is used in a way that would
violate existing or prospective water quality
standards. As stated by the Department of
Commerce in its report on this bill, the
amendments would require approval by the
Environmental Protection Agency of each
proposed transfer, and would condition ap-
proval upon continued compliance with ap-
plicable water quality standards.
The Office of Management and Budget has
advised that there is no objection to the
presentation of this report from the stand-
point of the Administration's program.
Sincerely yours,
NATHANIEL REED,
Assistant Secretary of the Interior.
DEPARTMENT OF THE NAVY,
Washington, D.C., July 29, 1971.
HON WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.S. Senate,
Washington, D.C.
DEAB MR. CHAIRMAN: Your request for com-
ment on S. 2243, a bill "To authorize the Sec-
retary of Commerce to transfer surplus Lib-
erty ships to States for use in marine life
conservation programs," has been assigned to
this Department by the Secretary of Defense
for the preparation of a report expressing the
views of the Department of Defense.
This bill would authorize the Secretary of
Commerce, under certain conditions, to
transfer Liberty ships to any State that re-
quests them The ships would be ones desig-
nated for scrapping, and the requesting
States must intend to sink the ships as off-
shore artificial reefs.
Under section 2(b) applications submitted
for the use of surplus Liberty ships as pro-
vided by the bill are to be furnished by the
Secretary of Commerce to the Secretary of
the Army for comment. The sinking of such
ships involves national security requirements
in the continental shelf area. Accordingly,
the bill should be revised to reflect Depart-
ment of Defense interest rather than Secre-
tary of the Army interest. It is recommended
that the designation "Secretary of Defense"
be substituted for "Secretary of the Army"
in section 2(b), page 2, line 8 of the bill.
It is assumed that implementation of the
legislation would take into consideration
such requirements, for example, as marking
and charting the derelicts to assure that com-
mercial fishermen will be aware of their
presence to avoid fouling their nets on them,
and that excess oil, toxic residues and other
contaminants be removed from the vessels
before they are submerged.
With regard to the impact of this bill
upon the environment, the Department of
the Navy, on behalf of the Department of
Defense, defers to the Department of Com-
merce.
Subject to the foregoing comments, the
Department of the Navy, on behalf of the
Department of Defense, interposes no objec-
tion to S. 2243.
This report has been coordinated within
the Department of Defense in accordance
with procedures prescribed by the Secretary
of Defense.
The Office of Management and Budget
advises that, from the standpoint of the
Administration's program, there is no objec-
tion to the presentation of this report on
S. 2243 for the consideration of the Com-
mittee.
For the Secretary of the Navy.
Sincerely yours,
LANDO W. ZECH, Jr.,
Captain, U.S. Navy, Deputy Chief.
Mr. SPARKMAN. Mr. President,
none of these agencies opposes this leg-
islation. The response from the Depart-
ment of Commerce includes an environ-
mental impact statement, as required by
law. This statement confirms the benefi-
cial impact upon the environment which
will result from the creation of these
artificial fishing reefs. As stated in the
environmental statement:
These artificial reefs would provide almost
immediate benefit in terms of increased
catches by anglers and also help to main-
tain and enhance long-term productivity of
the marine environment by providing more
areas of favorable habitat for fish and in-
vertebrates.
The Department of Commerce and the
Department of the Navy suggested
amendments to the bill as introduced.
These suggested changes have been in-
corporated into the amendment that we
are offering at this time.
Mr. President, it is well known that
sunken ships do enhance marine life
[p. S 11937]
habitat. The creation of these artificial
reefs is extremely beneficial for both
sport and commercial fishing interests.
Several of the States have been able to
obtain surplus ships from other sources
and have been very successful in im-
proving the sport and commercial fishing
off their shores. I hope that the Senate
will approve this amendment in order
that these surplus Liberty ships can also
-------
STATUTES AND LEGISLATIVE HISTORY
3077
be made available for this most worth-
while purpose.
Mr. LONG. Mr. President, I know of
no objection to the amendment. The
committee did not have an opportunity
to study it but the Senator discussed it
with some of us on the committee. We
know of no reason why we cannot agree
to the amendment. We will be happy
to take it to conference and if anyone
in the House has any objection to it, we
will take care of it then.
Mr. President, I yield back the re-
mainder of my time.
Mr. SPARKMAN. Mr. President, I
yield back the remainder of my time.
The PRESIDING OFFICER (Mr. Mc-
INTYRE) . The question is on agreeing to
the amendment of the Senator from
Alabama.
The amendment was agreed to.
[p. S 11938]
1.33a(3)(c) Aug. 14: House concurred in Senate amendments.
[No Relevant Discussion on Pertinent Section]
1.33 COASTAL ZONE MANAGEMENT ACT OF 1972
16 U. S. C. § 1451 et seq. (1972)
COASTAL ZONE MANAGEMENT OF 1972
§ 1451. Congressional findings
The Congress finds that—
(a) There is a national interest in the effective management, beneficial
use, protection, and development of the coastal zone;
(b) The coastal zone is rich in a variety of natural, commercial, recrea-
tional, industrial, and esthetic resources of immediate and potential value
to the present and future well-being of the Nation;
(c) The increasing and competing demands upon the lands and waters
of our coastal zone occasioned by population growth and economic develop-
ment, including requirements for industry, commerce, residential develop-
ment, recreation, extraction of mineral resources and fossil fuels, trans-
portation and navigation, waste disposal, and harvesting of fish, shellfish,
and other living marine resources, have resulted in the loss of living
marine resources, wildlife, nutrient-rich areas, permanent and adverse changes
to ecological systems, decreasing open space for public use, and shoreline
erosion;
(d) The coastal zone, and the fish, shellfish, other living marine re-
sources, and wildlife therein, are ecologically fragile and consequently ex-
tremely vulnerable to destruction by man's alterations;
(e) Important ecological, cultural, historic, and esthetic values in the coastal
zone which are essential to the well-being of all citizens are being irretrievably
damaged or lost;
(f) Special natural and scenic characteristics are being damaged by ill-
planned development that threatens these values;
(g) In light of competing demands and the urgent need to protect and
to give high priority to natural systems in the coastal zone, present state
and local institutional arrangements for planning and regulating land and
-------
3078 LEGAL COMPILATION—WATER
water uses in such areas are inadequate; and
(h) The key to more effective protection and use of the land and water
resources of the coastal zone is to encourage the states to exercise their
full authority over the lands and waters in the coastal zone by assisting
the states, in cooperation with Federal and local governments and other
vitally affected interests in developing land and water use programs for
the coastal zone, including unified policies, criteria, standards, methods,
and processes for dealing with land and water use decisions of more
than local significance.
Pub.L. 89-454, Title IH, § 302, as added Pub.L. 92-583, Oct. 27, 1972,
86 Stat. 1280.
§ 1452. Congressional declaration of policy
The Congress finds and declares that it is the national policy (a) to
preserve, protect, develop, and where possible, to restore or enhance, the
resources of the Nation's coastal zone for this and succeeding generations,
(b) to encourage and assist the states to exercise effectively their responsi-
bilities in the coastal zone through the development and implementation
of management programs to achieve wise use of the land and water resources
of the coastal zone giving full consideration to ecological, cultural, historic,
and esthetic values as well as to needs for economic development, (c) for
all Federal agencies engaged in programs affecting the coastal zone to
cooperate and participate with state and local governments and regional
agencies in effectuating the purposes of this chapter, and (d) to encourage
the participation of the public, of Federal, state, and local governments and of
regional agencies in the development of coastal zone management programs.
With respect to implementation of such management programs, it is the
national policy to encourage cooperation among the various state and regional
agencies including establishment of interstate and regional agreements, coop-
erative procedures, and joint action particularly regarding environmental
problems.
Pub.L. 89-454, Title III, § 303, as added Pub.L. 92-583, Oct. 27, 1972, 86
Stat. 1281.
§ 1453. Definitions
For the purposes of this chapter—
(a) "Coastal zone" means the coastal waters (including the lands there-
in and thereunder) and the adjacent shorelands (including the waters therein
and thereunder), strongly influenced by each other and in proximity to
the shorelines of the several coastal states, and includes transitional and
intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in
Great Lakes waters, to the international boundary between the United States
and Canada and, in other areas, seaward to the outer limit of the United
States territorial sea. The zone extends inland from the shorelines only to
the extent necessary to control shorelands, the uses of which have a direct
and significant impact on the coastal waters. Excluded from the coastal
zone are lands the use of which is by law subject solely to the discretion of
or which is held in trust by the Federal Government, its officers or agents.
(b) "Coastal waters" means (1) in the Great Lakes area, the waters
within the territorial jurisdiction of the United States consisting of the Great
Lakes, their connecting waters, harbors, roadsteads, and estuary-type areas
-------
STATUTES AND LEGISLATIVE HISTORY 3079
such as bays, shallows, and marshes and (2) in other areas, those waters,
adjacent to the shorelines, which contain a measurable quantity or percentage
of sea water, including, but not limited to, sounds, bays, lagoons, bayous,
ponds, and estuaries.
(c) "Coastal state" means a state of the United States in, or bordering
on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island
Sound, or one or more of the Great Lakes. For the purposes of this chapter,
the term also includes Puerto Rico, the Virgin Islands, Guam, and American
Samoa.
(d) "Estuary" means that part of a river or stream or other body of water
having unimpaired connection with the open sea, where the sea water is
measurably diluted with fresh water derived from land drainage. The term
includes estuary-type areas of the Great Lakes.
(e) "Estuarine-sanctuary" means a research area which may include any
part or all of an estuary, adjoining transitional areas, and adjacent uplands,
constituting to the extent feasible a natural unit, set aside to provide scientists
and students the opportunity to examine over a period of time the ecological
relationships within the area.
(f) "Secretary" means the Secretary of Commerce.
(g) "Management program" includes, but is not limited to, a comprehensive
statement in words, maps, illustrations, or other media of communication,
prepared and adopted by the state in accordance with the provisions of this
chapter, setting forth objectives, policies, and standards to guide public and
private uses of lands and waters in the coastal zone.
(h) "Water use" means activities which are conducted in or on the water;
but does not mean or include the establishment of any water quality standard
or criteria or the regulation of the discharge or runoff of water pollutants
except the standards, criteria, or regulations which are incorporated in any
program as required by the provisions of section 1456(f) of this title.
(i) "Land use" means activities which are conducted in or on the shore-
lands within the coastal zone, subject to the requirements outlined in section
1456(g) of this title.
Pub.L. 89-454, Title III, § 304, as added Pub.L. 92-583, Oct. 27, 1972, 86
Stat. 1281.
§ 1454. Management development program grants—Authorization
(a) The Secretary is authorized to make annual grants to any coastal state
for the purpose of assisting in the development of a management program
for the land and water resources of its coastal zone.
Program requirements
(b) Such management program shall include:
(1) an identification of the boundaries of the coastal zone subject to
the management program;
(2) a definition of what shall constitute permissible land and water uses
within the coastal zone which have a direct and significant impact on the
coastal waters;
(3) an inventory and designation of areas of particular concern within
the coastal zone;
(4) an identification of the means by which the state proposes to exert
control over the land and water uses referred to in paragraph (2) of this
-------
3080 LEGAL COMPILATION—WATER
subsection, including a listing of relevant constitutional provisions, legis-
lative enactments, regulations, and judicial decisions;
(5) broad guidelines on priority of uses in particular areas, including
specifically those uses of lowest priority;
(6) a description of the organizational structure proposed to implement
the management program, including the responsibilities and interrelation-
ships of local, areawide, state, regional, and interstate agencies in the
management process.
Limits on grants
(c) The grants shall not exceed 66% per centum of the costs of the program
in any one year and no state shall be eligible to receive more than three
annual grants pursuant to this section. Federal funds received from other
sources shall not be used to match such grants. In order to qualify for grants
under this section, the state must reasonably demonstrate to the satisfaction
of the Secretary that such grants will be used to develop a management
program consistent with the requirements set forth in section 1455 of this title.
After making the initial grant to a coastal state, no subsequent grant shall be
made under this section unless the Secretary finds that the state is satisfactorily
developing such management program.
Submission of program for review and approval
(d) Upon completion of the development of the state's management program,
the state shall submit such program to the Secretary for review and approval
pursuant to the provisions of section 1455 of this title, or such other action
as he deems necessary. On final approval of such program by the Secretary,
the state's eligibility for further grants under this section shall terminate, and
the state shall be eligible for grants under section 1455 of this title.
Allocation of grants
(e) Grants under this section shall be allocated to the states based on rules
and regulations promulgated by the Secretary: Provided, however, That no
management program development grant under this section shall be made in
excess of 10 per centum nor less than 1 per centum of the total amount
appropriated to carry out the purposes of this section.
Reversion of unobligated grants
(f) Grants or portions thereof not obligated by a state during the fiscal
year for which they were first authorized to be obligated by the state, or
during the fiscal year immediately following, shall revert to the Secretary,
and shall be added by him to the funds available for grants under this section.
Grants to other political subdivisions
(g) With the approval of the Secretary, the state may allocate to a local
government, to an areawide agency designated under section 3334 of Title 42,
to a regional agency, or to an interstate agency, a portion of the grant under
this section, for the purpose of carrying out the provisions of this section.
Expiration date of grant authority
(h) The authority to make grants under this section shall expire on June
30, 1977.
Pub.L. 89-454, Title III, § 305, as added Pub.L. 92-583, Oct. 27, 1972, 86
Stat. 1282.
-------
STATUTES AND LEGISLATIVE HISTORY 3081
§ 1455. Administrative grants—Authorization
(a) The Secretary is authorized to make annual grants to any coastal state
for not more than 66% per centum of the costs of administering the state's
management program, if he approves such program in accordance with sub-
section (c) of this section. Federal funds received from other sources shall
not be used to pay the state's share of costs.
Allocation of grants
(b) Such grants shall be allocated to the states with approved programs
based on rules and regulations promulgated by the Secretary which shall take
into account the extent and nature of the shoreline and area covered by the
plan, population of the area, and other relevant factors: Provided, however,
That no annual administrative grant under this section shall be made in excess
of 10 per centum nor less than 1 per centum of the total amount appropriated
to carry out the purposes of this section.
Program requirements
(c) Prior to granting approval of a management program submitted by a
coastal state, the Secretary shall find that:
(1) The state has developed and adopted a management program for its coastal
zone in accordance with rules and regulations promulgated by the Secretary,
after notice, and with the opportunity of full participation by relevant Federal
agencies, state agencies, local governments, regional organizations, port authori-
ties, and other interested parties, public and private, which is adequate to
carry out the purposes of this chapter and is consistent with the policy de-
clared in section 1452 of this title.
(2) The state has:
(A) coordinated its program with local, areawide, and interstate plans
applicable to areas within the coastal zone existing on January 1 of the
year in which the state's management program is submitted to the Secretary,
which plans have been developed by a local government, an areawide agency
designated pursuant to regulations established under section 3334 of Title 42,
a regional agency, or an interstate agency; and
(B) established an effective mechanism for continuing consultation and
coordination between the management agency designated pursuant to para-
graph (5) of this subsection and with local governments, interstate agencies,
regional agencies, and areawide agencies within the coastal zone to assure
the full participation of such local governments and agencies in carrying
out the purposes of this chapter.
(3) The state has held public hearings in the development of the management
program.
(4) The management program and any changes thereto have been reviewed
and approved by the Governor.
(5) The Governor of the state has designated a single agency to receive and
administer the grants for implementing the management program required under
paragraph (1) of this subsection.
(6) The state is organized to implement the management program required
under paragraph (1) of this subsection.
(7) The state has the authorities necessary to implement the program, includ-
ing the authority required under subsection (d) of this section.
(8) The management program provides for adequate consideration of the
national interest involved in the siting of facilities necessary to meet require-
-------
3082 LEGAL COMPILATION—WATER
ments which are other than local in nature.
(9) The management program makes provision for procedures whereby spe-
cific areas may be designated for the purpose of preserving or restoring them
for their conservation, recreational, ecological, or esthetic values.
Required authority for management of coastal zone
(d) Prior to granting approval of the management program, the Secretary shall
find that the state, acting through its chosen agency or agencies, including local
governments, areawide agencies designated under section 3334 of Title 42, regional
agencies, or interstate agencies, has authority for the management of the coastal
zone in accordance with the management program. Such authority shall include
power—
(1) to administer land and water use regulations, control development in
order to ensure compliance with the management program, and to resolve
conflicts among competing uses; and
(2) to acquire fee simple and less than fee simple interests in lands, waters,
and other property through condemnation or other means when necessary to
achieve conformance with the management program.
Required findings
(e) Prior to granting approval, the Secretary shall also find that the program
provides:
(1) for any one or a combination of the following general techniques for
control of land and water uses within the coastal zone;
(A) State establishment of criteria and standards for local implemen-
tation, subject to administrative review and enforcement of compliance;
(B) Direct state land and water use planning and regulation; or
(C) State administrative review for consistency with the management
program of all development plans, projects, or land and water use regula-
tions, including exceptions and variances thereto, proposed by any state
or local authority or private developer, with power to approve or dis-
approve after public notice and an opportunity for hearings.
(2) for a method of assuring that local land and water use regulations
within the coastal zone do not unreasonably restrict or exclude land and
water uses of regional benefit.
Allocation to other political subdivisions
(f) With the approval of the Secretary, a state may allocate to a local govern-
ment, an areawide agency designated under section 3334 of Title 42, a regional
agency, or an interstate agency, a portion of the grant under this section for the
purpose of carrying out the provisions of this section: Provided, That such allo-
cation shall not relieve the state of the responsibility for ensuring that any funds
so allocated are applied in furtherance of such state's approved management
program.
Program modification
(g) The state shall be authorized to amend the management program. The
modification shall be in accordance with the procedures required under sub-
section (c) of this section. Any amendment or modification of the program must
be approved by the Secretary before additional administrative grants are made
to the state under the program as amended.
Segmental development
(h) At the discretion of the state and with the approval of the Secretary, a
-------
STATUTES AND LEGISLATIVE HISTORY 3083
management program may be developed and adopted in segments so that imme-
diate attention may be devoted to those areas within the coastal zone which
most urgently need management programs: Provided, That the state adequately
provides for the ultimate coordination of the various segments of the manage-
ment program into a single unified program and that the unified program will be
completed as soon as is reasonably practicable.
Pub.L. 89-454, Title III, § 306, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1283.
§ 1456. Interagency coordination and cooperation—Federal agencies
(a) In carrying out his functions and responsibilities under this chapter, the
Secretary shall consult with, cooperate with, and, to the maximum extent prac-
ticable, coordinate his activities with other interested Federal agencies.
Adequate consideration of views of Federal agencies;
mediation of disagreements
(b) The Secretary shall not approve the management program submitted by a
state pursuant to section 1455 of this title unless the views of Federal agencies
principally affected by such program have been adequately considered. In case of
serious disagreement between any Federal agency and the state in the develop-
ment of the program the Secretary, in cooperation with the Executive Office of
the President, shall seek to mediate the differences.
Consistency of Federal activities with state management
programs; certification
(c) (1) Each federal agency conducting or supporting activities directly affect-
ing the coastal zone shall conduct or support those activities in a manner which
is, to the maximum extent practicable, consistent with approved state manage-
ment programs.
(2) Any Federal agency which shall undertake any development project in
the coastal zone of a state shall insure that the project is, to the maximum ex-
tent practicable, consistent with approved state management programs.
(3) After final approval by the Secretary of a state's management program,
any applicant for a required Federal license or permit to conduct an activity
affecting land or water uses in the coastal zone of that state shall provide in the
application to the licensing or permitting agency a certification that the proposed
activity complies with the state's approved program and that such activity will
be conducted in a manner consistent with the program. At the same time, the
applicant shall furnish to the state or its designated agency a copy of the certi-
fication, with all necessary information and data. Each coastal state shall estab-
lish procedures for public notice in the case of all such certifications and, to
the extent it deems appropriate, procedures for public hearings in connection
therewith. At the earliest practicable time, the state or its designated agency
shall notify the Federal agency concerned that the state concurs with or objects
to the applicant's certification. If the state or its designated agency fails to fur-
nish the required notification within six months after receipt of its copy of the
applicant's certification, the state's concurrence with the certification shall be
conclusively presumed. No license or permit shall be granted by the Federal
agency until the state or its designated agency has concurred with the applicant's
certification or until, by the state's failure to act, the concurrence is conclusively
presumed, unless the Secretary, on his own initiative or upon appeal by the
applicant, finds, after providing a reasonable opportunity for detailed comments
from the Federal agency involved and from the state, that the activity is con-
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3084 LEGAL COMPILATION—WATER
sistent with the objectives of this chapter or is otherwise necessary in the inter-
est of national security.
Applications of local governments for Federal assistance; relationship
of activities with approved management programs
(d) State and local governments submitting applications for Federal assistance
under other Federal programs affecting the coastal zone shall indicate the views
of the appropriate state or local agency as to the relationship of such activities
to the approved management program for the coastal zone. Such applications
shall be submitted and coordinated in accordance with the provisions of title
IV of the Intergovernmental Coordination Act of 1968. Federal agencies shall
not approve proposed projects that are inconsistent with a coastal state's man-
agement program, except upon a finding by the Secretary that such project is
consistent with the purposes of this chapter or necessary in the interest of
national security.
Construction with other laws
(e) Nothing in this chapter shall be construed—
(1) to diminish either Federal or state jurisdiction, responsibility, or rights
in the field of planning, development, or control of water resources, sub-
merged lands, or navigable waters; nor to displace, supersede, limit, or modify
any interstate compact or the jurisdiction or responsibility of any legally
established joint or common agency of two or more states or of two or more
states and the Federal Government; nor to limit the authority of Congress
to authorize and fund projects;
(2) as superseding, modifying, or repealing existing laws applicable to the
various Federal agencies; nor to affect the jurisdiction, powers, or preroga-
tives of the International Joint Commission, United States and Canada, the
Permanent Engineering Board, and the United States operating entity or en-
tities established pursuant to the Columbia River Basin Treaty, signed at
Washington, January 17, 1961, or the International Boundary and Water
Commission, United States and Mexico.
Construction with existing requirements of water and
air pollution programs
(f) Notwithstanding any other provision of this chapter, nothing in this chap-
ter shall in any way affect any requirement (1) established by the Federal
Water Pollution Control Act, as amended, or the Clean Air Act, as amended, or
(2) established by the Federal Government or by any state or local government
pursuant to such Acts. Such requirements shall be incorporated in any program
developed pursuant to this chapter and shall be the water pollution control
and air pollution control requirements applicable to such program.
Concurrence with programs which affect inland areas
(g) When any state's coastal zone management program, submitted for approval
or proposed for modification pursuant to section 1455 of this title, includes re-
quirements as to shorelands which also would be subject to any Federally sup-
ported national land use program which may be hereafter enacted, the Secretary,
prior to approving such program, shall obtain the concurrence of the Secretary
of the Interior, or such other Federal official as may be designated to administer
the national land use program, with respect to that portion of the coastal zone
management program affecting such inland areas.
Pub.L. 89-454, Title HI, § 307, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1285.
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STATUTES AND LEGISLATIVE HISTORY 3085
§ 1457. Public hearings
All public hearings required under this chapter must be announced at least
thirty days prior to the hearing date. At the time of the announcement, all
agency materials pertinent to the hearings, including documents, studies, and
other data, must be made available to the public for review and study. As
similar materials are subsequently developed, they shall be made available to the
public as they become available to the agency.
Pub.L. 89-454, Title III, § 308, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1287.
§ 1458. Review of performance; termination of financial assistance
(a) The Secretary shall conduct a continuing review of the management
programs of the coastal states and of the performance of each state.
(b) The Secretary shall have the authority to terminate any financial assist-
ance extended under section 1455 of this title and to withdraw any unexpended
portion of such assistance if (1) he determines that the state is failing to adhere
to and is not justified in deviating from the program approved by the Secretary;
and (2) the state had been given notice of the proposed termination and with-
drawal and given an opportunity to present evidence of adherence or justifica-
tion for altering its program.
Pub.L. 89-454, Title III, § 309, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1287.
§ 1459. Records and audit
(a) Each recipient of a grant under this chapter shall keep such records as
the Secretary shall prescribe, including records which fully disclose the amount
and disposition of the funds received under the grant, the total cost of the project
or undertaking supplied by other sources, and such other records as will facili-
tate an effective audit.
(b) The Secretary and the Comptroller General of the United States, or any
of their duly authorized representatives, shall have access for the purpose of
audit and examination to any books, documents, papers, and records of the re-
cipient of the grant that are pertinent to the determination that funds granted
are used in accordance with this chapter.
Pub.L. 89-454, Title III, § 310, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1287.
§ 1460. Coastal Zone Management Advisory Committee
(a) The Secretary is authorized and directed to establish a Coastal Zone
Management Advisory Committee to advise, consult with, and make recommen-
dations to the Secretary on matters of policy concerning the coastal zone. Such
committee shall be composed of not more than fifteen persons designated by the
Secretary and shall perform such functions and operate in such a manner as the
Secretary may direct. The Secretary shall insure that the committee member-
ship as a group possesses a broad range of experience and knowledge relating
to problems involving management, use, conservation, protection, and develop-
ment of coastal zone resources.
(b) Members of the committee who are not regular full-time employees of the
United States, while serving on the business of the committee, including travel-
time, may receive compensation at rates not exceeding $100 per diem; and while
so serving away from their homes or regular places of business may be allowed
travel expenses, including per diem in lieu of subsistence, as authorized by section
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3086 LEGAL COMPILATION—WATER
5703 of Title 5, for individuals in the Government service employed intermittently.
Pub.L. 89-454, Title III, § 311, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1287.
§ 1461. Estuarine sanctuaries
The Secretary, in accordance with rules and regulations promulgated by him,
is authorized to make available to a coastal state grants of up to 50 per centum
of the costs of acquisition, development, and operation of estuarine sanctuaries
for the purpose of creating natural field laboratories to gather data and make
studies of the natural and human processes occurring within the estuaries of the
coastal zone. The Federal share of the cost for each such sanctuary shall not
exceed $2,000,000. No Federal funds received pursuant to section 1454 or 1455
of this title shall be used for the purpose of this section.
Pub.L. 89-454, Title III, § 312, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1288.
§ 1462. Annual report
(a) The Secretary shall prepare and submit to the President for transmittal to
the Congress not later than November 1 of each year a report on the administra-
tion of this chapter for the preceding fiscal year. The report shall include but
not be restricted to (1) an identification of the state programs approved pursuant
to this chapter during the preceding Federal fiscal year and a description of those
programs; (2) a listing of the states participating in the provisions of this chapter
and a description of the status of each state's programs and its accomplishments
during the preceding Federal fiscal year; (3) an itemization of the allocation of
funds to the various coastal states and a breakdown of the major projects and
areas on which these funds were expended; (4) an identification of any state
programs which have been reviewed and disapproved or with respect to which
grants have been terminated under this chapter, and a statement of the reasons
for such action; (5) a listing of all activities and projects which, pursuant to the
provisions of subsection (c) or subsection (d) of section 1456 of this title, are not
consistent with an applicable approved state management program; (6) a sum-
mary of the regulations issued by the Secretary or in effect during the preceding
Federal fiscal year; (7) a summary of a coordinated national strategy and pro-
gram for the Nation's coastal zone including identification and discussion of
Federal, regional, state, and local responsibilities and functions therein; (8) a
summary of outstanding problems arising in the administration of this chapter in
order of priority; and (9) such other information as may be appropriate.
(b) The report required by subsection (a) of this section shall contain such
recommendations for additional legislation as the Secretary deems necessary to
achieve the objectives of this chapter and enhance its effective operation.
Pub.L. 89-454, Title III, § 313, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1288.
§ 1463. Rules and regulations
The Secretary shall develop and promulgate, pursuant to section 553 of Title 5,
after notice and opportunity for full participation by relevant Federal agencies,
state agencies, local governments, regional organizations, port authorities, and
other interested parties, both public and private, such rules and regulations as
may be necessary to carry out the provisions of this chapter.
Pub.L. 89-454, Title III, § 314, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1288.
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STATUTES AND LEGISLATIVE HISTORY 3087
§ 1464. Authorization of appropriations
(a) There are authorized to be appropriated—
(1) the sum of $9,000,000 for the fiscal year ending June 30, 1973, and for
each of the fiscal years 1974 through 1977 for grants under section 1454 of this
title, to remain available until expended;
(2) such sums, not to exceed $30,000,000, for the fiscal year ending June 30,
1974, and for each of the fiscal years 1975 through 1977, as may be necessary,
for grants under section 1455 of this title to remain available until expended;
and
(3) such sums, not to exceed $6,000,000 for the fiscal year ending June 30,
1974, as may be necessary, for grants under section 1461 of this title, to remain
available until expended.
(b) There are also authorized to be appropriated such sums, not to exceed
$3,000,000, for fiscal year 1973 and for each of the four succeeding fiscal years,
as may be necessary for administrative expenses incident to the administration
of this chapter.
Pub.L. 89-454, Title III, § 315, as added Pub.L. 92-583, Oct. 27, 1972, 86 Stat. 1289.
1.33a MARINE RESOURCES AND ENGINEERING
DEVELOPMENT ACT OF 1966. AMENDMENTS
October 27, 1972, P. L. 92-583, § 307(3)(f), 86 Stat. 1286.
AN ACT
To establish a national policy and develop a national program for the manage-
ment, beneficial use, protection, and development of the land and water resources
of the Nation's coastal zones, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the Act entitled
"An Act to provide for a comprehensive, long-range, and coordinated
national program in marine science, to establish a National Council on
Marine Resources and Engineering Development, and a Commission
on Marine Science, Engineering and Resources, and for other pur-
poses", approved June 17, 1966 (80 Stat. 203), as amended (33 U.S.C.
1101-1124), is further amended by adding at the end thereof the fol-
lowing new title:
TITLE HI—MANAGEMENT OF THE COASTAL ZONE
SHORT TITLE
SEC. 301. This title may be cited as the "Coastal Zone Management
Act of 1972".
CONGRESSIONAL FINDINGS
SEC. 302. The Congress finds that—
(a) There is a national interest in the effective management, bene-
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3088 LEGAL COMPILATION—WATER
ficial use, protection, and development of the coastal zone;
(b) The coastal zone is rich in a variety of natural, commercial, rec-
reational, industrial, and esthetic resources of immediate and potential
value to the present and future well-being of the Nation;
(c) The increasing and competing demands upon the lands and
waters of our coastal zone occasioned by population growth and eco-
nomic development, including requirements for industry, commerce,
residential development, recreation, extraction of mineral resources
and fossil fuels, transportation and navigation, waste disposal, and har-
vesting of fish, shellfish, and other living marine resources, have
resulted in the loss of living marine resources, wildlife, nutrient-rich
areas, permanent and adverse changes to ecological systems, decreas-
ing open space for public use, and shoreline erosion;
(d) The coastal zone, and the fish, shellfish, other living marine
resources, and wildlife therein, are ecologically fragile and conse-
quently extremely vulnerable to destruction by man's alterations;
(e) Important ecological, cultural, historic, and esthetic values in
the coastal zone which are essential to the well-being of all citizens are
being irretrievably damaged or lost;
(f) Special natural and scenic characteristics are being damaged
by ill-planned development that threatens these values;
(g) In light of competing demands and the urgent need to protect
and to give high priority to natural systems in the coastal zone, pres-
ent state and local institutional arrangements for planning and regu-
lating land and water uses in such areas are inadequate; and
(h) The key to more effective protection and use of the land and
water resources of the coastal zone is to encourage the states to exer-
cise their full authority over the lands and waters in the coastal zone
by assisting the states, in cooperation with Federal and local govern-
ments and other vitally affected interests, in developing land and
water use programs for the coastal zone, including unified policies,
criteria, standards, methods, and processes for dealing with land and
water use decisions of more than local significance.
DECLARATION OF POLICY
SEC. 303. The Congress finds and declares that it is the national
policy (a) to preserve, protect, develop, and where possible, to restore
or enhance, the resources of the Nation's coastal zone for this and
succeeding generations, (b) to encourage and assist the states to exer-
cise effectively their responsibilities in the coastal zone through the
development and implementation of management programs to achieve
wise use of the land and water resources of the coastal zone giving
full consideration to ecological, cultural, historic, and esthetic values
as well as to needs for economic development, (c) for all Federal
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STATUTES AND LEGISLATIVE HISTORY 3089
agencies engaged in programs affecting the coastal zone to cooperate
and participate with state and local governments and regional agencies
in effectuating the purposes of this title, and (d) to encourage the par-
ticipation of the public, of Federal, state, and local governments and
of regional agencies in the development of coastal zone management
programs. With respect to implementation of such management pro-
grams, it is the national policy to encourage cooperation among the
various state and regional agencies including establishment of inter-
state and regional agreements, cooperative procedures, and joint
action particularly regarding environmental problems.
DEFINITIONS
SEC. 304. For the purposes of this title—
(a) "Coastal zone" means the coastal waters (including the lands
therein and thereunder) and the adjacent shorelands (including the
waters therein and thereunder), strongly influenced by each other and
in proximity to the shorelines of the several coastal states, and includes
transitional and intertidal areas, salt marshes, wetlands, and beaches.
The zone extends, in Great Lakes waters, to the international bound-
ary between the United States and Canada and, in other areas, sea-
ward to the outer limit of the United States territorial sea. The zone
extends inland from the shorelines only to the extent necessary to
control shorelands, the uses of which have a direct and significant
impact on the coastal waters. Excluded from the coastal zone are
lands the use of which is by law subject solely to the discretion of or
which is held in trust by the Federal Government, its officers or
agents.
(b) "Coastal waters" means (1) in the Great Lakes area, the
waters within the territorial jurisdiction of the United States consist-
ing of the Great Lakes, their connecting waters, harbors, roadsteads,
and estuary-type areas such as bays, shallows, and marshes and (2) in
other areas, those waters, adjacent to the shorelines, which contain a
measurable quantity or percentage of sea water, including, but not
limited to, sounds, bays, lagoons, bayous, ponds, and estuaries.
(c) "Coastal state" means a state of the United States in, or bor-
dering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico,
Long Island Sound, or one or more of the Great Lakes. For the pur-
poses of this title, the term also includes Puerto Rico, the Virgin
Islands, Guam, and American Samoa.
(d) "Estuary" means that part of a river or stream or other body
of water having unimpaired connection with the open sea, where the
sea water is measurably diluted with fresh water derived from land
drainage. The term includes estuary-type areas of the Great Lakes.
(e) "Estuarine sanctuary" means a research area which may in-
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3090 LEGAL COMPILATION—WATER
elude any part or all of an estuary, adjoining transitional areas, and
adjacent uplands, constituting to the extent feasible a natural unit, set
aside to provide scientists and students the opportunity to examine
over a period of time the ecological relationships within the area.
(f) "Secretary" means the Secretary of Commerce.
(g) "Management program" includes, but is not limited to, a com-
prehensive statement in words, maps, illustrations, or other media of
communication, prepared and adopted by the state in accordance with
the provisions of this title, setting forth objectives, policies, and stand-
ards to guide public and private uses of lands and waters in the coastal
zone.
(h) "Water use" means activities which are conducted in or on the
water; but does not mean or include the establishment of any water
quality standard or criteria or the regulation of the discharge or runoff
of water pollutants except the standards, criteria, or regulations which
are incorporated in any program as required by the provisions of
section 307 (f).
(i) "Land use" means activities which are conducted in or on the
shorelands within the coastal zone, subject to the requirements out-
lined in section 307 (g).
MANAGEMENT PROGRAM DEVELOPMENT GRANTS
SEC. 305. (a) The Secretary is authorized to make annual grants to
any coastal state for the purpose of assisting in the development of a
management program for the land and water resources of its coastal
zone.
(b) Such management program shall include:
(1) an identification of the boundaries of the coastal zone sub-
ject to the management program;
(2) a definition of what shall constitute permissible land and
water uses within the coastal zone which have a direct and signifi-
cant impact on the coastal waters;
(3) an inventory and designation of areas of particular con-
cern within the coastal zone;
(4) an identification of the means by which the state proposes
to exert control over the land and water uses referred to in para-
graph (2) of this subsection, including a listing of relevant con-
stitutional provisions, legislative enactments, regulations, and
judicial decisions;
(5) broad guidelines on priority of uses in particular areas,
including specifically those uses of lowest priority;
(6) a description of the organizational structure proposed to
implement the management program, including the responsibili-
ties and interrelationships of local, areawide, state, regional, and
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STATUTES AND LEGISLATIVE HISTORY 3091
interstate agencies in the management process.
(c) The grants shall not exceed 66% per centum of the costs of the
program in any one year and no state shall be eligible to receive more
than three annual grants pursuant to this section. Federal funds
received from other sources shall not be used to match such grants. In
order to qualify for grants under this section, the state must reason-
ably demonstrate to the satisfaction of the Secretary that such grants
will be used to develop a management program consistent with the
requirements set forth in section 306 of this title. After making the
initial grant to a coastal state, no subsequent grant shall be made
under this section unless the Secretary finds that the state is satis-
factorily developing such management program.
(d) Upon completion of the development of the state's management
program, the state shall submit such program to the Secretary for
review and approval pursuant to the provisions of section 306 of this
title, or such other action as he deems necessary. On final approval
of such program by the Secretary, the state's eligibility for further
grants under this section shall terminate, and the state shall be eligible
for grants under section 306 of this title.
(e) Grants under this section shall be allocated to the states based
on rules and regulations promulgated by the Secretary: Provided,
however, That no management program development grant under this
section shall be made in excess of 10 per centum nor less than 1 per
centum of the total amount appropriated to carry out the purposes of
this section.
(f) Grants or portions thereof not obligated by a state during the
fiscal year for which they were first authorized to be obligated by the
state, or during the fiscal year immediately following, shall revert to
the Secretary, and shall be added by him to the funds available for
grants under this section.
(g) With the approval of the Secretary, the state may allocate to a
local government, to an areawide agency designated under section 204
of the Demonstration Cities and Metropolitan Development Act of
1966, to a regional agency, or to an interstate agency, a portion of the
grant under this section, for the purpose of carrying out the provi-
sions of this section.
(h) The authority to make grants under this section shall expire on
June 30,1977.
ADMINISTRATIVE GRANTS
SEC. 306. (a) The Secretary is authorized to make annual grants to
any coastal state for not more than 66% per centum of the costs of
administering the state's management program, if he approves such
program in accordance with subsection (c) hereof. Federal funds
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3092 LEGAL COMPILATION—WATER
received from other sources shall not be used to pay the state's share
of costs.
(b) Such grants shall be allocated to the states with approved pro-
grams based on rules and regulations promulgated by the Secretary
which shall take into account the extent and nature of the shoreline
and area covered by the plan, population of the area, and other rele-
vant factors: Provided, however, That no annual administrative grant
under this section shall be made in excess of 10 per centum nor less
than 1 per centum of the total amount appropriated to carry out the
purposes of this section.
(c) Prior to granting approval of a management program submitted
by a coastal state, the Secretary shall find that:
(1) The state has developed and adopted a management program
for its coastal zone in accordance with rules and regulations promul-
gated by the Secretary, after notice, and with the opportunity of full
participation by relevant Federal agencies, state agencies, local gov-
ernments, regional organizations, port authorities, and other interested
parties, public and private, which is adequate to carry out the pur-
poses of this title and is consistent with the policy declared in section
303 of this title.
(2) The state has:
(A) coordinated its program with local, areawide, and inter-
state plans applicable to areas within the coastal zone existing on
January 1 of the year in which the state's management program
is submitted to the Secretary, which plans have been developed
by a local government, an areawide agency designated pursuant
to regulations established under section 204 of the Demonstration
Cities and Metropolitan Development Act of 1966, a regional
agency, or an interstate agency; and
(B) established an effective mechanism for continuing con-
sultation and coordination between the management agency desig-
nated pursuant to paragraph (5) of this subsection and with local
governments, interstate agencies, regional agencies, and areawide
agencies within the coastal zone to assure the full participation
of such local governments and agencies in carrying out the pur-
poses of this title.
(3) The state has held public hearings in the development of the
management program.
(4) The management program and any changes thereto have been
reviewed and approved by the Governor.
(5) The Governor of the state has designated a single agency to
receive and administer the grants for implementing the management
program required under paragraph (1) of this subsection.
(6) The state is organized to implement the management program
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STATUTES AND LEGISLATIVE HISTORY 3093
required under paragraph (1) of this subsection.
(7) The state has the authorities necessary to implement the pro-
gram, including the authority required under subsection (d) of this
section.
(8) The management program provides for adequate consideration
of the national interest involved in the siting of facilities necessary
to meet requirements which are other than local in nature.
(9) The management program makes provision for procedures
whereby specific areas may be designated for the purpose of preserv-
ing or restoring them for their conservation, recreational, ecological,
or esthetic values.
(d) Prior to granting approval of the management program, the
Secretary shall find that the state, acting through its chosen agency or
agencies, including local governments, areawide agencies designated
under section 204 of the Demonstration Cities and Metropolitan
Development Act of 1966, regional agencies, or interstate agencies, has
authority for the management of the coastal zone in accordance with
the management program. Such authority shall include power—
(1) to administer land and water use regulations, control devel-
opment in order to ensure compliance with the management pro-
gram, and to resolve conflicts among competing uses; and
(2) to acquire fee simple and less than fee simple interests in
lands, waters, and other property through condemnation or other
means when necessary to achieve conformance with the manage-
ment program.
(e) Prior to granting approval, the Secretary shall also find that
the program provides:
(1) for any one or a combination of the following general tech-
niques for control of land and water uses within the coastal zone;
(A) State establishment of criteria and standards for local
implementation, subject to administrative review and enforce-
ment of compliance;
(B) Direct state land and water use planning and regula-
tion; or
(C) State administrative review for consistency with the
management program of all development plans, projects, or
land and water use regulations, including exceptions and
variances thereto, proposed by any state or local authority or
private developer, with power to approve or disapprove after
public notice and an opportunity for hearings.
(2) for a method of assuring that local land and water use
regulations within the coastal zone do not unreasonably restrict
or exclude land and water uses of regional benefit.
(f) With the approval of the Secretary, a state may allocate to a
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3094 LEGAL COMPILATION—WATER
local government, an areawide agency designated under section 204
of the Demonstration Cities and Metropolitan Development Act of
1966, a regional agency, or an interstate agency, a portion of the grant
under this section for the purpose of carrying out the provisions of this
section: Provided, That such allocation shall not relieve the state of
the responsibility for ensuring that any funds so allocated are applied
in furtherance of such state's approved management program.
(g) The state shall be authorized to amend the management pro-
gram. The modification shall be in accordance with the procedures
required under subsection (c) of this section. Any amendment or
modification of the program must be approved by the Secretary before
additional administrative grants are made to the state under the pro-
gram as amended.
(h) At the discretion of the state and with the approval of the
Secretary, a management program may be developed and adopted in
segments so that immediate attention may be devoted to those areas
within the coastal zone which most urgently need management pro-
grams: Provided, That the state adequately provides for the ultimate
coordination of the various segments of the management program into
a single unified program and that the unified program will be com-
pleted as soon as is reasonably practicable.
INTERAGENCY COORDINATION AND COOPERATION
SEC. 307. (a) In carrying out his functions and responsibilities
under this title, the Secretary shall consult with, cooperate with, and,
to the maximum extent practicable, coordinate his activities with
other interested Federal agencies.
(b) The Secretary shall not approve the management program sub-
mitted by a state pursuant to section 306 unless the views of Federal
agencies principally affected by such program have been adequately
considered. In case of serious disagreement between any Federal
agency and the state in the development of the program the Secre-
tary, in cooperation with the Executive Office of the President, shall
seek to mediate the differences.
(c) (1) Each Federal agency conducting or supporting activities
directly affecting the coastal zone shall conduct or support those
activities in a manner which is, to the maximum extent practicable,
consistent with approved state management programs.
(2) Any Federal agency which shall undertake any development
project in the coastal zone of a state shall insure that the project is,
to the maximum extent practicable, consistent with approved state
management programs.
(3) After final approval by the Secretary of a state's management
program, any applicant for a required Federal license or permit to
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STATUTES AND LEGISLATIVE HISTORY 3095
conduct an activity affecting land or water uses in the coastal zone of
that state shall provide in the application to the licensing or permit-
ting agency a certification that the proposed activity complies with
the state's approved program and that such activity will be conducted
in a manner consistent with the program. At the same time, the appli-
cant shall furnish to the state or its designated agency a copy of
the certification, with all necessary information and data. Each coastal
state shall establish procedures for public notice in the case of all such
certifications and, to the extent it deems appropriate, procedures for
public hearings in connection therewith. At the earliest practicable
time, the state or its designated agency shall notify the Federal agency
concerned that the state concurs with or objects to the applicant's
certification. If the state or its designated agency fails to furnish the
required notification within six months after receipt of its copy of the
applicant's certification, the state's concurrence with the certification
shall be conclusively presumed. No license or permit shall be granted
by the Federal agency until the state or its designated agency has con-
curred with the applicant's certification or until, by the state's failure
to act, the concurrence is conclusively presumed, unless the Secretary,
on his own initiative or upon appeal by the applicant, finds, after pro-
viding a reasonable opportunity for detailed comments from the Fed-
eral agency involved and from the state, that the activity is consistent
with the objectives of this title or is otherwise necessary in the interest
of national security.
(d) State and local governments submitting applications for Fed-
eral assistance under other Federal programs affecting the coastal zone
shall indicate the views of the appropriate state or local agency as to
the relationship of such activities to the approved management pro-
gram for the coastal zone. Such applications shall be submitted and
coordinated in accordance with the provisions of title IV of the Inter-
governmental Coordination Act of 1968 (82 Stat. 1098). Federal
agencies shall not approve proposed projects that are inconsistent with
a coastal state's management program, except upon a finding by the
Secretary that such project is consistent with the purposes of this title
or necessary in the interest of national security.
(e) Nothing in this title shall be construed—
(1) to diminish either Federal or state jurisdiction, responsi-
bility, or rights in the field of planning, development, or control
of water resources, submerged lands, or navigable waters; nor to
displace, supersede, limit, or modify any interstate compact or the
jurisdiction or responsibility of any legally established joint or
common agency of two or more states or of two or more states and
the Federal Government; nor to limit the authority of Congress
to authorize and fund projects;
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3096 LEGAL COMPILATION—WATER
(2) as superseding, modifying, or repealing existing laws appli-
cable to the various Federal agencies; nor to affect the jurisdic-
tion, powers, or prerogatives of the International Joint Commis-
sion, United States and Canada, the Permanent Engineering
Board, and the United States operating entity or entities estab-
lished pursuant to the Columbia River Basin Treaty, signed at
Washington, January 17, 1961, or the International Boundary
and Water Commission, United States and Mexico.
(f) Notwithstanding any other provision of this title, nothing in this
title shall in any way affect any requirement (1) established by the
Federal Water Pollution Control Act, as amended, or the Clean Air
Act, as amended, or (2) established by the Federal Government or by
any state or local government pursuant to such Acts. Such require-
ments shall be incorporated in any program developed pursuant to
this title and shall be the water pollution control and air pollution
control requirements applicable to such program.
(g) When any state's coastal zone management program, submitted
for approval or proposed for modification pursuant to section 306 of
this title, includes requirements as to shorelands which also would be
subject to any Federally supported national land use program which
may be hereafter enacted, the Secretary, prior to approving such pro-
gram, shall obtain the concurrence of the Secretary of the Interior, or
such other Federal official as may be designated to administer the
national land use program, with respect to that portion of the coastal
zone management program affecting such inland areas.
PUBLIC HEARINGS
SEC. 308. All public hearings required under this title must be
announced at least thirty days prior to the hearing date. At the time
of the announcement, all agency materials pertinent to the hearings,
including documents, studies, and other data, must be made available
to the public for review and study. As similar materials are subse-
quently developed, they shall be made available to the public as they
become available to the agency.
REVIEW OF PERFORMANCE
SEC. 309. (a) The Secretary shall conduct a continuing review of
the management programs of the coastal states and of the performance
of each state.
(b) The Secretary shall have the authority to terminate any finan-
cial assistance extended under section 306 and to withdraw any
unexpended portion of such assistance if (1) he determines that the
state is failing to adhere to and is not justified in deviating from the
program approved by the Secretary; and (2) the state has been given
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STATUTES AND LEGISLATIVE HISTORY 3097
notice of the proposed termination and withdrawal and given an
opportunity to present evidence of adherence or justification for alter-
ing its program.
RECORDS
SEC. 310. (a) Each recipient of a grant under this title shall keep
such records as the Secretary shall prescribe, including records which
fully disclose the amount and disposition of the funds received under
the grant, the total cost of the project or undertaking supplied by
other sources, and such other records as will facilitate an effective
audit.
(b) The Secretary and the Comptroller General of the United
States, or any of their duly authorized representatives, shall have
access for the purpose of audit and examination to any books, docu-
ments, papers, and records of the recipient of the grant that are perti-
nent to the determination that funds granted are used in accordance
with this title.
ADVISORY COMMITTEE
SEC. 311. (a) The Secretary is authorized and directed to establish
a Coastal Zone Management Advisory Committee to advise, consult
with, and make recommendations to the Secretary on matters of policy
concerning the coastal zone. Such committee shall be composed of not
more than fifteen persons designated by the Secretary and shall per-
form such functions and operate in such a manner as the Secretary
may direct. The Secretary shall insure that the committee member-
ship as a group possesses a broad range of experience and knowledge
relating to problems involving management, use, conservation, pro-
tection, and development of coastal zone resources.
(b) Members of the committee who are not regular full-time
employees of the United States, while serving on the business of the
committee, including traveltime, may receive compensation at rates
not exceeding $100 per diem; and while so serving away from their
homes or regular places of business may be allowed travel expenses,
including per diem in lieu of subsistence, as authorized by section
5703 of title 5, United States Code, for individuals in the Govern-
ment service employed intermittently.
ESTTJARINE SANCTUARIES
SEC. 312. The Secretary, in accordance with rules and regulations
promulgated by him, is authorized to make available to a coastal state
grants of up to 50 per centum of the costs of acquisition, development,
and operation of estuarine sanctuaries for the purpose of creating
natural field laboratories to gather data and make studies of the
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3098 LEGAL COMPILATION—WATER
natural and human processes occurring within the estuaries of the
coastal zone. The Federal share of the cost of each such sanctuary
shall not exceed $2,000,000. No Federal funds received pursuant to
section 305 or section 306 shall be used for the purpose of this section.
ANNUAL REPORT
SEC. 313. (a) The Secretary shall prepare and submit to the Presi-
dent for transmittal to the Congress not later than November 1 of each
year a report on the administration of this title for the preceding fiscal
year. The report shall include but not be restricted to (1) an identifi-
cation of the state programs approved pursuant to this title during
the preceding Federal fiscal year and a description of those programs;
(2) a listing of the states participating in the provisions of this title
and a description of the status of each state's programs and its accom-
plishments during the preceding Federal fiscal year; (3) an itemiza-
tion of the allocation of funds to the various coastal states and a
breakdown of the major projects and areas on which these funds were
expended; (4) an identification of any state programs which have been
reviewed and disapproved or with respect to which grants have been
terminated under this title, and a statement of the reasons for such
action; (5) a listing of all activities and projects which, pursuant to
the provisions of subsection (c) or subsection (d) of section 307, are
not consistent with an applicable approved state management pro-
gram; (6) a summary of the regulations issued by the Secretary or in
effect during the preceding Federal fiscal year; (7) a summary of a
coordinated national strategy and program for the Nation's coastal
zone including identification and discussion of Federal, regional, state,
and local responsibilities and functions therein; (8) a summary of
outstanding problems arising in the administration of this title in
order of priority; and (9) such other information as may be appro-
priate.
(b) The report required by subsection (a) shall contain such
recommendations for additional legislation as the Secretary deems
necessary to achieve the objectives of this title and enhance its effec-
tive operation.
RULES AND REGULATIONS
SEC. 314. The Secretary shall develop and promulgate, pursuant
to section 553 of title 5, United States Code, after notice and oppor-
tunity for full participation by relevant Federal agencies, state
agencies, local governments, regional organizations, port authorities,
and other interested parties, both public and private, such rules and
regulations as may be necessary to carry out the provisions of this
title.
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STATUTES AND LEGISLATIVE HISTORY 3099
AUTHORIZATION OF APPROPRIATIONS
SEC. 315. (a) There are authorized to be appropriated—
(1) the sum of $9,000,000 for the fiscal year ending June 30,
1973, and for each of the fiscal years 1974 through 1977 for grants
under section 305, to remain available until expended;
(2) such sums, not to exceed $30,000,000, for the fiscal year
ending June 30,1974, and for each of the fiscal years 1975 through
1977, as may be necessary, for grants under section 306 to remain
available until expended; and
(3) such sums, not to exceed $6,000,000 for the fiscal year end-
ing June 30, 1974, as may be necessary, for grants under section
312, to remain available until expended.
(b) There are also authorized to be appropriated such sums, not to
exceed $3,000,000, for fiscal year 1973 and for each of the four succeed-
ing fiscal years, as may be necessary for administrative expenses
incident to the administration of this title.
Approved October 27,1972.
1.33a(l) SENATE COMMITTEE ON COMMERCE
S. REP. No. 92-753, 92d Cong., 2d Sess. (1972)
NATIONAL COASTAL ZONE MANAGEMENT ACT OF 1972
APRIL 19, 1972.—Ordered to be printed
Mr. ROLLINGS, from the Committee on Commerce,
submitted the following
REPORT
Together with
INDIVIDUAL VIEWS
[To accompany S. 3507]
The Committee on Commerce, having considered various bills to
establish a national policy and develop a national program for the
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3100 LEGAL COMPILATION—WATER
management, beneficial use, protection, and development of the land
and water resources of the Nation's coastal zone, and for other pur-
poses, reports favorably on original bill and recommends that the
bill (S. 3507) do pass.
PURPOSE
S. 3507 has as its main purpose the encouragement and assistance
of States in preparing and implementing management programs to
preserve, protect, develop and whenever possible restore the resources
of the coastal zone of the United States. The bill authorizes Fed-
eral grants-in-aid to coastal states to develop coastal zone manage-
ment programs. Additionally, it authorizes grants to help coastal
states implement these management programs once approved, and
States would be aided in the acquisition and operation of estuarine
sanctuaries. Through the system of providing grants-in-aid, the
States are provided financial incentives to undertake the responsi-
bility for setting up management programs in the coastal zone.
There is no attempt to diminish state authority through federal
preemption. The intent of this legislation is to enhance state author-
ity by encouraging and assisting the states to assume planning and
regulatory powers over their coastal zones.
[P. 1]
ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF THE ADMINISTRATOR,
Washington, D.C., June 1,1971.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: This is in response to your request for our
agency's comments on S. 582 and S. 638, bills to provide for a national
program of assistance to the States in coastal zone management
programs.
These bills would authorize the Secretary of Commerce to award
grants to coastal States for the development of management plans and
programs for the land and water resources of the coastal zone. Such
grants would not exceed 66%% of the planning costs (S. 582) or
50% of such costs (S. 638). If the Secretary found that a plan was
consistent with the purposes of the Act to balance development and
protection of the natural environment; that provision for public
notice and hearings on the plan and program had been made; that the
plan and program had been reviewed and approved by the Governor;
that a single agency would administer and implement the manage-
ment plan and program; and that the State had the necessary author-
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STATUTES AND LEGISLATIVE HISTORY 3101
ity to implement the program, including controls over public and
private development, he would be authorized to make annual grants
for the costs of administering the program, with the same maximum
percentages as planning grants. S. 582 also requires minimum grants
of at least one percent of costs.
With the Secretary's approval, States would be authorized to
develop plans in segments so as to focus attention on problem areas,
and to revise plans to meet changed conditions. Grants could be
terminated if the Secretary determined that a State was failing to
implement its plan and program.
Additional provisions would require the Secretary, before approv-
ing programs, to consult with Federal agencies principally involved.
Federal agencies conducting or supporting activities in the coastal
zone would be required to "seek to make such activities consistent
with the approved State management plan and program for the area."
Federal development activities in the coastal zone would be prohib-
ited
[p. 29]
if the coastal State deemed such activities inconsistent with a
management plan unless the Secretary found such project consistent
with the objectives of the bill, or in cases where the Secretary of
Defense determines that the project is necessary in the interests of
national security. Applicants for Federal licenses or permits to con-
duct any activity in the coastal zone would be required to obtain a
certification from the appropriate State agency that the proposed activ-
ity was consistent with the coastal zone management plan and program.
The Secretary would be required to submit an annual report to the
President for transmittal to the Congress on the administration of the
Act.
S. 582 would also authorize the establishment of "estuarine sanc-
tuaries" for the purpose of studies of natural and human processes
occurring within the coastal zone, and would provide for grants by
the Secretary of up to 50% of the costs of acquisition, development,
and operation of such sanctuaries.
We recommend that these bills not be enacted, and that the Con-
gress instead give favorable consideration to S. 992, the Administra-
tion's proposed "National Land Use Policy Act of 1971."
The "National Estuarine Pollution Study," which was developed for
the Secretary of the Interior by the Federal Water Quality Adminis-
tration, now a component of EPA, concluded that urbanization and
industrialization, combined with unplanned development in the
estuarine zone, have resulted in severe damage to the estuarine eco-
system. In addition, the "National Estuary Study," developed for the
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3102 LEGAL COMPILATION—WATER
Secretary by the Fish and Wildlife Service, identified the need for a
new thrust on the side of natural and aesthetic values in the Nation's
estuarine areas. Clearly, we need to ensure that environmental val-
ues are adequately protected in such areas. In this connection, how-
ever, we are aware that land-use planning can affect all areas, not
simply estuarine areas, and that adequate planning for preservation
of estuarine and coastal areas can only be effective if the full range of
alternatives to development in such areas can be considered. In other
words, estuarine and coastal zone planning must be considered within
the larger context of land-use planning State-wide.
S. 992 would authorize the Secretary of the Interior to make grants
of up to 50% of cost to assist the States in developing and managing
land use programs. Programs would be required to include methods
for inventorying and exercising control over the use of land within
areas of critical environmental concern, including coastal zones and
estuaries. States would also be required to develop a system of con-
trols or regulations to ensure compliance with applicable environ-
mental standards and implementation plans.
Accordingly, we favor the approach embodied in S. 992, which incor-
porates provisions for the protection of the coastal and estuarine areas
into its more comprehensive scheme. At the same time, we recog-
nize that the coastal zone is an area of special concern, where prompt
and effective action is required. Heavy pressures for further develop-
ment, coupled with the fragility of coastal and estuarine areas, make
it imperative that we move immediately to protect these areas. The
system authorized by S. 992 will permit a high priority for coastal
zone planning within its larger context of land use planning and pro-
grams. We therefore urge prompt Congressional approval of S. 992.
[p. 30]
The Office of Management and Budget has advised that there is no
objection to the presentation of this report from the standpoint of the
Administration's program.
Sincerely,
WILLIAM D. RUCKELSHAUS,
Administrator.
[p. 31]
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STATUTES AND LEGISLATIVE HISTORY 3103
FEDERAL MARITIME COMMISSION,
OFFICE OF THE CHAIRMAN,
Washington, D.C., May 13,1970.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN: Reference is made to your request for the
views of the Federal Maritime Commission with respect to S. 3183, a
bill.
To amend the Federal Water Pollution Control Act to pro-
vide for the establishment of a national policy and com-
prehensive national program for the management, beneficial
use, protection, and development of the land and water
resources of the Nation's estuarine and coastal zone.
S. 3183 would establish a national policy which declares a national
interest in the effective management, beneficial use, protection and
development of the land and water resources of the Nation's estuarine
and coastal zones.
The bill is based on a three year comprehensive study of the effects
of pollution in estuaries and estuarine zones of the United States on
fish and wildlife, on fishing, recreation, water supply, water power, by
the Department of the Interior as required by section 5 (g) of the Fed-
eral Water Pollution Control Act1. It encourages the development by
coastal States, of comprehensive management programs for the land
and water resources of the coastal zones by authorizing grants of
Federal funds up to 50% of the costs of the programs. The use of
other Federal funds to match the grants provided by S. 3183, is pro-
hibited, and various safeguards are established to permit the Secre-
tary of the Interior to assure, as a condition to the continuation of
grants, that the States are adhering to the programs as approved by
the Secretary.
Although the Federal Maritime Commission has no statutory func-
tions or responsibilities which would be affected by the provisions of
S. 3183, we are deeply concerned with the mounting environmental
problems daily menacing the peoples of this nation. The programs
contemplated in this bill appear designed to provide effective measures
to combat some of these problems in the estuarine and coastal zones
of the United States.
The Commission favors its enactment.
The Bureau of the Budget has advised that there would be no objec-
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3104 LEGAL COMPILATION—WATER
tion to the submission of this letter from the standpoint of the Admin-
istration's program.
Sincerely,
HELEN DELICH BENTLEY,
Chairman.
[p. 44]
1.33a(2) HOUSE COMMITTEE ON MERCHANT MARINE
AND FISHERIES
H. R. REP. No. 92-1049, 92d Cong., 2d Sess. (1972)
COASTAL ZONE MANAGEMENT
MAY 5, 1972.—Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. GARMATZ, from the Committee on Merchant Marine and Fisheries,
submitted the following
REPORT
[To accompany H.R. 14146]
The Committee on Merchant Marine and Fisheries, to whom was
referred the bill (H.R. 14146) To establish a national policy and
develop a national program for the management, beneficial use, pro-
tection, and development of the land and water resources of the
Nation's coastal zone, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
[p. 1]
Section 307. Interagency Coordination and Cooperation.
* * * * *
Subsection (e) emphasizes that whatever coordinating procedures
are required by this section in order to carry out the purposes of this
title, there is nothing in those requirements which shall be construed
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STATUTES AND LEGISLATIVE HISTORY 3105
to diminish either federal or state jurisdiction, responsibility, or rights
in the field of planning, development, or control of water resources
and navigable waters. Nor is anything in the coordinating mechanism
intended to displace, supersede, limit, or modify any duly constituted
interstate compact or the jurisdiction of any legally established joint
or common agency of two or more states or of two or more states and
the Federal Government, nor to limit the authority of the Congress
to authorize and fund projects.
In addition, the subsection specifically provides that the coordinat-
ing requirements of this section shall not be construed as superseding,
modifying, or repealing existing laws applicable to the various fed-
eral agencies. Those laws continue to apply, and the specific require-
ments as to their implementation must be taken into account in the
[p. 20]
development of the states' programs. The laws referred to would
include, among others, the Federal Water Pollution Control Act, the
Clean Air Act, the Solid Waste Disposal Act, the Refuse Act of 1899,
and the Fish and Wildlife Coordination Act.
[p. 21]
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., June 23,1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of
Representatives, Washington, D.C.
DEAR Mr. CHAIRMAN: This is in response to your request for the
comments of the Environmental Protection Agency on H.R. 2492,
H.R. 2493, H.R. 3615, and H.R. 6605, bills relating to protection of
coastal and estuarine areas.
H.R. 2492
H.R. 2492 would amend the Marine Resources and Engineering De-
velopment Act to authorize the Administrator of the National Oceanic
and Atmospheric Administration to make grants to "coastal author-
ities" established by States and having a broad interest in the develop-
ment of coastal areas. Such grants would be authorized to pay up to
50% of the costs of operation of such an authority for the first two
years of its existence. Further grants at the 50% level would be
authorized upon the submission and approval of a proposal for long-
range planning with respect to coastal and estuarine area manage-
ment, or for the implementation of such a plan. In evaluating such
proposals, the NOAA Administrator would be required to consider the
extent to which they identified important areas, fostered multiple uses
and provided methods for conflict resolution with respect to such uses,
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3106 LEGAL COMPILATION—WATER
established machinery such as zoning, easements or land acquisition to
ensure compliance with plans, provided for public participation and
coordination with other agencies and organizations and fostered
research on shoreline and estuarine resources. $5,000,000 annually
would be authorized for operation and planning grants.
The Administrator of NOAA would also be authorized to enter into
agreements to underwrite loans or bond issues, and to pay for a five-
year period up to 25% of amortization charges or loan interests, with
respect to such loans or issues, for the purpose of land acquisition,
water development, or restoration projects in connection with the
implementation of an approved plan. Two million dollars ($2,000,000)
per year would be authorized for this purpose.
Grant funds would be allocated among coastal States according to
regulations based on the populations of such States, the size of the
coastal or estuarine areas, and the respective financial needs of the
States.
H.R. 2493
This bill would authorize the Secretary of Commerce to award
grants to coastal States for the development of management plans and
programs for the land and water resources of the coastal zone. Such
grants would not exceed 66% % of the planning costs. If the Secretary
found that a plan was consistent with implementation plans under the
Clean Air Act, the Federal Water Pollution Control Act, and the
Solid Waste Disposal Act of 1965; that provision for public notice
[p. 35]
and hearings on the plan and program had been made; that the plan
and program had been, reviewed and approved by the Governor; that
a single agency would administer and implement the management
plan and program; that the State had the necessary authority to
implement the program, including controls over public and private
development; and that the program would carry out the purposes of
the bill, he would be authorized to make annual grants for the costs
of administering the program, with the same maximum percentages
as planning grants.
With the Secretary's approval, States would be authorized to
develop plans in segments so as to focus attention on problem areas,
and to revise plans to meet changed conditions. Grants could be ter-
minated if the Secretary determined that a State was failing to imple-
ment its plan and program.
Additional provisions would require the Secretary, before approv-
ing programs, to consult with Federal agencies principally involved.
Federal agencies conducting or supporting activities in the coastal
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STATUTES AND LEGISLATIVE HISTORY 3107
zone would be required to "seek to make such activities consistent
with the approved State management plan and program for the area."
Federal development activities in the coastal zone would be prohib-
ited if the coastal State deemed such activities inconsistent with a
management plan unless the Secretary found such project consistent
with the objectives of the bill, or in cases where the Secretary of
Defense determined that the project was necessary in the interests
of national security. Applicants for Federal licenses or permits to
conduct any activity in the coastal zone would be required to obtain
a certification from the appropriate State agency that the proposed
activity was consistent with the coastal zone management plan and
program.
The Secretary would be required to submit an annual report to the
President for transmittal to the Congress on the administration of
the Act.
H.R. 2493 would also authorize the establishment of "estuarine
sanctuaries" for the purpose of studies of natural and human processes
occurring within the coastal zone, and would provide for grants by
the Secretary of up to 50% of the costs of acquisition, development,
and operation of such sanctuaries.
H.R. 3615
This bill is derived from S. 3183, the Administration's proposed
coastal zone management bill introduced in the 91st Congress.
H.R. 3615 would authorize the Secretary of the Interior to make
program development grants to the coastal States to assist in develop-
ing comprehensive management programs for their coastal zones.
Grants would be limited to 50 per cent of the State's cost of develop-
ing the program (to a maximum limit of $1,000,000 per year for each
coastal State). Other Federal funds could not be used to match such
grants. The initial and subsequent grants would be, respectively, con-
ditioned on a demonstration that the funds would be used to develop
a comprehensive management program consistent with the require-
ment of section 202 (d) (3) of the bill, and on a finding that the coastal
[P- 36]
State was adequately and expeditiously developing such a program.
Upon completion of the development of the program the coastal State
would be required to submit it to the Secretary for review.
Operating grants up to 50 per cent of costs of administering the
program (to a maximum limit of $1,000,000 per year for each coastal
State) would be authorized by section 202 (d) (1) if the State's pro-
gram were approved by the Secretary. Operating grants would be
allotted to the States on the basis of regulations developed by the Sec-
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3108 LEGAL COMPILATION—WATER
retary, taking into account the amount and nature of the coastline and
area covered by the management plan, population, and other relevant
factors. No grant funds could be used for the acquisition of real
property.
Before approving a State's comprehensive management program,
the Secretary would be required to find that the Governor had desig-
nated a single agency to receive and administer grants for implement-
ing its management plan; that the management plan had been re-
viewed and approved by the Governor; that the coastal State was
organized to implement the management plan; that the agency or
agencies responsible for implementing the management plan had the
necessary regulatory authority; that the coastal State had developed
and adopted a coastal zone management plan, and that it had provided
for adequate public notice and hearings in the development of its
management plan.
Each coastal State's management plan would be required to: iden-
tify the area covered by the management plan; identify and recognize
the national, State, and local interests in the preservation, use, and
development of the coastal zone; contain a feasible land and water use
plan reasonably reflecting short-term and long-term public and pri-
vate requirements for use of the coastal zone; describe the coastal
State's current and planned programs for the management of its
coastal zone; identify and describe the means for coordinating the
plan with Federal, State, and local plans for use, conservation, and
management of the coastal zone, including State, interstate, and re-
gional comprehensive planning; reflect the State's procedures for
review of State, local, and private projects in the coastal zone for con-
sistency with the plan and for advising whether Federal and federally
assisted projects are consistent with the plan; describe the State's
procedures for modification and changes of the management plan;
indicate that the plan was developed in cooperation with relevant
Federal agencies, State agencies, local governments, and all other in-
terests; describe the procedures for regular review and updating of
the plan; contain adequate provisions for disseminating information
concerning the plan and subsequent modifications or changes; and
provide for conducting, fostering, or utilizing relevant research.
The Governor of a coastal State would be authorized, with the Sec-
retary's approval, to allocate portions of a program development grant
or operating grant to an interstate agency if such agency had authority
to perform the functions required of a coastal State under the bill.
Section 202 (e) would require the Secretary to review the manage-
ment program and performance of the coastal States and would au-
thorize him to terminate and withdraw financial assistance, after notice
[p. 37]
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STATUTES AND LEGISLATIVE HISTORY 3109
and opportunity to present evidence, where a coastal State unjusti-
fiably failed to adhere to the program approved by the Secretary.
Section 202 (g) would direct all Federal agencies conducting or sup-
porting activities in coastal areas to make such activities consistent
with the approved plan for the area, and would require such agencies
to refrain from approving proposed projects inconsistent with the
plan without a finding that the proposals, on balance, were sound.
The Secretary would be required to develop a comprehensive man-
agement plan for the resources of the coastal zone beyond the terri-
torial sea. Such plans would provide for the exploitation of living
marine resources, mineral resources, and fossil fuels.
H.R. 6605
H.R. 6605 would create a National Coastline Conservation Com-
mission, consisting of two representatives from each coastal State, one
representative from each interested executive department, and five
representatives from the public at large, who would be appointed by
the President with the advice and consent of the Senate. The Com-
mission would be required to prepare a comprehensive study of all
factors significantly affecting the present and future status of the
coastal-marine zone, including all relevant natural and physical
characteristics, all non-economic human activities and needs, all in-
dustrial, economic and commercial needs, existing legislation and
regulations, and geological and demographic factors affecting the
coastal zone. The Commission would be further required to consider
the powers necessary for balanced conservation and development of
the coastal zone, and which agency or agencies would be appropriate
to exercise such powers.
After the preparation of the comprehensive study, the Commission
would be required to prepare a comprehensive, coordinated and en-
forceable plan and management program for the conservation and
development of the coastal zone. Before any part of plan could be
adopted, the Commission would be required to hold public hearings
in all areas affected by the plan, and general public hearings on the
plan itself. Such plans would set forth the results of the compre-
hensive study, recommended policies for the coastal zone, powers con-
sistent with those policies, recommended agencies to carry out the
plan, and legislative and budgetary actions necessary.
While completing the plan and management program, the Commis-
sion would be authorized to comment upon and seek to influence pro-
posed actions in the coastal-marine zone.
The Commission would be required to file an annual report with the
President and the Congress no later than December 31 of each year.
H.R. 2492, H.R. 2493, and H.R. 3615 are essentially similar in that
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3110 LEGAL COMPILATION—WATER
they would establish a program of grants to the States for the purpose
of developing management and conservation programs for the coastal
zone. H.R. 6605, however, calls for a study of these areas, and would
eventually result in recommendations for further action, including
legislation, which would be necessary to enforce the recommended
conservation measures.
[p. 38]
EPA believes that the time for studies of the coastal zone is past.
Two major studies have already been completed of these areas which
document in detail the actions which would be required to protect
them. The "National Estuarine Pollution Study," which was devel-
oped for the Secretary of the Interior by the Federal Water Quality
Administration, now a component of EPA, concluded that urbaniza-
tion and industrialization, combined with unplanned development in
the estuarine zone, have resulted in severe damage to the estuarine
ecosystem. In addition, the "National Estuary Study," developed
for the Secretary by the Fish and Wildlife Service, identified the need
for a new thrust on the side of natural and aesthetic values in the
Nation's estuarine areas. Clearly, we need to ensure that environ-
mental values are adequately protected in such areas. In this connec-
tion, however, we are aware that land-use planning can affect all
areas, not simply estuarine areas, and that adequate planning for
preservation of estuarine and coastal areas can only be effective if the
full range of alternatives to development in such areas can be con-
sidered. In other words, estuarine and coastal planning must be
considered within the larger context of land-use planning State-wide.
Accordingly, EPA does not recommend the enactment of legisla-
tion which would deal only with development and other activities in
the coastal zone. Controls are needed over all aspects of land use
which can affect delicate or endangered areas of environmental con-
cern. Such controls would be provided by H.R. 4332, the Administra-
tion's proposed "National Land Use Policy Act of 1971."
H.R. 4332 would authorize the Secretary of the Interior to make
grants of up to 50% of cost to assist the States in developing and man-
aging land use programs. Programs would be required to include
methods for inventorying and exercising control over the use of land
within areas of critical environmental concern, including coastal zones
and estuaries. States would also be required to develop a system of
controls of regulations to ensure compliance with applicable environ-
mental standards and implementation plans.
EPA favors the approach embodied in H.R. 4332, which incorpo-
rates provisions for the protection of the coastal and estuarine areas
into its more comprehensive scheme. At the same time, we recognize
-------
STATUTES AND LEGISLATIVE HISTORY 3111
that the coastal zone is an area of special concern, where prompt and
effective action is required. Heavy pressures for further development,
coupled with the fragility of coastal and estuarine areas, make it im-
perative that we move immediately to protect these areas. The system
authorized by H.R. 4332 will permit a high priority for coastal zone
planning within its larger context of land use planning and programs.
We therefore urge prompt Congressional approval of H.R. 4332, and
recommend that the bills discussed previously not be enacted.
The Office of Management and Budget has advised that there is no
objection to the presentation of this report from the standpoint of the
Administration's program.
Sincerely,
WILLIAM D. RUCKELSHAUS,
Administrator.
[p. 39]
1.33a(3) COMMITTEE OF CONFERENCE
H. B. REP. No. 92-1544, 92d Cong., 2d Sess. (1972)
COASTAL ZONE MANAGEMENT ACT OF 1972
OCTOBER 5, 1972.—Ordered to be printed
Mr. GARMATZ, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany S. 3507]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to the bill (S. 3507), to estab-
lish a national policy and develop a national program for the manage-
ment, beneficial use, protection, and development of the land and
water resources of the Nation's coastal zones, and for other purposes,
having met, after full and free conference, have agreed to recommend
and do recommend to their respective Houses as follows:
[P. 1]
-------
3112
LEGAL COMPILATION—WATER
TITLE III—MANAGEMENT OF THE COASTAL ZONE
* * * * *
INTERAGENCY COORDINATION AND COOPERATION
SEC. 307.
*****
(i) Notwithstanding any other provision of this title, nothing in this
title shall in any way affect any requirement (1) established by the
Federal Water Pollution Control Act, as amended, or the Clean Air
Act, as amended, or (2) established by the Federal Government or by
any state or local government pursuant to such Acts. Such require-
ments shall be incorporated in any program developed pursuant to
this
[p. 8]
title and shall be the water pollution control and air pollution control
requirements applicable to such program.
[p. 9]
JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE OF CONFERENCE
The Conferees adopted the Senate provisions making it clear that
water and air pollution control requirements established by Federal
Water Pollution Control Act, as amended, or the Clean Air Act, as
amended, shall be included as a part of the state coastal zone program.
Finally, the Conferees adopted language making it clear that the
Secretary of the Interior or such other Secretary or Federal official as
may be designated in national land use legislation, must concur in
any state coastal zone program requirements relating to land use,
before those requirements may be approved by the Secretary.
[p. 12]
1.33a(4) CONGRESSIONAL RECORD, VOL. 118 (1972):
133a(4)(a) April 25: Considered and passed Senate, pp. S6654-S6673
NATIONAL COASTAL ZONE MAN-
AGEMENT ACT OF 1972
The Senate continued with the con-
sideration of the bill (S. 3507) to estab-
lish a national policy and develop a
national program for the management,
beneficial use, protection, and develop-
ment of the land and water resources
of the Nation's coastal zones, and for
other purposes.
Mr. ROBERT C. BYRD. Mr. Presi-
dent, I suggest the absence of a quo-
rum.
The ACTING PRESIDENT pro tern-
-------
STATUTES AND LEGISLATIVE HISTORY
3113
pore. The clerk will call the roll.
[p. S6654]
Ths second as.Ltant legislative clerk
proceeded to call the roll.
Mr. ROBERT C. BYRD. Mr. Presi-
dent, I ask unanimous consent that the
order for the quorum call be rescinded.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered. What is the pleasure of the
Senate?
Mr. ROLLINGS. Mr. President, I ask
that the Senate proceed with the con-
sideration of S. 3507.
The ACTING PRESIDENT pro tern-
pore. That bill has been laid before the
Senate, and is the pending business.
Mr. EAGLETON. Mr. President, a
parliamentary inquiry.
The ACTING PRESIDENT pro tern-
pore. The Senator will state it.
Mr. EAGLETON. If at a later time,
prior to offering my amendment, I
should desire to move that this bill be
referred to the Committee on Public
Works, would I have the right to make
such a motion, if I do not do so at this
particular time?
The ACTING PRESIDENT pro tern-
pore. Such a motion may be made at
any time prior to the vote on the bill.
Mr. EAGLETON. I thank the Chair.
PRIVILEGE OF THE FLOOR
Mr. ROLLINGS. Mr. President, I ask
unanimous consent that two members
of my staff, Mary Jo Manning and John
Hussey, be granted the privilege of the
floor during the consideration of this
measure.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
Mr. ROLLINGS. Mr. President, it is
with a great deal of pleasure that the
Committee on Commerce recommends
unanimously the approval of S. 3507,
the National Coastal Zone Management
Act of 1972. This bill will provide the
Federal assistance necessary to help
States and local governments plan and
operate coastal zone management pro-
grams. The aim is to allow the wise and
orderly development and growth within
this critical area so as to protect the
vital waters of our coastlines and Great
Lakes.
This bill has been before the Senate
for 2 years, first introduced by Senator
WARREN G. MAGNUSON of Washington.
I might say that it was the wisdom
and leadership of the distinguished
chairman of the Committee on Com-
merce which gave impetus to the cre-
ation of this concept. During the 89th
Congress, there was created the Na-
tional Commission on Marine Science,
Engineering, and Resources. This blue
ribbon panel of experts—often de-
scribed as the Stratton Commission—
produced the landmark report known
as "Our Nation and the Sea." Part of
this overall report was the section on
"Management of the Coastal Zone."
Senator MAGNUSON introduced the
bill, S. 2802, which incorporated the
recommendations of the Commission.
Subsequently, the Committee on Com-
merce has conducted 11 days of hear-
ings over the space of 2 years on the
various coastal zone proposals. The
Subcommittee on Oceans and Atmos-
phere, which I am privileged to chair,
has compiled a remarkable record of
testimony in favor of coastal zone man-
agement. And last September, the com-
mittee ordered its bill, S. 582, reported
to the floor. However, during the last
year, many Members of the Senate as
well as the administration have become
convinced that the United States needs
a broad-based policy of land use man-
agement. There were some who felt
that certain provisions within S. 582
were in conflict with the proposed land
use policy legislation now pending be-
fore the Committee on Interior and In-
sular Affairs. Additionally, it was felt
that many municipalities in coastal
States have done an outstanding job of
area management, and that S. 582 did'
not give them the opportunity to par-
ticipate fully in management programs.
Finally, there was concern about con-
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3114
LEGAL COMPILATION—WATER
flicts between existing Federal, State,
and local matters within the coastal
zone. Was too much authority being
exercised by the Secretary of Commerce
without the opportunity for full hear-
ings and mediation for all parties in-
volved?
Mr. President, these were substantial
concerns, and the Committee on Com-
merce recognized that S. 582 did con-
tain several shortcomings as a result of
developments which altered some of the
circumstances under which the bill was
drawn.
Therefore, on March 14, at my request,
S. 582 was recommitted to the Commit-
tee on Commerce. For the past month,
we have worked over the entire bill in
order to accommodate it to present
needs and circumstances. This, in brief,
is what we have done:
First. The committee has created a
bill which will dovetail with the pro-
posed land use legislation. Our defini-
tion of the geographic boundaries of
the coastal zone itself has been tight-
ened.
Second. We have attempted to make
full provision for cooperation and co-
ordination between States, local gov-
ernments, areawide agencies, and in-
terstate agencies. All of these factions
must work together in both the plan-
ning and the managing phase of the
program. Additionally, States can del-
egate to local governments some or all
of the responsibility under this act.
Third. Finally, we have created a Na-
tional Coastal Resources Board to han-
dle disputes within the management
program area. The board can coordi-
nate programs of various Federal agen-
cies. It can mediate differences between
any Federal agency and a coastal State
at the development stage of a program.
And finally, the board can provide a
forum for appeals by any areawide
planning entity or unit of local govern-
ment from any decision or action of
the Secretary or the management
agency of the State or local area.
Having done this, Mr. President, the
Committee on Commerce, on April 11,
unanimously ordered that an original
bill be reported to the floor. This bill
is S. 3507, which is before the Senate
today.
So what is the program we propose?
Essentially, it is this: A means to avoid
crisis in the coastal areas of our Nation.
We know the States have the will to
avoid this crisis of growth and the sub-
sequent despoiliation of our valuable
coastal waters. But at presant, neither
the States nor the local government
have the financial means to tackle this
difficult job. S. 3507 solves this prob-
lem by providing Federal grants-in-aid
to create and operate management pro-
grams within the coastal zone.
The bill I propose today is aimed at
saving the waters of our coasts and the
land whose use has a direct, significant,
and adverse impact upon that water.
We all know that the coastal water and
our delicate estuaries are the breeding
grounds of life in the sea. Yet we use
the land of the coastal-zone with little
or no concern for how this use will
affect the water. For the most part,
everyone is complaining about the sit-
uation, but few are doing anything
about it. S. 3507 does something about
it. In other words, ws are talking about
providing orderly, sound growth in a
narrow strip of land and water of our
coastal States, Great Lakes, States, and
our territories. The management pro-
gram authority may extend inland only
so far as to allow control over the use
of that land which, as I have said, di-
rectly affects the water. So it can been
seen that we do not envision huge
blocks of inland territory being carved
into management program areas. The
coastal zone bill would extend coverage
basically to beaches, salt marshes,
sounds, harbors, bays, and lagoons, and
the adjacent lands—but not territory so
large as to encroach upon land use
management. The waters of this zone,
again, are our primary target of con-
cern. In disputed cases, these waters
are those which contain a measurable
-------
STATUTES AND LEGISLATIVE HISTORY
3115
tidal influence.
In the United States today, we are
facing a population explosion—and it is
being felt with the most impact in the
coastal States and in coastal municipal-
ities. The rate of increase for coastal
areas is more rapid than for inland
areas, and this press of population has
led to extensive degradation of our
estuaries and marshlands. From 1922
through 1954, more than 25 percent of
the salt marshes of this country were
destroyed by fill, dikes, drainage, or by
construction of walls. From 1954 to
1964, the destruction has continued at an
even more rapid pace. Approximately
10 percent has been lost to development.
We know that the land area available
for expanding populations will not
change. There are only 88,600 miles of
shoreline on our Atlantic, Pacific, and
Arctic coastlines, and another 11,000
miles along the Great Lakes. Already,
53 percent of our population live
within 50 miles of the coast. The over-
whelming testimony was that by the
year 2000, it may well be 80 percent,
or 225 million citizens.
I referred earlier to the Stratton Com-
mission. That group's report, "Our Na-
tion and the Sea," calls the coast the
most valuable geographic feature of the
United States—the most biologically
productive region of all. America looks
to the coastlines not only for recrea-
tion, but for resources as well. The
report makes an urgent plea for ade-
quate management of the coastal zone
now, before it is too late.
We hope we have created, in S. 3507,
an answer to this plea for help. We
know that the mechanism this bill en-
visions may not be perfect, but nothing
is per-
[p. S6655]
feet. It may not solve every prob-
lem—but few Government solutions can
handle everything. It may not make
everybody happy—because there are a
lot of folks who do not care about the
result of rapid development. All they
want is a profit. This kind of thinking
can no longer be tolerated in America
—if America wants any kind of a de-
cent environment for its citizens in the
decade ahead. The coastal zone bill will
help us build and preserve that kind of
America—a place where those of us
who support this measure today can
take some pride in the years ahead. I
urge all my colleagues to join in voting
for the bill, for good government, for
progressive government, and for pro-
tection of our most vital resources in
S. 3507.
Mr. President, I ask unanimous con-
sent that the names of the cosponsors
of the pending bill be shown in the
RECORD here.
The PRESIDING OFFICER (Mr.
STEVENSON). Without objection, it is so
ordered.
LIST OF COSPONSORS
Senator Ernest F. Hollings.
Senator Warren G. Magnuson.
Senator Lloyd Bentsen.
Senator Clifford P. Case.
Senator Marlow W. Cook.
Senator Sam J. Ervin.
Senator David Gambrell.
Senator Edward J. Gurney.
Senator Philip A. Hart.
Senator Vance Hartke.
Senator Hubert H. Humphrey.
Senator Daniel Inouye.
Senator B. Everett Jordan.
Senator Gale W. McGee.
Senator George McGovern.
Senator Thomas J Mclntyre.
Senator Joseph M. Montoya.
Senator Bob Packwood.
Senator John O. Pastore.
Senator Abraham Ribicoff.
Senator William B. Spong.
Senator Ted Stevens.
Senator Harrison A. Williams.
Senator Alan Cranston.
Senator John V. Tunney.
Senator J. Glenn Beall.
Mr. HOLLINGS. Mr. President, I
yield to the distinguished ranking mi-
nority member of the committee, the
Senator from Alaska (Mr. STEVENS).
Senator STEVENS has been of invalu-
able help. He starts with a primary in-
terest in the matter, because the coast-
line of Alaska comprises practically half
the coastline of the United States, and
-------
3116
LEGAL COMPILATION—WATER
he obviously has a firsthand knowledge
as well. He joined me in all these hear-
ings of the Commerce Subcommittee on
Oceans and Atmosphere. He is a mem-
ber of the Committee on Interior and
Insular Affair;. He has served in the
Department of the Interior, in the ex-
ecutive branch of Government. He has
worked with me in trying to reconcile
differences and concerns not only with
the administration, but also with the
Committee on Interior and Insular Af-
fairs, the Committee on Public Works,
and other public concerns.
I am glad to yield to Senator STEVENS.
Mr. STEVENS. Mr. President, as a
member of the Committee on Com-
merce and as the ranking minority
member of the Subcommittee on
Oceans and Atmosphere of that Com-
mittee, I would like to commend my
distinguished friend and colleague from
South Carolina (Mr. ROLLINGS), the
chairman of our subcommittee, for his
leadership on this legislation. Over the
past two Congresses he has conducted
many days of hearings and worked
through many executive sessions to
see this bill become a reality. With
successful consideration here today
and with the action that appears im-
minent in the House, I feel confident
that we will soon have a law to pro-
vide the necessary Federal leadership
in this area.
Yet, even though we have been with-
out a congressionally mandated pro-
gram, the needs of our coastal zones
have not been unnoticed. The 1969 Re-
port of the Commission on Marine Sci-
ence, Engineering, and Resources, en-
titled "Our National and the Sea"—the
so-called "Stratton Commission Report"
—discussed at length the special values
of our coastal areas and the need for a
proper program of coastal zone man-
agement:
In that report is the following com-
ment:
Rapidly intensifying use of coastal areas
already has outrun the capabilities of local
governments to plan their orderly develop-
ment and to resolve conflicts. The division
of responsibilities among the several levels
of government is unclear, and the knowledge
and procedures for formulating sound deci-
sions are lacking.
The key to more effective use of our coast-
land is the introduction of a management
system permitting conscious and informed
choices among development alternatives, pro-
viding for proper planning, and encouraging
recognition of the long-term importance of
maintaining the quality of this productive
region in order to ensure both its enjoyment
and the sound utilization of its resources
The benefits and the problems of achieving
rational management are apparent. The
present Federal, State, and local machinery
is inadequate. Something must be done.
It was in response to this void in
adequate machinery that the Committee
on Commerce began, during the 91st
Congress, to consider legislation which
would help to protect and manage our
biologically productive and commer-
cially invaluable coastal areas. I am
pleased to recognize the contributions
of the present administration in this
area, and note that much of the bill we
consider here today is patterned after
the bill, S. 3183, introduced at the re-
quest of the administration during the
91st Congress. This administration pro-
posal was developed as a result of the
National Estuarine Study by the De-
partment of the Interior, performed pur-
suant to Public Law 90-454, also re-
ported by the Committee on Commerce.
Despite the administration's prior rec-
ommendations in this area, however, I
should note, in fairness, that it does not
support separate legislation for the
coaotal zone such as that contained in
the bill, S. 3507. However, this does not
reflect any change in the administra-
tion's position over the need for effec-
tive programs. Rather, it has chosen a
broader approach with its proposal for
a national land use policy as contained
in the bill, S. 992. In this connection,
on May 5, 1971, the Honorable Russell
Train, Chairman of the Council on En-
vironmental Quality—and former Under
Secretary of the Interior—appeared be-
fore the subcommittee and stated in
part the following:
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STATUTES AND LEGISLATIVE HISTORY
3117
Since the development of the coastal zone
legislation the administration has moved for-
ward to consider the broader realm of land
use generally, including the coastal zone.
And the legislation which the President sub-
mitted to the Congress on the 8th of Febru-
ary as part of his environmental message
calls for a new, very innovative national land
use policy which includes and embraces the
coastal zone as part of a broader approach
to what the administration sees as a very
high priority national need; namely, more
effective land use as it affects environmental
quality all across the country, both in the
coastal zone and within the interior portions
of the United States.
Notwithstanding this valid observa-
tion concerning the needs of the inte-
rior portions of our country, the needs
of our coastal zones are such that to
delay passage of the National Coastal
Zone Management Act of 1972 to await
enactment of a more inclusive bill would
be unwise at best. It is in the coastal
zone that the need for effective control
has been most clearly demonstrated. It
is in the coastal zone that one can
readily recognize the resource of our
lands is limited, that it is facing a host
of competing demands, that develop-
ment has been disorderly and in many
cases tragic, and that unless manage-
ment programs are developed, the de-
mands of burgeoning populations and
sprawling urban systems will com-
pletely choke them off. It is of more
than passing interest to me to note that
the State of Alaska lays claim to a
coastline which is equal to more than
half of that boasted by what we call
the "Lower 48", and that the passage
of such legislation at this point in our
development is of the utmost impor-
tance.
The need for Federal financial as-
sistance, as well as Federal require-
ments for cooperation at all levels and
the establishment of criteria for the
development of adequate management
plans, has been demonstrated by the
relative inability of most States and
localities to proceed without it. As
stated by Mr. John Asplund, chairman
of the Greater Anchorage Area Bor-
ough, Anchorage, Alaska, when he ap-
peared before the subcommittee on
May 6, 1971, on behalf of the National
A-Sociation of Counties:
We at the county level know that we have
made many mistakes and allowed economic
and other factors to override the require-
ments for more logical coastal management.
But, the State and Federal Governments
must also assume part of the blame for not
taking a greater interest in coastline reserva-
tion, for not providing the necessary broad
guidance, and for not providing either finan-
cial or technical support. The time, we be-
lieve, has come to correct these past failures
and take a positive approach toward coastline
management and preservation.
I, too, join the distinguished chair-
man of the committee, the Senator from
South Carolina (Mr. ROLLINGS) in be-
lieving that the tima has come. S. 3507
moves toward this goal by providing
the financial assistance necessary for
the development and implementation of
coastal zone management programs. It
furnishes to States and localities the
guidance and
[p. S6656]
criteria necessary for them to manage
these areas wisely. It is my hope that
the Congress will recognize the ade-
quacy of its response and the need
which it promises to fulfill, and grant
it favorable consideration.
Mr. President, at an appropriate
time, I should like to discuss with the
chairman of the subcommittee an
amendment which would insure that
where there are no statewide programs
and plans consistent with this act, if a
local political subdivision of a State
with areawide powers does have a
workable plan, the Secretary of Com-
merce will be able to cooperate with
that areawide government. But I leave
it to the Senator from South Carolina
to determine when it would be an
appropriate time to discuss this amend-
ment which I have suggested.
I thank the chairman and will assist
in any way I can in connection with this
matter.
Mr. HOLLINGS. Is that the amend-
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3118
LEGAL COMPILATION—WATER
ment relative to the matter of the Sec-
retary's having the authority to go
ahead should a particular area of a
State itself default in actually promul-
gating a plan authorizing the Secretary
to work with the local government or
political subdivision and approve one
submitted by it—is that the amend-
ment?
Mr. STEVENS. Yes; that is the in-
tent of the amendment. I have pro-
vided the chairman of the subcommittee
with a copy of it. It would add a sub-
section "i"—let me check firct, to make
sure.
Mr. ROLLINGS. Could we not go on
later with that amendment, if the dis-
tinguished Senator will permit it, as
the Senator from Virginia has concern
and the Senator from Missouri also has
concern about active consideration at
this time of this particular bill. I think
perhaps we should go into their con-
cerns first, and then when we began
to call up amendments—we are not in a
rush here this morning—we can call it
up.
Mr. STEVENS. I will be happy to
cooperate in every way I can. I just
wanted to call the attention of the
chairman to the fact that I hope we can
consider the concept which would give
the local political subdivision with
areawide powers, the power to pro-
ceed with plans already made if the
State has no plan.
Mr. SPONG. Mr. President, the ob-
jective of the proposed National Coastal
Zone Management Act is to achieve a
partnership between man and nature
in which man's varied needs are in har-
mony with nature's processes and re-
sources.
Specifically, the bill now pending
would encourage the States to develop
programs to protect their coastal re-
sources by authorizing Federal assist-
ance for the preparation and imple-
mentation of management programs. At
the outset of my remarks, I would em-
phasize the assertion in the committee
report on this measure that—
There Is no attempt to diminish state au-
thority through federal preemption. The in-
tent of this legislation is to enhance state
authority by encouraging and assisting the
states to assume planning and regulatory
powers over their coastal zone.
Mr. President, that is as it should be
—although the success of coastal zone
management programs will be depen-
dent on the cooperation of Federal,
State, regional, and local agencies. I
wish to commend the distinguished
chairman of our Subcommittee on
Oceans and Atmosphere for initiating
the effort to have the bill recommitted.
Reconsideration of the measure re-
sulted in two definite improvements.
First, the inland scope of the coastal
zone has been changed so as to limit
the legislation to the area of greatest
environmental concern. Second, the
measure now requires broader par-
ticipation of local governments, inter-
state, and regional groups in the prep-
aration and operation of management
programs.
A review of the testimony clearly
demonstrates the need for this legisla-
tion. Much more than esthetics is in-
volved in the protection and preserva-
tion of our coastal and estuarine waters
and marshlands. The many varied
types of natural vegetation which are
found in the coastal zone provide a
constant food source for fish and fowl
alike.
It is estimated that three-quarters of
our commercial seafoods—fish, clams,
oysters, shrimp, crabs, and lobsters—
are nurtured in our coastal areas. In
addition, these waters and shorelands
provide shelter and food for birds and
wildlife, and act as a buffer against
storms and other natural disasters.
It is in our own economic interest to
protect these areas from the ever-in-
creasing pressures of development and
misuse. It has been estimated that in
the period 1922 through 1954 more than
one-fourth of the country's salt
marshes were destroyed by filling, dik-
ing, or other forms of development.
From 1954 to 1964 an additional 10 per-
-------
STATUTES AND LEGISLATIVE HISTORY
3119
cent of the remaining salt marshes be-
tween Maine and Delaware was de-
stroyed.
In Chesapeake Bay, an area of imme-
diate concern to me, shoreline erosion
caused by development has directly af-
fected waterborne commerce, farmers,
and fishermen. Deposits of silt have re-
duced water depths 2.5 feet over a 32-
square-mile area at the north end of
the bay. Roughly one-half of the oyster
grounds in the upper bay have been
destroyed or shifted downstream by
sedimentation.
In order to encourage the coastal
States to protect shorelands and estua-
rine waters, the bill authorizes the Sec-
retary to make grants of up to two-
thirds of the cost of developing
management programs. The measure
provides that management programs
must specify the boundaries of the
coastal zone, identify the permissible
land and water uses within the zone
so as to preclude uses having an ad-
verse impact, and specify how control
will be exerted over land and water
uses within the coastal zone.
When a management program has
been developed and approved, the bill
authorizes grants of two-thirds of the
cost of administering the program.
Finally, the bill authorizes grants of
up to 50 percent of the cost of acquisi-
tion, development, and operation of es-
tuarine sanctuaries. These provisions
contemplate the creation of field lab-
oratories for the collection of data and
the study of natural processes occur-
ring in estuaries. Such research should
be of material assistance in establishing
a rational basis for the intelligent man-
agement of coastal and estuarine zones.
Mr. President, I would be remiss if I
failed to thank the committee, and es-
pecially the distinguished Senator from
South Carolina (Mr. ROLLINGS) for ac-
cepting the suggestions I offered during
the committee's consideration of the
bill to require State certification of ac-
tivities requiring a Federal license or
permit.
This provision parallels a require-
ment in the Federal Water Pollution
Control Act that applicants needing a
Federal license or permit must obtain
a certificate from the State water pol-
lution control agency that there is rea-
sonable assurance that the activity in
question will not violate applicable wa-
ter quality standards. It ssems entirely
reasonable to have a comparable pro-
vision in this legislation to guard
against development that is inconsist-
ent with a coastal zone management
program.
It has been a pleasure to have been
actively involved in the development of
this bill. Its enactment would serve to
protect and restore the vast resources
of the coastal zone, an objective that is
deserving of the highest national prior-
ity.
Mr. President, I again commend the
Ssnator from South Carolina (Mr. ROL-
LINGS) not only for working initially on
this bill, but also for having it recom-
mitted and for bringing it back to the
floor today in which I consider to be a
much better form than when the bill
was initially introduced.
Mr. BOGGS. Mr. President, I wish to
express my support for S. 3507, the Na-
tional Coastal Zone Management Act of
1972. This legislation provides signifi-
cant benefits for every coastal State. It
offers these States an opportunity to
develop a legal framework "to pre-
serve, protect, develop, and, where pos-
sible, to restore the resources of the
Nation's coastal zone for this and suc-
ceeding generations."
The Committee on Public Works, on
which I have the honor to serve, au-
thorized a study of pollution in the
estuarine areas at the time the com-
mittee reported the Clean Water Res-
toration Act of 1966. The Department
of the Interior conducted an exhaustive
3-year examination of this question. In
1969 it submitted its three-volume re-
port, "The National Estuarine Pollution
Study," together with proposed legis-
lation.
-------
3120
LEGAL COMPILATION—WATER
It was my honor in the 91st Congress
to introduce S. 3183, which was the
recommended legislation that grew out
of that study. S. 3183 was originally re-
ferred to the Committee on Public
Works. In an effort to give the Com-
mittee on Commerce the opportunity
to consider the Interior Department's
proposal in concert with the other im-
portant coastal zone proposals, we rec-
ommended that S. 3183 be re-referred
to the Committee on Commerce.
S. 3183 contained important features
to enable the coastal States to give
greater attention to the management
of their coastal and estuarine zones.
S. 3183 sought to accomplish two
goals. First, it declared that there is a
national interest in the effective man-
agement and protection of the coastal
and estuarine zones. The bill set out a
"national
[p. S6657]
policy to encourage and assist the
coastal States to exercise effectively
their responsibilities over the Nation's
estuarine and coastal zones through
development and implementation of
comprehensive management programs
to achieve effective use of the coastal
zone through a balance between devel-
opment and protection of the natural
environment."
Second, the bill sets up a system of
matching grants to assist State agen-
cies in achieving more effective man-
agement of the coastal and estuarine
zone. The legislation authorizes devel-
opment and operating grants for coastal
zone management programs. This
would have fostered rational and ef-
fective management of our precious
coastal and estuarine zone area, en-
couraging State permit authority in the
estuarine areas and conformity be-
tween local zoning and the State man-
agement plan.
While no Senate action was taken
during the 91st Congress on this legis-
lation, the distinguished Senator from
South Carolina (Mr. ROLLINGS), last
year introduced new legislation incor-
porating many of the provisions of
S. 3183, as well as other coastal zone
bills before his subcommittee. The new
legislation was S. 582.
I was pleased and honored to cospon-
sor that bill, which also contained many
provisions similar to the legislation
considered today. As a sponsor of
S. 3183, I would like to discuss these
differences, which are actually quite
minor in view of the significance of the
overall legislation.
This new legislation offers several
changes from S. 3183, which I intro-
duced in the 91st Congress. First, it
raises the Federal contribution to 66%
percent in the form of a grant, instead
of the 50 percent in S. 3183. And the
new bill sets no dollar limit on grants,
other than a maximum grant of 10
percent of the funds appropriated to
any one State.
New features of this legislation, of
course, are the creation of the Na-
tional Coastal Resources Board, to be
headed by the Vice President, and au-
thority to purchase estuarine sanctu-
aries as national field laboratories.
Also, this bill requires review of any
Federal permit that would be un-
dertaken in an area covered by an
approved coastal zone management
plan so that the permit will be carried
out "in a manner consistent with the
State's approved management pro-
gram."
In its declaration of policy, this legis-
lation seeks "to preserve, protect, de-
velop, and where possible to restore
the resources of the Nation's coastal
zone for this and succeeding genera-
tions." May I point out that such a
goal has largely been achieved in my
own State. I am proud of that accom-
plishment.
In an effort to meet this challenge of
our coastal zones' needs, Gov. Russell
W. Peterson and the Delaware Legis-
lature wrote legislation that established
strict controls over development along
the coastal zone of the entire State.
-------
STATUTES AND LEGISLATIVE HISTORY
3121
This was the Delaware Coastal Zone
Act of 1971. This law has been hailed
by many conservation groups as among
the most significant steps toward en-
vironmental excellence ever taken by a
State.
Largely as a result of this legisla-
tion, Governor Peterson of Delaware
was recently honored as 1971 conserva-
tionist of the year by the National
Wildlife Federation. This distinguished
award was made to the Governor for
his "outstanding contributions to the
wise use and management of the Na-
tion's natural resources."
This great honor is one that Gov-
ernor Peterson richly deserved, for he
has demonstrated tremendous knowl-
edge and understanding of the environ-
mental challenge our Nation faces.
The Saturday Review magazine re-
cently carried an extensive interview
on this subject with Governor Peter-
son. I think the interview is a most
interesting one and very timely, par-
ticularly in view of the Senate's con-
sideration of this legislation today.
Therefore, Mr. President, I ask unani-
mous consent that the text of the
interview, "Showdown on Delaware
Bay," be printed at the conclusion of
my remarks.
Mr. President, I wish to close my re-
marks by reiterating my support for
S. 3507. It is important legislation. It is
legislation that is necessary if our Na-
tion is to utilize our coastal and estua-
rine areas in the best possible manner.
There being no objection, the text of
the interview was ordered to be printed
in the RECORD, as follows:
*****
[p. S6658]
Mr. ROLLINGS. Mr. President,
pending the arrival of the distinguished
Senator from Alaska in the Chamber
in connection with his amendment, I
wish to insert in the RECORD a few
comments relative to the concerns that
were expressed by members of other
jurisdictional committees, specifically
the Committee on Banking, Housing,
and Urban Affairs, the Committee on
Public Works, and the Committee on
Interior and Insular Affairs.
With respect to matters of munici-
palities and regional development, the
overall approach of this particular bill
is conformance with the land use bill
submitted by the administration and
sponsored by the distinguished Senator
from Washington (Mr. JACKSON). We
have tried our very best to dovetail,
should the land use bill be enacted by
this Congress, so that the coastal zone
bill would be hand in glove with it.
Additionally, with respect to the ur-
ban spiral in housing, we have not
tried to preempt the committee having
jurisdiction in that regard. As a for-
mer member of the Committee on
Banking, Housing, and Urban Affairs I
assure my colleagues that this bill
would give appropriate recognition to
our housing and community develop-
ment needs, as well as the needs of our
coastal zones.
I believe the legislative history of the
measure clearly indicates we intend that
the Coastal Zone Act be administered
in a way to reflect the concerns of HUD
and other public agencies which have
planning and development missions.
The statutory language indicates that
the bill aims to protect our critical
coastal marine areas, and would re-
strict its jurisdiction inland. The report
accompanying the bill specifically states
that the coastal zone—Extends inland
only to the extent necessary to allow
the management program to control
shorelands whose use have a direct and
significant impact upon the coastal
water.
In any event, I would anticipate that
the officials carrying out this act would
work cooperatively with other officials
of Federal, State, and local govern-
ments in expanding social opportu-
nities and in enhancing the quality of
life.
The fact is that the bill was encom-
passed in S. 582. Pending the hearing
-------
3122
LEGAL COMPILATION—WATER
last year, and also reported with ap-
proval by the Committee on Com-
merce, it stayed
[p. S6660]
on the calendar for some time. It was
felt that the definition of "coastal zone"
went too far inland.
We thought we had reconciled the
concern with the 7-mile limitation. I
had to agree this went into too many
things. It was a matter of interest to
the Committee on Banking, Housing,
and Urban Affairs. I had a discussion
with the distinguished chairman, the
Senator from Alabama (Mr. SPARKMAN)
on the point. The bill is designed not
to have any conflict there.
The cities themselves approved, in a
general sense, the particular measure in
the original hearings. The mayor of
the city of Newport Beach, Calif., came
forward and said it was not permissive
for participation and did not encom-
pass in its approach the use of local
governments. So we went back
through the bill and included in every
respect the terminology "local govern-
ment" so that wherever possible there
be no misunderstanding.
On page 9, section 305, subsection (g)
it is now stated:
(g) With the approval of the Secretary
the coastal State may allocate to a local
government, . . .
On page 11, under subsection 306:
"(1) The coastal State has developed and
adopted a management program for its
coastal zone in accordance with rules and
regulations promulgated by the Secretary,
which shall be in accordance with the objec-
tives of this Act, after notice, and with the
opportunity of full participation by relevant
Federal agencies, coastal State agencies, local
governments, regional organizations, port au-
thorities, and other interested parties, public
and private, which is adequate to carry out
the purposes of this title.
Again we included the reference to
local governments.
On page 12, section 306, subsection
(d), at about line 20, it is stated:
(d) Prior to granting approval of the man-
agement program, the Secretary shall find
that the coastal State, acting through its
chosen agency or agencies (including local
governments), . . .
So, in fact, as stated—and this would
later become law—the city government
can be the entity designated by the
Governor himself as the coastal zone
management agency.
In addition to that, Mr. President, we
provided certain flexibility in the bill
with respect to whether or not it could
be a State group, a local group, or some
already established group, to act as the
coastal authority. We had testimony
with respect to the State of New York
that the New York Port Authority was
probably the best agency within the
State of New York; it had complete
authority with respect to coastal zone
problems, development, pollution, the
Corps of Engineers, water quality, nav-
igation, and almost everything else:
and it could be that it would be the
State-designated agency.
Mr. President, at this time I yield to
the Senator from Rhode Island.
Mr. PELL. Mr. President, I thank the
distinguished Senator from South Car-
olina for yielding.
At this point I send to the desk an
amendment on behalf of the Senator
from Massachusetts (Mr. KENNEDY), for
himself, the Senator from Wisconsin
(Mr. NELSON), the Senator from New
Hampshire (Mr. MC!NTYRE) the Senator
from New Jersey (Mr. WILLIAMS), the
Senator from South Carolina (Mr. ROL-
LINGS) and myself.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk proceeded to
read the amendment.
Mr. PELL. Mr. President, I ask unan-
imous consent that further reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered; and, without
objection, the amendment will be
printed in the RECORD.
The amendment, ordered to be
printed in the RECORD, is as follows:
On page 26, after line 19, insert the fol-
lowing:
-------
STATUTES AND LEGISLATIVE HISTORY
3123
SEC. 316. (c) The Administrator of the Na-
tional Oceanic and Atmospheric Administra-
tion of the Department of Commerce, after
consultation with the Secretary of the Inte-
rior, shall enter into appropriate arrangements
with the National Academy of Sciences to
undertake a full investigation of the en-
vironmental hazards attendant on offshore
oil drilling on the Atlantic Outer Continental
Shelf. Such study should take into consid-
eration the recreational, marine resources,
ecological, esthetic, and research values
which might be imparted by the proposed
drilling, as well as alternatives to such
drilling in meeting the Nation's energy needs.
A report shall be made to the Congress, to
the Administrator, and to the Secretary by
July 1, 1973.
There are authorized to be appropriated
for the fiscal year in which this Act is en-
acted and for the next fiscal year thereafter
such sums as may be necessary to carry out
this section, but the sums appropriated may
not exceed $500,000.
Mr. PELL. Mr. President, this
amendment authorizes a study by the
National Academy of Sciences as to the
risks of offshore oil drilling on the
outer Continental Shelf.
The Administrator of NOAA, after
consultation with the Secretary of the
Interior, would be authorized to make
arrangements with the National Acad-
emy for the study with a due date back
for a report of July 1, 1973.
The cost is $500,000; and it does not
call for a moratorium, it calls for a
study.
Mr. ROLLINGS. Mr. President, I
heard the distinguished Senator from
Massachusetts at one time urge that the
National Oceanic and Atmospheric Ad-
ministration conduct a study. This is a
NOAA bill. I understand the Senator
has consulted with other Senators and
they agree that NOAA should arrange
with the National Academy of Sciences
for this study.
Mr. PELL. This would be the think-
ing of those who press the amendment;
yes.
Mr. ROLLINGS. I say to the Senator
from Rhode Island I would like to go
along with the amendment. I think we
would, if given a little time for Sena-
tors who are members of the Commit-
tee on Interior and Insular Affairs to
consider it. I think some of the Sen-
ator's cosponsors are members, but I
have just been informed that mem-
bers have not considered it specifically.
If the Senator will complete his re-
marks I believe I can more intelligently
comment, and if need be, we can re-
quest a quorum and see if the matter
can be worked out.
Mr. PELL. Absolutely. I realize that
the committee did not take any action
on this matter earlier, since it had
closed the hearings on the bill, but I
share, and so do the other cosponsors,
the concern of the Senator from Mas-
sachusetts (Mr. KENNEDY) that an in-
dependent study of the potential risks
of offshore oil drilling on the Atlantic
Continental Shelf should be available
to the Congress.
The National Academy of Sciences is
a prestigious and competent organiza-
tion which will enable the Congress to
consider the proposals for offshore oil
drilling with full knowledge of the
potential risks involved.
The study would take into considera-
tion the recreational, marine resources,
ecological, esthetic, and research values
which might be impaired by the pro-
posed drilling, as well as alternatives
to such drilling.
The magnitude of the possible effects
of offshore oil drilling cannot be under-
estimated. For that reason, it is es-
sential that we have the results of
independent analyses of the potential
impact of such drilling before it is
begun.
While a few of us here would also
like to see a moratorium, this is not
what we are pressing for at this time.
We are pressing the idea of this study,
and we hope that our friends on the
Committee on Interior and Insular Af-
fairs may also accept this idea as per-
haps a middle ground for the moment.
I would ask unanimous consent that
the statement by Senator KENNEDY, and
correspondence from east coast Gov-
ernors and knowledgeable scientists, be
-------
3124
LEGAL COMPILATION—WATER
included in the RECORD at this time.
Senator KENNEDY originally introduced
this amendment in December and the
revised version is being introduced to-
day to correspond to the bill S. 3507
reported by the Commerce Committee.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
*****
[p. S6661]
Mr. PELL. Mr. President, I ask unan-
imous consent that I be permitted to
modify the amendment I have offered to
[p. S6664]
the Senate in two regards: First, to
delete the phrase "as well as alterna-
tives to such drilling in meeting the
Nation's energy needs," which appears
in section (c), the penultimate para-
graph.
The PRESIDING OFFICER. The
Senator has the right to modify his
amendment without unanimous con-
sent.
Mr. PELL. I thank the Chair. I so
modify the amendment, and in addi-
tion I modify it by adding the phrase
"after consultation with the Secretary
of the Interior and with the Adminis-
trator of the Environmental Protection
Agency."
I hope that with these modifications,
this amendment, offered in behalf of a
group of Senators including, inciden-
tally, the Senator from Delaware (Mr.
BOGGS), who has asked that his name
be added as a cosponsor
The PRESIDING OFFICER. If the
Senator will send his modifications to
the desk, the amendment will be so
modified.
The amendment, as modified, is as
follows:
On page 26, after line 19, insert the fol-
lowing:
SEC. 316. (c) The Administrator of the Na-
tional Oceanic and Atmospheric Administra-
tion of the Department of Commerce, after
consultation with the Secretary of the In-
terior and the Administrator of the Environ-
mental Protection Agency shall enter Into
appropriate arrangements with the National
Academy of Sciences to undertake a full In-
vestigation of the environmental hazards
attendant on offshore oil drilling on the
Atlantic Outer Continental Shelf. Such study
should take into consideration the recreation-
al, marine resources, ecological, esthetic, and
research values which might be impaired by
the proposed drilling. A report shall be
made to the Congress, to the Administrator,
and to the Secretary by July 1, 1973.
(d) There are authorized to be appro-
priated for the fiscal year in which this Act
is enacted and for the next fiscal year there-
after such sums as may be necessary to carry
out this section, but the sums appropriated
may not exceed $500,000.
Mr. PELL. I hope the amendment as
so modified will be acceptable to the
manager of the bill and to my fellow
Senators.
Mr. BOGGS. Mr. President, will the
Senator yield briefly?
Mr. PELL. I yield to the Senator
from Delaware.
Mr. BOGGS. As the Senator has so
kindly pointed out, I have asked to be
listed as a cosponsor of the amendment,
and I have a brief statement at this
time in support of the amendment.
Mr. President, I wish to support the
amendment offered in behalf of the dis-
tinguished Senator from Massachusetts
(Mr. KENNEDY). I would point out that
it follows very closely the lines of
S. 2892, which I introduced on Novem-
ber 22, 1971. That bill is cosponsored
by Senators ROTH, BEALL, BROOKE,
BUCKLEY, CASE, MTJSKIE, and PELL.
S. 2892 authorized a detailed environ-
mental study by three agencies, each
with great expertise in matters relating
to offshore oil drilling and its potential
environmental effects.
The agencies involved would be the
Interior Department, the National
Oceanic and Atmospheric Administra-
tion, and the Environmental Protection
Agency. I believe such a three-agency
study would be effective and utilize the
best resources of the Federal Govern-
ment.
In addition, my bill would also de-
clare a moratorium on oceanic mineral
-------
STATUTES AND LEGISLATIVE HISTORY
3125
exploration for the period of the study,
which is up to 2 years, as well as for a
period of 1 year after submission of the
study to the Congress. Such an extra
1-year moratorium would assure the
public sufficient time to evaluate the
study and seek possible legislative
changes, if such might be necessary.
While Senator KENNEDY'S amendment
is somewhat different from my bill, the
intent of the two provisions appears to
me to be identical.
Thus, I wish to express my support
for the Senator's amendment and ex-
press my belief that it is needed to
protect our valuable coastal areas.
Mr. STEVENS. Mr. President, will
the Senator yield?
Mr. PELL. I yield.
Mr. STEVENS. Mr. President, I am
not going to belabor this issue, but it
does seem to me that the impact of the
amendment is to add to the total frame-
work of the laws that we have already
passed for environmental protection.
We passed a National Environmental
Protection Act, and we set up an elabo-
rate procedure—and Alaskans know
just how elaborate that procedure is—
for anyone who wants to propose to
develop the energy resources of this
country.
As I understand, the amendment says
"which might be impaired by the pro-
posed drilling."
I do not know that anyone has pro-
possd to drill. To my knowledge, no
portion of American industry has to
date said, "We want to drill here on
the Eastern Shore." But I think the
time has come when some people had
better start looking at their hole card.
They have said we cannot build our
Alaska pipeline; they have said they
cannot drill on the Louisiana offshore
lands; and now we have an independent
study of the Atlantic Outer Continental
Shelf, which is not even covered by
this bill. This bill covers the territorial
seas; it does not cover the Outer Con-
tinental Shelf. But this says someone
has proposed that they ought to ex-
amine the feasibility of the Outer Con-
tinental Shelf of the Atlantic Coast to
determine whether there is any energy
there.
I can understand the fears that have
come about as a result of the accidents
off of California, and the fears of the
people in Louisiana; but somewhere
they have got to make up their minds
that we have to find energy, American
energy to meet American needs. This
seems to me to be going in the wrong
direction, because it adds to the func-
tions of the Administrator of the EPA,
it adds to the Council on Environmental
Quality, it adds to the National Oceanic
and Atmospheric Administration, and
it adds to the existing duties of the
Secretary of the Interior, and presumes
every one of them are prejudiced. I
cannot buy that at all. I cannot buy
that they are prejudiced.
If there is some way, I say respect-
fully to the Senator from Rhode Island,
that we can incorporate this into the
framework of the National Academy of
Sciences so that they can conduct an
investigation of the total potential of
the Outer Continental Shelf in the At-
lantic, and not just look at the hazards
attendant to the drilling, I will not
object. I think they ought to be look-
ing into the total concept of the Outer
Continental Shelf. This is a negative
thing, as far as I can see. I say that
most respectfully to the Senator from
Rhode Island.
Mr. PELL. Mr. President, if the
Senator will yield there, I thought it
was the wish of the Senator from
Alaska and tho~e who share his views
that we delete the phrase in the amend-
ment "as well as alternatives to such
drilling in meeting the Nation's energy
needs," because the original amend-
rrent which I offered did just what the
Senator has suggested. It was wider
in scope, however. I thought it was
disagreeable to him. If he would prefer
that we widen it, I would withdraw
my modification.
Mr. STEVENS. I thank the Senator
-------
3126
LEGAL COMPILATION—WATER
for his suggestion. However, that is
not my point. It was suggested, I be-
lieve, by members of the Interior and
Insular Affairs Committee. I under-
stand what they are saying, because if
we get into those alternatives, this
study is not going to be conducted
solely off the Atlantic coast but also off
the Pacific coast, off the gulf coast, and
everywhere else.
I am saying that if a Senator wants
the National Academy of Sciences to
undertake the investigation of the
environment, including the environ-
mental problems related to the concept
of offshore drilling on the Outer Con-
tinental Shelf, I should think the Na-
tional Academy of Sciences also ought
to be in the position of telling us if
there is any way to mitigate the
hazards that might come about, and if
there is any way to drill safely in the
Atlantic Outer Continental Shelf. Why
should we adopt an amendment which
presumes that it could not be done
without creating a hazard to the At-
lantic Outer Continental Shelf?
I know that there are problems in
connection with drilling offshore. Ev-
ery time I travel home, I fly over plat-
forms in the Cook Inlet. Those plat-
forms are pumping oil to be sent to the
industrial establishment of this coun-
try, basically. If we pump oil from our
Cook Inlet, which is full of salmon,
and we have taken the attendant risks
of energy production for the good of
the Nation, then I think the people on
the Atlantic coast have to look at this,
also. Where is the oil going to come
from? They have to look at it from
the positive point of view of whether
we can get oil out of the Atlantic Outer
Continental Shelf safely. Are there
methods by which we can extract it
without creating unwarranted hazards
to the people on the Atlantic coast?
This assumes that someone should
make a full investigation of the en-
vironmental hazards attendant to this
study. What about the positive side?
Does the Senator not think that the
National Academy of Sciences could
say what could be done to overcome
the hazards?
Mr. PELL. If the Senator from
Alaska would like to modify the
amendment by inserting that phrase, it
would be acceptable, or he may prefer
the amendment as originally submitted.
Last Friday, in Boston, I had the
honor of addressing a thousand people
[p. S6665]
interested in the marine and fishing
industry, fishery resources, from all
over the country. Those on the At-
lantic coast had very real worries about
the impact of offshore oil drilling, and
it was brought up time and again in
the course of the discussion.
The amendment simply proposes a
study by an independent group. Such
a study could do a great deal to help
settle the fears in the minds of many
people in my part of the country.
Mr. STEVENS. I appreciate that
concern. My State is the richest State
in terms of fishery resources. We have
the constant problem in terms of diffi-
culties in developing other resources
at the same time we examine the en-
ergy resources off shore.
The courts have said that this Nation
cannot develop the Louisiana offshore
leases at this time. The California de-
velopment is stalled. At the present
time we have been stalled in the devel-
opment of Alaska's oil and gas re-
sources. Yet, we have declining energy
resources throughout the interior of the
United States.
Naturally, anyone in the position of
looking at this energy deficit—which is
not just creeping but which is over-
coming us almost at the speed of a
rocket—is looking at the Atlantic Outer
Continental Shelf and saying, "Is it
possible that there are oil and gas re-
sources that could be recovered with-
out undue risk to the United States?"
If the Senator wants to study it from
the positive point of view, in terms of
whether or not oil and gas resources
-------
STATUTES AND LEGISLATIVE HISTORY
3127
are there and can be recovered safely,
I am in agreement.
Mr. PELL. I assure the Senator
from Alaska that we, too, have needs
for power in the Northeast. We find
ourselves crucified by the oil import
quota system now, which prevents us
from purchasing inexpensive foreign
fuel oil. We have a stake in trying to
get cheap power. We have the most
expensive power in the country be-
cause of the crucifixion of our part of
the country on the cross of oil import
quotas.
I hope that, just as the Senator from
Alaska wanted a study concerning his
area, the Senator from Alaska could
agree, as a matter of comity, that this
study be made for our part of the coun-
try.
Mr. STEVENS. I assure the Senator
that I do not have any objection if he
wants to have a study made. I think
the National Academy of Sciences
should be directed also to include in its
study recommendations as to how to
overcome such hazards, if they find
there are any.
Mr. PELL. Such a modification of
the amendment would be acceptable
to the proponents of the amendment,
if the Senator would care to offer it.
Mr. STEVENS. I suggest to the Sen-
ator from Rhode Island that he add to
the end of the first sentence the words
"and shall include recommendations to
eliminate such environmental hazards,
if any." That would meet my objec-
tion.
Mr. PELL. That modification would
be acceptable to us, if the Senator
would care to offer it.
Mr. STEVENS. I offer such a modi-
fication.
Mr. PELL. I can modify the amend-
ment, and I modify it accordingly.
The PRESIDING OFFICER. The
Senator has the right to modify the
amendment.
Mr. STEVENS. I send the modifica-
tion to the desk.
I say to the Senator from Rhode
Island that, as far as the import quota
is concerned, we are most aware of
the concern of the east coast about the
import quotas and their effect on the
east coast.
I point out to the Senator from Rhode
Island that if we could proceed with
our Alaska pipeline and add 3 million
barrels a day to the supply of American
oil reaching American markets, it
would automatically displace 3 million
barrels a day that presently are going
into the markets on the west coast
and in the Midwest, and under the
present import system there would be
an additional supply of oil so far as the
east coast is concerned. But I am be-
coming most concerned that the people
who look at each segment of the coun-
try, whether it be Louisiana, California,
or the Atlantic Outer Continental Shelf,
just look at their own backyard and
say, "Do not drill here, but give us
some energy and give it to us quickly."
We have an energy shortage, while at
the same time we try to develop the
oil shale reserves of Colorado and
Wyoming, and we cannot do it due to
environmental concerns. We cannot
even build a pipeline across the State
of Alaska.
We have been waiting for 2 years.
I think it is time that we started
questioning the addition of more en-
vironmental barriers to the decision-
making process of where the oil and
gas supplies for our country are going
to come from.
I am not going to oppose the amend-
ment, and I appreciate his courtesy in
modifying it to meet my objection. I
say to the Senator from Rhode Island,
respectfully, that even without this
amendment, the Administrator of the
Environmental Protection Agency
would have studied offshore drilling.
The Council on Environmental Quality
would have studied offshore drilling.
The Secretary of Interior would have
had to have an environmental impact
hearing, a total hearing—and the thou-
sand people to whom the Senator re-
-------
3128
LEGAL COMPILATION—WATER
ferred could express their views. But
someone would have to make a deci-
sion on a proposed project. There is
no proposed project at the present
time, and the National Academy of
Sciences is going to be investigating
the potential without anyone being
willing to commit himself and say, "If
we are going to do it, this is the way
we want to do it."
I thank the Senator from Rhode
Island for his courtesy.
The PRESIDING OFFICER. Does
the Senator from Rhode Island desire
the modification of the amendment
stated?
Mr. PELL. Yes. I ask that my
amendment be modified in line with the
suggestion of the Senator from Alaska.
The amendment, as further modified,
reads as follows:
On page 26, after line 19, Insert the fol-
lowing:
SEC. 316. (c) The Administrator of the
National Oceanic and Atmospheric Adminis-
tration of the Department of Commerce,
after consultation with the Secretary of the
Interior and the Administrator of the Envi-
ronmental Protection Agency, shall enter
into appropriate arrangements with the Na-
tional Academy of Sciences to undertake a
full investigation of the environmental haz-
ards attendant on offshore oil drilling on
the Atlantic Outer Continental Shelf. Such
study should take into consideration the
recreational, marine resources, ecological,
esthetic, and research values which might
be impaired by the proposed drilling and
shall include recommendations to eliminate
such environmental hazards, if any. A report
shall be made to the Congress, to the Admin-
istrator, and to the Secretary by July 1, 1973.
There are authorized to be appropriated
for the fiscal year in which this Act is en-
acted and for the next fiscal year thereafter
such sums as may be necessary to carry out
this section, but the sums appropriated may
not exceed $500,000.
Mr. ROLLINGS. Mr. President, I
would support the amendment as modi-
fied.
While the matter of the study by the
National Academy of Sciences is a new
approach, the matter of study gen-
erally, relative to oil exploration on
the Continental Shelf, is not new. This
subject came up with respect to sanc-
tuaries and oil pollution in the National
Water Quality Control Act which is in
conference. We are talking about a
half-million-dollar study. The Com-
mittee on Interior and Insular Affairs
expended $400,000 to $500,000 in doing
that. It made its own study and held
its own hearings at that particular
time. The Secretary of the Interior
reported in the press that he had no
intention to grant any lease rights
within the next 2-year period pending
his study and intimating at that time
a private study. Whatever the results
would be, they would be submitted
to Congress, particularly to the Senate
by the Committee on Interior and Insu-
lar Affairs. If the study by the National
Academy of Sciences arranged by the
National Oceanic and Atmospheric Ad-
ministration of the Department of
Commerce in conjunction with the
Interior Department and the Environ-
mental Protection Agency would be of
help, I would support it. It would cer-
tainly give more support and more
credibility to the ultimate proposals on
this all-important score and, therefore,
I would go along with the amendment,
with those comments.
Mr. MOSS. Mr. President, will the
Senator from South Carolina yield?
Mr. ROLLINGS. I yield.
Mr. MOSS. Mr. President, I would
be pleased to support the amendment.
When the Senator from Rhode Island
(Mr. PELL) was discussing the original
wording it was necessary, I thought,
to point out that the line included
therein, which called upon the study
to suggest alternatives to such drilling
in meeting the necessary energy needs,
was duplicative of work already being
done in the National Fuels and Energy
Study being conducted by the Com-
mittee on Interior and Insular Affairs
pursuant to Senate Resolution 45.
Moreover, since the State coastal zone
management programs relate only to
the territorial sea, we should, therefore,
be very careful of a study which ex-
tends beyond the territorial sea to en-
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STATUTES AND LEGISLATIVE HISTORY
3129
compass the Continental Shelf. I
agree that the amendment, as modified,
and the additional language which has
since been added, merely asks for rec-
[p. S6666]
ommendations as to how to preserve
the environmental quality of the coastal
zone and the nearby ocean areas. I
have no objection to that. Everyone
else seems to be in the act studying
the environment, so it would be fine to
have this study made by the National
Academy of Sciences.
Mr. ROLLINGS. Mr. President, I
move adoption of the amendment.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment.
The amendment was agreed to.
Mr. ROBERT C. BYRD. May I ask
the distinguished manager of the bill
whether it is his intention to ask for
the yeas and nays on final passage of
the bill?
Mr. HOLLINGS. Mr. President, I
ask for the yeas and nays just on
final passage.
The yeas and nays were ordered.
Mr. BOGGS. Mr. President, the bill,
S, 3507, represents the fruits of a coop-
erative effort involving the Commerce
and Public Works Committees. I think
the members of the committees and
the respective staffs are to be compli-
mented for working together in bring-
ing this matter to the Senate.
Upon giving S. 3507 its final review,
the Committee on Public Works has
recommended three very short, but
important, amendments to keep the
coastal zone bill in harmony with other
pollution control legislation which had
its origin in the Public Works Com-
mittee. These amendments have been
discussed with the staff of the Com-
merce Committee and Senator ROL-
LINGS and it is my understanding they
are acceptable.
I think it is appropriate to give a
brief description of each of these
amendments and their purpose.
As stated in S. 3507 the purpose of
the coastal zone management plan is
primarily to regulate land and water
uses in the interests of environmental
quality. Pursuant to the Federal Wa-
ter Pollution Control Act, the States,
working together with the Federal
Government, develop and implement
programs necessary to achieve water
quality objectives. In order to avoid
confusion it is necessary to define water
uses in the context of S. 3507 so that
the program which will be developed
by the Secretary of Commerce and
State agencies will in no way conflict
or overlap with the program admin-
istered by the Environmental Protec-
tion Agency in concert with State
governments. The amendment pro-
posed would define "water use" to
make it clear that the coastal zone
management bill in no way alters the
requirements established pursuant to
the Federal Water Pollution Control
Act but rather that such requirements
are incorporated into the coastal zone
program. The scope of the Federal
Water Pollution Control Act and the
Coastal Zone Management Act are
therefore defined and made compatible
and complementary.
Another amendment is also neces-
sary to make clear the relationship of
the Coastal Zone Management Act and
other environmental protection acts,
specifically the Federal Water Pollu-
tion Control Act and the Clean Air Act.
It is essential to avoid ambiguity on
the question whether the Coastal Zone
Management Act can, in any way, be
interpreted as superseding or other-
wise affecting requirements established
pursuant to the Federal air and water
pollution control acts.
In both the Clean Air Act and the
Federal Water Pollution Control Act
authority is granted for effluent and
emission controls and land use regula-
tions necessary to control air and water
pollution. These measures must be
adhered to and enforced. Taken to-
gether, the amendments that we offer
would achieve this result.
-------
3130
LEGAL COMPILATION—WATER
The bill, S. 3507, would establish a
Federal Board to assist in coordinating
the activities of various agencies of the
Federal Government in meeting the
objectives of coastal zone management.
Perhaps through oversight the Admin-
istrator of the Environmental Protec-
tion Agency is not made a member of
that Board. The third amendment,
which I offer for the Public Works
Committee, would add statutory mem-
bership for the Administrator of the
Environmental Protection Agency.
In our judgment, it is absolutely es-
sential that the Administrator of the
Environmental Protection Agency, the
primary official for environmental
quality in the executive branch, be
included in any activity dealing with
environmental quality, especially en-
vironmental quality relating to land
and water use. Among other things,
this addition would make meaningful
the preservation of authority under the
Clean Air Act and the Federal Water
Pollution Control Act as proposed in
the other amendments. At the same
time it would result in close coordina-
tion in implementing the objectives of
pollution control and the objectives of
the Coastal Zone Management Act.
Mr. President, I send the three tech-
nical amendments to the desk and ask
that their reading be dispen-ed with.
The PRESIDING OFFICER (Mr.
EAGLETON). Without objection, it is so
ordered; and the amendments will be
printed in the RECORD at this point.
The texts of the three amendments
are as follows:
On page 24 between lines 17 and 18 in-
sert the following new subsection:
"(e) Notwithstanding any other provision
of this Act nothing in this Act shall in any
way affect any requirement (1) established
by the Federal Water Pollution Control Act,
as amended, or the Clean Air Act, as
amended, or (2) established by the Federal
government or by any State or local govern-
ment pursuant to such Acts. Such require-
ments shall be incorporated in any program
developed pursuant to this Act and shall be
the water pollution control and air pollution
control requirements applicable to such pro-
gram.
On page 17 between lines 22 and 23 insert
the following new paragraph:
"(10) The Administrator of the Environ-
mental Protection Agency.
On page 7 between lines 6 and 7 insert
the following new subsection:
"(h) 'water use' means activities which are
conducted in or on the water; but does not
mean or include the establishment of any
water quality standard or criteria or the reg-
ulation of the discharge or runoff of water
pollutants except as such standards or cri-
teria or regulations shall be incorporated in
any program as provided by Sec. 314(e).
Mr. BOGGS. Mr. President, I under-
stand 'that these amendments will be
accepted by the distinguished floor
manager of the bill.
Mr. ROLLINGS. Mr. President, sub-
stantially, the three amendments in-
clude on the one hand the Administra-
tor of the Environmental Protection
Agency on the National Coastal Re-
sources Board, and then spells out
that, notwithstanding any other provi-
sion of the act, the provisions of the
Water Pollution Control Act or the
Clean Air Act shall govern. We are
not trying in this particular measure
to set any standards. As the third
amendment says, we are not trying to
spell out any criteria or regulations as
encompassed in this one act. In fact,
we have tried to protect the Federal
Water Pollution Control Act as we
have it now in conference. It is a
tenuous thing to try to touch on
coastal zones and on the matter of
water use and then say in the develop-
ment of coastal zones that they not be
given any consideration. We think
water use should be considered, among
other things, and we do not think we
should try, and do not try, to preempt
in any manner or means the provisions
of either the Federal Water Pollution
Control Act or the Clean Air Act which
we are supporting in conference with
the House. Therefore, I would be glad
to accept the amendments.
Mr. BAKER. I would like to have
the understanding of the floor man-
ager of the bill as to the intent of these
-------
STATUTES AND LEGISLATIVE HISTORY
3131
amendments because this is the only
opportunity we will have to make any
legislative history and elaborate upon
congressional intent.
I wonder whether the Senator from
South Carolina would agree with me
that the amendment which provides,
and I quote in part:
"Such requirement shall be incorpo-
rated in any program developed pursu-
ant to this Act and shall be the water
pollution control and air pollution con-
trol requirements applicable to such
program" means "the" water pollution
and air pollution control requirements,
including State and local requirements
pursuant to the Federal Clean Air and
Water Acts to the exclusion of any
other requirements? What I am saying
is that the word "the" as used in "and
shall be the water pollution control and
air pollution control requirements," the
word "the" for our purposes of em-
phasis, would be underscored to mean
exclusive of any other pollution con-
trol program; is that not correct?
Mr. ROLLINGS. That is my under-
standing. That is perfectly clear. That
is the intent of the bill.
Mr. BAKER. I thank the manager of
the bill. That is a helpful addition to
the legislative history. I am happy to
support the amendments as offered
by the distinguished Senator from
Delaware (Mr. BOGGS) .
Mr. STEVENS. Mr. President, I want
to make certain I understand correctly
the answer of the Senator from South
Carolina to the Senator from Tennessee
(Mr. BAKER).
Do I understand correctly that the
effect of the amendments offered on be-
half of the Public Works Committee
will be
[p. S6667]
such that the State and the local gov-
ernment which presents a plan to the
Secretary pursuant to our Coastal Zone
Management Act would refer to the
standards of criteria and regulations
that are in effect at that time under the
Federal Water Pollution Control Act
or the Clean Air Act? Is that the un-
derstanding of the Senator from
Tennessee?
Mr. ROLLINGS. Including any other
amendments made to the substance of
the legislation, the Water Pollution
Control Act or the Clean Air Act. In
other words, this is not a pollution con-
trol or clean air control measure. This
is a coastal zone management bill. I
think—if we could conceive of both
measures, in the development of the
coastal zones regulations for air and
water pollution—that they are both
concerns of both measures. But where
they could be, I cannot imagine in this
bill there could be a conflict with the
substance of the Water Pollution Con-
trol or Air Pollution Control Acts.
They would govern, and some pro-
grams approved by the governor and
amended, from time to time by the gov-
ernors and the Department of Com-
merce for coastal zone management
have got to conform to the Water Pol-
lution Control and the Clean Air Acts.
Mr. STEVENS. Mr. President, I un-
derstand the comment of my good
friend, the Senator from South Caro-
lina. In the event a State or local gov-
ernment intends to increase these
standards—and we have testimony that
some desire to do this—and they pre-
sent a plan which is more stringent
than the controls and criteria contained
in either of these two acts, then I am
assuming that we are providing in the
amendment that it must be at least
equivalent to the criteria established
in the two acts. Is that correct?
Mr. ROLLINGS. The basic Water
Pollution Control Act permits that as
of now.
Mr. BAKER. Mr. President, if the
Senator from South Carolina would
yield, the Senator from Alaska made
reference to my previous comment.
Mr. ROLLINGS. I yield to the dis-
tinguished Senator from Tennessee.
Mr. BAKER. Mr. President, I think
that the amendment from which I read
-------
3132
LEGAL COMPILATION—WATER
in part does provide that the effect
would be to include any future amend-
ments to the Federal Water Pollution
Control Act or the Clean Air Act.
As a matter of fact, I will read the
first clause from subsection (e) of the
third amendment:
Notwithstanding any other provision of this
Act, nothing in this Act shall in any way
affect any requirement (1) established by
the Federal Water Pollution Control Act,
as amended, or the Clean Air Act, as
amended... .
I think clearly this language is in-
tended to include any future amend-
ment, including S. 2770, the 1972
amendments to the Federal Water Pol-
lution Control Act, which is now in
conference. I think, from my vantage
point and from my understanding of it,
the answer to the question put by the
Senator from Alaska as to whether a
local jurisdiction, State, or local agency
might require standards in excess of
those spelled out in the act, is yes; it
is clearly provided for under the Fed-
eral Water Pollution Control Act and
the Federal Clean Air Act. The
amendment would provide that such
more stringent standards or require-
ments would be made a part of the
coastal zone management program.
So, not independently, nor by reason
of this amendment, but by reason of
authority already in the Federal water
and air pollution acts, local authorities
could require standards in excess of
Federal criteria.
The important thrust of these amend-
ments, as I understand them, and as I
understand the Senator from South
Carolina to express his sense of that
understanding, is to make sure that
regulatory requirements under the air
and water acts are the ones included
in the coastal zone program under this
act and not some other separately es-
tablished requirement.
Mr. ROLLINGS. The Senator is
correct.
Mr. STEVENS. Mr. President, I un-
derstand the Senator from Tennessee.
However, I want to make certain that
the Water Control and Clean Air Act
requirements contained in this plan
may exceed the requirements set out
under the two Federal laws.
Mr. BAKER. Mr. President, my an-
swer is yes, that authority is in both
of those acts. This does not change it
but incorporates it into this coastal
zone program.
Mr. HOLLINGS. So long as it does
not increase the authority of the Fed-
eral Government.
Mr. STEVENS. I thank the Senator.
Mr. BAKER. Mr. President, I serve
on three committees of the Congress
which have important jurisdiction over
areas of environmental quality; the
Committee on Public Works, the Com-
mittee on Commerce, and the Joint
Committee on Atomic Energy. As a
result of my experience in these com-
mittees I have a growing concern with
the lack of coherence and integration
of the environmental quality laws and
the regulations. It is my belief that we
are rapidly approaching the time when
we must look at the environmental
protection laws Congress has enacted
in their totality, and perhaps integrate
all of the laws and regulations that
presently exist into a more coherent
body of procedural and substantive law.
In the interim Congress should not
act to further confuse the scope of
environmental laws and regulations,
especially by enacting mandates to dif-
ferent agencies of the government to
perform the same or parallel activities.
The bill S. 3507, coastal zone man-
agement, without the amendments rec-
ommended by Senator BOGGS, would
have this effect. In the Federal Water
Pollution Control Act, especially as it
would be amended by S. 2770, the Con-
gress has enacted an elaborate scheme
for the control of water pollution and
the achievement of water quality.
Good government dictates that this
must be the vehicle for the regulation
of water quality. We should not enact
additional statutes directing other
-------
STATUTES AND LEGISLATIVE HISTORY
3133
agencies of Federal and State Gov-
ernments to perform overlapping and
possibly conflicting tasks through an
elaborate scheme of their own.
In addition to causing confusion and
waste, such action would operate at
great disadvantage to those who seek
to comply with the law. In addition
to increasing procedural costs, such
action would create a climate of un-
certainty which ultimately leads to
poor performance. The public expects
more from its government.
I therefore support these amend-
ments.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ments en bloc of the Senator from
Delaware.
The amendments were agreed to.
Mr. BOGGS. Mr. President, I send to
the desk an amendment and ask that it
be reported.
The PRESIDING OFFICER. The
amendment will be reported.
The assistant legislative clerk pro-
ceeded to state the amendment.
Mr. BOGGS. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. With-
out objection, it is so ordered; and the
amendment will be printed in the
RECORD.
The amendment reads as follows:
On page 24, after line 17, add a new sub-
section (e):
"(e) (1) That Congress finds that consider-
ation is being given to the construction
beyond the territorial sea off the coast of the
United States of ship docking, electric gen-
erating, and other facilities. Since adjacent
coastal States might be adversely affected by
pollution from such facilities, it is hereby
established as Federal policy to require ap-
proval of any States which may be so
affected before any such facilities are con-
structed.
(2) Notwithstanding any other provision
of this Act, no Federal department or agency
shall construct, or license, or lease, or
approve in any way the construction of any
facility of any kind beyond the territorial
sea off the coast of the United States until
(1) such department or agency has filed
with the Administrator of the Environmental
Protection Agency, a complete report with
respect to the proposed facility; (2) the Ad-
ministrator has forwarded such report to
the Governor of each adjacent coastal State
which might be adversely affected by pollu-
tion from such facility; and (3) each such
Governor has filed an approval of such
proposal with the Administrator. Any Gov-
ernor who does not, within ninety (90) days
after receiving a report pursuant to this sub-
section, file an approval or disapproval of
the proposal in such report shall be consid-
ered for the purpose of this subsection to
have approved such proposal."
Mr. BOGGS. Mr. President, I am of-
fering an amendment that will assure
our coastal States a meaningful role in
the location and design of any offshore
oil transfer station that might be con-
structed to serve the so-called "super-
tankers."
The amendment would add a new
subsection (e) on page 24 of the bill.
The new subsection would be at the
end of section 314, "Interagency Co-
ordination and Cooperation."
A number of Federal, State, and
other studies are currently underway
to evaluate the need and potential sites
for one or more major bulk cargo
transfer stations. Such stations will be
needed if the United States is to receive
the economies of scale offered by super-
tankers,
[p. S6668]
whether transporting oil or other bulk
commodities.
Present harbors, I am told, cannot
handle such vessels because the chan-
nels simply cannot be dredged to a
sufficient depth. The solution may in-
volve offshore terminals, where the
supertankers could pump their cargo
into storage tanks. From those tanks
the oil could be piped ashore in under-
water pipelines, or transferred to barges
or smaller tankers.
The Maritime Administration,
through a contract with Soros Associ-
ates, is in the process of evaluating the
feasibility of such offshore terminals, as
well as possible sites for such terminals.
This study, I understand, is to be made
public in a month or two.
-------
3134
LEGAL COMPILATION—WATER
At the same time, the Army Corps of
Engineers is undertaking, under Sen-
ate resolution, similar studies, one of
which covers the coast from Maine to
Virginia.
In any case, it is expected that the
Federal studies may recommend sites
outside the 3-mile territorial limit of
the United States. Such sites, of
course, would place these facilities in
the contiguous zone, or in international
waters on the Continental Shelf. If
that were so, of course, the facility
would be outside the jurisdiction of the
neighboring States.
Yet, the coastal zones of these neigh-
boring States could be severely and ad-
versely affected by pollution that might
come from such an offshore facility.
While such a pollution discharge
would be subject to the cleanup provi-
sions of the existing Federal Water Pol-
lution Control Act, this might be in-
sufficient protection for the coastal
States. Rather than protecting a State
and its coastal zone subsequent to a
discharge, I believe it is important
that the affected States play a mean-
ingful role in the plan to construct such
a facility.
And such a facility will be of mam-
moth proportions. It will, of course,
cover many acres of the ocean. It may
permanently affect tidal currents and
the quality of fisheries within the
coastal zone of the State.
The amendment I am offering today
would require that any Federal agency
constructing, leasing, or issuing a per-
mit for the construction of such facili-
ties must obtain the concurrence of the
Governor or Governors of the States
that would be potentially affected by
such a facility.
The amendment would require the
Administrator of the Environmental
Protection Agency to study such facili-
ties and report on such facilities to any
State that is potentially affected ad-
versely.
For example, a State would be af-
fected adversely if such a facility might
discharge pollutants that enter the wa-
ters of the State. Or the State might
be affected adversely if the facility
could be seen from the coastal area or
the waters of the State and damage
recreational values.
In either case, the Governor must af-
firmatively concur in the construction
of the facility within 90 days of the
EPA report to him. The Governor
may report adversely. If he does, the
facility could not be built, licensed,
leased, or permitted. If the Governor
did not report back within 90 days, it
would assumed that he concurred in
the facility.
Mr. President, I hope that the dis-
tinguished chairman, the floor manager
of the bill, might consider accepting the
amendment.
Mr. HOLLINGS. Mr. President, in
response to the thrust of the particular
amendment and the leadership on this
point given by the distinguished Sen-
ator from Delaware, I would personally
think this is a good amendment.
Mr. President, you can read it and
see that, but I meet myself coming
around the corner. We started out this
morning with last minute concerns by
my colleagues that we might infringe
on an area of jurisdiction of the Com-
mittee on Public Works. I assured
everyone in my discussion that we were
trying to finally and once and for all
establish a coastal zone management
program to give financial assistance to
the States in the development of these
programs, and that is all this bill per-
tains to; that we were restricting it, in
other words, to the territorial sea.
The amendment of our distinguished
friend from Delaware goes beyond the
territorial sea and goes into what we
agreed on and compromised on awhile
ago. It goes beyond any territorial sea
to construction of any facility on the
ocean floor, into what we call a con-
tiguous zone from the 3-mile limit to
the 12-mile limit.
This amendment provides the Gov-
ernor would have a veto over such
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STATUTES AND LEGISLATIVE HISTORY
3135
matters. I do not think the Senate
wants to go that far. The amendment
comes without public hearing and full
consideration, which we have not had
the benefit of.
While I had discussed earlier this
morning with the distinguished Presid-
ing Officer that the Committee on Pub-
lic Works have a chance to hear this
matter, I believe the Committee on In-
terior and Insular Affairs and the Com-
mittee on Commerce should have an
opportunity to go into the matter be-
fore it is ruled on.
Therefore, Mr. President, I would
have to oppose the amendment.
Mr. MOSS. Mr. President, will the
Senator yield?
Mr. ROLLINGS. I yield.
Mr. MOSS. Mr. President, I would
point out that the Committee on Inte-
rior and Insular Affairs is very deeply
concerned with this matter and is mak-
ing a study of it now. In fact, this
very afternoon, starting at 2 p.m., we
are having public hearings dealing with
deepwater harbors and tankers. The
matter is therefore in process.
Therefore, I hope very much the Sen-
ator from Delaware will not press his
amendment but permit us to go through
the legislative process and report a bill
to the floor dealing with this matter,
based on hearings, at which time he
well might wish to modify or suggest
amendments. It would be germane at
that time, rather than now, as this bill
attempts to deal with the Territorial
Sea, not the Outer Continental Shelf.
Mr. BOGGS. Mr. President, will the
chairman yield further?
Mr. ROLLINGS. I yield to the Sen-
ator from Delaware.
Mr. BOGGS. Mr. President, I appre-
ciate the very kind and generous re-
marks of the distinguished chairman of
the subcommittee and the manager of
the bill, and also the remarks of the
distinguished Senator from Utah (Mr.
Moss), who is chairman of the hearings
just referred to. I am happy that these
hearings and studies are continuing. I
believe and hope they will shed full
light on this important subject so that
the Senate can give the fullest consid-
eration in light of these hearings and
further studies.
Mr. President, with the chairman's
permission, I ask unanimous consent
to withdraw the amendment.
The PRESIDING OFFICER. The
Senator has the right to withdraw his
amendment. The amendment is with-
drawn.
Mr. BOGGS. Mr. President, I thank
the distinguished chairman, the Senator
from South Carolina (Mr. ROLLINGS),
and the Senator from Utah (Mr. Moss).
Mr. MOSS. If the Senator from Del-
aware is available, we would like to
ask him to come and participate in the
hearings.
Mr. BOGGS. I thank the Senator.
Mr. ROLLINGS. Mr. President, to
complete the record on this particular
score, when I talked in terms of juris-
diction, I talk not in terms of exclu-
sivity in that any one committee was
concerned with the problems of offshore
development and related ocean pollu-
tion. The Commerce Committee also is
deeply concerned. The fact is that yes-
terday the Maritime Administrator, be-
fore the Committee on Appropriations,
in trying to pursue the administration's
ship construction measures and develop
a maritime policy, was talking about
construction of supertankers. When we
originally talked about the bill, it was
30 ships a year for 10 years, some 300
vessels. Now, rather than 40,000 and
50,000 tonners we are going to 200,000
and 400,000 tonners and rather than 30
ships a year for 10 years we will have
60 or 70 supertankers, and where are
they going to dock when they have in
excess of an 80-foot draft? They could
not come in on the east coast or the
Gulf of Mexico. So we in the Com-
merce Committee and Appropriations
Committee were talking about what the
Senator from Idaho is discussing, the
development of offshore landing facili-
ties.
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3136
LEGAL COMPILATION—WATER
The Senator from Alaska has been
pointing out this morning that we will
need such development for nuclear
powerplant siting, for offshore loading,
both coal and oil, and other supertank-
ers. Of course, the FAA is considering
this approach in the development of
offshore airports.
Mr. President, I am ready to vote.
The PRESIDING OFFICER. The bill
is open to further amendment.
Mr. STEVENS. Mr. President, I have
an amendment at the desk. First, I
wish to note what the Senator has said.
Coming from a State which hopes to
be filling some of these supertankers to
send American oil to foreign markets,
we want to make certain that the de-
sires of the Senator from Delaware are
fulfilled, and that there is absolute
safety in any one of these terminals off-
shore. We
[p. S6669]
would be the first to lose if someone
made a mistake and did not require
absolute safety in those facilities. I
assure the Senator I will work with
him to make certain the role of the
State in supervising this construction
and eliminating any hazards or esthetic
barriers to the development that will
be needed is taken care of.
Mr. BOGGS. Mr. President, I espe-
cially thank my good friend, the Sen-
ator from Alaska. I know and value his
interest in these matters and I appre-
ciate the remarks that he just made.
It is reassuring to the people of our
State and to all concerned.
While I am on my feet I take this op-
portunity to compliment my good
friend, the distinguished chairman of
the subcommittee and the manager of
the bill, (Mr. ROLLINGS) the Senator
from Alaska (Mr. STEVENS), and other
members of the committee for the fine
job they have done in the past several
months in studying and bringing forth
this legislation. They have done a fine
job and they and the fine members of
the staff are to be congratulated.
Mr. STEVENS. Mr. President, I call
up my amendment, which is at the desk.
The PRESIDING OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:
On page 10 between lines 6 and 7 and on
page 15, between lines 12 and 13, insert the
following:
(i) The Secretary is authorized to make
management program development or ad-
ministrative grants to a political subdivision
of a State with areawide powers, If the Sec-
retary finds that the State has not developed
a management program required by section
306 of this title, provided that If the State
completes such a program the authority of
this subsection shall terminate with regard
to any political subdivision of such State.
Mr. STEVENS. Mr. President, I did
not make the usual request to stop the
reading of the amendment, because it
is short and addresses a point that was
raised by the chairman of the largest
political subdivision of my State, which
is the Greater Anchorage Borough,
which completed a plan that would set
up this program. The State has not
done so.
In an area such as ours, with a coast-
line equal to more than half of that of
the continental United States, it will
take time, and this will assure the po-
litical subdivision of my State, which
prepared such a plan, that they could
receive financial assistance from the
Secretary until the State completes its
plan. I have discussed this matter with
the distinguished chairman of the com-
mittee and he has stated he will be able
to accept the amendment so that the
Greater Anchorage Borough plan may
proceed under this act.
Mr. ROLLINGS. Mr. President, I
join with the Senator from Alaska on
this amendment. The committee is glad
to accept this particular amendment be-
cause it strengthens the bill and fills
the gap pointed out by the Senator from
Alaska, where we just do not want to
move forward with development, and
we do not want to tie our hands so that
progress cannot be made, particularly
for an important State like Alaska,
which has the biggest coastal area and
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STATUTES AND LEGISLATIVE HISTORY
3137
is more directly concerned than any of
the several States.
So I move the adoption of the amend-
ment.
Mr. STEVENS. I thank the Senator.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Alaska.
The amendment was agreed to.
Mr. ROLLINGS. Mr. President, I
think there is only one remaining
amendment, by my distinguished col-
league from the State of Virginia (Mr.
SPONG), who has been very active on
the Subcommittee on oceans and at-
mosphere and has worked on the
coastal zone issue. We visited the Vir-
ginia Marine Sciences Center and got
many of our ideas firsthand there, not
only for the need, but the proper ap-
proach for the Federal Government to
employ and profit from the experience
to date in his native State.
I think we have one more amend-
ment that he will offer, and after that
we will be prepared to vote on final
passage.
Mr. SPONG. Mr. President, I thank
the distinguished Senator from South
Carolina.
Shortly before the Commerce Com-
mittee voted to report this bill, it oc-
curred to me that the measure might
have a prejudicial effect upon the mat-
ter of United States against Maine, et al.
The United States in this case is seeking
a determination of rights in all the
lands and natural resources of the bed
of the Atlantic Ocean more than three
geographical miles from the coastline.
The Federal action, against the 13 At-
lantic coastal States, is in the nature
of a suit to quiet title.
I have requested the views of Vir-
ginia Attorney General Andrew P. Mil-
ler on this matter, and have received
three suggested amendments from him
which I intend to offer. I hope the dis-
tinguished Senator from South Carolina
will find it possible to accept the
amendments, the sole purpose of which
is to assure that the bill will have no
prejudicial effect upon the litigation.
I might say to the Senate and to the
Senator from South Carolina that the
staffs of the Commerce Committee and
of the Committee on Interior and In-
sular Affairs reviewed these amend-
ments.
The PRESIDING OFFICER. Does
the Senator wish to send his amend-
ments to the desk?
Mr. SPONG. I send the amendments
to the desk.
The PRESIDING OFFICER. The
clerk will please read the amendments
of the Senator from Virginia.
The assistant legislative clerk read
the amendments, as follows:
On page 5, line 14, insert the following:
strike "United States territorial seas," and
insert the following: "legally recognized ter-
ritorial seas of the respective coastal states,
but shall not extend beyond the limits of
State jurisdiction as established by the Sub-
merged Lands Act of May 22, 1953, and the
Outer Continental Shelf Act of 1953."
On page 23, line 20, insert the following:
a comma after "resources" and insert the
following: "submerged lands"
On page 23, line 17, insert the following:
strike "section" and insert the following:
"Act"
The PRESIDING OFFICER. Does
the Senator from Virginia desire to
have the amendments considered en
bloc?
Mr. SPONG. Mr. President, I ask
unanimous consent that the amend-
ments be considered en bloc.
The PRESIDING OFFICER. With-
out objection, the amendments will be
considered en bloc.
Mr. ROLLINGS. Mr. President, I
support the amendments. We have
been trying to reconcile the amend-
ments so that we would not interfere
with any legal contention of any of the
several States at the present time in-
volved in court procedures. At the
same time we wanted to make certain
that Federal jurisdiction was unim-
paired beyond the 3-mile limit in the
territorial sea. If we do not go beyond
that, I think these amendments take
care of it.
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3138
LEGAL COMPILATION—WATER
Mr. BOGGS. Mr. President, will the
Senator yield?
Mr. ROLLINGS. I yield.
Mr. BOGGS. Mr. President, I wish
to express my support for the amend-
ment offered by the distinguished Sen-
ator from Virginia (Mr. SPONG). This
amendment will insure that this legis-
lation in no way prejudices the present
consideration by the courts of a case
involving State rights over the seabed.
I believe this amendment is important,
and I commend the Senator for this
amendment.
Mr. SPONG. I thank the Senator
from Delaware.
Mr. MOSS. Mr. President, will the
Senator yield?
Mr. SPONG. I yield.
Mr. MOSS. I simply wish to say that
the amendment offered by the Senator
from Virginia is very acceptable from
the viewpoint of the Interior and In-
sular Affairs Committee in relation to
the National Fuels and Energy Study
which our committee has undertaken.
This makes clear that this bill focuses
on the territorial sea or the area that
is within State jurisdiction, and pre-
serves the Federal jurisdiction beyond,
which is not to be considered or dis-
turbed by the bill at this time. If we
want to do something about that later,
we will have another bill and another
opportunity.
I am, therefore, very happy to support
the amendment offered by the Senator
from Virginia.
Mr. SPONG. Mr. President, I am
very pleased that the Senator from
Utah has made this expression. Mem-
bers of the Interior and Insular Affairs
and the Public Works Committees, the
Senator from Delaware and the Senator
from South Carolina, have agreed to
accept the amendment.
The PRESIDING OFFICER. The
question is on adopting, en bloc, the
amendments of the Senator from Vir-
ginia.
The amendments were agreed to en
bloc.
Mr. ROLLINGS. Mr. President, if
there are no other amendments to be
offered, I have one final amendment to
offer, which I send to the desk and ask
that it be read.
The PRESIDING OFFICER. The
amendment will be read.
The assistant legislative clerk read
the amendment, as follows:
[p. S6670]
On page 2, line 6, insert the following:
Strike the word "National" and insert
"Magnuson."
Mr. ROLLINGS. Mr. President, on
line 2, page 6, we entitle the bill the
"National Coastal Zone Management
Act of 1972." The intent of this amend-
ment, of course, is to call it the "Mag-
nuson Coastal Zone Management Act
of 1972." All of our colleagues have
been personally indebted to the con-
tributions made by many Senators, in-
cluding the Senator from Delaware, in
the coastal zone management bill some
3 years ago, on which we had hearings.
The Senator from Alaska has given
outstanding leadership to this particular
measure. The senior Senator from
New Hampshire (Mr. COTTON) has been
very helpful. But in going over the
record of the past 12 years, the reason
this bill, as controversial as it is in
nature, has gone through the floor so
smoothly this morning has been due to
the leadership of the distinguished
Senator from Washington (Mr. MAG-
NUSON). Some 12 years ago he started
in this particular field. It was under
his leadership, in the mid-1960's, that
he introduced legislation instituting the
Commission on Marine Sciences, Engi-
neering, and Resources, resulting in the
Stratton Commission report. It was
under his leadership that the tem-
porary Oceanographic Subcommittee
was established and the Oceans and At-
mosphere Subcommittee was instituted
as a standing subcommittee under his
Committee on Commerce, and through
the past 2% years now, we have had
hearings and different discussions with
-------
STATUTES AND LEGISLATIVE HISTORY
3139
respect to moving forward in this par-
ticular field. It was the Senator from
Washington who gave us the leadership,
spreading oil on troubled waters, and
we finally got a bill. I wish to mention
his role as chairman of the Subcom-
mittee on Health Appropriations, which
encompassed hearing some 427 wit-
nesses. I do not see how an individual
chairman can listen that long and not
abolish the whole Department, but he
has given leadership there.
He had an executive session this
morning. He had other witnesses
scheduled. Rather than try to be here,
after he had worked out this language,
he went forward with those witnesses.
I think this body would like to recog-
nize his leadership in this field, and I
hope my colleagues will join in sup-
porting the amendment.
Mr. BOGGS. Mr. President, will the
Senator yield?
Mr. ROLLINGS. I yield.
Mr. BOGGS. I hasten to join in this
amendment. I am privileged to serve
on the Appropriations Subcommittee
the Senator referred to, under the lead-
ership of the Senator from Washington
(Mr. MAGNUSON) . I think the Senator's
remarks have been most appropriate.
I wish to join in those comments.
Mr. STEVENS. Mr. President, will
the Senator yield?
Mr. ROLLINGS. I yield.
Mr. STEVENS. I, too, join the chair-
man of the subcommittee on this
amendment. Those of us who know
our neighbor to the south, the Senator
from Washington, well realize how the
chairmen of the subcommittee and the
full Commerce Committee worked. An
article I recently read said, "What
Maggie wants, Maggie gets." "Maggie"
has been a big help in this area. He
has pursued for many, many years his
great interest in our State. He was
once referred to as the Senator from
Alaska, as the senior Members of this
body will recall, because we had no
Senator, then, and he took care of the
territory of Alaska as well as the State
of Washington, and has done it well.
Thus I think it is fitting testimony that
the subcommittee chairman has made
this suggestion.
Mr. HOLLINGS. Mr. President, I
move the adoption of the amendment.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from South Caro-
lina (Mr. HOLLINGS).
The amendment was agreed to.
Mr. TUNNEY. Mr. President, I am
pleased to both cosponsor and vote for
the passage of S. 3507, the National
Coastal Zone Management Act of 1972.
The ocean front is the single most
valuable natural resource in California.
The bulk of the State's population is
concentrated within a few miles of the
sea, and its impact upon the people's
way of life is great. But the California
coastline is shrinking rapidly as de-
mand for its values increases and as
public access to attractive frontage de-
creases. Undeveloped shoreline, in-
cluding bays, estuaries, and salt water
marshes, can no longer be regarded as
ordinary real estate subject to resi-
dential or commercial-industrial devel-
opment.
In California, coastal and seaward
areas must be protected for present and
future generations. The ecologically
rich kelp forests, for example, which
grow from 100 to 1,000 feet off shore
must be protected. Kelp was once
prevalent along the entire California
coast, but sewage, pesticides, industrial
wastes and thermal pollution have
greatly reduced this forest to a mere
18 square miles. For scientific, eco-
nomic and ecological reasons, as well
as scenic and recreational considera-
tions, this remarkable oxygen produc-
ing plant must be allowed to make a
comeback.
Only prompt and bold action can pro-
tect the quality of one of the world's
most spectacular shorelines from fur-
ther deterioration.
S. 3507 is an important first step in
that it encourages and assists the vari-
-------
3140
LEGAL COMPILATION—WATER
ous States in preparing and imple-
menting management programs to pre-
serve, protect, develop, and restore the
resources of the coastal zone of the
United States. This bill authorizes
Federal grants-in-aid of up to 66%
percent to coastal States to develop
coastal zone management programs.
In addition S. 3507 authorizes grants to
help coastal States implement these
management programs, once approved
by the Secretary of Commerce, and
States would be aided for up to 50
percent of the costs in the acquisition
and operation of estuarine sanctuaries.
In fiscal year 1973 the bill authorizes
$12 million for management program
development grants, not to exceed $50
million for administrative grants and
$6 million for estuarine sanctuaries
grants.
Dr. Joel Hedgpeth of Oregon State
University makes the following very
tragic comment with regard to the ac-
quisition and preservation of estuarine
sanctuaries in California.
In southern California, for example, there
is nothing left. In northern California,
Tomales Bay, which might not fit some defi-
nitions, is an ideal candidate because of
the 10 years of study that has been carried
out there and the circumstances that one
entire shore (almost) is within control of
the Point Reyes National Seashore. There
are some interesting lagoons in northern
California, just north of Eureka.
Clearly we are already too late. We
must act quickly to begin to save what
is left of our coastline and to attempt
to restore past despoiliation.
Recently the Institute of Govern-
mental Studies at the University of
California at Berkeley published a book
entitled "California's Disappearing
Coast: A Legislative Challenge" by
Gilbert E. Bailey and Paul S. Thayer.
The book summarizes the condition
of California's coastline as follows:
Today—a quarter of the 1,000 mile coast-
line—from the Mexican border to Santa
Barbara—is already largely occupied by
cities, suburbs, industries, military bases,
power plants, sewage discharge pipes, tract
homes and high-rise blockades of buildings
interposed between the coast and the people.
From Monterey to coastal areas north of San
Francisco the story is much the same.
Beaches are posted because of contamination
and fish catches are seized because of mer-
cury and DDT poisoning.
Some reaches of the coast, from Morro Bay
north to Monterey and Marin County to
the Oregon border, are still relatively un-
touched. .. .
But much of this is private ranchland,
and at the moment there is absolutely no
assurance it will escape the fate of other
private ranchland that, for example, could
be found in the Santa Clara Valley 25 years
ago.
The authors conclude by saying that—
There is no coordinated public regulation of
this priceless stretch of land and sea.
For the past several years the Cali-
fornia Legislature has been wrestling
with the problem of enacting an effec-
tive piece of legislation to preserve and
protect the California coastline.
The report quotes California Assem-
bly Speaker Bob Moretti as saying that
the best planning available would be
worthless without money to finance
the agencies involved, but more im-
portantly, to purchase coastal land for
public use.
S. 3507—if implemented in a tough
manner and if adequate funds are ap-
propriated—could assist California to
extricate itself from its coastal quag-
mire.
It is my hope that Federal legislation
such as S. 3507 with its hope of Federal
financial assistance will act as a catalyst
and encourage the California Legisla-
ture to come up with effective legisla-
tion to deal with the "disappearing
California coastline."
Mr. TOWER. Mr. President, I am
very pleased today to join in supporting
S. 3507, of which I am a cosponsor. The
passage of this bill will bring to fruition
many years of work by a great many
people. After several years of study,
Senator ROLLINGS last year introduced
S. 582 as a comprehensive proposal to
deal with
[p. S6671]
the problems manifest in the coastal
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STATUTES AND LEGISLATIVE HISTORY
3141
zone. About that same time, I intro-
duced S. 638, dealing with the same
subject. I have been concerned for
some time with the unique problems of
pollution and land use in the coastal
zone and believe that we will now be
able to begin to work to correct them.
This new bill, S. 3507, takes into con-
sideration the best aspects of S. 582 and
S. 638, along with some ideas that were
developed by the Subcommittee on
Oceans and Atmosphere in the hearings
that they held. I wish at this time to
congratulate the members and the staff
of that subcommittee, both past and
present, for their fine work on this bill
and the outstanding cooperation that
has been shown to me and my staff as
we were working with them.
Mr. President, the heart of this bill
will be the encouragement of the
coastal States to survey the needs and
problems of their coastal zones and as-
sistance to them in establishing com-
prehensive programs for dealing with
those recognized needs and problems.
In my State of Texas, nearly 40 percent
of all our citizens live in the area 50
miles from the Gulf of Mexico.
In addition, a great deal of our in-
dustrial and commercial activity takes
place in the same area. In the Nation
as a whole, an even greater percentage
of activity takes place in the coastal
zone. The situation everywhere is be-
coming more acute. Pollution and land
use problems are proliferating as the
coastal zone becomes more congested.
This bill is an attempt by the Govern-
ment to assist the States in correcting
pollution, and planning for the best use
of limited land and water resources.
The emphasis in this bill is on coop-
eration with the States, not coercion by
the Federal Government. During the
hearings on this subject, there was de-
tected an acute awareness by the States
of the problems of the coastal zone.
Indeed, Texas has in many respects led
the way toward categorizing the differ-
ent uses of land in the coastal zone and
in pinpointing likely problem areas. I
believe that it is safe to say that we in
Texas will probably lead the way in
devising and carrying out our coastal
zone plan. What the States have
needed for so long are the resources to
act to resolve the evident problems of
their coastal zones. We are today pro-
viding that assistance. Under the terms
of the bill, up to 66% percent of the
cost of devising and then carrying out
the plans will be borne by the Federal
Government. The major responsibility
for drawing up the plans, marshalling
the necessary personnel, and then car-
rying out the plans would fall to the
State governments. This is a some-
what unique approach by the Federal
Government in relying on the States to
solve this problem rather than simply
federalizing the area and creating a
new bureaucracy to deal with it. I
believe that the States will prove that
they can handle this program and will
make it work.
Mr. President, I look forward to early
enactment of this bill to aid the coastal
States and in so doing to aid the entire
Nation. We in the Congress have lo-
cated a real need for action and have
acted upon that need. The unique
problems of coastal pollution and the
varied competing land uses will un-
doubtedly be faced up to by the State
governments and the local governments
—the units that are best prepared by
their locale to deal with them. I know
that all of us involved in this effort will
keep in close contact with the develop-
ments in the coastal zone and stand
ready to make adjustments and provide
more assistance if that seems necessary.
I urge the Senate to give this bill its
overwhelming support.
The PRESIDING OFFICER. The bill
is open to further amendment. If there
be no further amendment to be pro-
posed, the question is on the engross-
ment and third reading of the bill.
The bill was ordered to be engrossed
for a third reading, and was read the
third time.
The PRESIDING OFFICER (Mr.
-------
3142
LEGAL COMPILATION—WATER
EAGLETON). The bill having been read
the third time, the question is, Shall it
pass? On this question the yeas and
nays have been ordered, and the clerk
will call the roll.
The second assistant legislative clerk
called the roll.
Mr. ROBERT C. BYRD. I announce
that the Senator from Indiana (Mr.
BAYH), the Senator from Florida (Mr.
CHILES), the Senator from Mississippi
(Mr. EASTLAND) , the Senator from Okla-
homa (Mr. HARRIS), the Senator from
Michigan (Mr. HART), the Senator from
Indiana (Mr. HARTKE) , the Senator from
Iowa (Mr. HUGHES), the Senator from
Minnesota (Mr. HUMPHREY), the Sena-
tor from Washington (Mr. JACKSON),
the Senator from North Carolina (Mr.
JORDAN), the Senator from Arkansas
(Mr. MCCLELLAN), the Senator from
Wyoming (Mr. McGEE), the Senator
from South Dakota (Mr. McGovERN),
the Senator from Maine (Mr. MUSKIE),
the Senator from Rhode Island (Mr.
PASTORE), the Senator from Alabama
(Mr. SPARKMAN) , the Senator from Mis-
sis:ippi (Mr. STENNIS), and the Senator
from New Jersey (Mr. WILLIAMS) are
necessarily absent.
I also announce that the Senator from
Montana (Mr. MANSFIELD), and the
Senator from Massachusetts (Mr. KEN-
NEDY) are absent on official business.
I further announce that, if present
and voting, the Senator from Florida
(Mr. CHILES), the Senator from Indiana
(Mr. HARTKE), the Senator from Min-
nesota (Mr. HUMPHREY), the Senator
from Washington (Mr. JACKSON), the
Senator from Massachusetts (Mr. KEN-
NEDY) , the Senator from Wyoming (Mr.
McGEE), the Senator from South Da-
kota (Mr. MCGOVERN) , the Senator from
Rhode Island (Mr. PASTORE), and the
Senator from New Jersey (Mr. WIL-
LIAMS) would each vote "yea."
Mr. GRIFFIN. I announce that the
Senator from Oklahoma (Mr. BELL-
MON) , the Senator from Tennessee (Mr.
BROCK), the Senator from Massachu-
setts (Mr. BROOKE), the Senator from
New Hampshire (Mr. COTTON), and the
Senator from Kansas (Mr. DOLE) are
necessarily absent.
The Senator from Oregon (Mr. HAT-
FIELD) is absent because of death in his
family.
The Senator from Maryland (Mr.
MATHIAS) and the Senator from Dela-
ware (Mr. ROTH) are absent on official
business.
The Senator from Pennsylvania (Mr.
SCOTT) is absent by leave of the Senate
on official business.
The Senator from South Dakota (Mr.
MUNDT) is absent because of illness.
The Senator from Arizona (Mr. GOLD-
WATER) and the Senator from New York
(Mr. JAVITS) are detained on official
business.
If present and voting, the Senator
from Tennessee (Mr. BROCK) the Sen-
ator from Massachusetts (Mr. BROOKE),
the Senator from Oregon (Mr. HAT-
FIELD), the Senator from New York
(Mr. JAVITS), and the Senator from
Delaware (Mr. ROTH) would each vote
"yea."
The result was announced—yeas, 68,
nays 0, as follows:
[p. S6672]
1.33a(4)(b) Aug. 2: Considered and passed House, amended in lieu
of H.R. 14146
[No Relevant Discussion on Pertinent Section]
1.33a(4) (c) Oct. 12: House and Senate agreed to conference report
[No Relevant Discussion on Pertinent Section]
-------
Executive
Orders
-------
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2.1 E.O. 11490, ASSIGNING OF EMERGENCY
PREPAREDNESS FUNCTIONS TO FEDERAL AGENCIES
AND DEPARTMENTS
October 30,1969, 34 Fed. Reg. 17567
EXECUTIVE ORDER 11490, AS AMENDED
Oct. 28, 1969, 34 F.R. 17567, as amended by Ex. Ord. No. 11522, Apr. 6, 1970,
35 P.R. 5659; Ex. Ord. No. 11556, Sept. 4, 1970, 35 F.R. 14193
ASSIGNMENT OF EMERGENCY PREPAREDNESS FUNCTIONS TO FED-
ERAL AGENCIES AND DEPARTMENTS
WHEREAS our national security is dependent upon our ability
to assure continuity of government, at every level, in any national
emergency type situation that might conceivably confront the na-
tion ; and
WHEREAS effective national preparedness planning to meet
such an emergency, including a massive nuclear attack, is essential
to our national survival; and
WHEREAS effective national preparedness planning requires
the identification of functions that would have to be performed
during such an emergency, the assignment of responsibility for
developing plans for performing these functions, and the assign-
ment of responsibility for developing the capability to implement
those plans; and
WHEREAS the Congress has directed the development of such
national emergency preparedness plans and has provided funds
for the accomplishment thereof; and
WHEREAS this national emergency preparedness planning ac-
tivity has been an established program of the United States Gov-
ernment for more than twenty years:
NOW, THEREFORE, by virtue of the authority vested in me as
President of the United States, and pursuant to Reorganization
Plan No. 1 of 1958 (72 Stat. 1799) [set out as a note under section
2271 of this Appendix], the National Security Act of 1947, as
amended [section 401 et seq. of Title 50, War and National De-
fense], the Defense Production Act of 1950, as amended [section
2061 et seq. of this Appendix], and the Federal Civil Defense Act,
as amended [section 2211 et seq. of this Appendix], it is hereby
ordered as follows—
CONTENTS
Part
1 Purpose and Scope.
2 Department of State.
3 Department of the Treasury.
4 Department of Defense.
5 Department of Justice.
6 Post Office Department.
3145
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3146 LEGAL COMPILATION—WATER
7 Department of the Interior.
8 Department of Agriculture.
9 Department of Commerce.
10 Department of Labor.
11 Department of Health, Education, and Welfare.
12 Department of Housing and Urban Development.
13 Department of Transportation.
14 Atomic Energy Commission.
15 Civil Aeronautics Board.
16 Export-Import Bank of the United States.
17 Federal Bank Supervisory Agencies.
18 Federal Communications Commission.
19 Federal Power Commission.
20 General Services Administration.
21 Interstate Commerce Commission.
22 National Aeronautics and Space Administration.
23 National Science Foundation.
24 Railroad Retirement Board.
25 Securities and Exchange Commission.
26 Small Business Administration.
27 Tennessee Valley Authority.
28 United States Civil Service Commission.
28A United States Information Agency.
29 Veterans Administration.
30 General Provisions.
Part 1—Purpose and Scope
Section 101. Purpose. This order consolidates the assignment of
emergency preparedness functions to various departments and
agencies heretofore contained in the 21 Executive orders and 2
Defense Mobilization orders listed in Section 3015 of this order.
Assignments have been adjusted to conform to changes in organi-
zation which have occurred subsequent to the issuance of those
Executive orders and Defense Mobilization orders.
Sec. 102. Scope, (a) This order is concerned with the emergency
national planning and preparedness functions of the several de-
partments and agencies of the Federal Government which comple-
ment the military readiness planning responsibilities of the De-
partment of Defense; together, these measures provide the basic
foundation for our overall national preparedness posture, and are
fundamental to our ability to survive.
(b) The departments and agencies of the Federal Government
are hereby severally charged with the duty of assuring the conti-
nuity of the Federal Government in any national emergency type
situation that might confront the nation. To this end, each depart-
ment and agency with essential functions, whether expressly iden-
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EXECUTIVE ORDERS 3147
tified in this order or not, shall develop such plans and take such
actions, including but not limited to those specified in this order,
as may be necessary to assure that it will be able to perform its
essential functions, and continue as a viable part of the Federal
Government, during any emergency that might conceivably occur.
These include plans for maintaining the continuity of essential
functions of the department or agency at the seat of government
and elsewhere, through programs concerned with: (1) succession
to office; (2) predelegation of emergency authority; (3) safekeep-
ing of essential records; (4) emergency relocation sites supported
by communications and required services; (5) emergency action
steps; (6) alternate headquarters or command facilities; and (7)
protection of Government resources, facilities, and personnel. The
continuity of Government activities undertaken by the depart-
ments and agencies shall be in accordance with guidance provided
by, and subject to evaluation by, the Director of the Office of
Emergency Preparedness.
(c) In addition to the activities indicated above, the heads of
departments and agencies described in Parts 2 through 29 of this
order shall: (1) prepare national emergency plans, develop pre-
paredness programs, and attain an appropriate state of readiness
with respect to the functions assigned to them in this order for all
conditions of national emergency; (2) give appropriate considera-
tion to emergency preparedness factors in the conduct of the regu-
lar functions of their agencies, particularly those functions consid-
ered essential in time of emergency, and (3) be prepared to imple-
ment, in the event of an emergency, all appropriate plans devel-
oped under this order.
Sec. 103. Presidential Assistance. The director of the Office of
Emergency Preparedness, in accordance with the provisions of
Executive Order No. 11051 of September 27, 1962 [set out as a
note under section 2271 of this Appendix], shall advise and assist
the President in determining national preparedness goals and poli-
cies for the performance of functions under this order and in
coordinating the performance of such functions with the total
national preparedness program.
Sec. 104. General and Specific Functions. The functions assigned
by Part 30, General Provisions, apply to all departments and agen-
cies having emergency preparedness responsibilities. Specific func-
tions are assigned to departments and agencies covered in Parts 2
through 29.
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3148 LEGAL COMPILATION—WATER
Sec. 105. Construction. The purpose and legal effect of the as-
signments contained in this order do not constitute authority to
implement the emergency plans prepared pursuant to this order.
Plans so developed may be effectuated only in the event that au-
thority for such effectuation is provided by a law enacted by the
Congress or by an order or directive issued by the President
pursuant to statutes or the Constitution of the United States.
Part 2—Department of State
Section 201. Functions. The Secretary of State shall prepare
national emergency plans and develop preparedness programs to
permit modification or expansion of the activities of the Depart-
ment of State and agencies, boards, and commissions under his
jurisdiction in order to meet all conditions of national emergency,
including attack upon the United States. The Secretary of State
shall provide to all other departments and agencies overall foreign
policy direction, coordination, and supervision in the formulation
and execution of those emergency preparedness activities which
have foreign policy implications, affect foreign relations, or de-
pend directly or indirectly, on the policies and capabilitiies of the
Department of State. The Secretary of State shall develop policies,
plans, and procedures for carrying out his responsibilities in the
conduct of the foreign relations of the United States under condi-
tions of national emergency, including, but not limited to (1) the
formulation and implementation, in consultation with the Depart-
ment of Defense and other appropriate agencies, and the negotia-
tion of contingency and post-emergency plans with our allies and
of the intergovernmental agreements and arrangements required
by such plans; (2) formulation, negotiation, and execution of pol-
icy affecting the relationships of -the United States with neutral
States; (3) formulation and execution of political strategy toward
hostile or enemy States, including the definition of war objectives
and the political means for achieving those objectives; (4) main-
tenance of diplomatic and consular representation abroad; (5)
reporting and advising on conditions overseas which bear upon the
national emergency; (6) carrying out or proposing economic mea-
sures with respect to other nations, including coordination with
the export control functions of the Secretary of Commerce; (7)
mutual assistance activities such as ascertaining requirements of
the civilian economies of other nations, making recommendations
to domestic resource agencies for meeting such requirements, and
determining the availability of and making arrangements for ob-
taining foreign resources required by the United States; (8) pro-
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EXECUTIVE ORDERS 3149
viding foreign assistance, including continuous supervision and
general direction of authorized economic and military assistance
programs, and determination of the value thereof; (9) protection
or evacuation of American citizens and nationals abroad and safe-
guarding their property; (10) protection and/or control of inter-
national organization and foreign diplomatic, consular, and other
official personnel and property, or other assets, in the United
States; (11) documentary control of persons seeking to enter or
leave the United States; and (12) regulation and control of ex-
ports of items on the munitions list.
Part 3—Department of the Treasury
Section 301. Functions. The Secretary of the Treasury shall
develop policies, plans, and procedures for the performance of
emergency functions with respect to (1) stabilization aspects of
the monetary, credit, and financial system; (2) stabilization of the
dollar in relation to foreign currencies; (3) collection of revenue;
(4) regulation of financial institutions; (5) supervision of the
Federal depository system; (6) direction of transactions in gov-
ernment securities; (7) tax and debt policies; (8) participation in
bilateral and multilateral financial arrangements with foreign
governments; (9) regulation of foreign assets in the United
States and of foreign financial dealings (in consultation with the
Secretaries of State and Commerce) ; (10) development of proce-
dures for the manufacture and/or issuance and redemption of
securities, stamps, coins, and currency; (11) development of sys-
tems for the issuance and payment of Treasury checks; (12)
maintenance of the central government accounting and financial
reporting system; (13) administration of customs laws, tax laws,
and laws on control of alcohol, alcoholic beverages, tobacco, and
firearms; (14) suppression of counterfeiting and forgery of gov-
ernment securities, stamps, coins, and currency; (15) protection
of the President and the Vice President and other designated
persons; (16) granting of loans (including participation in or
guarantees of loans) for the expansion of capacity, the develop-
ment of technological processes, or the production of essential
material; and (17) to the extent that such functions have not been
transferred to the Secretary of Transportation, enforcement of
marine inspection and navigation laws.
Sec. 302. Financial Coordination. The Secretary shall assume the
initiative in developing plans for implementation of national pol-
icy on sharing war losses and for the coordination of emergency
monetary, credit, and Federal benefit payment programs of those
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3150 LEGAL COMPILATION—WATER
departments and agencies which have responsibilities dependent
on the policies or capabilities of the Department.
Part 4—Department of Defense
Section 401. Functions. In addition to the civil defense functions
assigned to the Secretary of Defense by Executive Order No.
10952 [set out as a note under section 2271 of this Appendix], the
Secretary of Defense shall perform the following emergency pre-
paredness functions:
(1) Provide specific strategic guidance as required for emer-
gency preparedness planning and programing, including, for ex-
ample, guidance regarding such factors as accessibility of foreign
sources of supply and estimated shipping loss discounts and air-
craft losses in the event of war.
(2) Develop and furnish quantitative and time-phased military
requirements for selected end-items, consistent with defined mili-
tary concepts, and supporting requirements for materials, compo-
nents, production facilities, production equipment, petroleum, nat-
ural gas, solid fuels, electric power, food, transportation, and
other services needed to carry out specified Department of Defense
current and mobilization procurement, construction, research and
development, and production programs. The items and supporting
resources to be included in such requirements, the periods to be
covered, and the dates for their submission to the appropriate
resource agency will be determined by mutual agreement between
the Secretary of Defense and the head of the appropriate resource
agency.
(3) Advise and assist the Office of Emergency Preparedness in
developing a national system of production urgencies.
(4) Advise and assist the Office of Emergency Preparedness in
developing a system, in conjunction with the Department of State,
for the international allocation of critical materials and products
among the United States and the various foreign claimants in the
event of an emergency, including an attack on the United States.
(5) Plan for and administer priorities and allocations authority
delegated to the Department of Defense. Authorize procurement
and production schedules and make allotments of controlled mate-
rials pursuant to program determinations of the Office of Emer-
gency Preparedness.
(6) Assist the Department of Commerce and other appropriate
agencies in the development of the production and distribution
controls plans for use in any period of emergency.
(7) Develop with industry, plans for the procurement and pro-
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EXECUTIVE ORDERS 3151
duction of selected military equipment and supplies needed to ful-
fill emergency requirements, making maximum use of plants in
dispersed locations, and, where essential and appropriate, provid-
ing for alternative sources of supply in order to minimize the
effects of enemy attack.
(8) Develop with industry, plans and programs for minimizing
the effect of attack damage to plants producing major items of
military equipment and supply.
(9) Recommend to the Office of Emergency Preparedness mea-
sures for overcoming potential deficiencies in production capacity
to produce selected military supplies and equipment needed to
fulfill emergency requirements, when necessary measures cannot
be effected by the Department of Defense.
(10) Furnish information and recommendations, when re-
quested by the Office of Emergency Preparedness, for purposes of
processing applications for defense loans under Title III of the
Defense Production Act of 1950, as amended (sections 2091-2094
of this Appendix).
(11) Furnish advice and assistance on the utilization of stra-
tegic and critical materials in defense production, including
changes that occur from time to time.
(12) Analyze problems that may arise in maintaining an ade-
quate mobilization production base in military-product industries
and take necessary actions to overcome these problems within the
limits of the authority and funds available to the Department of
Defense.
(13) Assist the Secretary of Commerce with respect to the
identification and evaluation of facilities important to the national
defense.
(14) Advise and assist the Office of Emergency Preparedness in
the development and review of standards for the strategic location
and physical security of industries, services, government, and
other activities for which continuing operation is essential to na-
tional security, and exercise physical security cognizance over the
facilities assigned to him for such purpose.
(15) Develop and operate damage assessment systems and as-
sist the Office of Emergency Preparedness and other departments
and agencies in their responsibilities as stated in Section 3002(2) ;
participate with the Office of Emergency Preparedness in the
preparation of estimates of potential damage from enemy attack.
(16) Advise and assist the Office of Emergency Preparedness in
the development of over-all manpower policies to be instituted in
the event of an emergency, including an attack on the United
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3152 LEGAL COMPILATION—WATER
States, including the provision of information relating to the size
and composition of the Armed Forces.
(17) Advise on existing communications facilities and furnish
military requirements for commercial communications facilities
and services in planning for and in event of an emergency, includ-
ing an attack on the United States.
(18) Furnish military requirements for all forms of transporta-
tion and transportation facilities in planning for and in the event
of emergency, including an attack upon the United States.
(19) Assist the Office of Emergency Preparedness in prepara-
tion of legislative programs and plans for coordinating nonmili-
tary support of emergency preparedness programs.
(20) Develop plans and procedures for the Department of De-
fense utilization of nonindustrial facilities in the event of an emer-
gency in order to reduce requirements for new construction and to
provide facilities in a minimum period of time.
(21) Advise and assist the Office of Emergency Preparedness in
(1) determining what key foreign facilities and operating rights
thereto are important to the security of the United States, and (2)
obtaining through appropriate channels protection against sabo-
tage.
(22) Develop plans and procedures to carry out Department of
Defense responsibilities stated in the National Censorship Agree-
ment between the Department of Defense and the Office of Emer-
gency Preparedness.
(23) Advise and assist the Department of State in planning for
the evacuation of dependents from overseas areas, United States
teachers and administrators in the overseas dependents schools,
and such other United States citizens as may be working in United
States schools overseas.
(24) Develop plans for implementation of approved Depart-
ment of State/Department of Defense policies and procedures for
the protection and evacuation of United States citizens and certain
designated aliens abroad.
(25) Develop plans and procedures for the provision of logisti-
cal support to members of foreign forces, their employees and
dependents as may be present in the United States under the
terms of bilateral or multilateral agreements which authorize such
support in the event of a national emergency.
(26) Develop with the Department of Transportation and Fed-
eral Communications Commission plans and programs for the con-
trol of air traffic, civil and military, during an emergency.
(27) Develop with the Federal Communications Commission
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EXECUTIVE ORDERS 3153
and the Office of Telecommunications Policy (35 F.R. 6421) plans
and programs for the emergency control of all devices capable of
emitting electromagnetic radiation.
Part 5—Department of Justice
Section 501. Functions. The Attorney General shall perform the
following emergency preparedness functions:
(1) Emergency documents and measures. Provide advice, as
appropriate, with respect to any emergency directive or procedure
prepared by a department or agency as a part of its emergency
preparedness function.
(2) Industry support. As appropriate, review the legal proce-
dures developed by the Federal agencies concerned to be instituted
if it becomes necessary for the Government to institute extraordi-
nary measures with respect to vital production facilities, public
facilities, communications systems, transportation systems, or
other facility, system, or service essential to national survival.
(3) Judicial and legislative liaison. In cooperation with the
Office of Emergency Preparedness, maintain liaison with Federal
courts and with the Congress so there will be mutual understand-
ing of Federal emergency plans involving law enforcement and the
exercise of legal powers during emergencies of various magni-
tudes.
(4) Legal advice. Develop emergency plans for providing legal
advice to the President, the Cabinet, and the heads of Executive
departments and agencies wherever they may be located in an
emergency, and provide emergency procedures for the review as to
form and legality of Presidential proclamations, Executive orders,
directives, regulations, and documents, and of other documents
requiring approval by the President or by the Attorney General
which may be issued by authorized officers after an armed attack.
(5) Alien control and control of entry and departure. Develop
emergency plans for the control of alien enemies and other aliens
within the United States and, in consultation with the Department
of State and Department of the Treasury, develop emergency
plans for the control of persons attempting to enter or leave the
United States. These plans shall specifically include provisions for
the following:
(a) The location, restraint, or custody of alien enemies.
(b) Temporary detention of alien enemies and other persons
attempting to enter the United States pending determination of
their admissibility.
(c) Apprehension of deserting alien crewmen and stowaways.
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3154 LEGAL COMPILATION—WATER
(d) Investigation and control of aliens admitted as contract
laborers.
(e) Control of persons entering or departing from the United
States at designated ports of entry.
(f) Increased surveillance of the borders to preclude prohibited
crossings by persons.
(6) Alien property. Develop emergency plans, in consultation
with the Department of State, for the seizure and administration
of property of alien enemies under provisions of the Trading with
the Enemy Act [section 1 et seq. of this Appendix].
(7) Security standards. In consultation with the Department of
Defense and with other executive agencies, to the extent appropri-
ate, prepare plans for adjustment of security standards governing
the employment of Federal personnel and Federal contractors in
an emergency.
(8) Drug Control. Develop emergency plans and procedures for
the administration of laws governing the import, manufacture,
and distribution of narcotics. Consult with and render all possible
aid and assistance to the Office of Emergency Preparedness, the
Department of Health, Education, and Welfare, and the General
Services Administration in the allocation, distribution, and, if nec-
essary, the replenishment of Government stockpiles of narcotic
drugs.
Sec. 502. Civil Defense Functions. In consonance with national
civil defense programs developed by the Department of Defense,
the Attorney General shall:
(1) Local law enforcement. Upon request, consult with and as-
sist the Department of Defense to plan, develop, and distribute
materials for use in the instruction and training of law enforce-
ment personnel for civil defense emergency operations; develop
and carry out a national plan for civil defense instruction and
training for enforcement officers, designed to utilize to the maxi-
mum extent practicable the resources and facilities of existing
Federal, State, and local police schools, academies, and other ap-
propriate institutions of learning; and assist the States in prepar-
ing for the conduct of intrastate and interstate law enforcement
operations to meet the extraordinary needs that would exist for
emergency police services under conditions of attack or imminent
attack.
(2 ) Penal and correctional institutions. Develop emergency
plans and procedures for the custody and protection of prisoners
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EXECUTIVE ORDERS 3155
and the use of Federal penal and correctional institutional re-
sources, when available, for cooperation with local authorities in
connection with mass feeding and housing, for the storage of
standby emergency equipment, for the emergency use of prison
hospitals and laboratory facilities, for the continued availability of
prison-industry products, and, in coordination with the Depart-
ment of Labor, for the development of Federal prisoner skills to
appropriately augment the total supply of manpower, advise
States and their political subdivisions regarding the use of State
and local prisons, jails, and prisoners for the purpose of relieving
local situations and conditions arising from a state of emergency.
(3) Identification and location of persons. Develop emergency
plans and procedures for the use of the facilities and personnel of
the Department of Justice in assisting the Department of Health,
Education, and Welfare with the development of plans and proce-
dures for the identification of the dead and the reuniting of fam-
lies during a civil defense emergency.
Part 6—Post Office Department
Section 601. Functions. The Postmaster General shall prepare
plans and programs for emergency mail service and shall cooper-
ate with indicated Federal agencies, in accordance with existing
agreements or directives, in the following national emergency pro-
grams :
(1) Registering of persons. Assist the Department of Health,
Education, and Welfare in planning a national program and devel-
oping technical guidance for States, and directing Post Office ac-
tivities concerned with registering persons and families for the
purpose of receiving and answering welfare inquiries and reunit-
ing families in civil defense emergencies. The program shall in-
clude procurement, transportation, storage, and distribution of
safety notification and emergency change of address cards in
quantities and localities jointly determined by the Department of
Defense and the Post Office Department.
(2) Other emergency programs, (a) Censorship of international
mails. (Department of Defense; Department of the Treasury;
Office of Emergency Preparedness)
(b) Provision for emergency mail service to Federal agencies at
both regular and emergency sites. (General Services Administra-
tion)
(c) Emergency registration of Federal employees. (Civil Serv-
ice Commission)
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3156 LEGAL COMPILATION—WATER
(d) Emergency leasing of space for Federal agencies. (General
Services Administration)
(e) Registration of enemy aliens. (Department of Justice)
Part 7—Department of the Interior
Section 701. Resume of Responsibilities. The Secretary of the
Interior shall prepare national emergency plans and develop pre-
paredness programs covering (1) electric power; (2) petroleum
and gas; (3) solid fuels; (4) minerals; and (5) water, as defined
in Section 702 of this part.
Sec. 702. Defnitions. As used in this part:
(1) "Electric power" means all forms of electric power and
energy, including the generation, transmission, distribution, and
utilization thereof.
(2) "Petroleum" means crude oil and synthetic liquid fuel, their
products, and associated hydrocarbons, including pipelines for
their movement and facilities specially designed for their storage.
(3) "Gas" means natural gas (including helium) and manufac-
tured gas, including pipelines for their movement and facilities
specially designed for their storage.
(4) "Solid fuels" means all forms of anthracite, bituminous,
sub-bituminous, and lignitic coals, coke, and coal chemicals pro-
duced in the coke-making process.
(5) "Minerals" means all raw materials of mineral origin (ex-
cept petroleum, gas, solid fuels, and source materials as defined in
the Atomic Energy Act of 1954, as amended) [section 2011 et seq.
of Title 42, The Public Health and Welfare] obtained by mining
and like operations and processed through the stages specified and
at the facilities designated in an agreement between the Secretary
of the Interior and the Secretary of Commerce as being within the
emergency preparedness responsibilities of the Secretary of the
Interior.
(6) "Water" means water from all sources except water after
its withdrawal into a community system, or an emergency system
for treatment, storage, and distribution for public use.
Sec. 703. Resource functions. With respect to the resources de-
nned in Section 702, the Secretary of the Interior shall:
(1) Minerals development. Develop programs and encourage the
exploration, development, and mining of strategic and critical
minerals for emergency purposes.
(2) Production. Provide guidance and leadership to assigned
industries in the development of plans and programs to insure the
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EXECUTIVE ORDERS 3157
continuity of production in the event of an attack, and cooperate
with the Department of Commerce in the identification and evalu-
ation of essential facilities.
(3) Water. Develop plans with respect to water, including plans
for the treatment and disposal, after use, of water after its with-
drawal into a community system or an emergency system for
treatment, storage, and distribution for public use. In developing
any plans relating to water for use on farms and in food facilities,
assure that those plans are in consonance with plans and pro-
grams of the Department of Agriculture.
(4) Electric power and natural gas. In preparedness planning
for electric power and natural gas, the Federal Power Commission
shall assist the Secretary of the Interior as set forth in Section
1901 of this order.
Part 8—Department of Agriculture
Section 801. Resume of Responsibilities. The Secretary of Agri-
culture shall prepare national emergency plans and develop pre-
paredness programs covering: (1) food resources, farm equip-
ment, fertilizer, and food resource facilities as defined below; (2)
lands under the jurisdiction of the Secretary of Agriculture; (3)
rural fire control; (4) defense against biological and chemical
warfare and radiological fallout pertaining to agricultural activi-
ties ; and (5) rural defense information and education.
Sec. 802. Definitions. As used in this part:
(1) "Food resources" means all commodities and products, sim-
ple, mixed, or compound, or complements to such commodities or
products, that are capable of being eaten or drunk, by either
human beings or animals, irrespective of other uses to which such
commodities or products may be put, at all stages of processing
from the raw commodity to the products thereof in vendible form
for human or animal consumption. For the purposes of this order,
the term "food resources" shall also include all starches, sugars,
vegetable and animal fats and oils, cotton, tobacco, wool, mohair,
hemp, flax fiber, and naval stores, but shall not include any such
material after it loses its identity as an agricultural commodity or
agricultural product.
(2) "Farm equipment" means machinery, equipment, and re-
pair parts manufactured primarily for use on farms in connection
with the production or preparation for market or use of "food
resources".
(3) "Fertilizer" means any product or combination of products
for plant nutrition in form for distribution to the users thereof.
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3158 LEGAL COMPILATION—WATER
(4) "Food resource facilities" means plants, machinery, vehi-
cles (including on farm), and other facilities (including farm
housing) for the production, processing, distribution, and storage
(including cold storage) of food resources, and for domestic dis-
tribution of farm equipment and fertilizer.
Sec. 803. Functions. With respect to food resources, food re-
source facilities, lands under the jurisdiction of the Secretary,
farm equipment, and fertilizer, the Secretary of Agriculture shall:
(1) Production, processing, storage, and distribution. Develop
plans for priorities, allocations, and distribution control systems
and related plans, including control of use of facilities designed to
provide adequate and continuing production, processing, storage,
and distribution of essential food resources in an emergency, and
to provide for the domestic distribution of farm equipment and
fertilizer.
(2) Stockpiles. In addition to the food stockpile functions identi-
fied in Executive Order No. 10958 [set out as a note under section
2271 of this Appendix], take all possible measures in the adminis-
tration of Commodity Credit Corporation inventories of food re-
sources to assure the availability of such inventories when and
where needed in an emergency. The Secretary shall also develop
plans and procedures for the proper utilization of agricultural
items stockpiled for survival purposes.
(3) Land management. Develop plans and direct activities for
the emergency protection, management, and utilization of the
lands, resources, and installations under the jurisdiction of the
Secretary of Agriculture and assist in the development of plans
for the emergency operation, production, and processing of forest
products in cooperation with other Federal, State, and private
agencies.
Sec. 804. Civil Defense Functions. In consonance with national
civil defense programs developed by the Department of Defense,
the Secretary of Agriculture shall:
(1) Rural fire defense. In cooperation with Federal, State, and
local agencies, develop plans for a national program and direct
activities relating to the prevention and control of fires in the
rural areas of the United States caused by the effects of enemy
attack.
(2) Biological, chemical, and radiological warfare defense. De-
velop plans for a national program, direct Federal activities, and
furnish technical guidance to State and local authorities concern-
ing (a) diagnosis and strengthening of defensive barriers and
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EXECUTIVE ORDERS 3159
control or eradication of diseases, pests, or chemicals introduced
as agents of biological or chemical warfare against animals,
crops, or products thereof; (b) protective measures, treatment,
and handling of livestock, including poultry, agricultural commod-
ities on farms or ranches, agricultural lands, forest lands, and
water for agricultural purposes, any of which have been exposed
to or affected by radiation. Plans shall be developed for a national
program and direction of Federal activities to assure the safety
and wholesomeness and to minimize losses from biological and
chemical warfare, radiological effects, and other emergency haz-
ards of livestock, meat and meat products, poultry and poultry
products in establishments under the continuous inspection of the
Department of Agriculture, and agricultural commodities and
products owned by the Commodity Credit Corporation or by the
Department of Agriculture.
(3) Defense information and education. Conduct a defense in-
formation and education program in support of the Department's
emergency responsibilities.
Part 9—Department of Commerce
Section 901. Resume of Responsibilities. The Secretary of Com-
merce shall prepare national emergency plans and develop prepar-
edness programs covering:
(1) The production and distribution of all materials, the use of
all production facilities (except those owned by, controlled by, or
under the jurisdiction of the Department of Defense or the Atomic
Energy Commission), the control of all construction materials,
and the furnishing of basic industrial services except those involv-
ing the following:
(a) Production and distribution of and use of facilities for
petroleum, solid fuels, gas, electric power, and water;
(b) Production, processing, distribution, and storage of food
resources and the use of food resource-facilities for such produc-
tion, processing, distribution, and storage;
(c) Domestic distribution of farm equipment and fertilizer;
(d) Use of communications services and facilities, housing and
lodging facilities, and health, education, and welfare facilities;
(e) Production, and related distribution, of minerals as denned
in Subsection 702(5), and source materials as denned in the
Atomic Energy Act of 1954, as amended [section 2011 et seq. of
Title 42, The Public Health and Welfare] ; and the construction
and use of facilities designated as within the responsibilities of
the Secretary of the Interior:
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3160 LEGAL COMPILATION—WATER
(f) Distribution of items in the supply systems of, or controlled
by, the Department of Defense and the Atomic Energy Commis-
sion;
(g) Construction, use and management of civil aviation facili-
ties ; and
(h) Construction and use of highways, streets, and appurtenant
structures.
(2) Federal emergency operational control responsibilities with
respect to ocean shipping, ports, and port facilities, except those
owned by, controlled by, or under the jurisdiction of the Depart-
ment of Defense, and except those responsibilities of the Depart-
ment of the Treasury with respect to the entrance and clearance
of vessels. The following definitions apply to this part:
(a) "Ocean shipping" includes all overseas, coastwise, inter-
coastal, and Great Lakes shipping except that solely engaged in
the transportation of passengers and cargo between United States
ports on the Great Lakes.
(b) "Port" or "port area" includes any zone contiguous to or
associated in the traffic network of an ocean or Great Lakes port,
or outport location, including beach loading. sites, within which
facilities exist for transshipment of persons and property between
domestic carriers and carriers engaged in coastal, intercoastal,
and overseas transportation.
(c) "Port facilities" includes all port facilities, port equipment
including harbor craft, and port services normally used in accom-
plishing the transfer or interchange of cargo and passengers be-
tween ocean-going vessels and other media of transportation, or in
connection therewith (including the Great Lakes).
(3) Scientific and technological services and functions, essential
to emergency preparedness plans, programs, and operations of the
Federal departments and agencies, in which the Department of
Commerce has the capability, including but not limited to:
(a) Meteorological and related services;
(b) Preparation, reproduction, and distribution of nautical and
aeronautical charts, geodetic, hydrographic, and oceanographic
data, and allied services for nonmilitary purposes;
(c) Standards of measurement and supporting services; and,
(d) Research, development, testing, evaluation, application, and
associated services and activities in the various fields and disci-
plines of science and technology in which the Department has
special competence.
(4) Collection, compilation, and reporting of census informa-
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EXECUTIVE ORDERS 3161
tion and the provision of statistical and related services, as re-
quired, for emergency planning and operations.
(5) Regulation and control of exports and imports, under the
jurisdiction of the Department of Commerce, in support of na-
tional security, foreign policy, and economic stabilization objec-
tives.
(6) Regulation and control of transfers of capital to, and rein-
vestment of earnings of, affiliated foreign nationals pursuant to
authority conferred by Executive Order No. 11387 of January 1,
1968 [set out as a note under section 95a of Title 12, Banks and
Banking].
Sec. 902. Production Functions. Within the areas designated in
section 901 (1) hereof, the Secretary of Commerce shall:
(1) Priorities and allocations. Develop control systems for prior-
ities, allocation, production, and distribution, including provisions
for other Federal departments and agencies, as appropriate, to
serve as allotting agents for materials and other resources made
available under such systems for designated programs and the
construction and operation of facilities assigned to them.
(2) New construction. Develop procedures by which new pro-
duction facility construction proposals will be reviewed for appro-
priate location in light of such area factors as locational security,
availability of labor, water, power, housing, and other support
requirements.
(3) Industry evaluation. Identify and evaluate the national se-
curity essentiality of those products and services, and their pro-
ducing or supporting facilities, which are of exceptional impor-
tance to mobilization readiness, national defense, or post-attack
survival and recovery.
(4) Production capability. Analyze potential effects of attack on
actual production capability, taking into account the entire pro-
duction complex, including shortages of resources, and conduct
studies as a basis for recommending pre-attack measures that
would strengthen capabilities for post-attack production.
(5) Loans for plant modernization. Develop plans, in coordina-
tion with the Small Business Administration, for providing emer-
gency assistance to essential small business establishments
through direct loans or participation loans for the financing of
production facilities and equipment.
Sec. 903. Maritime Functions. Within the areas designated in
section 901(2) of this part, the Secretary of Commerce shall de-
velop plans and procedures in consonance with international treat-
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3162 LEGAL COMPILATION—WATER
ies, under coordinating authority of the Secretary of Transporta-
tion and in cooperation with other appropriate Federal agencies
and the States and their political subdivisions, to provide for Fed-
eral operational control of ocean ports and shipping, including:
(1) Shipping allocation. Allocation of specific ocean shipping to
meet the national requirements, including those for military, for-
eign assistance, emergency procurement programs, and those es-
sential to the civilian economy.
(2) Ship acquisition. Provision of ships for ocean shipping by
purchase, charter, or requisition, by breakout from the national
defense reserve fleet, and by construction.
(3) Operations. Operation of ocean shipping, directly or indi-
rectly.
(4) Traffic control. Provisions for the control of passengers and
cargo through port areas to assure an orderly and continuous flow
of such traffic.
(5) Traffic priority. Administration of priorities for the move-
ment of passengers and cargo through port areas.
(6) Port allocation. Allocation of specific ports and port facili-
ties to meet the needs of the Nation and our allies.
(7) Support activities. Performance of supporting activities
needed to carry out the above-described functions, such as: ascer-
taining national support requirements for ocean shipping, includ-
ing those for support of military and other Federal programs and
those essential to the civil economy; maintenance, repair, and
arming of ships; recruiting, training, and assigning of officers and
seamen; procurement, warehousing, and issuance of ships' stores,
supplies, equipment, and spare parts; supervision of stevedoring
and bunkering; management of terminals, shipyards, repair, and
other facilities; and provision, maintenance, and restoration of
port facilities.
Sec. 904. Census Functions. Within the area designated in sec-
tion 901 (4) hereof, the Secretary of Commerce shall:
(1) Provide for the collection and reporting of census informa-
tion on the status of human and economic resources, including
population, housing, agriculture, manufacture, mineral industries,
business, transportation, foreign trade, construction, and govern-
ments, as required for emergency planning purposes.
(2) Plan, create, and maintain a capability for the conduct of
post-attack surveys to provide information on the status of surviv-
ing populations and resources as required for the programs of the
Office of Emergency Preparedness.
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EXECUTIVE ORDERS 3163
(3) Provide for and maintain the ability to make estimates of
attack effects on industry, population, and other resources for use
within the Department of Commerce.
Sec. 905. Civil Defense Functions. In consonance with national
civil defense programs developed by the Department of Defense,
the Secretary of Commerce shall:
(1) Weather functions. Prepare and issue currently, as well as
in an emergency, forecasts and estimates of areas likely to be
covered by radiological fallout in event of attack and make this
information available to Federal, State, and local authorities for
public dissemination.
(2) Geodetic, hydrographic, and oceanographic data. Provide
geodetic, hydrographic, and toceanographic data and services to
the Department of Defense and other governmental agencies, as
appropriate.
Part 10—Department of Labor
Section 1001. Resume of Responsibilities. The Secretary of
Labor shall have primary responsibility for preparing national
emergency plans and developing preparedness programs covering
civilian manpower mobilization, more effective utilization of lim-
ited manpower resources, including specialized personnel, wage
and salary stabilization, worker incentives and protection, man-
power resources and requirements, skill development and training,
research, labor-management relations, and critical occupations.
Sec. 1002. Functions. The Secretary of Labor shall:
(1) Civilian manpower mobilization. Develop plans and issue
guidance designed to utilize to the maximum extent civilian man-
power to resources, such plans and guidance to be developed with
the active participation and assistance of the States and local
political subdivisions thereof, and of other organizations and
agencies concerned with the mobilization of the people of the Un-
ited States. Such plans shall include, but not necessarily be limited
to:
(a) Manpower management. Recruitment, selection and refer-
ral, training, employment stabilization (including appeals proce-
dures), proper utilization, and determination of the skill categor-
ies critical to meeting the labor requirements of defense and essen-
tial civilian activities;
(b) Priorities. Procedures for translating survival and produc-
tion urgencies into manpower priorities to be used as guides for
allocating available workers; and
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3164 LEGAL COMPILATION—WATER
(c) Improving mobilization base. Programs for more effective
utilization of limited manpower resources, and, in cooperation
with other appropriate agencies, programs for recruitment, train-
ing, allocation, and utilization of persons possessing specialized
competence or aptitude in acquiring such competence.
(2) Wage and salary stabilization. Develop plans and proce-
dures for wage and salary stabilization and for the national and
field organization necessary for the administration of such a pro-
gram in an emergency, including investigation, compliance, and
appeals procedures; statistical studies of wages, salaries, and
prices for policy decisions and to assist operating stabilization
agencies to carry out their functions.
(3) Worker incentives and protection. Develop plans and proce-
dures for wage and salary compensation and death and disability
compensation for authorized civil defense workers and, as appro-
priate, measures for unemployment payments, re-employment
rights, and occupational safety, and other protection and incen-
tives for the civilian labor force during an emergency.
(4) Skill development and training. Initiate current action pro-
grams to overcome or offset present or anticipated manpower defi-
ciencies, including those identified as a result of resource and
requirements studies.
(5) Labor-management relations. Develop, after consultation
with the Department of Commerce, the Department of Transpor-
tation, the Department of Defense, the National Labor Relations
Board, the Federal Mediation and Conciliation Service, the Na-
tional Mediation Board, and other appropriate agencies and
groups, including representatives of labor and management, plans
and procedures, including organization plans for the maintenance
of effective labor-management relations during a national emer-
gency.
Part 11—Department of Health, Education, and Welfare
Section 1101. Resume of Responsibilities. In addition to the
medical stockpile functions identified in Executive Order No.
10958 [set out as a note under section 2271 of this Appendix], the
Secretary of Health, Education, and Welfare shall prepare na-
tional emergency plans and develop preparedness programs cover-
ing health services, civilian health manpower, health resources,
welfare services, social security benefits, credit union operations,
and educational programs as defined below.
Sec. 1102. Definitions. As used in this part:
(1) "Emergency health services" means medical and dental care
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EXECUTIVE ORDERS 3165
for the civilian population in all of their specialties and adjunct
therapeutic fields, and the planning, provision, and operation of
first aid stations, hospitals, and clinics; preventive health services,
including detection, identification and control of communicable di-
seases, their vectors, and other public health hazards, inspection
and control of purity and safety of food, drugs, and biologicals;
vital statistics services; rehabilitation and related services for dis-
abled survivors; preventive and curative care related to human
exposure to radiological, chemical, and biological warfare agents;
sanitary aspects of disposal of the dead; food and milk sanitation;
community solid waste disposal; emergency public water supply;
and the determination of the heatlh significance of water pollution
and the provision of other services pertaining to health aspects of
water use and water-borne wastes as set forth in an agreement
between the Secretary of Health, Education, and Welfare and the
Secretary of the Interior, approved by the President, pursuant to
Reorganization Plan No. 2 of 1966 [set out by the Appendix to
Title 5, Government Organization and Employees], which plan
placed upon the Secretary of the Interior responsibilities for the
prevention and control of water pollution. It shall be understood
that health services for the purposes of this order, however, do not
encompass the following areas for which the Department of Agri-
culture has responsibility: plant and animal diseases and pest
prevention, control, and eradication, wholesomeness of meat and
meat products, and poultry and poultry products in establishments
under continuous inspection service by the Department of Agricul-
ture, veterinary biologicals, agricultural commodities and products
owned by the Commodity Credit Corporation or the Secretary of
Agriculture, livestock, agricultural commodities stored or harvest-
able on farms and ranches, agricultural lands and water, and
registration of pesticides.
(2) "Health manpower" means physicians (including osteo-
paths) ; dentists; sanitary engineers; registered professional
nurses; and such other occupations as may be included in the List
of Health Manpower Occupations issued for the purposes of this
part by the Director of the Office of Emergency Preparedness
after agreement by the Secretary of Labor and the Secretary of
Health, Education, and Welfare.
(3) "Health resources" means manpower, material, and facili-
ties required to prevent the impairment of, improve, and restore
the physical and mental health conditions of the civilian popula-
tion.
(4) "Emergency welfare services" means feeding; clothing;
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3166 LEGAL COMPILATION—WATER
lodging in private and congregate facilities; registration; locating
and reuniting families; care of unaccompanied children, the aged,
the handicapped, and other groups needing specialized care or
services; necessary financial or other assistance; counseling and
referral services to families and individuals; aid to welfare insti-
tutions under national emergency or post-attack conditions; and
all other feasible welfare aid and services to people in need during
a civil defense emergency. Such measures include organization,
direction, and provision of services to be instituted before attack,
in the event of strategic or tactical evacuation, and after attack in
the event of evacuation or of refuge in shelters.
(5) "Social security benefits" means the determination of enti-
tlement and the payment of monthly insurance benefits to those
eligible, such as workers who have retired because of age or disa-
bility and to their dependent wives and children, and to the eligi-
ble survivors of deceased workers. It also includes determinations
of eligibility and payments made on behalf of eligible individuals
to hospitals, home health agencies, extended care facilities, physi-
cians, and other providers of medical services.
(6) "Credit union operations" means the functions of any credit
union, chartered either by a State or the Federal Government, in
stimulating systematic savings by members, the investment and
protection of those savings, providing loans for credit union mem-
bers at reasonable rates, and encouraging sound credit and thrift
practices among credit union members.
(7) "Education" or "training" means the organized process of
learning by study and instruction primarily through public and
private systems.
Sec. 1103. Health Functions. With respect to emergency health
services, as defined above, and in consonance with national civil
defense plans, programs, and operation of the Department of De-
fense under Executive Order No. 10952 [set out as a note under
section 2271 of this Appendix], the Secretary of Health, Educa-
tion, and Welfare shall:
(1) Professional training. Develop and direct a nationwide pro-
gram to train health manpower both in professional and technical
occupational content and in civil defense knowledge and skills.
Develop and distribute health education material for inclusion in
the curricula of schools, colleges, professional schools, government
schools, and other educational facilities throughout the United
States. Develop and distribute civil defense information relative to
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EXECUTIVE ORDERS 3167
health services to States, voluntary agencies, and professional
groups.
(2) Emergency public water supply. Prepare plans to assure the
provision of usable water supplies for human consumption and
other essential community uses in an emergency. This shall in-
clude inventorying existing community water supplies, planning
for other alternative sources of water for emergency uses, setting
standards relating to human consumption, and planning commu-
nity distribution. In carrying on these activities, the Department
shall have primary responsibility but will make maximum use of
the resources and competence of State and local authorities, the
Department of the Interior, and other Federal agencies.
(3) Radiation. Develop and coordinate programs of radiation
measurement and assessment as may be necessary to carry out the
responsibilities involved in the provision of emergency health
services.
(4) Biological and chemical warfare. Develop and coordinate
programs for the prevention, detection, and identification of
human exposure to chemical and biological warfare agents as
may be necessary to carry out the responsibilities involved in the
provision of emergency health services, including the provision of
guidance and consultation to Federal, State, and local authorities
on measures for minimizing the effects of biological or chemical
warfare.
(5) Food, drugs, and biologicals. Plan and direct national pro-
grams for the maintenance of purity and safety in the manufac-
ture and distribution of food, drugs, and biologicals in an emer-
gency.
(6) Disabled survivors. Prepare national plans for emergency
operations of vocational rehabilitation and related agencies, and
for measures and resources necessary to rehabilitate and make
available for employment those disabled persons among the sur-
viving population.
Sec. 1104. Welfare Functions. With respect to emergency wel-
fare services as defined above, and in consonance with national
civil defense plans, programs, and operations of the Department
of Defense under Executive Order No. 10952 [set out as a note
under section 2271 of this Appendix], the Secretary of Health,
Education, and Welfare shall:
(1) Federal support. Cooperate in the development of Federal
support procedures, through joint planning with other depart-
ments and agencies, including but not limited to the Post Office
Department, the Department of Labor, and the Selective Service
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3168 LEGAL COMPILATION—WATER
System, the Department of Housing and Urban Development, and
resource agencies, including the Department of Agriculture, the
Department of the Interior, and the Department of Commerce, for
logistic support of State and community welfare services in an
emergency.
(2) Emergency welfare training. Develop and direct a nation-
wide program to train emergency welfare manpower for the exe-
cution of the functions set forth in this part, develop welfare
educational materials, including self-help program materials for
use with welfare organizations and professional schools, and de-
velop and distribute civil defense information relative to emer-
gency welfare services to States, voluntary agencies, and profes-
sional groups.
(3) Financial aid. Develop plans and procedures for financial
assistance to individuals injured or in want as a result of enemy
attack and for welfare institutions in need of such assistance in an
emergency.
(4) Non-combatant evacuees to the Continental United States.
Develop plans and procedures for assistance, at ports of entry to
U. S. personnel evacuated from overseas areas, their onward
movement to final destination, and follow-up assistance after ar-
rival at final destination.
Sec. 1105. Social Security Functions. With respect to social secu-
rity, the Secretary of Health, Education, and Welfare shall:
(1) Social security benefits. Develop plans for the continuation
or restoration of benefit payments to those on the insurance rolls
as soon as possible after a direct attack upon the United States,
and prepare plans for the acceptance and disposition of current
claims for social security benefits.
(2) Health insurance. Develop plans for the payment of health
insurance claims for reimbursement for items or services provided
by hospitals, physicians, and other providers of medical services
submitted by or on behalf of individuals who are eligible under the
Medicare program [section 1395 et seq. of Title 42, The Public
Health and Welfare].'
Sec. 1106. Credit Union Functions. With respect to credit union
functions, the Secretary of Health, Education, and Welfare shall:
(1) Credit union operations. Provide instructions to all State
and Federally chartered credit unions for the development of
emergency plans to be put into effect as soon as possible after an
attack upon the United States in order to guarantee continuity of
credit union operations.
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EXECUTIVE ORDERS 3169
(2) Economic stabilization. Provide guidance to credit unions
that will contribute to stabilization of the Nation's economy by
helping to establish and maintain a sound economic base for com-
bating inflation, maintaining confidence in public and private fin-
ancial institutions, and promoting thrift.
Sec. 1107. Education Functions. With respect to education, the
Secretary of Health, Education, and Welfare shall:
(1) Program guidance. Develop plans and issue guidance for the
continued function of educational systems under all conditions of
national emergency. Although extraordinary circumstances may
require the temporary suspension of education, plans should pro-
vide for its earliest possible resumption.
(2) Educational adjustment. Plan to assist civilian educational
institutions, both public and private, to adjust to demands laid
upon them by a large expansion of government activities during
any type of emergency. This includes advice and assistance to
schools, colleges, universities, and other educational institutions
whose facilities may be temporarily needed for Federal, State, or
local government programs in an emergency or whose faculties
and student bodies may be affected by the demands of a sudden or
long-standing emergency.
(3) Post-attack recovery. Develop plans for the rapid restora-
tion and resumption of education at all levels after an attack. This
includes assistance to educators and educational institutions to
locate and use surviving facilities, equipment, supplies, books, and
educational personnel. Particular emphasis shall be given to the
role of educational institutions and educational leadership in re-
viving education and training in skills needed for post-attack re-
covery.
(4) Civil defense education. In consonance with national civil
defense plans, programs, and operations of the Department of
Defense, develop and issue instructional materials to assist
schools, colleges, and other educational institutions to incorporate
emergency protective measures and civil defense concepts into
their programs. This includes assistance to various levels of educa-
tion to develop an understanding of the role of the individual,
family, and community for civil defense in the nuclear age.
Part 12—Department of Housing and Urban Development
Section 1201. Resume of Responsibilities. The Secretary of
Housing and Urban Development shall prepare national emer-
gency plans and develop preparedness programs covering all as-
pects of housing, community facilities related to housing, and
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3170 LEGAL COMPILATION—WATER
urban development (except that housing assets under the jurisdic-
tion and control of the Department of Defense, other than those
leased for terms not in excess of one year, shall be and remain the
responsibility of the Department of Defense).
Sec. 1202. Definition. As used in this part:
(1) "Emergency housing" means any and all types of accommo-
dations used as dwellings in an emergency.
(2) "Community facilities related to housing" means installa-
tions necessary to furnish water, sewer, electric, and gas services
between the housing unit or project and the nearest practical
source or servicing point.
(3) "Urban development" means the building or restoration of
urban community, suburban, and metropolitan areas (except
transportation facilities).
Sec. 1203. Housing and Community Facilities Functions. The
Secretary of Housing and Urban Development shall:
(1) New housing. Develop plans for the emergency construction
and management of new housing and the community facilities
related thereto to the extent that it is determined that it may be
necessary to provide for such construction and management with
public funds and through direct Federal action, and to the extent
that such construction of new housing may have to be provided
through Federal financial or credit assistance.
(2) Community facilities. Develop plans to restore community
facilities related to housing affected by an emergency through the
repair of damage, the construction of new facilities, and the use of
alternate or back-up facilities.
Sec. 1204. Urban Development Functions. The Secretary of
Housing and Urban Development shall:
(1) Regional cooperation. Encourage regional emergency plan-
ning and cooperation among State and local governments with
respect to problems of housing and metropolitan development.
(2) Vulnerability and redevelopment. In cooperation with the
Office of Emergency Preparedness, develop criteria and provide
guidance for the design and location of housing and community
facilities related to housing to minimize the risk of loss under
various emergency situations. Develop criteria for determining
which areas should be redeveloped in the event of loss or severe
damage resulting from emergencies.
Sec. 1205. Civil Defense Functions. In consonance with national
civil defense plans, programs, and operations of the Department
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EXECUTIVE ORDERS 3171
of Defense under Executive Order No. 10952 [set out as a note
under section 2271 of this Appendix], the Secretary of Housing
and Urban Development shall:
(1) Transitional activities. Develop plans for the orderly
transfer of people from fallout shelters and from billets to tempo-
rary or permanent housing, including advice and guidance for
State and local government agencies in the administration thereof.
These plans shall be coordinated with national plans and guidance
for emergency welfare services of the Department of Health, Edu-
cation, and Welfare.
(2) Temporary housing. Develop plans for tha emergency repair
and restoration for use of damaged housing, for the construction
and management of emergency housing units and the community
facilities related thereto, for the emergency use of tents and trail-
ers, and for the emergency conversion for dwelling use of non-re-
sidential structures, such activities to be financed with public
funds through direct Federal action or through financial or credit
assistance.
(3) Shelter. In conformity with national shelter policy, assist in
the development of plans to encourage the construction of shelters
for both old and new housing, and develop administrative proce-
dures to encourage the use of low-cost design and construction
techniques to maximize protection in connection with national
programs.
Part 13—Department of Transportation
Section 1301. Resume of Responsibilities. The Secretary of
Transportation, in carrying out his responsibilities to exercise
leadership in transportation matters affecting the national defense
and those involving national or regional transportation emergen-
cies, shall prepare emergency plans and develop preparedness pro-
grams covering:
(1) Preparation and promulgation of over-all national policies,
plans, and procedures related to providing civil transportation of
ail forms—air, ground, water, and pipelines, including public stor-
age and warehousing (except storage of petroleum and gas and
agricultural food resources including cold storage) : Provided that
plans for the movement of petroleum and natural gas through
pipelines shall be the responsibility of the Secretary of the Inte-
rior except to the extent that such plans are a part of functions
vested in the Secretary of Transportation by law;
(2) Movement of passengers and materials of all types by all
forms of civil transportation;
(3) Determination of the proper apportionment and allocation
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3172 LEGAL COMPILATION—WATER
for control of the total civil transportation capacity, or any por-
tion thereof, to meet over-all essential civil and military needs;
(4) Determination and identification of the transportation re-
sources available and required to meet all degrees of national
emergencies and regional transportation emergencies;
(5) Assistance to the various States, the local political subdivi-
sions thereof, and non-governmental organizations and systems
engaged in transportation activities in the preparation of emer-
gency plans;
(6) Rehabilitation and recovery of the Nation's transportation
systems; and
(7) Provisions for port security and safety, for aids to mari-
time navigation, and for search and rescue and law enforcement
over, upon, and under the navigable waters of the United States
and the high seas.
Sec. 1302. Transportation Planning and Coordination Functions.
In carrying out the provisions of Section 1301, the Secretary of
Transportation, with assistance and support of other Federal,
State and local governmental agencies, and the transport indus-
tries, as appropriate, shall:
(1) Obtain, assemble, analyze, and evaluate data on current and
projected emergency requirements of all claimants for all forms of
civil transportation to meet the needs of the military and of the
civil economy, and on current and projected civil transportation
resources—of all forms—available to the United States to move
passengers or materials in an emergency.
(2) Develop plans and procedures to provide—under emergency
conditions—for the collection and analysis of passenger and cargo
movement demands as they relate to the capabilities of the various
forms of transport, including the periodic assessment of over-all
transport resources available to meet emergency requirements.
(3) Conduct a continuing analysis of transportation require-
ments and capabilities in relation to economic projections for the
purpose of initiating actions and/or recommending incentive
and/or regulatory programs designed to stimulate government
and industry improvement of the structure of the transportation
system for use in an emergency.
(4) Develop systems for the control of the movement of passen-
gers and cargo by all forms of transportation, except for those
resources owned by, controlled by, or under the jurisdiction of the
Department of Defense, including allocation of resources and as-
signment of priorities, and develop policies, standards, and proce-
dures for emergency enforcement of these controls.
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EXECUTIVE ORDERS 3173
Sec. 1303. Departmental Emergency Transportation Prepared-
ness. Except for those resources owned by, controlled by, or under
the jurisdiction of the Department of Defense, the Secretary of
Transportation shall prepare emergency operational plans and
programs for, and develop a capability to carry out, the transpor-
tation operating responsibilities assigned to the Department, in-
cluding but not limited to:
(1) Allocating air carrier civil air transportation capacity and
equipment to meet civil and military requirements.
(2) Emergency management, including construction, recon-
struction, and maintenance of the Nation's civil airports, civil
aviation operating facilities, civil aviation services, and civil air-
craft (other than air carrier aircraft), except manufacturing fa-
cilities.
(3) Emergency management of all Federal, State, city, local,
and other highways, roads, streets, bridges, tunnels, and appurten-
ant structures, including:
(a) The adaptation, development, construction, reconstruction,
and maintenance of the Nation's highway and street systems to
meet emergency requirements;
(b) The protection of the traveling public by assisting State
and local authorities in informing them of the dangers of travel
through hazardous areas; and
(c) The regulation of highway traffic in an emergency through
a national program in cooperation with all Federal, State, and
local governmental units or other agencies concerned.
(4) Emergency plans for urban mass transportation, including:
(a) Providing guidance to urban communities in their emer-
gency mass transportation planning efforts, either directly or
through State, regional, or metropolitan agencies;
(b) Coordinating all such emergency planning with the Depart-
ment of Housing and Urban Development to assure compatibility
with emergency plans for all other aspects of urban development;
(c) Maintaining an inventory of urban mass transportation
systems.
(5) Maritime safety and law enforcement over, upon, and under
the high ssas and water, subject to the jurisdiction of the United
States, in the following specific programs:
(a) Safeguarding vessels, harbors, ports, and waterfront facili-
ties from destruction, loss or injury, accidents, or other causes of
a similar nature.
(b) Safe passage over, upon and under the high seas and Un-
ited States waters through effective and reliable systems of aids to
navigation and ocean stations.
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3174 LEGAL COMPILATION—WATER
(c) Waterborne access to ice-bound locations in furtherance of
national economic, scientific, defense, and consumer needs.
(d) Protection of lives, property, natural resources, and na-
tional interests through enforcement of Federal law and timely
assistance.
(e) Safety of life and property through regulation of commer-
cial vessels, their officers and crew, and administration of mari-
time safety law.
(f) Knowledge of the sea, its boundaries, and its resources
through collection and analysis of data in support of the national
interest.
(g) Operational readiness for essential wartime functions.
(6) Planning for the emergency management and operation of
the Alaska Railroad, and for the continuity of railroad and petro-
leum pipeline safety programs.
(7) Planning for the emergency operation and maintenance of
the United States-controlled sections of the Saint Lawrence Sea-
way.
Part 14—Atomic Energy Commission
Section 1401. Functions. The Atomic Energy Commission shall
prepare national emergency plans and develop preparedness pro-
grams for the continuing conduct of atomic energy activities of
the Federal Government. These plans and programs shall be de-
signed to develop a state of readiness in these areas with respect
to all conditions of national emergency, including attack upon the
United States and, consistent with applicable provisions of the
Atomic Energy Act of 1954, as amended [section 2011 et seq. of
Title 42, The Public Health and Welfare], shall be closely coordi-
nated with the Department of Defense and the Office of Emer-
gency Preparedness. The Atomic Energy Commission shall:
(1) Production. Continue or resume in an emergency essential
(a) manufacture, development, and control of nuclear weapons
and equipment, except to the extent that the control over such
weapons and equipment shall have been transferred to the Depart-
ment of Defense; (b) development and technology related to reac-
tors; (c) process development and production of feed material,
special nuclear materials, and other special products; (d) related
raw materials procurement, processing, and development; and (e)
repair, maintenance, and construction related to the above.
(2) Regulation. Continue or resume in an emergency (a) con-
trolling the possession, use, transfer, import, and export of atomic
materials and facilities; and (b) ordering the operation or suspen-
sion of licensed facilities, and recapturing from licensees, where
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EXECUTIVE ORDERS 3175
necessary, special nuclear materials whether related to military
support or civilian activities.
(3) Public health and safety. Shut down, where required, in
anticipation of an imminent enemy attack on the United States,
and maintain under surveillance, all Commission-owned facilities
which could otherwise constitute a significant hazard to public
health and safety, and insure the development of appropriate
emergency plans for nuclear reactors and other nuclear activities
licensed by the Commission whether privately-owned or Govern-
ment-owned.
(4) Scientific, technical, and public atomic energy information.
Organize, reproduce, and disseminate appropriate public atomic
energy information and scientific and technical reports and data
relating to nuclear science research, development, engineering, ap-
plications, and effects to interested Government agencies, the sci-
entific and technical communities, and approved, friendly, and co-
operating foreign nations.
(5) International atomic energy affairs. Maintain, in consulta-
tion with the Department of State, essential liaison with foreign
nations with respect to activities of mutual interest involving
atomic energy.
(6) Health services. Assist the Department of Health, Educa-
tion, and Welfare, consistent with the above requirements, in inte-
grating into civilian health programs in an emergency the Com-
mission's remaining health manpower and facilities not required
for the performance of the Commission's essential emergency
functions.
(7) Priorities and allocations. Plan for the administration of
any priorities and allocations authority delegated to the Atomic
Energy Commission. Authorize procurement and production
schedules and make allotments of controlled materials pursuant to
program determinations of the Office of Emergancy Preparedness.
Part 15—Civil Aeronautics Board
Section 1501. Definitions. As used in this part:
(1) "War Air Service Program" (hereinafter referred to as
WASP) means the program designed to provide for the mainte-
nance of essential civil air routes and services, and to provide for
the distribution and redistribution of air carrier aircraft among
civil air transport carriers after withdrawal of aircraft allocated
to the Civil Reserve Air Fleet.
(2) "Civil Reserve Air Fleet" (hereinafter referred to as
GRAF) means those air carrier aircraft allocated by the Secretary
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3176 LEGAL COMPILATION—WATER
of Transportation to the Department of Defense to meet essential
military needs in the event of an emergency.
Sec. 1502. Functions. The Civil Aeronautics Board, under the
coordinating authority of the Secretary of Transportation, shall:
(1) Distribution of aircraft. Develop plans and be prepared to
carry out such distribution and redistribution of all air carrier
civil aircraft allocated by the Secretary of Transportation among
the civil air transport carriers as may be necessary to assure the
maintenance of essential civil routes and services under WASP
operations after the GRAF requirements have been met.
(2) Economic regulations. Develop plans covering route authori-
zations and operations, tariffs, rates, and fares charged the public,
mail rates, government compensation and subsidy, and accounting
and contracting procedures essential to WASP operations.
(3) Operational controls and priorities. Develop plans and proce-
dures for the administration of operational controls and priorities
of passenger and cargo movements in connection with the utiliza-
tion of air carrier aircraft for WASP purposes in an emergency.
(4) Investigation. Maintain the capability to investigate viola-
tions of emergency economic regulations affecting air carrier op-
erations.
(5) Contracting. Prepare to perform as a contracting agency, if
such an agency is necessary, in connection with distribution and
redistribution of aircraft for WASP.
Part 16—Export-Import Bank of the United States
Section 1601. Functions, (a) Under guidance of the Secretary of
the Treasury, the Export-Import Bank shall develop plans for the
utilization of the resources of the Bank, or other resources made
available to the Bank, in expansion of productive capacity abroad
for essential materials, foreign barter arrangements, acquisition
of emergency imports, and in support of the domestic economy, or
any other plans designed to strengthen the relative position of the
Nation and its allies.
(b) In carrying out the guidance functions described above, the
Secretary of the Treasury shall consult with the Secretary of
State and the Secretary of Commerce as appropriate.
Part 17—Federal Bank Supervisory Agencies
Section 1701. Financial Plans and Programs. The Board of Gov-
ernors of the Federal Reserve System, the Comptroller of the
Currency, the Federal Home Loan Bank Board, the Farm Credit
Administration, and the Federal Deposit Insurance Corporation
shall participate with the Office of Emergency Preparedness, the
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EXECUTIVE ORDERS 3177
Department of the Treasury, and other agencies in the formula-
tion of emergency financial and stabilization policies. The heads of
such agencies shall, as appropriate, develop emergency plans, pro-
grams, and regulations, in consonance with national emergency
financial and stabilization plans and policies, to cope with poten-
tial economic effects of mobilization or an attack, including, but
not limited to, the following:
(1) Money and credit. Provision and regulation of money and
credit in accordance with the needs of the economy, including the
acquisition, decentralization., and distribution of emergency sup-
plies of currency; the collection of cash items and non-cash items;
and the conduct of fiscal agency and foreign operations.
(2) Financial institutions. Provision for the continued or re-
sumed operation of banking, savings and loan, and farm credit
institutions, including measures for the re-creation of evidence of
assets or liabilities destroyed or inaccessible.
(3) Liquidity. Provision of liquidity necessary to the continued
or resumed operation of banking, savings and loan, credit unions,
and farm credit institutions, including those damaged or de-
stroyed by enemy action.
(4) Cash withdrawals and credit transfers. Regulation of the
withdrawal of currency and the transfer of credits including de-
posit and share account balances.
(5) Insurance. Provision for the assumption and discharge of
liability pertaining to insured deposits and insured savings ac-
counts or withdrawable shares in banking and savings and loan
institutions destroyed or made insolvent.
Sec. 1702. Sharing of war losses. Heads of agencies shall, as
appropriate, participate with the Office of Emergency Prepared-
ness and the Department of the Treasury in the development of
policies, plans, and procedures for implementation of national pol-
icy on sharing war losses.
Part 18—Federal Communications Commission
Section 1801. Definitions. As used in this part:
(1) "Common carrier" means any person subject to Commis-
sion regulation engaged in providing, for use by the public, for
hire, interstate or foreign communications facilities or services by
wire or radio; but a person engaged in radio broadcasting shall
not, insofar as such person is so engaged, be deemed a common
carrier.
(2) "Broadcast facilities" means those stations licensed by the
Commission for the dissemination of radio communications in-
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3178 LEGAL COMPILATION—WATER
tended to be received by the public directly or by the intermediary
of relay stations.
(3) "Safety and special radio services" includes those non-
broadcast and non-common carrier services which are licensed by
the Commission under the generic designation "safety and special
radio services" pursuant to the Commission's Rules and Regula-
tions.
Sec. 1802. Functions. The Federal Communications Commission
shall develop policies, plans, and procedures, in consonance with
national telecommunications plans and policies developed pursuant
to Executive Order No. 10705 [set out as a note under section 606
of Title 47, Telegraphs, Telephones, and Radiotelegraphs], Execu-
tive Order No. 11556 [set out as a note under section 305 of Title
47, Telegraphs, Telephones, and Radiotelegraphs], Executive
Order No. 11051 [set out as a note under section 2271 of this
Appendix], the Presidential Memorandum of August 21, 1963,
"Establishment of the National Communications System", and
other appropriate authority, covering:
(1) Common carrier service, (a) Extension, discontinuance, or
reduction of common carrier facilities or services, and issuance of
appropriate authorizations for such facilities, services, and per-
sonnel in an emergency; and control of all rates, charges, prac-
tices, classifications, and regulations for service to Government
and non-Government users during an emergency, in consonance
with overall national economic stabilization policies.
(b) Development and administration of priority systems for
public correspondence and for the use and resumption of leased
inter-city private line service in an emergency.
(c) Use of common carrier facilities and services to overseas
points to meet vital needs in an emergency.
(2) Broadcasting service. Construction, activation, or deactiva-
tion of broadcasting facilities and services, the continuation or
suspension of broadcasting services and facilities, and issuance of
appropriate authorizations for such facilities, services, and per-
sonnel in an emergency.
(3) Safety and special radio services. Authorization, operation,
and use of safety and special radio services, facilities, and person-
nel in the national interest in an emergency.
(4) Radio frequency assignment. Assignment of radio frequen-
cies, and their use by, Commission licensees in an emergency.
(5) Electromagnetic radiation. Closing of any radio station or
any device capable of emitting electromagnetic radiation or sus-
pension or amending any rules or regulations applicable thereto
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EXECUTIVE ORDERS 3179
in any emergency, except for those belonging to, or operated by,
any department or agency of the United States Government.
(6) Investigation and enforcement. Investigation of violations
of pertinent law and regultions in an emergency, and develop-
ment of procedures designated to initiate, recommend, or other-
wise bring about appropriate enforcement actions required in the
interest of national security.
Part 19—Federal Power Commission
Section 1901. Functions. The Federal Power Commission shall
assist the Department of the Interior in conformity with Part 7,
in the preparation of national emergency plans and the develop-
ment of preparedness programs for electric power and natural gas
in the areas as set forth in the Memorandum of Agreement dated
August 9, 1962, between the Secretary of the Interior and the
Chairman of the Federal Power Commission.
Part 20—General Services Administration
Section 2001. Resume of Responsibilities. The Administrator of
General Services shall prepare national emergency plans and de-
velop preparedness programs designed to permit modification or
expansion of the activities of the General Services Administration
under the Federal Property and Administrative Services Act of
1949, as amended [see short title note under section 471 of Title
40, Public Buildings, Property, and Works] and other statutes
prescribing the duties and responsibilities of the Administrator.
These plans and programs shall include, but not be limited to: (1)
operation, maintenance, and protection of Federal buildings and
their sites; construction, alteration, and repair of public build-
ings ; and acquisition, utilization, and disposal of real and personal
properties; (2) public utilities service management for Federal
agencies; (3) telecommunications to meet the essential require-
ments of civilian activities of executive departments and agencies;
(4) transportation management to meet the traffic service require-
ments of civilian activities of Federal agencies; (5) records man-
agement; (6) Emergency Federal Register; (7) Government-wide
supply support; (8) service to survival items stockpiles; (9) na-
tional industrial reserve; (10) guidance and consultation to Gov-
ernment agencies regarding facilities protection measures; (11)
administration of assigned functions under the Defense Produc-
tion Act [section 2061 et seq. of this Appendix]; and (12) admin-
istration and operation of the stockpile of strategic and critical
materials in accordance with policies and guidance furnished by
the Office of Emergency Preparedness.
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3180 LEGAL COMPILATION—WATER
Sec. 2002. Functions. The Administrator of General Services
shall:
(1) Public buildings. Develop emergency plans and procedures
for the operation, maintenance, and protection of both existing
and new Federally-owned and Federally-occupied buildings, and
construction, alteration, and repair of public buildings. Develop
emergency operating procedures for the control, acquisition, as-
signment, and priority of occupancy of real property by the Fed-
eral Government and by State and local governments to the extent
they may be performing functions as agents of the Federal Gov-
ernment.
(2) Public utility service management. Develop emergency
operational plans and procedures for the claimancy, procurement,
and use of public utility services for emergency activities of
executive agencies of the Government.
(3) Communications. Plan for and provide, operate, and main-
tain appropriate telecommunications facilities designed to meet
the essential requirements of Federal civilian departments and
agencies during an emergency within the framework of the Na-
tional Communications System. Plans and programs of the Ad-
ministrator shall be in consonance with national telecommuni-
cations policies, plans, and programs developed pursuant to Exec-
utive Order No. 10705 [set out as a note under section 606 of Title
47, Telegraphs, Telephones, and Radiotelegraphs], Executive
Order No. 11556 [set out as a note under section 305 of Title 47,
Telegraphs, Telephones, and Radiotelegraphs], Executive Order
No. 11051 [set out as a note under section 2271 of this Appendix],
and the Presidential Memorandum of August 21, 1963, "Establish-
ment of the National Communications System," or other appropri-
ate authority.
(4) Transportation. Develop plans and procedures for provid-
ing: (a) general transportation and traffic management services
to civilian activities of Federal agencies in connection with move-
ment of property and supplies, including the claimancy, contract-
ing, routing, and accounting of Government shipments by com-
mercial transportation in time of emergency; and (b) motor vehi-
cle service to meet the administrative needs of Federal agencies,
including dispatch and scheduled Government motor service at
and between headquarters, field offices, relocation sites, and other
installations of the Federal and State governments.
(5) Records. Provide instructions and advice on appraisal, selec-
tion, preservation, arrangement, reference, reproduction, storage,
and salvage of essential records needed for the operation of the
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EXECUTIVE ORDERS 3181
Federal Government after attack, on an emergency basis, includ-
ing a decentralized system.
(6) Federal Register. Develop emergency procedures for provid-
ing and making available, on a decentralized basis, a Federal Reg-
ister of Presidential Proclamations and Executive Orders, Federal
administrative regulations, Federal emergency notices and ac-
tions, and Acts of Congress during a national emergency.
(7) Government-wide procurement and supply. Prepare plans
and procedures for the coordination and/or operation of Govern-
ment-wide supply programs to meet the requirements of Federal
agencies under emergency conditions, including the development
of policies, methods, and procedures for emergency procurement
and for emergency requisitioning of private property when au-
thorized by law and competent authority; identification of essen-
tial civil agency supply items under the Federal catalog system;
development of emergency Federal specifications and standards;
determination of sources of supply; procurement of personal prop
erty and nonpersonal services; furnishing appropriate inspection
and contract administration services; and establishment, coordina-
tion, and/or operation of emergency storage and distribution fa-
cilities.
(8) Survival item stockpiles. Assist the Department of Health,
Education, and Welfare, insofar as civil defense medical stockpile
items under its jurisdiction are concerned, and the Department of
Defense, insofar as survival items under its jurisdiction are con-
cerned, in formulating plans and programs for service activity
support relating to stockpiling of such supplies and equipment.
The Administrator shall arrange for the procurement, storage,
maintenance, inspection, survey, withdrawal, and disposal of
supplies and equipment in accordance with the provisions of inter-
agency agreements with the departments concerned.
(9) National industrial reserve and machine tool program. De-
velop plans for the custody of the industrial plants and production
equipment in the national industrial reserve and assist the Depart-
ment of Defense, in collaboration with the Department of Com-
merce, in the development of plans and procedures for the disposi-
tion, emergency reactivation, and utilization of the plants and
equipment of this reserve in the custody of the Administrator.
(10) Excess and surplus real and personal property. Develop
plans and emergency operating procedures for the utilization of
excess and surplus real and personal property by Federal Govern-
ment agencies with emergency assignments or by State and local
governmental units as directed, including review of the property
holdings of Federal agencies which do not possess emergency
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3182 LEGAL COMPILATION—WATER
functions to determine the availability of property for emergency
use, and including the disposal of real and personal property and
the rehabilitation of personal property.
(11) Facilities protection and building and shelter manager
service. In accordance with the guidance from the Department of
Defense, promote, with respect to Federal buildings and installa-
tions, a Government-wide program (a) to stimulate protection,
preparedness, and control in emergencies in order to minimize the
effects of overt or covert attack, including dispersal of facilities;
and (b) to establish shelter manager organizations, including
safety and service personnel, shelter manager service, first aid,
police, and evacuaton service.
Sec. 2003. Defense Production. The Administrator of General
Services shall assist the Office of Emergency Preparedness in the
formulation of plans and programs relating to the certification of
procurement programs, subsidy payments, and plant improvement
programs provided for by the Defense Production Act of 1950, as
amended [section 2061 et seq. of this Appendix].
Sec. 2004. Strategic and Critical Materials Stockpiles. The Ad-
ministrator of General Services shall assist the Office of Emer-
gency Preparedness in formulating plans, programs, and reports
relating to the stockpiling of strategic and critical materials.
Within these plans and programs, the Administrator shall provide
for the procurement (for this purpose, procurement includes up-
grading, rotation, and beneficiation), storage, security, mainte-
nance, inspection, withdrawal, and disposal of materials, supplies,
and equipment.
Part 21—Interstate Commerce Commission
Section 2101. Resume of Responsibilities. The Chairman of the
Interstate Commerce Commission, under the coordinating author-
ity of the Secretary of Transportation, shall prepare national
emergency plans and develop preparedness programs covering
railroad utilization, reduction of vulnerability, maintenance, resto-
ration, and operation in an emergency (other than for the Alaska
Railroad—see Section 1303(6)) ; motor carrier utilization, reduc-
tion of vulnerability, and operation in an emergency; inland wa-
terway utilization of equipment and shipping, reduction of vulner-
ability, and operation in an emergency; and also provide guidance
and consultation to domestic surface transportation and storage
industries, as defined below, regarding emergency preparedness
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EXECUTIVE ORDERS 3183
measures, and to States regarding development of their transpor-
tation plans in assigned areas.
Sec. 2102. Definitions. As used in this part:
(1) "Domestic surface transportation and storage" means rail,
motor, and inland water transportation facilities and services and
public storage;
(2) "Public storage" includes warehouses and other places
which are used for the storage of property belonging to persons
other than the persons having the ownership or control of such
premises;
(3) "Inland water transportation" includes shipping on all in-
land waterways and Great Lakes shipping engaged solely in the
transportation of passengers or cargo between United States ports
on the Great Lakes;
(4) Specifically excluded, for the purposes of this part, are
pipelines, petroleum and gas storage, agricultural food resources
storage, including the cold storage of food resources, the St. Lawr-
ence Seaway, ocean ports and Great Lakes ports and port facili-
ties, highways, streets, roads, bridges, and related appurtenances,
maintenance of inland waterways, and any transportation owned
by or pre-allocated to the military.
Sec. 2103. Transportation Functions. The Interstate Commerce
Commission shall:
(1) Operational control. Develop plans with appropriate private
transportation and storage organizations and associations for the
coordination and direction of the use of domestic surface transpor-
tation and storage facilities for movement of passenger and
freight traffic.
(2) Emergency operations. Develop and maintain necessary or-
ders and regulations for the operation of domestic surface trans-
port and storage industries in an emergency.
Part 22—National Aeronautics and Space Administration
Section 2201. Functions. The Administrator of the National
Aeronautics and Space Administration shall:
(1) Research and development. Adapt and utilize the scientific
and technological capability of the National Aeronautics and
Space Administration, consistent with over-all requirements, to
meet priority needs of the programs of the Federal Government in
an emergency. This will include the direction and conduct of es-
sential research and development activities relating to (a) air-
craft, spacecraft, and launch vehicles, (b) associated instrumenta-
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3184 LEGAL COMPILATION—WATER
tion, guidance, control and payload, propulsion, and communica-
tions systems, (c) scientific phenomena affecting both manned and
unmanned space flights, (d) the life sciences (biology, medicine,
and psychology) as they apply to aeronautics and space, and (e)
atmospheric and geophysical sciences.
(2) Military support. Provide direct assistance as requested by
the Department of Defense and other agencies in support of the
military effort. This may include (a) undertaking urgent projects
to develop superior aircraft, spacecraft, launch vehicles, and
weapons systems, (b) developing methods to counter novel or
revolutionary enemy weapons systems, (c) providing technical
advice and assistance on matters involving air and space activi-
ties, and (d) furnishing personnel and facilities to assist in emer-
gency repairs of equipment deficiencies and for other essential
purposes.
Part 23—National Science Foundation
Section 2301. Functions. The Director of the National Science
Foundation shall :
(1) Manpower functions. Assist the Department of Labor in
sustaining readiness for the mobilization of civilian manpower by:
(a) maintaining the Foundation's register of scientific and techni-
cal personnel in such form and at such locations as will assure
maximum usefulness in an emergency; (b) being prepared for
rapid expansion of the Foundation's current operation as a central
clearing house for information covering all scientific and technical
personnel in the United States and its possessions; and (c) devel-
oping, in consultation with the Department of Labor, the Selective
Service System, the Department of Defense, and the Office of
Science and Technology, plans and procedures to assure the most
effective distribution and utilization of the Nation's scientific and
engineering manpower in an emergency.
(2) Special functions, (a) Provide leadership in developing,
with the assistance of Federal and State agencies and appropriate
nongovernmental organizations, the ability to mobilize scientists,
in consonance with over-all civilian manpower mobilization pro-
grams, to perform or assist in performance of special tasks, in-
cluding the identification of and defense against unconventional
warfare; (b) advance the national radiological defense capability
by including, in consultation with appropriate agencies, pertinent
scientific information and radiological defense techniques in the
Foundation's scientific institute program for science, mathematics,
and engineering teachers; (c) assemble data on the location and
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EXECUTIVE ORDERS 3185
character of major scientific research facilities, including non-gov-
ernmental as well as government facilities, and their normal in-
ventories of types of equipment and instruments which would be
useful in identification and analysis of hazards to human life in
the aftermath of enemy attack; and (d) prepare to carry on
necessary programs for basic research and for training of scien-
tific manpower.
Part 24—Railroad Retirement Board
Section 2401. Functions. The Eailroad Retirement Board shall:
(1) Manpower functions. Within the framework of the over-all
manpower plans and programs of the Department of Labor, assist
in the mobilization of civilian manpower in an emergency by de-
veloping plans for the recruitment and referral of that segment of
the Nation's manpower resources subject to the Railroad Retire-
ment and Railroad Unemployment Insurance Acts [sections 228a
et seq. and 351 et seq. of Title 45, Railroads].
(2) Benefit payments. Develop plans for administering, under
emergency conditions, the essential aspects of the Railroad Retire-
ment Act and Railroad Unemployment Insurance Act [sections
228a et seq. and 351 et seq. of Title 45, Railroads] consistent with
overall Federal plans for the continuation of benefit payments
after an enemy attack.
Part 25—Securities and Exchange Commission
Section 2501. Functions. The Securities and Exchange Commis-
sion shall collaborate with the Secretary of the Treasury in the
development of emergency financial control plans, programs, pro-
cedures, and regulations for :
(1) Stock trading. Temporary closure of security exchanges,
suspension of redemption rights, and freezing of stock and bond
prices, if required in the interest of maintaining economic con-
trols.
(2) Modified trading. Development of plans designed to reesta-
blish and maintain a stable and orderly market for securities
when the situation permits under emergency conditions.
(3) Protection of securities. Provision of a national records
system which will make it possible to establish current ownership
of securities in the event major trading centers and depositories
are destroyed.
(4) Flow of capital. The control of the formation and flow of
private capital as it relates to new securities offerings or expan-
sion of prior offerings for the purpose of establishing or reesta-
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3186 LEGAL COMPILATION—WATER
Wishing industries in relation to the Nation's needs in or following
a national emergency.
(5) Flight of capital. The prevention of the flight of capital
outside this country, in coordination with the Secretary of Com-
merce, and the impounding of securities in the hands of enemy
aliens.
Part 26—Small Business Administration
Section 2601. Functions. The Administrator of the Small Busi-
ness Administration shall:
(1) Prime contract authority. Develop plans to administer a
program for the acquisition of prime contracts by the Administra-
tion and, in turn, for negotiating or otherwise letting of subcon-
tracts to capable small business concerns in an emergency.
(2) Resource information. Provide data on facilities, invento-
ries, and potential production capacity of small business concerns
to all interested agencies.
(3) Procurement. Develop plans to determine jointly with Fed-
eral procurement agencies, as appropriate, which defense con-
tracts are to go to small business concerns and to certify to the
productive and financial ability of small concerns to perform spe-
cific contracts, as required.
(4) Loans for plant modernization. Develop plans for providing
emergency assistance to essential individual industrial establish-
ments through direct loans or participation loans for the financing
of production facilities and equipment.
(5) Resource pools. Develop plans for encouraging and approv-
ing small business defense production and research and develop-
ment pools.
(6) Financial assistance. Develop plans to make loans, directly
or in participation with private lending institutions, to small busi-
ness concerns and to groups or pools of such concerns, to small
business investment companies, and to State and local develop-
ment companies to provide them with funds for lending to small
business concerns, for defense and essential civilian purposes.
Part 27—Tennessee Valley Authority
Section 2701. Functions. The Board of Directors of the Tennes-
see Valley Authority shall:
(1) Electric power. Assist the Department of the Interior in the
development of plans for the integration of the Tennessee Valley
Authority power system into national emergency programs and
prepare plans for the emergency management, operation, and
maintenance of the system and for its essential expansion.
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EXECUTIVE ORDERS 3187
(2) Waterways. Assist the Interstate Commerce Commission,
under the coordinating authority of the Secretary of Transporta-
tion, in the development of plans for integration and control of
inland waterway transportation systems and, in cooperation with
the Department of Defense and the Department of the Interior,
prepare plans for the management, operation, and maintenance of
the river control system in the Tennessee River and certain of its
tributaries for navigation during an emergency.
(3) Flood control. Develop plans and maintain its river control
operations for the prevention or control of floods caused by natu-
ral phenomena or overt and covert attack affecting the Tennessee
River System and, in so doing, collaborate with the Department of
Defense with respect to the control of water in the lower Ohio and
Mississippi Rivers.
(4) Emergency health services and sanitary water supplies. As-
sist the Department of Health, Education, and Welfare in the
development of plans and programs covering emergency health
services, civilian health manpower, and health resources in the
Tennessee Valley authority area and, in collaboration with the
Department of the Interior and the Department of Health, Educa-
tion, and Welfare, prepare plans for the management, operation,
and maintenance of the Tennessee River System consistent with
the needs for sanitary public water supplies, waste disposal, and
vector control.
(5) Coordination of water use. Develop plans for determining or
proposing priorities for the use of water by the Tennessee Valley
Authority in the event of conflicting claims arising from the func-
tions listed above.
(6) Fertilizer. Assist the Department of Agriculture in the de-
velopment of plans for the distribution and claimancy of ferti-
lizer ; assist the Department of Commerce and the Department of
Defense in the development of Tennessee Valley Authority produc-
tion quotas and any essential expansion of production facilities,
and prepare plans for the management, operation, and mainte-
nance of its facilities for the manufacture of nitrogen and phos-
phorous fertilizers.
(7) Munitions production. Perform chemical research in muni-
tions as requested by the Department of Defense, maintain
standby munitions production facilities, and develop plans for con-
verting and utilizing fertilizer facilities as required in support of
the Department of Defense's munitions program.
(8) Land management. Develop plans for the maintenance,
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3188 LEGAL COMPILATION—WATER
management, and utilization of Tennessee Valley Authority-con-
trolled lands in the interest of an emergency economy.
(9) Food and forestry. Assist the Department of Agriculture in
the development of plans for the harvesting and processing of fish
and game, and the Department of Commerce in the development
of plans for the production and processing of forest products.
(10) Coordination with Valley States. Prepare plans and agree-
ments with Tennessee Valley States, consistent with Federal pro-
grams, for appropriate integration of Tennessee Valley Authority
and State plans for the use of available Tennessee Valley Author-
ity resources.
Part 28—United States Civil Service Commission
Section 2801. Functions. The United States Civil Service Com-
mission shall:
(1) Personnel system. Prepare plans for adjusting the Federal
civilian personnel system to simplify administration and to meet
emergency demands.
(2) Utilization. Develop policies and implementing procedures
designed to assist Federal agencies in achieving the most effective
utilization of the Federal Government's civilian manpower in an
emergency.
(3) Manpower policies. As the representative of the Federal
Government as an employer, participate, as appropriate, in the
formulation of national and regional manpower policies as they
affect Federal civilian personnel and establish implementing poli-
cies as necessary.
(4) Manpower administration. Prepare plans, in consonance
with national manpower policies and programs, for the adminis-
tration of emergency civilian manpower and employment policies
within the executive branch of the Government, including the
issuance and enforcement of regulations to implement such poli-
cies.
(5) Wage and salary stabilization. Participate, as appropriate,
with the Office of Emergency Preparedness and the Department of
Labor in the formulation of national and regional wage and salary
stabilization policies as they affect Federal civilian personnel.
Within the framework of such policies, prepare plans for the
implementation of such policies and controls established for em-
ployees within the executive branch of the Government, including
the issuance and enforcement of necessary regulations.
(6) Assistance. Develop plans for rendering personnel manage-
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EXECUTIVE ORDERS 3189
ment and staffing assistance to new and expanding Federal agen-
cies.
(7) Recruiting. Develop plans for the coordination and control
of civilian recruiting policies and practices by all Federal agencies
in order to increase the effectiveness of the total recruitment ef-
forts during an emergency arid to prevent undesirable recruitment
practices.
(8) Reassignment. Develop plans to facilitate the reassignment
or transfer of Federal civilian employees, including the movement
of employees from one agency or location to another agency or
location, in order to meet the most urgent needs of the executive
branch during an emergency.
(9) Registration. Develop plans and procedures for a nation-
wide system of post-attack registration of Federal employees to
provide a means for locating and returning to duty those employ-
ees who become physically separated from their agencies after an
enemy attack, and to provide for the maximum utilization of the
skills of surviving employees,
(10) Deferment. Develop plans and procedures for a system to
control Government requests for the selective service deferment of
employees in the executive branch of the Federal Government and
in the municipal government of the District of Columbia.
(11) Investigation. Prepare plans, in coordination with agencies
having responsibilities in the personnel security field, for the con-
duct of national agency checks and inquiries, limited suitability
investigations, and full field investigations under emergency con-
ditions.
(12) Salaries, wages, and benefits. Develop plans for operating
under emergency conditions the essential aspects of salary and
wage systems and such benefit systems as the Federal Employees
Retirement System, the Federal Employees Group Life Insurance
Program, the Federal Employees and Retired Federal Employees
Health Benefits Programs, and the Federal Employees Compensa-
tion Program.
(13) Federal manpower mobilization. Assist Federal agencies in
establishing manpower plans to meet their own emergency man-
power requirements; identify major or special manpower prob-
lems of individual Federal agencies and the Federal Government
as a whole in mobilizing a civilian work force to meet essential
emergency requirements; identify sources of emergency man-
power supply for all agencies where manpower problems are indi-
cated ; and develop Governm ent-wide plans for the use of surplus
Federal civilian manpower.
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3190 LEGAL COMPILATION—WATER
(14) Distribution of manpower. Participate in the formulation
of policies and decisions on the distribution of the nation's civilian
manpower resources, obtain appropriate civilian manpower data
from Federal agencies, and establish necessary implementing poli-
cies and procedures within the Executive Branch.
(15) Training. Develop, organize, and conduct, as appropriate,
interagency training programs in emergency personnel manage-
ment for Federal employees.
Part 28A—United States Information Agency
Section 2850. Functions, (a) The Director of the United States
Information Agency shall prepare national emergency plans and
develop preparedness programs for the continuation of essential
emergency foreign information activitites. These plans and pro-
grams shall be designed to develop a state of readiness which will
permit continuing necessary activities under all conditions of na-
tional emergency including attack upon the United States.
(b) The Director shall (1) develop plans for the formulation
and execution of foreign information programs utilizing the Agen-
cy's overseas posts and all media designed to promote an intelli-
gent understanding abroad of the status of the emergency within
the United States and the efforts, policies, activities, needs, and
aims of the United States in dealing with the international situa-
tion then existing; (2) develop emergency plans and programs,
and emergency organizational structures required thereby, as an
integral part of the continuing activities of the United States
Information Agency on the basis that it will have the responsibil-
ity of carrying on such programs during an emergency; (3) pro-
vide and maintain the capability necessary for simultaneous direct
radio broadcasting in major world languages to all areas of the
world and wireless teletype to all United States Embassies; (4)
provide advice to the Executive Branch on foreign opinion, and its
implications for United States policies, programs, and official
statements; (5) maintain liaison with the information agencies of
friendly nations for the purpose of relating the United States
Government information programs and facilities to those of such
nations; (6) participate in the development of policy with regard
to the psychological aspects of defense and develop plans for as-
sisting the appropriate agencies in the execution of psychological
operations with special attention to overseas crises short of war;
(7) maintain United States Information Service staffs abroad for
the conduct of public information for all agencies of the Govern-
ment, recognizing that in a theater of operations the United States
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EXECUTIVE ORDERS 3191
Information Agency would make available to the appropriate
Commander all United States citizen personnel on the staff of the
Agency, who agree to remain, to serve in support of psychological
operations; and (8) lend appropriate support in psychological
warfare to the military command in the theater or theaters of
active military operations, and provide daily guidance and basic
informational materials.
(c) The Director shall insure development of the appropriate
plans necessary under this Part and issue emergency instructions
required to implement all appropriate plans developed under this
Part.
Part 29—Veterans Administration
Section 2901. Functions. The Administrator of Veterans Affairs
shall develop policies, plans, and procedures for the performance
of emergency functions with respect to the continuation or resto-
ration of authorized programs of the Veterans Administration
under all conditions of national emergency, including attack upon
the United States. These include:
(1) The emergency conduct of inpatient and outpatient care
and treatment in Veterans Administration medical facilities and
participation with the Departments of Defense and Health, Edu-
cation, and Welfare as provided for in interagency agreements.
(2) The emergency conduct of compensation, pension, rehabili-
tation, education, and insurance payments consistent with over-all
Federal plans for the continuation of Federal benefit payments.
(3) The emergency performance of insurance and loan guar-
anty functions in accordance with indirect stabilization policies
and controls designed to deal with various emergency conditions.
Part 30—General Provisions
Section 3001. Resource Management. In consonance with the
national preparedness, security, and mobilizaton readiness plans,
programs, and operations of the Office of Emergency Prepared-
ness under Executive Order No. 11051 of September, 7, 1962 [set
out as a note under section 2271 of this Appendix], and subject to
the provisions of the preceding parts the head of each department
and agency shall:
(1) Priorities and allocations. Develop systems for the emer-
gency application of priorities and allocations to the production,
distribution, and use of resources for which he has been assigned
responsibility.
(2) Requirements. Assemble, develop as appropriate, and evalu-
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3192 LEGAL COMPILATION—WATER
ate requirements for assigned resources, taking into account esti-
mated needs for military, atomic energy, civilian, and foreign
purposes. Such evaluation shall take into consideration geographi-
cal distribution of requirements under emergency conditions.
(3) Evaluation. Assess assigned resources in order to estimate
availability from all sources under an emergency situation, ana-
lyze resource availabilities in relation to estimated requirements,
and develop appropriate recommendations and programs, includ-
ing those necessary for the maintenance of an adequate mobiliza-
tion base. Provide data and assistance before and after attack for
national resource analysis purposes of the Office of Emergency
Preparedness.
(5) Claimancy. Prepare plans to claim from the appropriate
agency supporting materials, manpower, equipment, supplies, and
services which would be needed to carry out assigned responsibili-
ties and other essential functions of his department or agency, and
cooperate with other agencies in developing programs to insure
availability of such resources in an emergency.
Sec. 3002. Facilities protection and warfare effects monitoring
and reporting. In consonance with the national preparedness, secu-
rity, and mobilization readiness plans, programs, and operations
of the Office of Emergency Preparedness under Executive Order
No. 11051 [set out as a note under section 2271 of this Appendix],
and with the national civil defense plans, programs, and opera-
tions of the Department of Defense under Executive Order No.
10952 [set out as a note under section 2271 of this Appendix], the
head of each department and agency shall:
(1) Facilities protection. Provide facilities protection guidance
material adapted to the needs of the facilities and services con-
cerned and promote a national program to stimulate disaster pre-
paredness and control in order to minimize the effects of overt or
covert attack on facilities or other resources for which he has
management responsibility. Guidance shall include, but not be lim-
ited to, organization and training of facility employees, personnel
shelter, evacuation plans, records protection, continuity of man-
agement, emergency repair, dispersal of facilities, and mutual aid
assocaitions for an emergency.
(2) Welfare effects monitoring and reporting. Maintain a capa-
bility, both at national and field levels, to estimate the effects of
attack on assigned resources and to collaborate with and provide
data to the Office of Emergency Preparedness, the Department of
Defense, and other agencies, as appropriate, in verifying and up-
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EXECUTIVE ORDERS 3193
dating estimates of resource status through exchanges of data and
mutual assistance, and provide for the detection, identification,
monitoring and reporting of such warfare effects at selected facili-
ties under his operation or control.
(3) Salvage and rehabilitation. Develop plans for salvage, de-
contamination, and rehabilitation of facilities involving resources
under his jurisdiction.
(4) Shelter. In conformity with national shelter policy, where
authorized to engage in building construction, plan, design, and
construct such buildings to protect the public to the maximum
extent feasible against the hazards that could result from an at-
tack upon the United States with nuclear weapons; and where
empowered to extend Federal financial assistance, encourage re-
cipients of such financial assistance to use standards for planning
design and construction which will maximize protection for the
public.
Sec. 3003. Critical skills and occupations, (a) The Secretaries of
Defense, Commerce, and Labor shall carry out the -mandate of the
National Security Council, dated February 15, 1968, to "maintain
a continuing surveillance over the Nation's manpower needs and
identify any particular occupation or skill that may warrant quali-
fying for deferment on a uniform national basis." In addition, the
Secretaries of Defense, Commerce, Labor, and Health, Education,
and Welfare shall carry out the mandate of the National Security
Council to "maintain a continuing surveillance over the Nation's
manpower and education needs to identify any area of graduate
study that may warrant qualifying for deferment in the national
interest." In carrying out these functions, the Secretaries con-
cerned shall consult with the National Science Foundation with
respect to scientific manpower requirements.
(b) The Secretaries of Commerce and Labor shall maintain and
issue, as necessary, lists of all essential activities and critical occu-
pations that may be required for emergency preparedness pur-
poses.
Sec. 3004. Research. Within the framework of research policies
and objectives established by the Office of Emergency Prepared-
ness, the head of each department and agency shall supervise or
conduct research in areas directly concerned with carrying out
emergency preparedness responsibilities, designate representa-
tives for necessary ad hoc or task force groups, and provide advice
and assistance to other agencies in planning for research in areas
involving each agency's interest.
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3194 LEGAL COMPILATION—WATER
Sec. 3005. Stockpiles. The head of each department and agency,
with appropriate emergency responsibilities, shall assist the Office
of Emergency Preparedness in formulating and carrying out
plans for stockpiling of strategic and critical materials, and sur-
vival items.
Sec. 3006. Direct Economic Controls. The head of each depart-
ment and agency shall cooperate with the Office of Emergency
Preparedness and the Federal financial agencies in the develop-
ment of emergency preparedness measures involving emergency
financial and credit measures, as well as price, rent, wage and
salary stabilization, and consumer rationing programs.
Sec. 3007. Financial Aid. The head of each department and
agency shall develop plans and procedures in cooperation with the
Federal financial agencies for financial and credit assistance to
those segments of the private sector for which he is responsible in
the event such assistance is needed under emergency conditions.
Sec. 3008. Functional Guidance. The head of each department
and agency in carrying out the functions assigned to him by this
order, shall be guided by the following:
(1) National program guidance. In consonance with the national
preparedness, security, and mobilization readiness plans, pro-
grams, and operations of the Office of Emergency Preparedness
under Executive Order No. 11051 [set out as a note under section
2271 of this Appendix], and with the national civil defense plans,
programs, and operations of the Department of Defense, technical
guidance shall be provided to State and local governments and
instrumentalities thereof, to the end that all planning concerned
with functions assigned herein will be effectively coordinated. Re-
lations with the appropriate segment of the private sector shall be
maintained to foster mutual understanding of federal emergency
plans.
(2) Interagency coordination. Emergency preparedness func-
tions shall be coordinated by the head of the department or agency
having primary responsibility with all other departments and
agencies having supporting functions related thereto.
(3) Emergency preparedness. Emergency plans, programs, and
an appropriate state of readiness, including organizational readi-
ness, shall be developed as an integral part of the continuing
activities of each department or agency on the basis that the
department or agency will have the responsibility for carrying out
such plans and programs during an emergency. The head of each
department or agency shall be prepared to implement all appropri-
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EXECUTIVE ORDERS 3195
ate plans developed under this order. Modifications and temporary
organizational changes, based on emergency conditions, shall be in
accordance with policy determinations by the President.
(4) Professional liaison. Mutual understanding and support of
emergency preparedness activities shall be fostered, and the Na-
tional Defense Executive Reserve shall be promoted by maintain-
ing relations with the appropriate non-governmental sectors.
Sec. 3009. Training. The head of each department and agency
shall develop and direct training programs which incorporate
emergency preparedness and civil defense training information
programs necessary to insure the optimum operational effective-
ness of assigned resources, systems, and facilities.
Sec. 3010. Emergency Public Information. In consonance with
such emergency public information plans and central program
decisions of the Office of Emergency Preparedness, and with
plans, programs, and procedures established by the Department of
Defense to provide continuity of programming for the Emergency
Broadcast System, the head of each department and agency shall:
(1) Obtain and provide information as to the emergency func-
tions or assignments of the individual department or agency for
dissemination to the American people during the emergency, in
accordance with arrangements made by the Office of Emergency
Preparedness.
(2) Determine requirements and arrange for prerecordings to
provide continuity of program service over the Emergency Broad-
cast System so that the American people can receive information,
advice, and guidance pertaining to the implementation of the civil
defense and emergency preparedness plans or assignments of each
individual department or agency.
Sec. 3011. Emergency Actions. This order does not confer au-
thority to put into effect any emergency plan, procedure, policy,
program, or course of action prepared or developed pursuant to
this order. Plans so developed may be effectuated only in the event
that authority for such effectuation is provided by a law enacted
by the Congress or by an order or directive issued by the Presi-
dent pursuant to statutes or the Constitution of the United States.
Sec. 3012. Redelegation. The head of each department and
agency is hereby authorized to redelegate the functions assigned
to him by this order, and to authorize successive redelegations to
agencies or instrumentalities of the United States, and to officers
and employees of the United States.
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3196 LEGAL COMPILATION—WATER
Sec. 3013. Transfer of Functions. Any emergency preparedness
function under this order, or parts thereof, may be transferred
from one department or agency to another with the consent of the
heads of the organizations involved and with the concurrence of
the Director of the Office of Emergency Preparedness. Any new
emergency preparedness function may be assigned to the head of a
department or agency by the Director of the Office of Emergency
Preparedness by mutual consent.
Sec. 3014. Retention of Existing Authority. Except as provided
in Section 3015, nothing in this order shall be deemed to derogate
from any now existing assignment of functions to any department
or agency or officer thereof made by statute, Executive order, or
Presidential directives, including Memoranda.
Sec. 3015. Revoked Orders. The following are hereby revoked:
(1) Defense Mobilization Order VI-2 of December 11,1953.
(2) Defense Mobilization Order 1-12 of October 5,1954.
(3) Executive Order No. 10312 of December 10,1951.
(4) Executive Order No. 10346 of April 17,1952.
(5) Executive Order No. 10997 of February 16,1962.
(6) Executive Order No. 10998 of February 16, 1962.
(7) Executive Order No. 10999 of February 16,1962.
(8) Executive Order No. 11000 of February 16,1962.
(9) Executive Order No. 11001 of February 16,1962.
(10) Executive Order No. 11002 of February 16, 1962.
(11) Executive Order No. 11003 of February 16,1962.
(12) Executive Order No. 11004 of February 16,1962.
(13) Executive Order No. 11005 of February 16,1962.
(14) Executive Order No. 11087 of February 26,1963.
(15) Executive Order No. 11088 of February 26,1963.
(16) Executive Order No. 11089 of February 26,1963.
(17) Executive Order No. 11090 of February 26,1963.
(18) Executive Order No. 11091 of February 26,1963.
(19) Executive Order No. 11092 of February 26, 1963.
(20) Executive Order No. 11093 of February 26,1963.
(21) Executive Order No. 11094 of February 26,1963.
(22) Executive Order No. 11095 of February 26,1963.
(23) Executive Order No. 11310 of October 11,1966.
RICHARD NIXON
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2.2 E.O. 11507, PREVENTION, CONTROL, AND ABATEMENT
OF AIR AND WATER POLLUTION AT FEDERAL FACILITIES
February 4, 1970, 35 Fed. Reg. 2573
EXECUTIVE ORDER NO. 11507
Feb. 4,1970, 35 F.R. 2573
PREVENTION, CONTROL, AND ABATEMENT OF AIR AND WATER
POLLUTION AT FEDERAL FACILITIES
By virtue of the authority vested in me as President of the
United States and in furtherance of the purpose and policy of the
Clean Air Act, as amended (42 U.S.C. 1857) [section 1857 et seq.
of this title], the Federal Water Pollution Control Act, as amended
(33 U.S.C. 466) [section 466 et seq. of Title 33, Navigation and
Navigable Waters], and the National Environmental Policy Act
of 1969 (Public Law No. 91-190, approved January 1, 1970)
[this chapter], it is ordered as follows:
Section 1. Policy. It is the intent of this order that the Federal
Government in the design, operation, and maintenance of its facili-
ties shall provide leadership in the nationwide effort to protect
and enhance the quality of our air and water resources.
Sec. 2. Definitions. As used in this order:
(a) The term "respective Secretary" shall mean the Secretary
of Health, Education, and Welfare in matters pertaining to air
pollution control and the Secretary of the Interior in matters per-
taining to water pollution control.
(b) The term "agencies" shall mean the departments, agencies,
and establishments of the executive branch.
(c) The term "facilities" shall mean the buildings, installations,
structures, public works, equipment, aircraft, vessels, and other
vehicles and property, owned by or constructed or manufactured
for the purpose of leasing to the Federal Government.
(d) The term "air and water quality standards" shall mean
respectively the quality standards and related plans of implemen-
tation, including emission standards, adopted pursuant to the Clean
Air Act, as amended, and the Federal Water Pollution Control
Act, as amended, or as prescribed pursuant to section 4(b) of this
order.
(e) The term "performance specifications" shall mean permis-
sible limits of emissions, discharges, or other values applicable to
a particular Federal facility that would, as a minimum, provide
for conformance with air and water quality standards as denned
herein.
(f) The term "United States" shall mean the fifty States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, and Guam.
3197
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3198 LEGAL COMPILATION—WATER
Sec. 3. Responsibilities, (a) Heads of agencies shall, with regard
to all facilities under their jurisdiction:
(1) Maintain review and surveillance to ensure that the stand-
ards set forth in section 4 of this order are met on a continuing
basis.
(2) Direct particular attention to identifying potential air and
water quality problems associated with the use and production of
new materials and make provisions for their prevention and con-
trol.
(3) Consult with the respective Secretary concerning the best
techniques and methods available for the protection and enhance-
ment of air and water quality.
(4) Develop and publish procedures, within six months of the
date of this order, to ensure that the facilities under their juris-
diction are in conformity with this order. In the preparation of
such procedures there shall be timely and appropriate consulta-
tion with the respective Secretary.
(b) The respective Secretary shall provide leadership in imple-
menting this order, including the provision of technical advice and
assistance to the heads of agencies in connection with their duties
and responsibilities under this order.
(c) The Council on Environmental quality shall maintain con-
tinuing review of the implementation of this order and shall, from
time to time, report to the President thereon.
Sec. 4. Standards, (a) Heads of agencies shall ensure that all
facilities under their jurisdiction are designed, operated, and
maintained so as to meet the following requirements:
(1) Facilities shall conform to air and water quality standards
as defined in section 2 (d) of this order. In those cases where no
such air or water quality standards are in force for a particular
geographical area, Federal facilities in that area shall conform to
the standards established pursuant to subsection (b) of this sec-
tion. Federal facilities shall also conform to the performance speci-
fications provided for in this order.
(2) Actions shall be taken to avoid or minimize wastes created
through the complete cycle of operations of each facility.
(3) The use of municipal or regional waste collection or dis-
posal systems shall be the preferred method of disposal of wastes
from Federal facilities. Whenever use of such a system is not
feasible or appropriate, the heads of agencies concerned shall take
necessary measures for satisfactory disposal of such wastes, in-
cluding :
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EXECUTIVE ORDERS 3199
(A) When appropriate, the installation and operation of their
own waste treatment and disposal facilities in a manner consistent
with this section.
(B) The provision of trained manpower, laboratory and other
supporting facilities as appropriate to meet the requirements of
this section.
(C) The establishment of requirements that operators of Fed-
eral pollution control facilities meet levels of proficiency consistent
with the operator certification requirements of the State in which
the facility is located. In the absence of such State requirements
the respective Secretary may issue guidelines, pertaining to oper-
ator qualifications and performance, for the use of heads of
agencies.
(4) The use, storage, and handling of all materials, including
but not limited to, solid fuels, ashes, petroleum products, and other
chemical and biological agents, shall be carried out so as to avoid
or minimize the possibilities for water and air pollution. When
appropriate, preventive measure shall be taken to entrap spillage
or discharge or otherwise to prevent accidental pollution. Each
agency, in consultation with the respective Secretary, shall estab-
lish appropriate emergency plans and procedures for dealing with
accidental pollution.
(5) No waste shall be disposed of or discharged in such a
manner as could result in the pollution of ground water which
would endanger the health or welfare of the public.
(6) Discharges of radioactivity shall be in accordance with the
applicable rules, regulations, or requirements of the Atomic
Energy Commission and with the policies and guidance of the Fed-
eral Radiation Council as published in the FEDERAL REGISTER.
(b) In those cases where there are no air or water quality
standards as defined in section 2(d) of this order in force for a
particular geographic area or in those cases where more stringent
requirements are deemed advisable for Federal facilities, the
respective Secretary, in consultation with appropriate Federal,
State, interstate, and local agencies, may issue regulations estab-
lishing air or water quality standards for the purpose of this order,
including related schedules for implementation.
(c) The heads of agencies, in consultation with the respective
Secretary, may from time to time identify facilities or uses thereof
which are to be exempted, including temporary relief, from pro-
visions of this order in the interest of national security or in extra-
ordinary cases where it is in the national interest. Such exemp-
tions shall be reviewed periodically by the respective Secretary
and the heads of the agencies concerned. A report on exemptions
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3200 LEGAL COMPILATION—WATER
granted shall be submitted to the Council on Environmental Qual-
ity periodically.
Sec. 5. Procedures for abatement of air and water pollution at
existing Federal facilities, (a) Actions necessary to meet the
requirements of subsections (a) (1) and (b) of section 4 of this
order pertaining to air and water pollution at existing facilities
are to be completed or under way no later than December 31, 1972.
In cases where an enforcement conference called pursuant to law
or air and water quality standards require earlier actions, the
earlier date shall be applicable.
(b) In order to ensure full compliance with the requirements
of section 5 (a) and to facilitate budgeting for necessary corrective
and preventive measures, heads of agencies shall present to the
Director of the Bureau of the Budget by June 30, 1970, a plan to
provide for such improvements as may be necessary to meet the
required date. Subsequent revisions needed to keep any such plan
up-to-date shall be promptly submitted to the Director of the
Bureau of the Budget.
(c) Heads of agencies shall notify the respective Secretary as
to the performance specifications proposed for each facility to
meet the requirements of subsections 4 (a) (1) and (b) of this
order. Where the respective Secretary finds that such perform-
ance specifications are not adequate to meet such requirements, he
shall consult with the agency head and the latter shall thereupon
develop adequate performance specifications.
(d) As may be found necessary, heads of agencies may submit
requests to the Director of the Bureau of the Budget for exten-
sions of time for a project beyond the time specified in section
5(a). The Director, in consultation with the respective Secretary,
may approve such requests if the Director deems that such project
is not technically feasible or immediately necessary to meet the
requirements of subsections 4(a) and (b). Full justification as to
the extraordinary circumstances necessitating any such extension
shall be required.
(e) Heads of agencies shall not use for any other purpose any
of the amounts appropriated and apportioned for corrective and
preventive measures necessary to meet the requirements of sub-
section (a) for the fiscal year ending June 30, 1971, and for any
subsequent fiscal year.
Sec. 6. Procedures for new Federal facilities, (a) Heads of
agencies shall ensure that the requirements of section 4 of this
order are considered at the earliest possible stage of planning for
new facilities.
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EXECUTIVE ORDERS 3201
(b) A request for funds to defray the cost of designing and
constructing new facilities in the United States shall be included
in the annual budget estimates of an agency only if such request
includes funds to defray the costs of such measures as may be
necessary to assure that the new facility will meet the require-
ments of section 4 of this order.
(c) Heads of agencies shall notify the respective Secretary as
to the performance specifications proposed for each facility when
action is necessary to meet the requirements of subsections 4 (a)
(1) and (b) of this order. Where the respective Secretary finds
that such performance specifications are not adequate to meet such
requirements he shall consult with the agency head and the latter
shall thereupon develop adequate performance specifications.
(d) Heads of agencies shall give due consideration to the qual-
ity of air and water resources when facilities are constructed or
operated outside the United States.
Sec. 7. Procedures for Federal water resources projects, (a) All
water resources projects of the Departments of Agriculture, the
Interior, and the Army, the Tennessee Valley Authority, and the
United States Section of the International Boundary and Water
Commission shall be consistent with the requirements of section 4
of this order. In addition, all such projects shall be presented for
the consideration of the Secretary of the Interior at the earliest
feasible stage if they involve proposals or recommendations with
respect to the authorization or construction of any Federal water
resources project in the United States. The Secretary of the In-
terior shall review plans and supporting data for all such projects
relating to water quality, and shall prepare a report to the head of
the responsible agency describing the potential impact of the
project on water quality, including recommendations concerning
any changes or other measures with respect thereto which he
considers to be necessary in connection with the design, construc-
tion, and operation of the project.
(b) The report of the Secretary of the Interior shall accompany
at the earliest practicable stage any report proposing authoriza-
tion or construction, or a request for funding, of such a water
resource project. In any case in which the Secretary of the Interior
fails to submit a report within 90 days after receipt of project
plans, the head of the agency concerned may propose authoriza-
tion, construction, or funding of the project without such an ac-
companying report. In such a case, the head of the agency
concerned shall explicitly state in his request or report concerning
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3202 LEGAL COMPILATION—WATER
the project that the Secretary of the Interior has not reported on
the potential impact of the project on water quality.
Sec. 8. Saving provisions. Except to the extent that they are
inconsistent with this order, all outstanding rules, regulations,
orders, delegations, or other forms of administrative action issued,
made, or otherwise taken under the orders superseded by section 9
hereof or relating to the subject of this order shall remain in full
force and effect until amended, modified, or terminated by proper
authority.
Sec. 9. Orders superseded. Executive Order No. 11282 of May
26, 1966, and Executive Order No. 11288 of July 2, 1966, are here-
by superseded.
RICHARD NIXON
-------
2.3 E.O. 11514, PROTECTION AND ENHANCEMENT OF
ENVIRONMENTAL QUALITY
March 5, 1970, 35 Fed. Reg. 4247
PROTECTION AND ENHANCEMENT OF ENVIRONMENT QUALITY
By virtue of the authority vested in me as President of the
United States and in furtherance of the purpose and policy of the
National Environmental Policy Act of 1969 (Public Law No.
91-190, approved January 1, 1970), it is ordered as follows:
Section 1. Policy. The Federal Government shall provide
leadership in protecting and enhancing the quality of the Nation's
environment to sustain and enrich human life. Federal agencies
shall initiate measures needed to direct their policies, plans and
programs so as to meet national environmental goals. The Council
on Environmental Quality, through the Chairman, shall advise and
assist the President in leading this national effort.
Sec. 2. Responsibilities of Federal agencies. Consonant with
Title I of the National Environmental Policy Act of 1969, here-
after referred to as the "Act", the heads of Federal agencies shall:
(a) Monitor, evaluate, and control on a continuing basis their
agencies' activities so as to protect and enhance the quality of the
environment, puch activities shall include those directed to con-
trolling pollution and enhancing the environment and those de-
signed to accomplish other program objectives which may affect
the quality of the environment. Agencies shall develop programs
and measures to protect and enhance environmental quality and
shall assess progress in meeting the specific objectives of such
activities. Heads of agencies shall consult with appropriate Fed-
eral, State and local agencies in carrying out their activities as
they affect the quality of the environment.
(b) Develop procedures to ensure the fullest practicable pro-
vision of timely public information and understanding of Federal
plans and programs with environmental impact in order to obtain
the views of interested parties. These procedures shall include,
whenever appropriate, provision for public hearings, and shall
provide the public with relevant information, including informa-
tion on alternative courses of action. Federal agencies shall also
encourage State and local agencies to adopt similar procedures
for informing the public concerning their activities affecting the
quality of the environment.
(c) Insure that information regarding existing or potential
environmental problems and control methods developed as part of
research, development, demonstration, test, or evaluation activities
is made available to Federal agencies, States, counties, munici-
palities, institutions, and other entities, as appropriate.
3203
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3204 LEGAL COMPILATION—WATER
(d) Review their agencies' statutory authority, administrative
regulations, policies, and procedures, including those relating to
loans, grants, contracts, leases, licenses, or permits, in order to
identify any deficiencies or inconsistencies therein which prohibit
or limit full compliance with the purposes and provisions of the
Act. A report on this review and the corrective actions taken or
planned, including such measures to be proposed to the President
as may be necessary to bring their authority and policies into
conformance with the intent, purposes, and procedures of the Act,
shall be provided to the Council on Environmental Quality not
later than September 1, 1970.
(e) Engage in exchange of data and research results, and
cooperate with agencies of other governments to foster the pur-
poses of the Act.
(f) Proceed, in coordination with other agencies, with actions
required by section 102 of the Act.
Sec. 3. Responsibilities of Council on Environmental Quality.
The Council on Environmental Quality shall:
(a) Evaluate existing and proposed policies and activities of the
Federal Government directed to the control of pollution and the
enhancement of the environment and to the accomplishment of
other objectives which affect the quality of the environment. This
shall include continuing review of procedures employed in the
development and enforcement of Federal standards affecting en-
vironmental quality. Based upon such evaluations the Council shall,
where appropriate, recommend to the President policies and pro-
grams to achieve more effective protection and enhancement of
environmental quality and shall, where appropriate, seek resolu-
tion of significant environmental issues.
(b) Recommend to the President and to the agencies priorities
among programs designed for the control of pollution and for en-
hancement of the environment.
(c) Determine the need for new policies and programs for deal-
ing with environmental problems not being adequately addressed.
(d) Conduct, as it determines to be appropriate, public hearings
or conferences on issues of environmental significance.
(e) Promote the development and use of indices and monitoring
systems (1) to assess environmental conditions and trends, (2) to
predict the environmental impact of proposed public and private
actions, and (3) to determine the effectiveness of programs for
protecting and enhancing environmental quality.
(f) Coordinate Federal programs related to environmental
quality.
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EXECUTIVE ORDERS 3205
(g) Advise and assist the President and the agencies in achiev-
ing international cooperation for dealing with environmental
problems, under the foreign policy guidance of the Secretary of
State.
(h) Issue guidelines to Federal agencies for the preparation of
detailed statements on proposals for legislation and other Federal
actions affecting the environment, as required by section 102(2)
(C) of the Act.
(i) Issue such other instructions to agencies, and request such
reports and other information from them, as may be required to
carry out the Council's responsibilities under the Act.
(j) Assist the President in preparing the annual Environ-
mental Quality Report provided for in section 201 of the Act.
(k) Foster investigations, studies, surveys, research, and anal-
yses relating to (i) ecological systems and environmental quality,
(ii) the impact of new and changing technologies thereon, and
(iii) means of preventing or reducing adverse effects from such
technologies.
Sec. 4. Amendments of E.G. 11472. Executive Order No. 11472
of May 29, 1969, including the heading thereof, is hereby amended:
(1) By substituting for the term "the Environmental Quality
Council", wherever it occurs, the following: "the Cabinet Commit-
tee on the Environment".
(2) By substituting for the term "the Council", wherever it
occurs, the following: "the Cabinet Committee".
(3) By inserting in subsection (f) of section 101, after
"Budget,", the following: "the Director of the Office of Science
and Technology,".
(4) By substituting for subsection (g) of section 101 the fol-
lowing :
"(g) The Chairman of the Council on Environmental Quality
(established by Public Law 91-190) shall assist the President in
directing the affairs of the Cabinet Committee."
(5) By deleting subsection (c) of section 102.
(6) By substituting for "the Office of Science and»Technology",
in section 104, the following: "the Council on Environmental Qual-
ity (established by Public Law 91-190)".
(7) By substituting for "(hereinafter referred to as the 'Com-
mittee')", in section 201, the following: "(hereinafter referred to
as the 'Citizens' Committee')".
(8) By substituting for the term "the Committee", wherever it
occurs, the following: "the Citizens' Committee".
RICHARD NIXON
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3206 LEGAL COMPILATION—WATER
DELEGATING FUNCTIONS OF THE PRESIDENT UNDER THE
FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED
By virtue of the authority vested in me by the Federal Water
Pollution Control Act (62 Stat. 1155, as amended, 33 U.S.C. 466
et seq.) as amended by the Water Quality Improvement Act of
1970 (Public Law 91-224, approved Apr. 3, 1970), hereinafter re-
ferred to as the Act, by section 301 of title 3 of the United States
Code, and as President of the United States, it is ordered as
follows:
Section 1. Delegations to the Secretary of the Interior. There
is hereby delegated to the Secretary of the Interior responsibility
and authority
(a) to carry out the provisions of subsection (1) (2) of section
5 of the Act, relating to the study and investigation of methods to
control the release of pesticides into the environment, including
the preparation of a report on such investigation for submission
by the President to the Congress;
(b) in consultation with the Secretary of Transportation, to
carry out the provisions of subsections (b) (2) and (b) (3) of sec-
tion 11 of the Act, relating to the determination of those quantities
of oil the discharge of which, at such times, locations, circum-
stances, and conditions, will be harmful to the public health or wel-
fare of the United States and those which will not be harmful;
(c) to carry out the provisions of subsection (c) (2) (G) of sec-
tion 11 of the Act, relating to identification of dispersants and
other chemicals to be used;
(d) to carry out the provisions of subsection (e) of section 11
of the Act, relating to determinations of imminent and substantial
threat because of actual or threatened discharge of oil, and relat-
ing to securing relief necessary to abate such actual or threatened
discharges through court action;
(e) in consultation with the Secretary of Transportation, to
carry out the provisions of subsections (j) (1) (C) of section 11
of the Act, relating to procedures, methods, and requirements for
equipment to prevent discharges of oil from non-transportation-
related onshore and offshore facilities;
(f) to carry out the provisions of subsection (a) (1) of section
12 of the Act, relating to the designation of hazardous substances,
other than oil, which when discharged into or upon the navigable
waters of the United States or adjoining shorelines or waters of
-------
2.4 E.O. 11548, DELEGATING FUNCTIONS OF THE
PRESIDENT UNDER THE FEDERAL WATER POLLUTION
CONTROL ACT, AS AMENDED
July 20,1970, 35 Fed. Reg. 11677
the continguous zone, present an imminent and substantial danger
to public health or welfare;
(g) in consultation with the Secretary of Transportation, to
carry out the provisions of subsection (a) (2) of section 12 of the
Act, relating to the establishment of recommended methods for the
removal of hazardous substances within the meaning of subsection
(a) (1) of section 12 of the Act.
Sec 2. Delegations to the Secretary of Transportation. There
is hereby delegated to the Secretary of Transportation responsi-
bility and authority
(a) in consultation with the Secretary of the Interior, to carry
out the provisions of subsection (j) (1) (C) of section 11 of the
Act, relating to procedures, methods and requirements for equip-
ment to prevent discharges of oil from vessels and transportation-
related onshore and offshore facilities;
(b) to carry out the provisions of subsection (j) (1) (D) of
section 11 of the Act, relating to the inspection of vessels carrying
cargoes of oil and the inspection of such cargoes;
(c) to administer the revolving fund established pursuant to
subsection (k) of section 11 of the Act;
(d) to carry out the provisions of subsection (m) of section 11
of the Act, relating to the boarding and inspection of vessels, the
arrest of persons violating the said section 11, and the execution
of warrants or other process;
(e) in consultation with the Secretary of the Interior, to carry
out the provisions of subsection (g) of section 12 of the Act, in-
cluding the preparation of a report for submission by the Presi-
dent to the Congress.
Sec. 3. Delegations to the Federal Maritime Commission, (a)
There is hereby delegated to the Federal Maritime Commission
responsibility and authority
(1) to carry out the provisions of subsection (p) (1) of section
11 of the Act, relating to the issuance of regulations governing evi-
dence of financial responsibility for vessels to meet liability to the
United States;
(2) to carry out the provisions of subsection (p) (2) of section
11 of the Act, relating to the administration of the said subsection
(P).
(b) Without derogating from any action heretofore taken there-
under, the letter of the President to the Chairman of the Federal
Maritime Commission dated June 2,1970 (35 F.R. 8631), is hereby
superseded.
3207
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3208 LEGAL COMPILATION—WATER
Sec. 4. Delegation to the Council on Environmental Quality.
(a) There is hereby delegated to the Council on Environmental
Quality the responsibility and authority to carry out the provisions
of subsection (c) (2) of section 11 of the Act, providing for the
preparation, publication, revision or amendment of a National
Contingency Plan for the removal of oil (hereinafter referred to
as the National Contingency Plan).
(b) Without derogating from any action heretofore taken there-
under, the letter of the President to the Chairman of the Council
on Environmental Quality dated May 26, 1970 (35 F.R. 8423), is
hereby superseded.
Sec. 5. Other delegations, (a) There is hereby delegated to the
Secretary of the Interior and to the Secretary of Transportation,
respectively, in and for the waters and areas assigned to each in
section 306.2 of the National Contingency Plan (35 F.R. 8511)
responsibility and authority
(1) to carry out the provisions of subsection (c) (1) of section
11 of the Act, relating to the removal of oil discharged into or
upon the navigable waters of the United States, adjoining shore-
lines, or into or upon the waters of the United States;
(2) to carry out the provisions of subsection (d) of section 11
of the Act, relating to the coordination and direction of removal or
elimination of the threat of oil discharges, and the removal and
destruction of vessels;
(3) to carry out the provisions of subsection (j) (1) (A) of sec-
tion 11 of the Act, relating to methods and procedures for the re-
moval of discharged oil;
(4) to carry out the provisions of subsection (j) (1) (B) of sec-
tion 11 of the Act, relating to criteria for the development and
implementation of local and regional oil removal contingency
plans;
(5) to carry out the provisions of subsection (d) of section 12
of the Act, relating to the removal of discharged hazardous sub-
stances.
(b) The civil penalty authority of section 11 (j) (2) of the Act
shall be exercised by the Secretary of the Interior and the Secre-
tary of Transportation for the enforcement of the respective regu-
lations issued by each pursuant to delegations in this order.
Sec. 6. Agency To Receive Notices of Discharges of Oil or
Hazardous Substances. The Coast Guard is hereby designated the
"appropriate agency" for the purpose of receiving the notice of
discharge of oil required by subsection (b) (4) of section 11 of the
Act and for the purpose of receiving the notice of discharge of any
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EXECUTIVE ORDERS 3209
hazardous substance required by subsection (c) of section 12 of
the Act. The Commandant of the Coast Guard shall issue regula-
tions implementing this designation.
Sec. 7. Redelegation authority. Secretaries of Departments and
heads of agencies are hereby authorized to redelegate within their
respective departments or agencies the responsibilities and author-
ity delegated to them by this order, subject to the requirements of
3 U.S.C. 301.
Sec. 8. Regulations. Authority to carry out any of the fore-
going responsibilities includes the authority to issue necessary
implementing regulations.
Sec. 9. Reorganization Plan No. 3 of 1970. Upon the taking
effect of Reorganization Plan No. 3 of 1970, the responsibility and
authority conferred upon the Secretary of Interior by this order,
including the authority conferred by reason of his designation in
the National Contingency Plan, and including the responsibility to
consult with other officers, shall vest in the Administrator of the
Environmental Protection Agency: Provided, that the Adminis-
trator shall thereafter consult with the Secretary of the Interior
regarding the responsibility and authority delegated by section
l(a) of this order and officers who by this order are required to
consult with the Secretary of Interior shall consult with the Ad-
ministrator of the Environmental Protection Agency.
RICHARD NIXON
-------
3210 LEGAL COMPILATION—WATER
ADMINISTRATION OF REFUSE ACT PERMIT PROGRAM
By virtue of the authority vested in me as President of the
United States, and in furtherance of the purposes and policies of
section 13 of the Act of March 3, 1899, c. 425, 30 Stat. 1152 (33
U.S.C. 407), the Federal Water Pollution Control Act, as amended
(33 U.S.C. 1151 et. seq), the Fish and Wildlife Coordination Act,
as amended (16 U.S.C. 661-666c), and the National Environmen-
tal Policy Act of 1969 (42 U.S.C. 4321-4347), it is hereby ordered
as follows:
Section 1. Refuse Act permit program. The executive branch
of the Federal Government shall implement a permit program
under the aforesaid section 13 of the Act of March 3, 1899 (here-
inafter referred to as "the Act") to regulate the discharge of pol-
lutants and other refuse matter into the navigable waters of the
United States or their tributaries and the placing of such matter
upon their banks.
Sec. 2. Responsibilities of Federal agencies, (a) (1) The Secre-
tary shall, after consultation with the Administrator respecting
water quality matters, issue and amend, as appropriate, regula-
tions, procedures, and instructions for receiving, processing, and
evaluating applications for permits pursuant to the authority of
the Act.
(2) The Secretary shall be responsible for granting, denying,
conditioning, revoking, or suspending Refuse Act permits. In so
doing:
(A) He shall accept findings, determinations, and interpreta-
tions which the Administrator shall make respecting applicable
water quality standards and compliance with those standards in
particular circumstances, including findings, determinations, and
interpretations arising from the Administrator's review of State
or interstate agency water quality certifications under section
21 (b) of the Federal Water Pollution Control Act (84 Stat. 108).
A permit shall be denied where the certification prescribed by sec-
tion 21 (b) of the Federal Water Pollution Control Act has been
denied, or where issuance would be inconsistent with any finding,
determination, or interpretation of the Administrator pertaining
to applicable water quality standards and considerations.
(B) In addition, he shall consider factors, other than water
quality, which are prescribed by or may be lawfully considered
under the Act or other pertinent laws.
-------
2.5 E.O. 11574, ADMINISTRATION OF THE REFUSE ACT
PERMIT PROGRAM
December 23, 1970, 35 Fed. Reg. 19627
(3) The Secretary shall consult with the Secretary of the Inte-
rior, with the Secretary of Commerce, with the Administrator,
and with the head of the agency exercising administration over
the wildlife resources of any affected State, regarding effects on
fish and wildlife which are not reflected in water quality consid-
erations, where the discharge for which a permit is sought im-
pounds, diverts, deepens the channel, or otherwise controls or
similarly modifies the stream or body of water into which the dis-
charge is made.
(4) Where appropriate for a particular permit application, the
Secretary shall perform such consultations respecting environmen-
tal amenities and values, other than those specifically referred to
in paragraphs (2) and (3) above, as may be required by the Na-
tional Environmental Policy Act of 1969.
(b) The Attorney General shall conduct the legal proceedings
necessary to enforce the Act and permits issued pursuant to it.
Sec. 3. Coordination by Council on Environmental Quality.
(a) The Council on Environmental Quality shall coordinate the
regulations, policies, and procedures of Federal agencies with
respect to the Refuse Act permit program.
(b) The Council on Environmental Quality, after consultation
with the Secretary, the Administrator, the Secretary of the Inte-
rior, the Secretary of Commerce, the Secretary of Agriculture, and
the Attorney General, shall from time to time or as directed by the
President advise the President respecting the implementation of
the Refuse Act permit program, including recommendations re-
garding any measures which should be taken to improve its admin-
istration.
Sec. 4. Definitions. As used in this order, the word "Secretary"
means the Secretary of the Army, and the word "Administrator"
means the Administrator of the Environmental Protection Agency.
RICHARD NIXON
3211
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3212 LEGAL COMPILATION—WATER
2.5a STATEMENT BY THE PRESIDENT ON SIGNING AN
EXECUTIVE ORDER PROVIDING FOR THE ESTABLISH-
MENT OF A FEDERAL PERMIT PROGRAM TO REGULATE
THE DISCHARGE OF WASTE INTO THE WATERS OF THE
UNITED STATES, WEEKLY COMPILATION OF PRES-
IDENTIAL DOCUMENTS
December 23,1970, p. 1724
I have today directed the establishment of a Federal permit pro-
gram covering facilities which discharge waste into navigable waters
and their tributaries in the United States. This new program will
enhance the ability of the Federal Government to enforce water
quality standards and provide a major strengthening of our efforts to
clean up our Nation's water.
Last February I transmitted to the Congress a comprehensive
water pollution program, as part of my 37-point program designed
to protect our environment. My proposals included legislative mea-
sures to make the establishment and enforcement of water quality
standards more effective and expeditious. Unfortunately, no con-
gressional action has been taken on my water pollution control
proposals. I will continue to seek enactment of these proposals during
the next session of the Congress.
In the meantime, I am directing the immediate initiation of a new,
coordinated program of water quality enforcement under the Refuse
Act of 1899, an act whose potential for water pollution control has
only recently been recognized.
This law, which we have relied upon for many of our water
pollution enforcement actions to date, prohibits the discharge of
refuse matter, except that flowing from streets and sewers, into
navigable waters or their tributaries without a permit from the Army
Corps of Engineers. Through a more activist utilization of this act,
we will be able to require industries to submit to State authorities
and the Federal Government data concerning effluents which they
plan to discharge into navigable waters. For those firms that are
complying with water quality standards, the issuance of a permit,
agreed upon by the Federal Government and the States, will assure
all parties that standards are being met. To deal with those who are
disregarding our pollution control laws, a swift and comprehensive
enforcement mechanism is provided by this authority.
The most effective use of the Refuse Act will require close co-
ordination between the Corps of Engineers and the Environmental
Protection Agency as well as other Federal and State authorities.
The Executive order I am signing today will ensure that such co-
ordination is provided and that the program is initiated promptly.
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EXECUTIVE ORDERS
3213
As this order makes clear, the Environmental Protection Agency will
make the necessary determinations on behalf of the Federal Govern-
ment for all water quality aspects of this program.
The Refuse Act permit program makes maximum use of all existing
provisions of law relating to water quality. It will apply to dis-
charges both from new installations and from existing facilities.
Implementation of the program will begin when proposed regulations,
soon to be issued for comment, are promulgated. Permits for new
discharges will be required immediately. For existing discharges,
the deadline for filing applications will be July 1, 1971, to provide the
States an opportunity to mobilize for this program. In the meantime,
violators of water quality standards will not be exempt from
prosecution under the Refuse Act.
[p. 1724]
I wish to make clear that although the Refuse Act generally does
not apply to municipal discharges, we will continue to vigorously
employ other authorities for dealing with violations of water quality
standards by municipalities. The Environmental Protection Agency
recently put three large cities on notice that it will take legal action
under the Federal Water Pollution Control Act if they do not take
steps to correct water quality violations.
Implementation of a program of this magnitude will not be easy. It
involves a number of Federal agencies, 50 States, and many thousands
of industries. But we cannot afford to wait. We must move ahead
to clean up our waters. I invite the help and cooperation of the States,
private industry, and all citizens in making the Refuse Act permit
program an effective tool to promote our water quality objectives.
[p. 1725]
2.5b CONGRESSIONAL RECORD, VOL. 117 (1971)
Feb. 4: House Discussion of the 1899 Refuse Act Permit Program,
pp. 1754-1763
THE REFUSE ACT PERMIT
PROGRAM
The SPEAKER pro tempore. Under
previous order of the House, the gentle-
man from Wisconsin, (Mr. REUSS) , is
recognized for 10 minutes.
Mr. REUSS. Mr. Speaker, I reported
to the Members of this House on August
14, 1970 the "progressive step taken by
the Corps of Engineers" in announcing
a policy of full enforcement of the 1899
River and Harbor Act (30 Stat. 1151)
and the "total abdication by the Depart-
ment of Justice of its statutory duty 'to
vigorously' enforce the act"—CONGRES-
SIONAL RECORD, volume 116, part 21, page
28935.
Today, I want to report the progress
made by the executive branch in getting
this program underway.
Following the corps' announcement of
July 30, 1970, there began a series of
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3214
LEGAL COMPILATION—WATER
discussions between the Council on En-
vironmental Quality, the Environmental
Protection Agency, the Justice Depart-
ment, and the corps over the program
and the implementing regulations.
These discussions culminated in the is-
suance of Executive Order 11574 by the
President on December 23, 1970 (35 F.R.
19627) and proposed regulations by the
corps on December 31, 1970 (35 F.R.
20005) and January 21, 1970 (36 F.R.
983).
I commend the President for his per-
sonal interest in directing that the corps
and EPA get the program underway
promptly. The program is based on the
recommendations in the report issued
on March 18, 1970, by the Committee on
Government Operations (H. Rept. 91-
917) and prepared by the Subcommittee
on Conservation and Natural Resources,
entitled "Our Waters and Wetlands:
How the Corps of Engineers Can Help
Prevent Their Destruction and Pollu-
tion." Congress, in Public Law 91-665
of January 8, 1971, appropriated $2 mil-
lion to the corps for this program.
When fully and properly imple-
mented, this new program will signifi-
cantly aid in reducing the pollution from
industrial wastes discharged without
adequate treatment into our Nation's
waterways. I am concerned, however,
about the adequacy of the regulations
and accompanying material. I am most
eager to see an effective program
instituted. Our subcommittee has re-
peatedly urged this. We have been dis-
appointed over its slow progress to date.
We hope that in the next few weeks the
corps and these other agencies will make
appropriate changes in the proposed
regulations and other documents con-
sistent with existing law, that will elim-
inate the fears we have expressed to the
Corps, EPA, and CEQ in the last few
weeks.
I particularly hope that the revised
Justice Department Guidelines on liti-
gation under the 1899 Refuse Act will be
revised even further to eliminate the re-
quirement that, before a U.S. attorney
files "civil complaints, criminal informa-
tion and the return of indictments in
Refuse Act cases," he must first call
Washington. If the U.S. attorney be-
lieves that a civil or criminal action,
or both, should be instituted against a
polluter, what possible reason is there
for him to call Washington before he
initiates it, unless it is to give Washing-
ton an opportunity to stop the U.S. at-
torney from filing the action on political
or similar grounds?
I append the text of Executive Order
11574; the corps' regulations of Decem-
ber 31, 1970, and January 21, 1971; a
corps-EPA memorandum of under-
standing of January 12, 1971; and an
updated draft revision of the Justice
Department guidelines.
I also append my letter of December
23, 1970, to Mr. Robert E. Jordan III,
General Counsel of the Army, concern-
ing the corps' regulations:
PROPOSED RULE MAKING
(Department of Defense)
DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS
[33CFRPart209]
Permits for discharges or deposits into navi-
gable waters—proposed policy, practice,
and procedure
Notice is hereby given that the regulations
set forth in tentative form below are proposed
by the Secretary of the Army (acting through
the Corps of Engineers). The proposed regu-
lation prescribes the policy, practice, and
procedure to be followed by all Corps of En-
gineers installations and activities in connec-
tion with applications for permits authorizing
discharges or deposits into navigable waters
of the United States or into any tributary
from which discharged matter shall float or
be washed into a navigable water (33 U.S.C.
407).
Prior to the adoption of the proposed regu-
lation consideration will be given to any
comments, suggestions, or objections thereto
which are submitted in writing to the Office
of the Chief of Engineers, Washington, D.C.
20314, Attention: ENGCW—ON, within a pe-
riod of 45 days from the date of publication
of this notice in the FEDERAL REGISTER.
Dated: December 23, 1970.
F. P. KOISCH,
Major General, U.S. Army,
Director of Civil Works.
[p. 1754]
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EXECUTIVE ORDERS
3215
§209.131 Permits for discharges or deposits
into navigable waters.
(a) Purpose and scope. This regulation
prescribes the policy, practice, and procedure
to be followed by all Corps of Engineers in-
stallations and activities in connection with
applications for permits authorizing dis-
charges or deposits into navigable waters of
the United States or into any tributary from
which discharged matter shall float or be
washed into a navigable water.
(b) Law and executive order authorizing
permits. (1) Section 13 of the Act approved
March 3, 1899 (33 U.S.C. 407), hereafter re-
ferred to as the "Refuse Act," provides in
part that it is unlawful "to throw, discharge,
or deposit, or cause, suffer, or procure to be
thrown, discharged, or deposited either from
or out of any ship, barge, or other floating
craft of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any
kind, any refuse matter of any kind or de-
scription whatever other than that flowing
from streets and sewers and passing there-
from in a liquid state, into any navigable
water of the United States, or into any trib-
utary of any navigable water from which
the same shall float or be washed into such
navigable water * * * And provided further,
That the Secretary of the Army, whenever
in the judgment of the Chief of Engineers
anchorage and navigation will not be injured
thereby, may permit the deposit of any mate-
rial above mentioned in navigable waters,
within limits to be defined and under condi-
tions to be prescribed by him, provided ap-
plication is made to him prior to depositing
such material; and whenever any permit is so
granted the conditions thereof shall be
strictly complied with, and any violation
thereof shall be unlawful."
(2) Executive Order No. 11574 (dated De-
cember 23, 1970) directs the implementation
of a permit program under the authority of
the Refuse Act and provides for the coope'ra-
tion of affected Federal agencies-in the ad-
ministration of the program.
(c) Related legislation. (1) Section 21 (b)
of the Federal Water Pollution Control Act,
as amended (33 U.S.C. 1151 et seq.) (see par-
ticularly the Water Quality Improvement Act
of 1970 (Public Law 91-224, 84 Stat. 108)),
reflects the concern of the Congress with
maintenance of applicable water quality
standards and, subject to certain exceptions,
requires any applicant for a Federal license
or permit to conduct any activity including,
but not limited to, the construction or opera-
tion of facilities which may result in a dis-
charge into the navigable waters of the
United States to provide with his application
an appropriate certification that there is rea-
sonable assurance that such activity will be
conducted in a manner which will not violate
applicable water quality standards. Here-
after, section 21 (b) will be referred to as a
section of the Water Quality Improvement
Act of 1970.
(2) The concern of the Congress with the
need to encourage the productive and enjoy-
able harmony between man and his environ-
ment and the need to promote efforts which
will prevent or eliminate damage to the en-
vironment was manifested in the enactment
of the National Environmental Policy Act of
1969 (42 USC. 4321-4347). Section 102 of
that Act directs that:
"to the fullest extent possible: (1) The poli-
cies, regulations, and public laws of the
United States shall be interpreted and ad-
ministered in accordance with the policies
set forth in this Act, and (2) all agencies of
the Federal Government shall—
"(B) Identify and develop methods and
procedures, in consultation with the Council
on Environmental Quality established by
title II of this Act, which will insure that
presently unquantifled environmental ameni-
ties and values may be given appropriate
consideration in decision-making along with
economic and technical considerations * * *."
(3) The concern of the Congress with the
conservation and improvement of fish and
wildlife resources is indicated in the Fish
and Wildlife Coordination Act (16 U.S.C.
661-666c), wherein consultation with the De-
partment of the Interior is required regard-
ing activities affecting the course, depth, or
modification of a navigable waterway.
(d) General policy. (1) Except as other-
wise provided in the Refuse Act (33 U.S.C.
407), all discharges or deposits into navigable
waters of the United States or tributaries
thereof are, in the absence of an appropriate
Department of the Army permit, unlawful.
The fact that official objection may not have
yet been raised with respect to past or contin-
uing discharges or deposits should not be
interpreted as authority to discharge or de-
posit in the absence of an appropriate permit,
and will not preclude the institution of legal
proceedings in appropriate cases for viola-
tion of the provisions of the Refuse Act.
Similarly, the mere filing of an application re-
questing permission to discharge or deposit
into navigable waters or tributaries thereof
will not preclude legal action in appropriate
cases for Refuse Act violations.
(2) The decision as to whether a permit
authorizing a discharge or deposit will or will
not be issued under the Refuse Act will be
based on an evaluation of the impact of the
discharge or deposit on (i) anchorage and
navigation, (ii) water quality standards,
which under the provisions of the Federal
Water Pollution Control Act, were estab-
lished "to protect the public health or wel-
fare, enhance the quality of water and serve
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3216
LEGAL COMPILATION—WATER
the purposes" of that Act, with consideration
of "their use and value for public water sup-
plies, propagation of fish and wildlife, recre-
ational purposes, and agricultural, industrial,
and other legitimate uses," and (iii) in cases
where the Fish and Wildlife Coordination
Act is applicable (where the discharge for
which a permit is sought impounds, diverts,
deepens the channel, or otherwise controls
or similarly modified the stream or body of
water into which the discharge is made), the
impact of the proposed discharge or deposit
on fish and wildlife resources which are not
directly related to water quality standards
(3) Although the Refuse Act vests in the
Secretary of the Army authority to determine
whether or not a permit should or should
not issue, it is recognized that responsibility
for water quality improvement lies primarily
with the States and, at the Federal level, with
the Environmental Protection Agency (EPA).
Accordingly, EPA shall advise the Corps with
respect to the meaning, content, and applica-
tion of water quality standards applicable to
a proposed discharge or deposit and as to
the impact which the proposed discharge or
deposit may or is likely to have on applicable
water quality standards and related water
quality considerations. Specifically, Regional
Representatives of EPA will determine and
advise District Engineers with respect to the
following:
(i) The meaning and content of water
quality standards which, under the provi-
sions of the Federal Water Pollution Control
Act, were established "to protect the public
health or welfare, enhance the quality of
water and serve the purposes" of that Act,
with consideration of "their use and value
for public water supplies, propagation of fish
and wildlife, recreational purposes, and agri-
cultural, industrial, and other legitimate
uses.";
(ii) The application of water quality
standards to the proposed discharge or de-
posit, including the impact of the pro-
posed discharge or deposit on such water
quality standards and related water quality
considerations;
(iii) The permit conditions required to
comply with water quality standards;
(iv) The permit conditions required to
carry out the purposes of the Federal Water
Pollution Control Act where no water quality
standards are applicable;
(v) The interstate water quality effect of
the proposed discharge or deposit.
(4) In any case where a District Engineer
of the Corps has received notice that a State
or other certifying agency has denied a certi-
fication prescribed by section 21 (b) of the
Federal Water Pollution Control Act or, ex-
cept as provided in subparagraph (6) of this
paragraph, where a Regional Representative
has recommended that a permit be denied
because its issuance would be inconsistent
with his determination or interpretation with
respect to applicable water quality standards
and related water quality considerations, the
District Engineer, within 30 days of receipt
of such notice, shall deny the permit and
provide notice of such denial to the Regional
Representative of EPA.
(5) In the absence of any objection by the
Regional Representative to the issuance of a
permit for a proposed discharge or deposit,
District Engineers may take action denying a
permit only if:
(i) Anchorage and navigation will be im-
paired; or
(ii) Where the discharge for which a per-
mit is sought impounds, diverts, deepens the
channel, or otherwise controls or similarly
modifies the stream or body of water into
which the discharge is made, and after the
consultations required by the Fish and Wild-
life Coordination Act, the District Engineer
determines that the proposed discharge or
deposit will have a significant adverse impact
on fish or wildlife resources.
(6) In any case where the District Engineer
believes that following the advice of the
Regional Representative with respect to the
issuance or denial of a permit would not be
consistent with the purposes of the Refuse
Act permit program, he shall, within 10 days
of receiving such advice, forward the matter
through channels to the Secretary of the
Army to provide the Secretary with the op-
portunity to consult with the Administrator.
Such consultation shall take place within
30 days of the date on which the Secretary
receives the file from the District Engineer.
Following such consultation, the Secretary
shall accept the findings, determinations, and
conclusions of the Administrator as to water
quality standards and related water quality
considerations and shall promptly forward
the case to the District Engineer with in-
structions as to its disposition.
(7) No permit will be issued in cases where
the applicant, pursuant to 21(b)(l) of the
Water Quality Improvement Act of 1970, is
required to obtain a State or other appropri-
ate certification that the discharge or deposit
would not violate applicable water quality
standards and such certification was denied.
No permit will be issued for discharges or
deposits of harmful quantities of oil, as de-
fined in section 11 of the Federal Water Pol-
lution Control Act since primary permit and
enforcement authority for all oil discharges
is contained in that Act
(e) Authority to issue permits. The Refuse
Act provides that, "the Secretary of the
Army, whenever in the judgment of the
Chief of Engineers that anchorage and navi-
gation will not be injured thereby, may
permit the deposit of any material * * * in
navigable waters, within the limits to be de-
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EXECUTIVE ORDERS
3217
fined and under conditions to be prescribed
by him * * *." The Chief of Engineers, in
the exercise of his judgment under the Act,
has made the general determination that an-
chorage and navigation will not be injured
when the discharge or deposit permitted will
cause no significant displacement of water
or reduction in the navigable capacity of a
waterway. Except as otherwise provided in
this regulation, the Secretary of the Army
has authorized the Chief of Engineers and
his authorized representatives to issue per-
[p. 1755]
mits allowing discharges or deposits into
navigable waters or tributaries thereof, if
evaluation leads to the conclusion that (1),
as determined by the Chief of Engineers,
anchorage and navigation will not be injured
thereby, and (2) issuance of a permit will
not be inconsistent with the policy guidance
prescribed in paragraph (d) of this section.
Accordingly, within these limitations, Dis:rict
Engineers are authorized, except in cases
which are to be referred to higher authority
for decision (see paragraphs (d) (6) and (i)
(7) of this section), to issue permits or to
deny permit applications for discharges or
deposits covered by the Refuse Act.
(f) Relationship to other corps permits. (1)
Operators of facilities constructed in navi-
gable waters under a valid construction per-
mit issued pursuant to section 10 of the Rivers
and Harbors Act approved March 3, 1899 (33
U.S C 403) must apply for and receive a new
permit under the Refuse Act (33 U S C 407)
in order to lawfully discharge into or place
deposits in navigable waters or tributaries
thereof.
(2) Any person wishing to undertake work
in navigable waters which may also result in
a discharge or deposit into such navigable
waters or tributaries thereof must apply for
a permit under section 403 for such work and
for a permit under section 407 to cover any
proposed discharge or deposit. However, if
the work proposed to be undertaken in ravi-
gable waters is limited to the construction of
a minor outfall structure from which the
proposed discharge or deposit will flow, Dis-
trict Engineers may, in their discretion and
within the guidance provided in ER 1145-2-
303, require a single permit application under
this regulation (ER 1145-2-321). If a single
permit is issued authorizing both work in
navigable waters and a discharge or deposit,
the permit should cite both sections 403 and
407 as authority for its issuance
(g) Information required with an applica-
tion. (1) An applicant for a permit involving
a discharge or deposit in navigable waters or
tributaries thereof must file the required
form with the District Engineer. Until the
required form is printed and made available
to District Offices, applicants should provide
a letter requesting that the permit be issued.
The letter must bear the address of the ap-
plicant and the date, identify the waterway
involved and the precise location of the pro-
posed discharge or deposit and contain a
statement as to whether the facility from
which the proposed discharge or deposit will
originate is within the corporate limits of a
municipality. The applicant must also fur-
nish information which will fully identify
the chaiacter of the discharge or deposit and
monitoring devices and procedures which will
be used Such information shall include, but
need not be limited to, data pertaining to
chemical content, water temperature differ-
entials, toxins, sewage, amount and frequency
of discharge or deposit and the type and
quantity of solids involved, if any If the
discharge or deposit will include solids of any
type, applicants must (i) identify the pro-
posed method of instrumentation to deter-
mine the effect of the disposition of solids
on the waterway, and (ii) either assume re-
sponsibility for the periodic removal of such
solids by dredging or agree to reimburse the
United Slates for costs associated with such
dredging
(2) An application submitted by a corpo-
ration must be signed by the principal exec-
utive officer of that corporation or by an
official of the rank of corporate vice president
or above who reports directly to such prin-
cipal executive officer and who has been
designated by the principal executive officer
to make such applications on behalf of the
corporation. In the case of a partnership or
a sole proprietorship, the application must
be signed by a general partner or the propri-
etor Each application must contain a
certification by the person signing the ap-
plication that he is familiar with the in-
formation provided and that to the best of
his knowledge and belief such information is
complete and accurate
(h) State certification. (1) Section 2Kb)
(1) of the Water Quality Improvement Act
of 1970 provides that "Any applicant for a
Federal license or permit to conduct any
activity including, but not limited to, the
construction or operation of facilities, which
may result in any discharge into the naviga-
ble waters of the United States, shall pro-
vide the licensing or permitting agency a
certification from the State in which the
discharge originates or will originate, or, if
appropriate, from the interstate water pollu-
tion control agency having jurisdiction over
the navigable waters at the point where the
discharge originates or will originate, that
there is reasonable assurance, as determined
by the State or interstate agency that such
activity will be conducted in a manner which
will not violate applicable water quality
standards * * *. No license or permit shall
be granted until the certification required by
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3218
LEGAL COMPILATION—WATER
this section has been obtained or has been
waived" (as provided in a portion of section
2Kb) (1) not quoted here). In cases where
certification is required and no express notice
of waiver has been received from the certify-
ing agency, District Engineers should, as a
general rule, provide the certifying agency
with a full year within which to take action
before determining that a waiver has oc-
curred. If, however, special circumstances
(as identified by either the District Engineer
or the Regional Representative) require that
action on a permit application under the
Refuse Act be taken within a more limited
period of time, the District Engineer shall
determine a reasonable lesser period of time,
advise the certifying agency of the need for
action by a particular date, and that if cer-
tification is not received by the date estab-
lished that it will be considered that the
requirement for certification has been waived.
Sections 21 (b) (7) and (b) (8) of the Act
identify circumstances in which permits of
limited duration may issue without the cer-
tification required by section 2Kb) (1). See
paragraph (n) of this section.
(2) In cases involving discharges or de-
posits from facilities the construction of
which was not lawfully commenced prior to
April 3, 1970, certification pursuant to 21
(b) (1) is required. District Engineers may
accept, but not fully process, any permit ap-
plication until the applicant has provided the
required certification. When persons who
will eventually require a Department of the
Army permit seek State or other certification
they shall (i) provide the appropriate certi-
fying agency with the information on the
discharge or deposit required by paragraph
(g) (1) of this section, and (ii) file a copy of
the certification application with the District
Engineer. These steps will facilitate the
processing of any formal application which
may later be filed with the District Engineer
and will enable the District Engineer to de-
termine if the certification required is being
waived by inaction on the part of the certi-
fying authority.
(3) In cases involving a discharge or de-
posit from a facility, the actual construction
of which was lawfully commenced prior to
April 3, 1970, it will be the policy of the
Corps of Engineers to accept but not to fully
process any permit application until the ap-
plicant or the State has provided a letter
from the State describing the impact of the
proposed discharge or deposit and indicating
the view of the State on the desirability of
granting a permit. If such a letter is not
provided within 1 year or within such lesser
reasonable period of time as the District
Engineer may have determined this require-
ment shall be waived.
(i) Processing of permit application. (1)
When an application for a permit is received,
care should be taken to assure that the ap-
plicant has provided all of the information
required by this regulation. Copies of appli-
cations received and all other information
received relating thereto will be promptly
forwarded by the District Engineer to the
Regional Representative of EPA.
(2) If all of the required information has
been provided but the applicant has failed
to provide, as appropriate, the required cer-
tification or other letter discussed in para-
graph (h) of the section, the applicant should
be advised that no action will be taken on
his application until the required certifica-
tion or letter is provided or until a year or
such lesser reasonable period of time as the
District Engineer may have determined shall
have expired and that his application will be
processed only to the extent of sending a
copy of the application to the Regional
Representative of EPA.
(3) When all of the required information
has been provided and the applicant has also
provided, as appropriate, the required cer-
tification or letter discussed in paragraph (h)
of this section, together with assurances that
the character of the discharge or deposit was
fully described to the State agency prior to
the issuance of the certification or letter, the
applicant shall be advised that his applica-
tion is in order and that it will be processed
as expeditiously as possible.
(4) When the application is found to be in
order the District Engineer shall promptly
forward a complete copy of the application
or such additional information as has not
already been furnished to the Regional Rep-
resentative of EPA The Regional Represent-
ative of EPA will be asked to review the
application and to (i) advise the District
Engineer within 30 days whether the pro-
posed discharge or deposit may affect the
quality of waters of another State (as re-
quired by section 2Kb) (2) of the Water
Quality Improvement Act of 1970), and (ii)
provide the other information identified in
paragraph (d) (3) of this section within 45
days. If, however, additional time beyond
said 45 days (or any extension thereof) is
required to respond, the Regional Represent-
ative shall notify the District Engineer and
shall advise him as to the additional period
of time which will be required to provide
such information. In cases where a Regional
Representative does not provide such infor-
mation and advice to a District Engineer
within the time period specified herein (in-
cluding any extensions of time required by
the Regional Representative) the advice
furnished by a State or other certifying au-
thority shall be considered by the District
Engineer to be the advice of the Regional
Representative. In the event that the Re-
gional Representative determines that the
proposed discharge or deposit may affect the
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EXECUTIVE ORDERS
3219
quality of the waters of any other State and
so notifies the District Engineer, the matter
should be reported to the Chief of Engineers,
Attention: ENGGC-K. In such cases, special
procedures are provided for in section 2Kb)
(2) of the Water Quality Improvement Act
of 1970
(5) At approximately the same time a com-
pleted copy of the permit application is fur-
nished to the Regional Representative of
EPA, a public notice, as described in para-
graph (j) of this section, will be issued.
Notice will also be sent to all parties known
or believed to be interested in the applica-
tion, including the appropriate Regional Di-
rector of the Department of the Interior, the
National Oceanic and Atmospheric Admin-
istration of the Department of Commerce,
navigation Interests, State, county, or mu-
nicipal authorities, adjacent property owners,
the heads of State agencies having responsi-
bility for water quality improvement and
wildlife resources, and conservation organiza-
tions. Copies of the notice will be posted in
post offices and other public places in the
vicinity of the site of the proposed discharge
or deposit A copy of every notice issued will
be
[p. 1756]
sent to the Chief of Engineers, Attention:
ENGCW-ON.
(6) If notice of the permit application
evokes substantial public interest a public
hearing may be held. Policy with respect to
the holding and conduct of public hearings
is discussed in paragraph (k) of this section.
(7) In the absence of objection by the
Regional Representative of EPA or, in the
cases involving the Fish and Wildlife Coordi-
nation Act, by the Regional Director of the
Department of the Interior or the National
Oceanic and Atmospheric Administration of
the Department of Commerce, District Engi-
neers may, consistent with the policy guid-
ance contained in paragraph (d) of this
section and, after considering all of the
information developed with respect to the
permit application, including written or oral
information presented in response to a public
notice or at a public hearing, issue a permit,
with or without conditions. In the event that
the District Engineer determines that issu-
ance of the permit with or without condi-
tions, is appropriate but there is objection to
the issuance of the proposed permit by the
Regional Representative of EPA or, in cases
involving the Fish and Wildlife Coordination
Act, by the Regional Director of the Depart-
ment of the Interior or the National Oceanic
and Atmospheric Administration of the De-
partment of Commerce, the matter must be
forwarded to higher authority for decision.
Every effort should be made to restore differ-
ences at the District Engineer level before
referring the matter to higher authority. In
the event that differences cannot be resolved,
District and Division Engineers will forward
the application, copies of the public notice
and addresses to whom sent, the comments
of State and Federal agencies, a copy of the
transcript of any public hearing held, a nar-
rative report and recommendations to the
Chief of Engineers, Attention: ENGCW-ON.
In any case referred to the Secretary of the
Army pursuant to paragraph (d) (6) of this
section, consultation with the Administrator
shall take place within 30 days of the date
on which the Secretary receives the file from
the District Engineer. Following such con-
sultation, the Secretary shall accept the find-
ings, determinations, and conclusions of the
Administrator as to water quality standards
and related water quality considerations and
shall promptly forward the case to the Dis-
trict Engineer with instructions as to Its
disposition,
(j) Public notice. (I) As required by
paragraph (i) (5) of this section a public
notice will be issued after a permit applica-
tion is determined to be in proper order. In
cases where the permit applied for pertains to
a discharge or deposit and does not involve
construction or other work in navigable wa-
ters, the notice shall (i) state the name and
address of the applicant, (ii) identify the
waterway involved and provide a sketch
showing the location of the proposed dis-
charge or deposit, (iii) fully identify the
character of the discharge, (iv) include any
other information which may assist inter-
ested parties in evaluating the likely impact
of the proposed discharge or deposit, if any,
(v) provide 30 days within which interested
parties may express their views concerning
the permit application. All public notices
involving a proposed discharge or deposit
shall contain the following statement:
"The decision as to whether a permit au-
thorizing a discharge or deposit will or will
not be issued under the Refuse Act will be
based on an evaluation of the impact of the
discharge or deposit on (1) anchorage and
navigation, (2) water quality standards and
related water quality considerations as de-
termined by State authorities and the En-
vironmental Protection Agency, and (3) In
cases where the Fish and Wildlife Coordina-
tion Act is applicable (where the discharge
for which a permit is sought impounds, di-
verts, deepens the channel, or otherwise
controls or similarly modifies the stream or
body of water into which the discharge is
made), the impact of the proposed discharge
or deposit on fish and wildlife resources."
(2) Comments received from interested
parties within the period provided for in the
public notice will be retained and will be
considered in determining whether the per-
mit applied for should be issued.
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LEGAL COMPILATION—WATER
(3) When a response to a public notice has
been received from a Member of Congress,
either in behalf of a constituent or himself,
the Division or District Engineer will inform
the Member of Congress of the final action
taken on the application.
(4) When objections to the issuance of
a permit are received in response to a public
notice, the Division or District Engineer will
furnish the applicant with copies of the ob-
jections and afford him the opportunity to
rebut or resolve the objections.
(k) Public hearings. (1) It is the policy of
the Corps of Engineers to conduct the civil
works program in an atmosphere of public
understanding, trust, and mutual coopera-
tion and in a manner responsive to the pub-
lic interest. To this end, a public hearing
may be helpful and will be held in connection
with an application for a permit involving a
discharge or deposit in navigable waters or
tributaries thereof whenever, in the opinion
of the District Engineer such a hearing is
advisable. In considering whether or not a
public hearing is advisable, consideration will
be given to the degree of interest by the
public in the permit application, requests by
responsible Federal, State, or local author-
ities, including Members of the Congress, that
a hearing be held, and the likelihood that
information will be presented at the hearing
that will be of assistance in determining
whether the permit applied for should be is-
sued. In this connection, a public hearing
will not generally be held if there has been a
prior hearing (local, State, or Federal) ad-
dressing the proposed discharge unless it
clearly appears likely that the holding of a
new hearing may result in the presentation
of significant new information concerning the
impact of the proposed discharge or deposit.
The need for a hearing will be reported to
the Division Engineer and his concurrence
obtained. In certain circumstances a public
hearing may be mandatory (see sub-
paragraph (4) of this paragraph).
(2) The success of a public hearing de-
pends upon the degree to which all interests
are aware of the hearing and understand the
issues involved. The following steps will be
taken for each hearing:
(i) A public notice will be prepared and
issued in clear, concise, objective style, stat-
ing the purpose of the hearing; details of
time and place; description of the applica-
tion involved; and identification of the pro-
posed discharge or deposit. Care will be
exercised to avoid creating any impression
that the Corps is an advocate or adversary in
the matter.
(ii) The Public Notice will be issued suffi-
ciently in advance of the hearing, generally
not less than 30 days, to allow time for in-
terested persons to prepare for the hearing
It will be distributed to addressees on com-
piled lists and will include all known parties
directly affected, all governmental entities
concerned, all general public news media
within the geographical area, appropriate
specialized news media for reaching inter-
ested groups and organizations, and directly
to the principal officers of such groups and
organizations, including national offices of
nationwide organizations.
(iii) As appropriate, supplementary infor-
mational matter, fact sheets, or more detailed
news releases, will be distributed to the
general or specialized news media, or other
groups and interests involved
(iv) Notification will be given to interested
members of the Congress and Governors of
the States involved.
(3) The hearing will be conducted in a
manner that permits open and full advocacy
on all sides of any issues involved. A tran-
script of the hearing, together with copies of
relevant documents, will become a part of
the permit application assembly.
(4) In addition to the hearings which may
be required by the policy specified in the
preceding paragraphs, hearings are re-
quired under sections 21 (b) (2) and 21 (b) (4)
of the Water Quality Improvement Act of
1970 when (i) a State, other than the State of
origin, objects to the issuance of a permit
and requests a hearing on its objections or
(ii) the Secretary of the Army proposes to
suspend a Department of the Army permit
upon notification by the certifying authority
that applicable water quality standards will
be violated. When a hearing is required pur-
suant to the Water Quality Improvement Act
of 1970 the matter should be reported to the
Chief of Engineers, Attention: ENGGC-K.
The Chief of Engineers will provide addi-
tional guidance with respect to holding of
such hearings.
(5) In any case, when a District Engineer
intends to schedule a public hearing he shall
notify the Regional Representative of EPA
not less than 10 days in advance of the dead-
line for filing of comments by the Regional
Representative upon the permit application
so that the Regional Representative will be
able to defer such comments until after the
public hearing has been held.
(1) Environmental impact statement. (1)
Section 102(2) (c) of the National Environ-
mental Policy Act of 1969 requires all Fed-
eral agencies, with respect to major Federal
actions significantly affecting the quality of
the human environment, to submit to the
Council on Environmental Quality a detailed
statement on
(i) The environmental impact of the pro-
posed action,
(ii) Any adverse environmental effects
which cannot be avoided should the proposal
be implemented.
(iii) Alternatives to the proposed action,
(iv) The relationship between local short-
term uses of man's environment and the
-------
EXECUTIVE ORDERS
3221
maintenance and enhancement of long-term
productivity, and
(v) Any irreversible and irretrievable com-
mitments of resources which would be in-
volved in the proposed action should it be
implemented.
(2) Section 102 (2) (c) statements will not
be required in permit cases where it is likely
that the proposed discharge will not have any
significant environmental impact. Moreover,
the Council on Environmental Quality has
advised that such statements will not be re-
quired where the only impact of proposed
discharge or deposit will be on water quality
and related considerations. However, such
statements may be required in connection
with proposed discharges or deposits which
may have a substantial environmental im-
pact unrelated to water quality. In cases in
which a section 102(2) (c) statement may be
required, the report of the District Engineer
accompanying any case referred to higher au-
thority (see paragraphs (d) (3) and (i) (7) of
this section) will contain a separate section
addressing the environmental impact of the
proposed discharge or deposit, if any, and. if
issuance of a permit is recommended, a draft
section 102(2) (c) statement should be at-
tached.
(m) Publicity. District Engineers will, in
consultation with Regional Representatives,
establish and maintain a program to assure
that potential applicants for permits are in-
formed of the requirements of this regulation
and of the steps required to obtain permits
for discharges into navigable waters When-
ever the District Engineer becomes aware of
plans being developed by either private or
public entities who will require permits in
order to implement the plans a letter will be
sent to the potential permittee ad-
[p. 1757]
vising him of statutory requirements and the
need to apply for a permit under this reg-
ulation.
(n) Duration of permits issued. (1) In
cases where appropriate certification has been
received indicating that there is reasonable
assurance that the proposed discharge or
deposit will not violate applicable water
quality standards and issuance is otherwise
proper, no permit may be issued which au-
thorizes a discharge or deposit for more than
5 years without providing for invalidation of
such permit.
(2) In cases involving a facility, the con-
struction of which was lawfully undertaken
prior to April 3, 1970, and it appears after
evaluation that issuance of a permit would
be appropriate although certification has not
been provided, a permit may be issued pro-
vided (i) that the permit will expire on
April 2, 1973, and (ii) that it is conditioned
so as to require annual demonstration by the
permittee that the discharge or deposit is in
compliance with State water quality imple-
mentation schedules.
(i) Require compliance with applicable
•water quality standards, including imple-
menting schedules adopted in connection
with such standards;
(ii) include provisions incorporating into
the permit changes in water quality stand-
ards subsequent to the date of the permit,
and requiring compliance with such changed
standards;
(in) Provide for possible suspension or
revocation in the event that the permittee
breaches any condition of the permit;
(iv) Provide for possible suspension, mod-
ification or revocation if subsequent to the
issuance of a permit it is discovered that the
discharge or deposit contains hazardous ma-
terials which may pose a danger to health
or safety.
(2) Permits shall also be subject to condi-
tions as determined by EPA to be necessary
for purposes of insuring compliance with
water quality standards or the purposes of
the Federal Water Pollution Control Act.
Such conditions may include but are not
necessarily limited to:
(i) Requirements for periodic demonstra-
tions of compliance with water quality cri-
teria, established implementation schedules
or prescribed levels of treatment;
(ii) Site and sampling accessibility;
(iii) Requirements for periodic reports as
to the nature and quantity of discharges or
deposits
[F.R. Doc. 70-17584; Filed, Dec. 30, 1970;
8 48 a m ]
PROPOSED RULE MAKING
(Department of Defense)
DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS
[33 CFR Part 209]
Permits for discharges or deposits into nav-
igable waters—proposed policy, practice
and procedure
Proposed regulations prescribing the policy,
practice and procedure to be followed by all
Corps of Engineers' installations and activi-
ties in connection with applications for per-
mits authorizing discharges or deposits into
navigable waters of the United States or into
any tributary from which discharged matter
shall float or be washed into a navigable
water (33 U S C. 407) were published in the
FEDERAL REGISTER of December 31, 1970 (35
F.R. 20005). Public comment on the pro-
posed regulations was invited within a period
of 45 days from December 31, 1970.
The proposed Memorandum of Understand-
ing set forth below relates to the proposed
regulations and to Executive Order 11574
which deals with the administration of the
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3222
LEGAL COMPILATION—WATER
Refuse Act Permit Program (35 F.R. 19627).
If executed, the proposed Memorandum of
Understanding will be an additional para-
graph to the proposed regulations 33 CFR
209.131 (p).
Comments, suggestions, or objections to the
proposed Memorandum of Understanding
should be submitted in writing to the Office
of Chief of Engineers, Washington, D.C.
20314, Attention: ENGCW-ON, within 30 days
of publication of this notice in the FEDERAL
REGISTER.
Dated: January 18, 1971.
F. P. KOISCH,
Major General, U.S. Army,
Director of Civil Works.
§209.131 Permits for discharges or deposits
into navigable waters.
*****
(p) Memorandum of understanding be-
tween the Administrator of the Environmen-
tal Protection Agency and the Secretary of
the Army.
"PERMIT PROGRAM
"MEMORANDUM OF UNDERSTANDING BETWEEN THE
ADMINISTRATOR OF THE ENVIRONMENTAL PRO-
TECTION AGENCY AND THE SECRETARY OF THE
ARMY
"In recognition of the responsibilities of the
Secretary of the Army under section 13 of the
Act of March 3, 1899, "the Refuse Act," (33
U.S.C. 407) relating to the control of dis-
charges and deposits in navigable waters of
the United States and tributaries thereof,
and the interrelationship of those responsi-
bilities with the responsibilities of the Ad-
ministrator of the Environmental Protection
Agency under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4347), the
Federal Water Pollution Control Act, as
amended (33 U.S C. 1151 et seq.) in recogni-
tion of our joint responsibilities under Exec-
utive Order No. 11574 (dated December 23,
1970) we hereby adopt the following policies
and procedures:
"POLICIES
"1. It is our policy that there shall be full
coordination and cooperation between our
respective organizations on the above respon-
sibilities at all organizational levels, and it
is our view that maximum efforts in the dis-
charge of those responsibilities, including
the resolution of differing views, must be
undertaken at the earliest practicable time
and at the field organizational unit most di-
rectly concerned. Accordingly, District En-
gineers of the U.S. Army Corps of Engineers
(hereinafter "the Corps") shall coordinate
the review of applications for permits under
the Refuse Act of discharges or deposits
into navigable waters of the United States
or tributaries thereof with Regional Repre-
sentatives designated by the Environmental
Protection Agency (hereinafter "EPA").
"2. EPA shall advise the Corps with respect
to the meaning, content and application of
water quality standards applicable to a pro-
posed discharge or deposit and as to the im-
pact which the proposed discharge or deposit
may or is likely to have on water quality
standards and related water quality consider-
ations. The Corps shall accept such advice
on matters pertaining to water quality stand-
ards and related water quality considerations
as conclusive and no permit shall be issued
which is inconsistent with any finding, de-
termination or interpretation of a Regional
Representative with respect to such standards
or considerations.
"3. In acting upon applications for permits,
the Corps shall be responsible for considering
the impact which the proposed discharge or
deposit may have on navigation and anchor-
age and, in cases where the Fish and Wildlife
Coordination Act is applicable, on fish and
wildlife resources.
"PROCEDURES
"1. Applicants for permits pursuant to sec-
tion 13 of the Rivers and Harbors Act of 1899
shall be required by District Engineers to
supply data identified by EPA and the De-
partment of the Army. A uniform format for
supplying such data will be developed by the
Corps and EPA.
"2. District Engineers shall provide Re-
gional Representatives of EPA at the earliest
practicable time with copies of an applicant's
request for a permit request for certification
from a State pursuant to section 21 (b) of the
Federal Water Pollution Control Act, or other
requests for State approval and State or inter-
state agency certifications or other actions re-
lating to such permit applications.
"3 In reaching determinations as to com-
pliance with water quality standards, includ-
ing determinations and interpretations aris-
ing from its review of State or interstate
agency water quality certifications under
section 2Kb) of the Federal Water Pollution
Control Act, Regional Representatives of
EPA will determine and advise District En-
gineers with respect to the following:
"(i) The meaning and content of water
quality standards, which under the provisions
of the Federal Water Pollution Control Act,
were established 'to protect the public health
and welfare, enhance the quality of water
and serve the purposes' of that Act, with con-
sideration of 'their use and value for public
water supplies, propagation of fish and wild-
life, recreational purposes, and agricultural,
industrial, and other legitimate uses.'
" (ii) The application of water quality
standards to the proposed discharge or de-
posit, including the impact of the proposed
discharge or deposit on such water quality
-------
EXECUTIVE ORDERS
3223
standards and related water quality con-
siderations;
"(iii) The permit conditions required to
comply with water quality standards;
"(iv) The permit conditions required to
carry out the purposes of the Federal Water
Pollution Control Act where no water quality
standards are applicable;
" (v) The interstate water quality effect of
the proposed discharge or deposit.
"4. Regional Representatives of EPA shall
provide advice as to the effect, if any, of i:he
proposed discharge or deposit on the quality
of the waters of any other State not later
than 30 days after receipt of copies of both
the completed permit application and the
State certification or other State action from
the District Engineer, The other information
and advice identified above shall be provided
not later than 45 days after such receipt. If,
however, additional time is required to re-
spond, the Regional Representative shall so
notify the District Engineer and shall advise
him as to the additional period of time which
will be required to provide a report. In cases
where a Regional Representative does not
provide such information and advice to a
District Engineer within the time periods
specified herein (including any extensions
of time requested by the Regional Repre-
sentative) , the advice furnished by a State
or other certifying authority shall be con-
sidered by the District Engineer to be the
advice of the Regional Representative.
"5 In any case, where a District Engineer
of the Corps has received notice that a State
or other certifying agency has denied a cer-
tification prescribed by section 21 (b) of the
Federal Water Pollution Control Act, or, ex-
cept as provided in a subsection G below,
where a Regional Representative has recom-
mended that a permit be denied because its
issuance would be inconsistent with his de-
termination or interpretation with respect
to applicable water quality standards and
related water quality considerations the Dis-
trict Engineer, within 30 days of receipt of
such notice, shall deny the permit and pro-
vide notice of such denial to the Regional
Representative of EPA.
"6. In the absence of any objection by the
Regional Representative to the issuance of
a permit for a proposed discharge or deposit,
District Engineers may take action denying
a permit only if:
[p. 1758]
"(i) anchorage and navigation will be im-
paired; or
"(ii) the discharge for which a permit is
sought impounds, diverts deepens the chan-
nel, or otherwise control or similarly modi-
fies the stream or body of water into which
the discharge is made, and, after the consul-
tations required by the Fish and Wildlife
Coordination Act, the District Engineer de-
termines that the proposed discharge or de-
posit will have significant adverse impact
on fish or wildlife resources.
"7. In any case where the District Engineer
believes that following the advice of the
Regional Representative with respect to the
issuance or denial of a permit would not be
consistent with the purposes of the Refuge
Act permit program, he shall, within 10 days
of receiving such advice, forward the matter
through channels to the Secretary of the
Army to provide the Secretary with the op-
portunity to consult with the Administrator.
Such consultation shall take place within 30
days of the date on which the Secretary re-
ceives the file from the District Engineer.
Following such consultation, the Secretary
shall accept the findings, determinations, and
conclusions of the Administrator as to water
quality standards and related water quality
considerations and shall promptly forward
the case to the District Engineer with in-
structions as to its disposition.
"8. No permit will be issued in cases where
the applicant, pursuant to 21(b)(l) of the
Water Quality Improvement Act of 1970, is
required to obtain a State or other appro-
priate certification that the discharge or de-
posit would not violate applicable water
quality standards and such certification was
denied
"REGULATIONS
"The Department of the Army shall con-
sult with EPA before promulgating regula-
tions pursuant to the Refuse Act which relate
to the subject of this memorandum of un-
derstanding. In no case will such regulations
be issued unless at least 30 days prior to
issuance, they shall have been forwarded to
EPA for comment or unless prior to that time
the Department of the Army and EPA have
reached agreement. EPA shall consult with
the Department of the Army prior to the
issuance of guidelines, policies or procedures
relating to the subject of this memorandum
of understanding. In no event shall such
guidelines, policies or procedures be issued
prior to 30 days from the date they were
forwarded to the Department of the Army
for comment unless prior to that time the
Department of the Army and EPA have
reached agreement. In no event shall regu-
lations, guidelines, policies or procedures
which are inconsistent with the provisions
of this memorandum of understanding be
published or issued.
"PERMIT CONDITIONS
"1. Every permit issued shall;
"(i) Require compliance with applicable
water quality standards, including imple-
menting schedule adopted in connection with
such standards;
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3224
LEGAL COMPILATION—WATER
"(ii) Include provisions incorporating into
the permit changes in water quality stand-
ards subsequent to the date of the permit,
and requiring compliance with such changed
standards;
"(iii) Provide for possible suspension or
revocation in the event that the permittee
breaches any condition of the permit;
"(iv) Provide for possible suspension,
modification or revocation if, subsequent to
the issuance of a permit, it is discovered that
the discharge or deposit contains hazardous
materials which may pose a danger to health
or safety.
"2. Permits shall also be subject to condi-
tions, as determined by EPA, to be neces-
sary for purposes of insuring compliance with
water quality standards or the purposes of
the Federal Water Pollution Control Act.
Such conditions may include, but are not
necessarily limited to:
"(i) Requirements for periodic demonstra-
tions of compliance with water quality cri-
teria, established implementation schedules,
or prescribed levels of treatment;
" (ii) Site and sampling accessibility.
"(iii) Requirements for periodic reports
as to the nature and quantity of discharge or
deposits.
"(3) Regional Representatives of EPA may
also provide District Engineers with advice
as to the duration for which permits should
be issued. Relevant considerations shall in-
clude the nature of the discharge, basin
plans, and changing treatment technology.
"TECHNICAL DATA
"EPA, in consultation with the Department
of the Army, shall develop and make avail-
able analytical procedures, methods and cri-
teria to be employed in identifying the
meaning and application of water quality
standards and pursuant to which EPA's de-
terminations and interpretations respecting
water quality standards will be made.
"AMENDMENT
"If, in the course of operations within this
memorandum of understanding, either party
finds its terms in need of modification, he
may notify the other of the nature of the
desired changes. In that event, the parties
shall within 90 days negotiate such amend-
ments as are considered mutually desirable
" (Secretary of the Army)
"Administrator of the Environmental
Protection Agency)"
[FR Doc. 71-884 Filed 1-20-71; 8:49 am]
[From the FEDERAL REGISTER, Dec. 23, 1970]
PRESIDENTIAL DOCUMENTS: TITLE 3—THE
PRESIDENT
(Executive Order 11574)
ADMINISTRATION OF REFUSE ACT PERMIT
PROGRAM
By virtue of the authority vested in me as
President of the United States, and in fur-
therance of the purposes and policies of sec-
tion 13 of the Act of March 3, 1899, c. 425,
30 Stat. 1152 (33 U.S.C. 407), the Federal
Water Pollution Control Act, as amended (33
U.SC. 1151 et seq.), the Fish and Wildlife
Coordination Act, as amended (16 U.S.C.
661-666c), and the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4347), it is
hereby ordered as follows:
SECTION 1. Refuse Act permit program.
The executive branch of the Federal Govern-
ment shall implement a permit program un-
der the aforesaid section 13 of the Act of
March 3, 1899 (hereinafter referred to as "the
Act") to regulate the discharge of pollutants
and other refuse matter into the navigable
waters of the United States or their tributar-
ies and the placing of such matter upon their
banks.
SEC. 2. Responsibilities of Federal agencies.
(a) (1) The Secretary shall, after consulta-
tion with the Administrator respecting water
quality matters, issue and amend, as ap-
propriate, regulations, procedures, and in-
structions for receiving, processing, and
evaluating applications for permits pursuant
to the authority of the Act.
(2) The Secretary shall be responsible for
granting, denying, conditioning, revoking, or
suspending Refuse Act permits. In so doing:
(A) He shall accept findings, determina-
tions, and interpretations which the Admin-
istrator shall make respecting applicable
water quality standards and compliance with
those standards in particular circumstances,
including findings, determinations, and in-
terpretations arising from the Administra-
tor's review of State or interstate agency
water quality certifications under section
21 (b) of the Federal Water Pollution Control
Act (84 Stat. 108). A permit shall be denied
where the certification prescribed by section
2Kb) of the Federal Water Pollution Con-
trol Act has been denied, or where issuance
would be inconsistent with any finding, de-
termination, or interpretation of the Ad-
ministrator pertaining to applicable water
quality standards and considerations.
(B) In addition, he shall consider factors,
other than water quality, which are pre-
scribed by or may be lawfully considered un-
der the Act or other pertinent laws
(3) The Secretary shall consult with the
Secretary of the Interior, with the Secretary
of Commerce, with the Administrator, and
with the head of the agency exercising ad-
-------
EXECUTIVE ORDERS
3225
ministration over the wildlife resources of
any affected State, regarding effects on fish
and wildlife which are not reflected in water
quality considerations, where the discharge
for which a permit is sought impounds, di-
verts, deepens the channel, or otherwise
controls or similarly modifies the stream or
body of water into which the discharge is
made.
(4) Where appropriate for a particular per-
mit application, the Secretary shall perform
such consultations respecting environmental
amenities and values, other than those spe-
cifically referred to in paragraphs (2) and
(3) above, as may be required by the National
Environmental Policy Act of 1969.
(b) The Attorney General shall conduct
the legal proceedings necessary to enforce
the Act and permits issued pursuant to it.
SEC. 3. Coordination by Council on En-
vironmental Quality, (a) The Council on
Environmental Quality shall coordinate the
regulations, policies, and procedures of Fed-
eral agencies with respect to the Refuse Act
permit program.
(b) The Council on Environmental Qual-
ity, after consultation with the Secretary, the
Administrator, the Secretary of the Interior,
the Secretary of Commerce, the Secretary
of Agriculture, and the Attorney General,
shall from time to time or as directed by the
President advise the President respecting the
implementation of the Refuse Act permit pro-
gram, including recommendations regarding
any measures which should be taken to im-
prove its administration.
SEC. 4. Definitions. As used in this order,
the word "Secretary" means the Secretary
of the Army, and the word "Administrator"
means the Administrator of the Environ-
mental Protection Agency.
RICHARD NrxoN.
THE WHITE HOUSE, December 23, 1970.
MEMORANDUM OF UNDERSTANDING BETWEEN THE
ADMINISTRATOR OF THE ENVIRONMENTAL PRO-
TECTION AGENCY AND THE SECRETARY OF THE
ARMY
The Administrator of the Environmental
Protection Agency and the Secretary of the
Army, recognizing the interrelationship be-
tween section 13, of the Act of March 3, 1899
(33 US.C. 407) (the "Refuse Act") adminis-
tered by the Department of the Army ard
the statutory responsibilities of the Environ-
mental Protection Agency under the Federal
Water Pollution Control Act, as amended (33
US.C. 1151 et seq.), and further recognizing
their responsibilities under the National En-
vironmental Policy Act of 1969 (42 U.S.C.
4321-4347), and their responsibilities under
Executive Order 11574 dated December 23,
1970, which directs the Federal Government
to implement a permit program under the
Refuse Act to control the discharge of pol-
lutants into navigable waters and their trib-
utaries, have entered into this memorandum
of understanding to delineate more fully the
respective responsibilities of said Agency and
Department for water pollution abatement
and control, and to establish policies and pro-
cedures for interagency cooperation in the
enforcement of the Refuse Act.
[p. 1759]
I. RESPONSIBILITIES FOR WATER POLLUTION
ABATEMENT AND CONTROL
A. At the Federal level, the Environmental
Protection Agency has primary responsibility,
pursuant to the Federal Water Pollution Con-
trol Act, for the abatement and control of
pollution of interstate and navigable waters
of the United States.
B. The Department of the Army has pri-
mary responsibility for the enforcement of
the Refuse Act.
C Under Executive Order 11574, the Secre-
tary is directed to develop regulations and
procedures in consultation with the Admin-
istrator governing the issuance of discharge
permits under the Refuse Act, and, in con-
nection with the grant, denial, conditioning,
revocation and suspension of such permits,
to adopt determination and interpretations of
the Administrator respecting water quality
standards and compliance therewith.
D. The Department of the Army and the
Environmental Protection Agency have in co-
operation undertaken to implement the per-
mit authority of the Refuse Act pursuant to a
Memorandum of Understanding dated Janu-
ary , the terms of which are incorporated
herein and made a part hereof.
II. THE REFUSE ACT
A. The Refuse Act, 33 U.S.C. 407, provides
that:
It shall not be lawful to throw, discharge,
or deposit, or cause, suffer, or procure to be
thrown, discharged or deposited either from
or out of any ship, barge, or other floating
craft of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any
kind, any refuse matter of any kind or de-
scription whatever other than that flowing
from streets and sewers and passing there-
from in a liquid state, into any navigable
water of the United States, or into any trib-
utary of the navigable water from which the
same shall float or be washed into such nav-
igable water; and it shall not be lawful to
deposit, or cause, suffer, or procure to be de-
posited material of any kind in any place on
the bank of any navigable water, or on the
same bank of any tributary of any navigable
water, where the same shall be liable to be
washed into such navigable water, either by
ordinary or high tides, or by storms or floods,
or otherwise, whereby navigation shall or
-------
3226
LEGAL COMPILATION—WATER
may be impeded or obstructed: Provided,
That nothing herein contained shall extend
to, apply to, or prohibit the operations in
connection with the improvement of nav-
igable waters or construction of public
works, considered necessary and proper by
the United States officer supervising such im-
provement or public work: And provided
further, That the Secretary of the Army
whenever in the judgment of the Chief of
Engineers anchorage and navigation will not
be injured thereby, may permit the deposit
of any material above mentioned in nav-
igable waters, within limits to be defined and
under conditions to be prescribed by him,
provided application is made to him prior to
depositing such material; and whenever any
permit is so granted the conditions thereof
shall be strictly complied with, and any
violation thereof shall be unlawful, Mar. 3,
1899, c. 425.
B. Criminal sanctions may be imposed
against persons or corporations found guilty
of violating provisions of the Refuse Act. As
prescribed in 33 U.S.C. 411, the penalty upon
conviction is "a fine not exceeding $2,500 nor
less than $500, or ... imprisonment (in the
case of a natural person) for not less than
thirty days nor more than one year, or both
such fine and imprisonment, in the discretion
of the court, one-half of said fine to be paid
to the person or persons giving information
which shall lead to conviction."
C. Civil proceedings may also be instituted
to enjoin conduct which would violate pro-
visions of the Refuse Act. United States v.
Republic Steel Corp., 362 U.S. 482 (1960) and
Wyandotte Transportation Co. v. United
States, 389 U.S. 191 (1967).
III. POLICY WITH RESPECT TO ENFORCEMENT OF
REFUSE ACT
The policy of the Environmental Protection
Agency and the Department of the Army is
to utilize the Refuse Act and the authorities
contained therein to the fullest extent possi-
ble and in a manner consistent with the pro-
visions of the Federal Water Pollution Con-
trol Act to ensure compliance with applicable
water quality standards and otherwise to
carry out the purposes of the Federal Water
Pollution Control Act. Persons wishing to
discharge into or place deposits in navigable
waters or tributaries thereof will be required
to apply for and obtain a permit from the De-
partment of the Army. Persons without an
appropriate permit who discharge into navi-
gable waters or tributaries thereof or who
discharge into such waters in violation of the
terms of a valid permit may be subjected to
legal proceedings under the Refuse Act.
IV. INTER-AGENCY COOPERATION
A. In recognition of the expertise of the
Department of the Army and the Corps of
Engineers in matters pertaining to the navi-
gability of a waterway, it is agreed that the
Department of the Army, acting through the
Corps of Engineers, has primary Federal re-
sponsibility for identifying and investigating
violations of the Refuse Act which have an
adverse impact on the navigable capacity of
a waterway. Whenever a District Engineer
has reason to believe that a discharge has or
may have occurred having an adverse impact
on water quality, he shall so notify the ap-
propriate Regional Representative of the En-
vironmental Protection Agency and shall
provide him with all information, including,
if the discharger is the holder of a Refuse
Act permit, a copy of said permit and all of
the conditions attached thereto. The said
Regional Representative shall make such In-
vestigation as he deems appropriate and shall
advise the District Engineer in a timely man-
ner whether in his opinion a violation of the
Refuse Act having an adverse impact on
water quality has or may have occurred. If
the Regional Representative is of such opin-
ion, he shall make a report to the District
Engineer as to the following:
1. The nature and seriousness of the appar-
ent violation (including, if the discharger is
the holder of a Refuse Act permit, informa-
tion as to the conditions of such permit which
appear to have been violated).
2. The nature and seriousness of the im-
pact on water quality.
3. The measures, if any, taken or being
taken by the discharger to comply with ap-
plicable water quality standards or the con-
ditions of a Refuse Act permit, if any.
4. The existence and adequacy of State or
local pollution abatement proceedings.
5. The applicability of the Federal Water
Pollution Control Act, whether any adminis-
trative or judicial proceedings are being
taken or contemplated thereunder, and the
status of any such proceedings.
6. His recommendations as to the action,
if any, which should be taken under the Ref-
use Act and his reasons therefore. If the dis-
charger is the holder of a Refuse Act permit,
such recommended action may include in ad-
dition to or more of the remedies available
thereunder, the suspension or revocation of
the permit. A recommendation to suspend
shall include a recommendation as to the
period and conditions of the suspension.
B. In recognition of the expertise of the
Environmental Protection Agency in matters
pertaining to water quality, it is agreed that
said Agency has primary Federal responsibil-
ity for identifying and investigating cases
involving discharges into interstate or navi-
gable waters which have an adverse impact
on water quality. District Engineers shall
assist Regional Representatives of the En-
vironmental Protection Agency by providing
them with such information as may become
-------
EXECUTIVE ORDERS
3227
available concerning known or suspected
discharges which may adversely affect water
quality (including, if the discharger is the
holder of a Refuse Act permit, a copy of said
permit and all of the conditions attached
thereto), and, to the extent of available re-
sources, shall assist in the conduct of investi-
gations concerning such discharges. Regional
Representatives shall be responsible for noti-
fying District Engineers of known or sus-
pected violations of the Refuse Act and for
providing District Engineers with timely re-
ports of investigations conducted. Whenever
in the opinion of the Regional Representa-
tive a violation of the Refuse Act having an
adverse impact on water quality has or may
have occurred, such report shall include all
of the same information and recommenda-
tions called for a in sub-paragraphs 1 through
6 of Paragraph A with respect to reports sub-
mitted under that paragraph.
C. In connection with any remedial action
recommended or taken pursuant to this
memorandum of understanding, due regard
shall be given to the provisions of section
21(b) of the Federal Water Pollution Con-
trol Act; and in particular the provisions of
sections 21 (b) (4), 21 (b) (5) and 21 (b) (9) (B)
relating to the revocation on suspension of
permits.
D. In any case in which a Refuse Act per-
mit is suspended, if the District Engineer has
reason to believe that the permittee has or
may have violated the terms of the suspen-
sion, he shall notify the appropriate Regional
Representative of the Environmental Pro-
tection Agency and provide him with all
available information. The Regional Repre-
sentative shall make such investigation as he
deems appropriate and shall make a report
to the District Engineer, such report to in-
clude, to the extent relevant, the information
and recommendations called for in sub-
paragraphs 1 through 6 of paragraph A with
respect to reports submitted under that
paragraph.
E. If upon review of all reports and in-
formation prepared pursuant to this memo-
randum of understanding and any other
available evidence, it is determined by the
District Engineer of the Corps or the Re-
gional Representative of EPA to request legal
proceedings under the Refuse Act, such Dis-
trict Engineer or Regional Representative
shall, in consultation with each other, for-
ward all available evidence and information,
including recommendations, if any, of both
the Regional Representative and the District
Engineer, to the appropriate United States
Attorney. A copy of any covering letter for-
warding information and evidence to the ap-
propriate United States Attorney should be
mailed, together with a brief summary of
the factual background of the case, to the
.Assistant Attorney General for Lands and
Natural Resources, Department of Justice,
Washington, D.C. 20530.
DRAFT GUIDELINES FOR LITIGATION UNDER THE
REFUSE ACT PERMIT PROGRAM
In view of (a) the signing by the President
of the attached Executive Order 11574 which
establishes a permit program under the
Refuse Act to regulate the discharges of pol-
lutants and other refuse matter into the nav-
igable waters of the United States or their
tributaries, (b) the signing of the attached
Memorandum of Understanding between the
Corps of Engineers and the Environmental
Protection Agency with respect to the en-
forcement of the Refuse Act, and (c) the
consolidation within the Land and Natural
Resources Division pursuant to the attached
order of criminal as well as civil responsibil-
ity for the administration of the Refuse Act,
the Guidelines for Litigation Under the
Refuse Act transmitted to the United States
[p. 1760]
Attorneys on June 13, 1970 are hereby with-
drawn and the following procedures are to
be adhered to by all United States Attorneys:
1. United States Attorneys are authorized
to initiate any action, either civil or criminal,
referred to them for litigation by the Dis-
trict Engineer of the Corps of Engineers or
the Regional Representative of the Environ-
mental Protection Agency, pursuant to their
Memorandum of Understanding.
2. All allegations of violations of the Ref-
use Act submitted to the United States At-
torneys from sources other than the District
Engineer of the Corps of Engineers or the
Regional Representative of the Environmen-
tal Protection Agency shall be referred to the
District Engineer of the Corps of Engineers
and the Regional Representative of the En-
vironmental Protection Agency, for investi-
gation and recommendations, in accordance
with the procedures set forth in the Memo-
randum of Understanding between the Corps
of Engineers and the Environmental Protec-
tion Agency, as to whether or not legal action
should be initiated.
3. The provisions of paragraphs 1 and 2
above shall not apply to actions under the
Refuse Act against vessels, which actions
shall continue to be handled in the manner
set forth in Departmental Memorandums 374
and 376, dated June 3, 1964.
4. All requests for instructions and guid-
ance relating to the enforcement of the Ref-
use Act, whether of a civil or criminal nature,
or whether involving vessels or shore-based
sources of pollution, shall be referred to the
Pollution Control Section of the Land and
Natural Resources Division, Washington,
D.C. 20530 (202-739-2707).
5. No criminal or civil action under the
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3228
LEGAL COMPILATION—WATER
Refuse Act shall be dismissed or settled
without the prior authorization of the As-
sistant Attorney General for the Land and
Natural Resources Division.
6. Prior to the filing of civil complaints,
criminal informations and the return of in-
dictments in Refuse Act cases, the United
States Attorney shall telephonically contact
the Land and Natural Resources Division
(202-739-2800).
7. The United States Attorneys shall supply
the Pollution Control Section, Land and
Natural Resources Division, copies of all
pleadings, motions, memorandums, etc , filed
in Refuse Act cases.
8. United States Attorneys shall, no later
than the fifth day of each month, submit to
the Pollution Control Section a report of
Refuse Act activities for the previous month
on a form to be provided by the Land and
Natural Resources Division.
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES,
Washington, D.C. December 23,1970.
Mr ROBERT E. JORDAN III,
General Counsel, Department of the Army,
The Pentagon, Washington, D.C.
DEAR MR. JORDAN: Thank you for sending
to us, on Monday afternoon, December 21, a
copy of the proposed Corps of Engineers'
regulation (ER 1145-2-321) entitled "Permits
for Discharges or Deposits into Navigable
Waters," to enforce section 13 of the River
and Harbor Act of 1899 (33 U.S. Code 407)
(the Refuse Act).
We have not yet received, and would ap-
preciate receiving promptly, your reply to
our letter of December 4, 1970, to you con-
cerning this program.
We believe that the draft regulation is in-
adequate and, in some respects, inconsistent
with existing law. Many of the provisions
are ambiguous and appear to have been
hastily written, despite the fact that the
Corps has been considering this program for
more than six months We urge that this
draft regulation be revised before it is
published.
Our comments on some of the more signifi-
cant deficiencies of the draft regulation are
set forth below.
Section 1 of the draft states that the pro-
posed regulation "prescribes the policy, prac-
tice, and procedure to be followed" by the
Corps in carrying out the regulation How-
ever, It does not indicate that the primary
purpose of the regulation is to enforce the
1899 Refuse Act and to establish a procedure
under which all refuse dischargers must ap-
ply for and obtain Corps' permits. As a mat-
ter of fact, there is no statement in the draft
telling all dischargers that they must apply
for a Corps permit.
II
Our Subcommittee staff had understood,
from discussions with your staff, that the
Corps would (1) make the regulation effec-
tive upon final publication as to those who
begin to discharge refuse thereafter, and (2)
require existing dischargers to file applica-
tions by July 1, 1970. The draft does not
cover either of these points.
We are most eager to see this program in-
stituted. We have repeatedly urged the
Corps to initiate it. We are disappointed over
the slow progress in implementing the Corps'
announcement that it would establish the
program pursuant to our recommendations.
We know that the Council on Environmental
Quality has been attempting to "reconcile"
the negative policy of the Justice Depart-
ment with the more progressive policy of the
Corps, both of which were announced in July
of this year. Obviously, unless a date certain
is established by the regulation as the dead-
line for violators of the 1899 Act to file permit
applications with the Corps, the violators
will have little incentive to comply with the
law.
Section 3 (a) of the draft restates the pro-
visions of section 21 (b) of the Federal Water
Pollution Control Act concerning certifica-
tion by State water pollution control agencies
that the proposed discharge under the 1899
law "will be conducted in a manner which
will not violate applicable water quality
standards." This section of the draft also
states that the applicant for a Corps permit
must "provide with this application" the re-
quired certification.
This statement is not consistent with sev-
eral provisions of section 8 of the draft which
allow the District Engineer to process an ap-
plication, at least in part, without the certifi-
cation required by section 21 (b) of the
Federal Water Pollution Control Act.
On April 30, 1970, the Corps issued Circular
1145-2-18 which sets forth the procedures to
be followed for obtaining certifications under
section 21 (b) in connection with permits un-
der section 10 of the 1899 law. That circular
appears to be adequate. Since the certificate
provisions of section 21 (b) are applicable to
all permit requirements of the 1899 law, not
just section 13 of that law, we know of no
reason for making the procedural require-
ments for such certifications for section 13
permits different from those established for
section 10 permits.
1. Please explain to us-
(a) Whether or not the Corps now con-
strues Circular 1145-2-18 of April 30, 1970,
as applying to applications for all permits
-------
EXECUTIVE ORDERS
3229
under the 1899 Act.
(b) If the Corps does construe the circular
as applying to all such permit applications,
why wouldn't it automatically apply to ap-
plications under section 13 of that law'
(c) The circular will, by its terms, expire
on June 30, 1971. If you deem it inadequate
in any way, why is it being, in effect, revised
just for section 13 permits'
Section 3(b) of the draft states that sec-
tion 102 of Public Law 90-190 requires that
"all agencies of the Federal Government
shall—* * * (b) identify and develop meth-
ods and procedures in consultation with the
Council on Environmental Quality estab-
lished by Title II of this Act, which will
ensure that presently unquantifled environ-
mental amenities and values may be given
appropriate consideration in decisionmaking
along with economic and technical consider-
ation. * * * (Italics supplied.)
We believe that the italic portion of the
above quote should be deleted. The Corp>s
has already identified and developed the
"methods and procedures in consultation
with" CEQ. This draft regulation, we under-
stand, is the product of that "consultation "
The importance of the quote to the regula-
tion is contained in that portion which is not
underlined. That is the statutory directive
which is meaningful and which should apply
to the consideration of each permit after the
"methods and procedures" are developed.
Section 3(c) of the draft regulation states:
c. The concern of the Congress with the
conservation and improvement of fish and
wildlife resources is indicated in the Fish and
Wildlife Coordination Act (16 U.S.C 661-
666c), wherein consultation with the Depart-
ment of the Interior is required regarding
activities affecting the course, depth, or modi-
fication of a navigable waterway.
Section 4(b) of the draft also states as
follows.
"b. The decision as to whether a permit
authorizing a discharge or deposit will or
will not be issued under the Refuse Act will
be based on an evaluation of the impact of
the discharge or deposit on ... (3) in cases
where the Fish and Wildlife Coordination Act
is applicable (where the discharge for which
a permit is sought impounds, diverts, deepens
the channel, or otherwise controls or simi-
larly modifies the stream or body of water
into which the discharge is made), the im-
pact of the proposed discharge or deposit en
fish and wildlife resources which are not di-
rectly related to water quality standards."
These statements are inaccurate para-
phrases of section 2 of the Fish and Wildlife
Coordination Act (16 U.S.C. Code 662) which
states, in part, as follows:
"Whenever the waters of any stream or
other body of water are proposed or author-
ized to be impounded, diverted, the channel
deepened, or the stream or other body of
water otherwise controlled or modified for
any purpose whatever, including navigation
and drainage, by any department or agency
of the United States, or by any public or
private agency under Federal permit or li-
cense, such department or agency first shall
consult with the United States Fish and Wild-
life Service, Department of the Interior, and
with the head of the agency exercising ad-
ministration over the wildlife resources of
the particular State wherein the impound-
ment, diversion, or other control facility is to
be constructed . . ."
The letter act applies "whenever the waters
. . . are to be ... modified for any purpose
whatever . . ." It is not restricted, as implied
in your regulation, to cases where the activity
affects only "the course depth, or modification
of a navigable waterway" or where the modi-
fying effected by the discharge is "similar"
to impounding, diverting or deepening of the
channel.
As in the case of the other statutes quoted
in the draft, we believe that this statute
should also be quoted and not paraphrased,
especially when the paraphrase is inaccurate.
Furthermore, the draft regulation changes
existing law by, in effect, limiting comment
by the US. Fish and Wildlife Service (and
also the National Oceanic and Atmospheric
Administration) and the State fish and game
agencies to "the impact of the proposed dis-
charge or deposit on fish and wildlife re-
sources which are not directly related to
water quality standards." (Italics supplied)
The F & W Coordination Act contains no
such limitation. Nothing in the Federal
Water Pollution Control Act could be con-
[p. 1761]
structed to compel or authorizes such a lim-
itation. Certainly, neither the Corps nor the
CEQ is lawfully empowered to so limit those
agencies' responsibilities and authority un-
der the statute
We requested that the above underlined
quote be deleted from the draft regulation
since it is contrary to law.
Section 4 (a) of the draft puts violators of
the 1899 Refuse Act on notice that the Corps
and the Justice Department may institute
legal proceedings to enforce the law even
though the violators may have filed an appli-
cation for a permit. The section contains the
following sentence:
The fact that official objection may not
have yet been raised with respect to past or
continuing discharges or deposits should not
-------
3230
LEGAL COMPILATION—WATER
be interpreted as authority to discharge or
deposit in the absence of an appropriate per-
mit, and will not preclude the institution of
legal proceedings in appropriate cases for
violation of the provisions of the Refuse Act.
We believe the sentence should be deleted.
It is unnecessary. The Justice Department
has on several occasions filed actions against
discharges who violate section 13 of the 1899
law even though no "official objection" had
been previously raised to such discharges or
deposits. The Justice Department, rightfully
so, has not inserted in any complaint filed
under section 13 a disclaimer that the lack
of such an objection "should not be inter-
preted as authority" to violate the law. Such
a statement in the Corps regulation merely
enables the raising of questions by those who
object to the Corps requiring these violators
to apply for permits.
Assistant Attorney General Shiro Kashiwa,
in his prepared testimony of December 21,
1970, before Chairman Dingell's subcommit-
tee on Fisheries & Wildlife Conservation,
stated the following policy of the Justice
Department:
We believe that this important policy state-
ment should be included in the draft regula-
tion, as it goes beyond the statement in the
draft which merely provides that "the mere
filing" of a permit application "will not
preclude legal action in appropriate cases for
Refuse Act violations." Mr. Kashiwa, with
the approval of the Attorney General, states
flatly that he will bring such "legal action"
where toxic substances are present in an in-
dustrial discharge. The draft should put the
applicant on notice of this positive statement.
Section 4 (c) recognizes that the Refuse Act
vests in the Secretary of the Army discretion
to determine whether a permit should or
should not issue. However, sections 4 (c) and
4(e) then proceed to drastically limit the
Corps' authority to deny a permit, in the "ab-
sence of any objection by the Regional Rep-
resentative" of the Environmental Protective
Agency to only two grounds:
(i) That anchorage and navigation will be
impaired, or (ii) that fish and wildlife re-
sources are adversely affected.
This is an unwarranted limitation on the
Corps authority that is not founded in the
law.
The responsibility for administering the
Refuse Act, and determining whether to issue
a permit under the 1899 law is vested in the
Secretary of the Army. In Zabel v. Tabb 430
F 2nd 199 (1970), the Court of Appeals for the
5th Circuit said:
When the House Report (H.R. Report 91-
917 of March 18, 1970) and the National En-
vironmental Policy Act of 1969 are considered
together with the Fish and Wildlife Coordina-
tion Act and its interpretations, there is no
doubt that the Secretary can refuse on con-
servation grounds to grant a permit under the
Rivers and Harbors Act.
The term "conservation grounds" certainly
is much broader than just water quality and
fish and wildlife. It encompasses aesthetics,
recreation, flood damage prevention, water
supply, and other matters.
Furthermore, the Corps' own existing reg-
ulations (ER 1145-2-303) provide that "no
permit [under section 1, 10, and 14 of the
1899 law which are remarkably similar to sec-
tion 13 of the 1899 law in regard to the scope
of the Corps discretionary authority] shall
be issued unless, in the judgment of the per-
son authorized to make the decision (namely
Corps personnel), issuance will be in the
public interest." The term "public interest"
is far more encompassing than water quality
or fish and wildlife. It covers any matter
which affects the needs and welfare of the
people. It includes, for example, the need
of the military to acquire a particular site for
defense purposes.
Where a permit is applied for to discharge
refuse from a proposed private facility to be
constructed on that site, the Act clearly au-
thorized the Corps to deny the permit if it
determines the public interest requires giving
priority to the defense need.
We request that section 4 of the draft be
revised to recognize the Corps duty to ad-
minister the permit system on the basis of
the "public interest" rather than to be limited
to a purely ministerial role except in rela-
tion to anchorage, navigation and fish and
wildlife considerations. Indeed, this could be
done by merely amending section 2 of the
Corps' present regulation (No. 1145-2-303) to
provide that it shall also apply to applica-
tions for permits under section 13 of the
Refuse Act as well as to those under sections
1, 10 and 14.
vm
Section 4(g) of the draft states:
"No permit will be issued for discharges
or deposits of harmful quantities of oil, as
defined in section II of the Federal Water
Pollution Control Act since primary permit
and enforcement authority for all oil dis-
charges is contained in that Act."
The term "harmful quantities" is defined
not in section II of the FWPC Act, but in
regulations issued by the Interior Depart-
ment on September 11, 1970 (35 F R. 14306).
Furthermore the above underlined quote
erroneously implies that oil discharges are
subject only to the FWQA Act and ignores
the fact that the 1899 law also prohibits such
discharges, whether in harmful quantities or
not. We believe the underlined language
should be deleted.
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EXECUTIVE ORDERS
3231
DC
Section 4(f) provides:
In any case where the District Engineer be-
lieves that following the advice of the Re-
gional representative with respect to the
issuance or denial of a permit would not be
consistent with the purposes of the Refuse
Act permit program, he shall . . . forward
the matter ... to the Secretary ... (for con-
sultation with EPA) the Secretary shall
accept the findings, determinations, and con-
clusions of the Administrator (of EPA) as to
water quality standards and related water
quality considerations and shall promptly
forward the case to the District Engineer with
instructions as to its disposition.
There is no basis in any statute for this
statement. The Corps should not be so bound
by another agency's findings in a regulation
where the law does not require it.
We agree that the Corps should not grant
a permit where EPA objects on water quality
grounds. But, at the same time, the Corps
should also not be bound to issue such a per -
mit if, on water quality grounds, the Fish
and Wildlife Service, a State water pollution
control agency or a fish and game agency, or
even private citizens,'demonstrate that EPA's
evaluation of the water quality impact is in-
adequate. We note that the Corps' regula-
tions do not thus limit it in the case of permits
issued under Section 10 of the 1899 law.
We request that the above underlined
quoted provision (i) be deleted, or (ii) be
amended to provide that no permit shall be
granted under any provision of the 1899 law
if EPA objects on water quality grounds.
Furthermore, we think that the term "and
related water quality considerations" is un-
duly vague and ambiguous It should be de-
leted, or clarified.
Section 6(b) of the draft uses the term
"minor outfall structure" and authorizes the
District Engineer to abstain from requir-
ing a section 13 permit in the case of such
structures.
Please explain to us:
(a) What is a "minor outfall structure;"
and
(b) Why discharges from such structures
should be exempted.
XI
In our letter of December 4, 1970, to you,
we asked:
Please state whether or not applicants for
permits under this program will be required
to demonstrate affirmatively that it is not
feasible and prudent to dispose of their
wastes into a municipal treatment system or
by some method other than directly into a
waterway.
Section 7 of the draft does not require the
applicant to so demonstrate. We believe it
should. We consider that this section is de-
ficient unless such a requirement is added.
Furthermore, neither section 7 nor any
other provision of the regulations tells the
applicant how many copies of the applica-
tion he must file. It says that he need file
only "a form" or "a letter." Yet section 9
directs the District Engineer to send "copies
of applications received" to EPA. This will
mean that the Corps will have to make copies
of each application with all its attachments
for EPA (and others) at considerable cost in
personnel time and funds, if your estimate of
40,000 dischargers is reasonably accurate.
This cost should not be borne by the Govern-
ment. The draft should be amended to re-
quire the applicant and attachments needed
for review of his application by all interested
agencies.
XII
Section 21 (b) of the FWPC Act waives for
three years a certification for a facility whose
construction was "lawfully commenced" be-
fore April 3, 1970. The regulation does not
define whether a facility constructed before
April 3, 1970, on land (i.e., without an out-
fall requiring a section 10 permit) which
deposits or discharges refuse material into a
waterway in violation of section 13, or a
facility with an outfall constructed in viola-
tion of section 10, would be a facility
constructed without lawful authority and
therefore subject to the certification require-
ments of section 2Kb) (1) of the FWPC Act.
Xin
Section 9 of the draft requires the Corps
to forward copies of applications to EPA
promptly after receipt of them. No other
agency is mentioned to receive such copies
immediately. The regulation thus disregards
the statutory mandate of the Fish and Wild-
life Coordination Act that the Corps "first
shall consult" with the Fish and Wildlife
Service and the State fish and game agency
when a Federal permit or license is applied
for that would affect navigable waters. We
believe that those agencies, particularly in
view of the statutory directive which EPA
lacks, should get copies of the application as
soon as EPA, and the regulation should so
provide.
xrv
The public notice and hearing provisions
of the proposed regulation (sections 10 and
11) differ substantially from the public no-
tice and hearing provisions of existing Corps
regulations (ER 1145-2-303). We believe
they should not so differ.
First, section 10 of the proposed regula-
tion states that the notice shall contain a
[p. 1762]
-------
3232
LEGAL COMPILATION—WATER
statement limiting the Corps' authority to
grant or deny permits. We have already ob-
jected above to such limitations set forth in
the regulation, and our comments apply here
too.
Second, the regulation provides that, in
the case of section 13 permit applications, if
objections are raised the applicant will be
given an "opportunity to rebut or resolve"
them. • * *
a. It is the policy of the Corps of Engineers
to conduct the civil works program in an at-
mosphere of public understanding, trust, and
mutual cooperation and in a manner respon-
sive to the public interest. To this end, a
public hearing may be helpful and will be
held in connection with an application for
a permit involving a discharge or deposit in
navigable waters or tributaries thereof when-
ever, in the opinion of the District Engineer
such a hearing is advisable. In considering
whether or not a public hearing is advisable,
consideration will be given to the degree of
interest by the public in the permit applica-
tion, requests by responsible Federal, State
or local authorities, including Members of the
Congress, that a hearing be held, and the
likelihood that information will be presented
at the hearing that will be of assistance in
determining whether the permit applied for
should be issued. In this connection, a public
hearing will not generally be held if there
has been a prior hearing (local, State or
Federal) addressing the proposed discharge
unless it clearly appears likely that the hold-
ing of a new hearing may result in the
presentation of significant new information
concerning the impact of the proposed dis-
charge or deposit. (Italic supplied.)
The present Corps' regulations provide:
b. It is the policy of the Corps of Engineers
to conduct the civil works program in an
atmosphere of public understanding, trust,
and mutual cooperation and in a manner re-
sponsive to the public interest. To this end,
public hearings are helpful and will be held
in connection with applications for permits
involving navigable waters of the United
States whenever there appears to be sufficient
public interest to justify the holding of a
public hearing or when responsible Federal,
State or local authorities, including Members
of the Congress, request that a hearing be
held and it is likely that information will be
presented at the hearing that will be of as-
sistance in determining whether the permit
applied for should be issued.
Clearly there are significant differences be-
tween the two provisions underlined above.
The present regulation which was adopted
pursuant to recommendation of this commit-
tee in our report (H. Report 91-917, March 18,
1970), is far better than that in the proposed
regulation. We believe the proposed provi-
sions is not in the public Interest and there-
fore inadequate.
We believe that section 2 of the present
Corps regulation (No. 1145-2-303) be
amended to make it also applicable to the
issuance of permits under section 13 of the
1899 law.
Section 15 governing permit conditions is
inadequate. It provides that permits shall
"be subject to conditions as determined by
EPA to be necessary for purposes of insuring
compliance with water quality standards" or
the purposes of the FWPC Act. In short this
provides that any water quality condition
imposed by a State agency or any other Fed-
eral agency cannot be included in the permit
unless included as one of those "determined
by EPA to be necessary." This provision, in
effect, transfers to EPA a function of the
Corps under the Refuse Act, without author-
ization by Congress either through legislation
or a Reorganization Plan, and is therefore
an unlawful restriction upon the Corps' au-
thority. We note that the 1967, Interior-
Army Memorandum of Understanding,
authorizing consultation with the Fish and
Wildlife Service, left the final decision with
the Corps. See our Committee's report en-
titled "The Persuit for Landfill in Hunting
Creek: A Debacle in Conservation", pp. 40
et seq (H. Report 91-113, March 24, 1969).
We know of no legislation since then author-
izing EPA to exercise this function of the
Corps. We request that it be deleted.
The proposed regulation does not require
the following special condition now required
by the Corps regulation 1145-2-303:
For use in connection with permits for
cooling water intake and outfall structures,
outfall sewers from industrial and other
plants and similar work.
A. That in approving this permit reliance
has been placed on information and data pro-
vided by the permittee concerning the nature
of the effluent and the frequency of dis-
charges. (Here identify the nature of the
effluent or discharge approved, including, if
applicable, limitations with respect to chem-
ical content, water temperature differentials,
toxin, sewage, type and quantity of solids,
amount and frequency of discharge.)
Permittee may not discharge any liquids
or solids other than or at levels in excess of
those approved herein unless a modification
of this permit is approved by the Secretary of
the Army or his authorized representative.
B. The permittee shall maintain adequate
records of the nature and frequency of dis-
charges and shall from time to time furnish
such additional data concerning discharges
as the District Engineer may require.
We see no reason for omitting these re-
quirements with respect to section 13 permits
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EXECUTIVE ORDERS
3233
as well as for permits under sections 1,10, and
14 of the 1899 law.
Section 7 of the proposed regulation does
not provide that all of the information re-
quired to be filed thereunder shall be fully
available to governmental agencies and the
public, without limitation. Similarly, no such
provision is contained in the proposed regula-
tion in connection with records of the nature
and frequency of discharges which the per-
mittee will, as we recommend, be required
to maintain and provide to the Corps. We be-
lieve that a notice, similar to the one used by
EPA in its industrial wastes inventory (See
our Committee report H. Kept. 91-1717, Dec.
10, 1970, pp. 24-33, copy enclosed), should be
included in the regulation to make it clear
to everyone that such Information and rec-
ords will be made available to other Federal
agencies, to State, interstate, and local water
pollution control agencies and to the public.
Section 12 of the proposed regulation states
that CEQ "has advised that section 102 (C)
statements will not be required where the
only impact of proposed discharge or dis-
charges will be on water quality and related
considerations." We know of no basis In
Public Law 91-190 or the CEQ Interim guide-
lines for this statement.
(a) Please explain to us (i) who will make
this judgment, and (ii) will it be made be-
fore or after all comments are received and a
public hearing (if any) held on the appli-
cation.
(b) What is Included in the term "related
considerations?"
The proposed regulation contains a head-
ing "Memorandum of Understanding," but
no such memorandum is found in the draft
provided to us. Please provide to us a copy
of that memorandum.
We have tried to set forth some of the more
glaring deficiencies and inadequacies of the
proposed regulation. There are others, which
we have not had time to identify them.
We request that the proposed regulation be
revised to meet these objections. Our staff
will be pleased to work with yours in this
matter.
We would appreciate your views on each of
the foregoing objections.
Sincerely,
HENRY S. REUSS,
Chairman, Conservation and Natural
Resource.
[p. 1763]
2.5c CONGRESSIONAL RECORD, VOL. 117 (1971)
Feb. 4: Senate discussion of the 1899 Refuse Act,
pp. 1673; 1679-1684
THE 1899 REFUSE ACT
Mr. BOGGS. Mr. President, consid-
erable public interest has been ex-
pressed in the administration's Refuse
Act permit program and the documents
to implement the program.
I believe that all relevant documents
are now available and I ask unanimous
consent to insert these documents in
the RECORD. I also ask unanimous con-
sent to include in the RECORD the re-
marks on the Refuse Act program by the
General Counsel of the Council on En-
vironmental Quality, Mr. Timothy At-
keson. His comments were presented
to the American Bar Association—
American Law Institute meeting held
last week at the Smithsonian. Also, I
ask unanimous consent to include in the
RECORD a summary statement of the En-
vironmental Protection Agency on the
Refuse Act filed today with the Sub-
committee on Air and Water Pollution.
There being no objection, the material
was ordered to be printed in the RECORD,
as follows:
[p. 1673]
STATE CERTIFICATION OF ACTIVITIES REQUIR-
ING A FEDERAL LICENSE OR PERMIT—NOTICE
OF PROPOSED RULE MAKING
(Environmental Protection Agency [18 CFR
Part 615])
Notice is hereby given that the Administra-
tor, Environmental Protection Agency, pur-
suant to the authority in sec. 103, 84 Stat. 91,
proposes the addition of a new Part 615 to
Title 18, Chapter V of the Code of the Federal
Regulations, as set forth below.
The Federal Water Pollution Control Act
vests certain authorities in the Secretary of
the Interior. On December 2, 1970, those au-
thorities were transferred to the Administra-
tor, Environmental Protection Agency, by
Reorganization Plan No. 3 of 1970.
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3234
LEGAL COMPILATION—WATER
Section 21 (b) of the Federal Water Pollu-
tion Control Act, 33 U.S.C. 1171 (b), requires
any applicant for a Federal license or permit
to conduct any activity, including, but not
limited to, the construction or operation of
facilities which may result in any discharge
into the navigable waters of the United
States, to obtain a certification from the State
in which the discharge originates, or, if ap-
propriate, from the interstate agency having
jurisdiction or, under certain circumstances,
from the Administrator, that there is reason-
able assurance that such activity will be con-
ducted in a manner which will not violate
applicable water quality standards. In any
case where actual construction of a facility
from which a discharge is made has been
lawfully commenced before April 3, 1970, no
certification is required for the issuance of a
license or permit after April 3, 1970, except
that any such license or permit shall termi-
nate on April 3, 1973, unless a certification is
submitted to the licensing or permitting
agency prior to April 3, 1973. Where any
license or permit application was pending on
April 3, 1970, and such license or permit is
issued before April 3, 1971, no certification is
required for one year following the issuance
of such license or permit, except that any
such license or permit shall terminate at the
end of one year unless a certification is sub-
mitted to the licensing or permitting agency
prior to that time.
The proposed Subpart A would provide def-
initions of general applicability for the reg-
ulations and would provide for the uniform
content and form of certification.
The proposed Subpart B would establish
procedures for determination by the Admin-
istrator whether a discharge which will result
from an activity for which certification is
required by Section 2Kb) may affect the
quality of the waters of any State other than
the State in which the discharge originates.
The proposed Subpart C would establish
procedures for obtaining certifications from
the Administrator in certain cases where
standards have been promulgated by the Ad-
ministrator, and in cases where no State or
interstate agency has authority to certify that
there is reasonable assurance that an activity
requiring a Federal license or permit and
which may result in a discharge into navi-
gable waters will be conducted in a manner
which will not violate applicable water qual-
ity standards.
The proposed Subpart D would provide for
consultation between the Administrator and
Federal licensing and permitting agencies
with respect to the meaning, content and
application of water quality standards and
related matters.
A form suitable for use by certifying agen-
cies is being prepared and will be published
in the Federal Register In the immediate
future.
Interested persons may submit, in tripli-
cate, written data or arguments in regard to
the proposed regulations to the Administra-
tor, Environmental Protection Agency, Wash-
ington, D.C. 20460. All relevant material
received not later than 30 days after publica-
tion of this notice will be considered.
Authority: The provisions contained in this
Part 615 are issued pursuant to section 21 (b)
and (c) of the Federal Water Pollution Con-
trol Act (P.L. 91-224), Section 103, 84 Stat.
91; 33 U.S.C.A. 1171 (b) (1970); and Reorgani-
zation Plan No. 3 of 1970.
SUBPART A GENERAL
615.1 Definitions
As used in this Part, the following terms
shall have the meanings indicated below:
(a) "License or permit" means any license
or permit, including leases for livestock graz-
ing or oil, mineral, or other exploitation,
granted by an agency of the Federal govern-
ment to conduct any activity which may
result in any discharge into the navigable
waters of the United States.
(b) "Licensing or permitting agency"
means any agency of the Federal government
to which application is made for a license or
permit.
(c) "Administrator" means the Admin-
istrator, Environmental Protection Agency.
(d) "Certifying agency" means the person
or agency designated by the Governor of a
State to certify compliance with applicable
water quality standards. If an interstate
agency has sole authority to so certify, such
[p. 1679]
interstate agency shall be the certifying
agency. Where a Governor's designee and an
interstate agency have concurrent authority
to certify, the Governor's designee shall be
the certifying agency. Where water quality
standards have been promulgated by the
Administrator pursuant to section 10(c) (2)
of the Act, or where no State or interstate
agency has authority to certify, the Admin-
istrator shall be the certifying agency
(e) "Act" means the Federal Water Pollu-
tion Control Act, 33 U.S.C.A. 1151 et seq.
(f) "Discharge" means any direct or in-
direct addition of matter to receiving waters.
(g) "Water quality standards" means
standards established pursuant to section
10(c) of the Act, and State-adopted water
quality standards for navigable waters which
are not interstate waters.
615 2 Form of Certification
A certification made by a certifying agency
shall include the following:
(a) the name and address of the applicant;
(b) A description of the facility or ac-
tivity, and of any discharge into navigable
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EXECUTIVE ORDERS
3235
waters which may result from the conduct of
any activity including, but not limited to,
the construction or operation of the facility,
including the biological, chemical, thermal
and other characteristics of the discharge,
and the location or locations at which such
discharge may enter navigable waters;
(c) A description of the function and
operation of equipment or facilities to treat
wastes or other effluents which may be dis-
charged, including specification of the de-
gree of treatment expected to be attained;
(d) The date or dates on which the ac-
tivity will begin and end, if known, and
the date or dates on which the discharge will
take place;
(e) A statement of the probable effects of
the discharge on the quality of the receiving
water;
(f) An identification of applicable water
quality standards;
(g) A statement of the probable effects of
the discharge on the quality of waters of a
State other than the State in which the dis-
charge occurs or will occur;
(h) A statement that there is reasonable
assurance that the activity will be conducted
in a manner which will not violate applicable
water quality standards;
(i) A statement of the conditions appli-
cable to the discharge, reliance upon which
provided the basis for the statement de-
scribed in subsection (h); and
(j) Such other information as the certify-
ing agency may determine is appropriate.
SUBPART B—DETERMINATION OF EFFECT ON
OTHER STATES
615.11 Notification
Upon receipt of an application for a license
or permit and a certification, the licensing or
permitting agency shall immediately notify
the Administrator of such application and
certification.
615.12 Copies of documents
Immediately after certification has been
granted, an applicant shall provide the Ad-
ministrator with three copies of (i) the ap-
plication for a license or permit, (ii) the
application for certification, and (iii) any
certification received or notification that
certification has been waived. The applicant
may provide the Administrator with copies
of the applications as soon as the applica-
tions are made to the relevant State, inter-
state, or Federal agencies.
615.13 Review by Administrator and notifi-
cation
The Administrator shall review the ap-
plications and certification, provided in ac-
cordance with section 615.12, and if the
Administrator determines there is reason to
believe that a discharge may affect the qual-
ity of the waters of any State or States other
than the State in which the discharge occurs,
the Administrator shall, no later than 30 days
of the date of notice of application and
certification from the licensing or permitting
agency provided in section 615.11, so notify
each affected State, the licensing or permit-
ting agency, and the applicant.
615.14 Fortcarding to affected State
The Administrator shall forward to each
affected State a copy of the material pro-
vided in accordance with section 615.12.
615.15 Hearing on objection of affected State
When a licensing or permitting agency
holds a public hearing on the objection of an
affected State, such objection shall be for-
warded to the Administrator by the licensing
or permitting agency, and the Administra-
tor shall at such hearing submit his evalua-
tion with respect to such objection and his
recommendations as to whether and under
what conditions the license or permit should
be issued.
615.16 Waiver
If the certification requirement with re-
spect to an application for a license or per-
mit is waived due to the failure or refusal of
a State or interstate agency to act on a re-
quest for certification within a reasonable
time as determined by the licensing or per-
mitting agency (which period shall not ex-
ceed one year) after receipt of such request,
the Administrator shall consider such waiver
as a substitute for a certification and, as ap-
propriate, shall conduct the review, provide
the notices, and perform the other functions
identified in sections 615.13, 615.14, and
615.15. The notices required by section
615.13 shall be provided not later than 30
days after the date on which the waiver
becomes effective.
SUBPART C—CERTIFICATION BY THE
ADMINISTRATOR
615.21 When Administrator certifies
Certification by the Administrator that the
discharge resulting from an activity requir-
ing a license or permit will not violate
applicable water quality standards will be
required where:
(a) Standards have been promulgated by
the Administrator pursuant to section 10 (c)
(2) of the Act; or
(b) Water quality standards have been
established, but no State or interstate agency
has authority to give such a certification.
615.22 Applications
An applicant for certification from the
Administrator shall submit to the Admin-
istrator a complete description of the dis-
charge involved in the activity for which
certification is sought, with a request for
certification signed by the applicant. Such
description shall include the following:
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3236
LEGAL COMPILATION—WATER
(a) The name and address of the appli-
cant;
(b) A description of the facility or activ-
ity, and of any discharge into navigable
waters which may result from the conduct
of any activity including, but not limited to,
the construction or operation of the facility,
including the biological, chemical, thermal
and other characteristics of the discharge,
and the location or locations at which such
discharge may enter navigable waters;
(c) A description of the function and op-
eration of equipment or facilities to treat
wastes or other effluents which may be dis-
charged, Including specification of the de-
gree of treatment expected to be attained;
(d) The date or dates on which the activ-
ity will begin and end, if known, and the
date or dates on which the discharge will
take place;
(e) A statement of the probable effects of
the discharge on the quality of the receiving
water;
(f) An identification of applicable water
quality standards, together with a statement
as to whether, In the applicant's opinion, dis-
charge resulting from the activity will or
will not violate applicable water quality
standards; and
(g) A statement of the probable effects of
the discharge on the quality of waters of a
State other than the State in which the dis-
charge occurs or will occur.
615 23 Notice and hearing
The Administrator will provide public no-
tice of each request for certification by pub-
lication in the Federal Register, and may
provide such notice in a newspaper of gen-
eral circulation in the area in which the
activity is proposed to be conducted and by
such other means as the Administrator
deems appropriate. Interested parties shall
be provided an opportunity to comment on
such request as the Administrator deems ap-
propriate. All interested and affected parties
will be given reasonable opportunity to pre-
sent evidence and testimony at a public
hearing on the question whether to grant or
deny certification if the Administrator deter-
mines that such a hearing is necessary or
appropriate.
615.24 Certification
If, after considering the complete descrip-
tion, the record of a hearing, if any, held
pursuant to section 615.23, and such other
information and data as the Administrator
deems relevant, the Administrator determines
that there is reasonable assurance that the
proposed activity will not result in a viola-
tion of applicable water quality standards, he
shall so certify. If the Administrator deter-
mines that no water quality standards are
applicable to the waters which might be
affected by the proposed activity, he shall so
notify the applicant and the licensing or
permitting agency in writing and shall pro-
vide the licensing or permitting agency with
advice, suggestions and recommendations
with respect to conditions to be Incorporated
in any license or permit to achieve com-
pliance with the purposes of this Act. In
such case, no certification shall be required.
615.25 Adoption of new water quality
standards
(a) In any case where:
(i) a license or permit was issued without
certification due to the absence of applicable
water quality standards; and
(ii) water quality standards applicable to
the waters into which the licensed or per-
mitted activity may discharge are subse-
quently established; and
(ill) the Administrator is the certifying
agency because:
(1) no State or interstate agency has au-
thority to certify; or
(2) such new standards were promulgated
by the Administrator pursuant to section
10 (c) (2) of the Act; and
(iv) the Administrator determines that
such uncertified activity is violating water
quality standards;
then the Administrator shall notify the li-
censee or permittee of such violation, Includ-
ing his recommendations as to actions
necessary for compliance. If the licensee or
permittee falls within six months of the
date of such notice to take action which In
the opinion of the Administrator will result
in compliance with applicable water quality
standards, the Administrator shall notify the
licensing or permitting agency that the
licensee or permittee has failed, after reason-
able notice, to comply with such standards
and that suspension of the applicable license
or permit is required by section 2Kb) (9) (B)
of the Act.
(b) Where a license or permit is sus-
pended pursuant to subsection (a) of this
section, and where the licensee or permittee
subsequently takes action which in the Ad-
ministrator's opinion will result In compli-
ance with applicable water quality stand-
ards, the Administrator shall then notify the
licensing or permitting agency that there is
reasonable assurance that the licensed or
permitted activity will comply with applica-
ble water quality standards.
[p. 1680]
615.26 Inspection of facility or activity be-
fore operation
Where any facility or activity has received
certification pursuant to section 615.24 in
connection with the issuance of a license or
permit for construction, and where such fa-
cility or activity is not required to obtain an
operating license or permit, the Administra-
-------
EXECUTIVE ORDERS
3237
tor or his representative, prior to the initial
operation of such facility or activity, shall
be afforded the opportunity to inspect such
facility or activity for the purpose of deter-
mining if the manner in which such facility
or activity will be operated or conducted will
violate applicable water quality standards.
615.27 Notification to licensing or permitting
agency
If the Administrator, after an inspection
pursuant to section 615.26, determines that
operation of the proposed facility or activity
will violate applicable water quality stand-
ards, he shall so notify the applicant and the
licensing or permitting agency, including his
recommendations as to remedial measures
necessary to bring the operation of the pro-
posed facility into compliance with such
standards.
615.28 Termination of suspension
Where a licensing or permitting agency,
following a public hearing, suspends a license
or permit after receiving the Administrator's
notice and recommendation pursuant to sec-
tion 615.27 of this Subpart, the applicant may
submit evidence to the Administrator that the
facility or activity or the operation or conduct
thereof has been modified so as not to violate
water quality standards. If the Administrator
determines that water quality standards will
not be violated, he shall so notify the licens-
ing or permitting agency.
SUBPART D CONSULTATIONS
615.30 Review and advice
The Administrator may and upon request
shall provide licensing and permitting agen-
cies with determinations, definitions and in-
terpretations with respect to the meaning
and content of water quality standards where
they have been federally approved under Sec-
tion 10 of the Act, and findings with respect
to the application of all applicable water
quality standards in particular cases and in
specific circumstances relative to an activity
for which a license or permit is sought. The
Administrator shall also advise licensing and
permitting agencies as to the status of comp>li-
ance by dischargers with the conditions and
requirements of applicable water quality
standards. In cases where an activity for
which a license or permit is sought will affect
water quality, but for which there are no
applicable water quality standards, the Ad-
ministrator shall advise licensing or permit-
ting agencies with respect to conditions of
such license or permit to achieve compliance
with the purposes of the Act.
THE REFUSE ACT PERMIT PROGRAM
(Remarks by Timothy Atkeson, general coun-
sel, Council on Environmental Quality to
ALI-ABA Seminar on Environmental Law,
Smithsonian Institution, January 28, 1971)
My assignment today is to lay out, in under
half an hour, what you need to know about
Federal water quality legislation. I think it is
only fair to warn you that like some of the
professors we all knew at college, I will be-
gin at the beginning—with the Refuse Act of
1899, and that I have sufficient to say about
my first topic that you may have to dig some
of the other statutes and regulations out of
the books on your own. But there are some
mitigating considerations: First, the Refuse
Act permit program launched by the Presi-
dent just before Christmas takes you through
the full range of existing Federal statutory
authority (Section 13 of the Act of March
3, 1899, better known as the Refuse Act (33
U.S.C. 407); the Federal Water Pollution
Control Act, as amended (33 U.S.C. 1151 et
seq.); the Fish and Wildlife Coordination
Act, as amended (16 U.S.C. 661-666c); and
the National Environmental Policy Act of
1969 (42 U.S.C. 4321-4347). Secondly, the
Refuse Act permit program highlights the
critical issues of standards and enforcement
in our Federal water quality program. And
thirdly, the Refuse Act permit program was
drawn up with acute awareness that addi-
tional statutory authority would be needed
to have a satisfactory water quality program
and my comments today will indicate some
areas where we think Congressional action
this Session is necessary.
First, let us go back to the Refuse Act
itself—that sparkling innovation in antipollu-
tion legislation of the McKinley Administra-
tion. From a technical point of view, to those
of you interested in legislative drafting, I
suggest you compare what was done here in
one paragraph with the results of hundreds
of paragraphs, sections and titles in more
modern water quality legislation. In essence
the Refuse Act says:
"a. It shall not be lawful to throw, dis-
charge, or deposit.. . any refuse matter of
any kind or description whatever (other than
liquid sewage from municipal sources) into
any navigable water of the U.S. or any tribu-
tary of any navigable water of the U.S.
"b. The Secretary of the Army, acting on
the advice of the Corps of Engineers, may is-
sue permits for such deposit, within limits to
be defined and under conditions to be pre-
scribed by him."
To this statutory language you must add
the gloss of Supreme Court decisions in the
1960's (U.S. v. Standard Oil Co., 384 U.S. 224
(1966); U.S. v. Republic Steel Co., 362 U.S.
482 (I960)) to the effect that the Act serves
anti-water pollution as well as navigation
protection goals. The Refuse Act Is backed
up by misdemeanor fines of $500-$2,500 or
imprisonment or from 30 days to a year and,
most significantly, by the equity power of a
Federal court to enjoin violation of the Act.
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3238
LEGAL COMPILATION—WATER
Next, to understand the Refuse Act permit
program, you have to turn to Section 2Kb)
of the Federal Water Pollution Control Act,
a provision inserted in the Act last April.
This, in essence, says that any applicant for
a Federal permit to conduct an activity re-
sulting in a discharge into the navigable
waters of the United States shall provide the
permit issuing agency with a certificate from
the appropriate State or interstate water pol-
lution control agency that there is reasonable
assurance, as determined by the State or in-
terstate agency, that such activity will be
conducted in a manner which will not vio-
late applicable water quality standards. I
should emphasize that Section 2Kb) by its
own terms applies to Federal permits both for
existing facilities and for new facilities so
that it could be applied to set water quality
standards for a Refuse Act permit program
covering both new and existing facilities.
Thirdly, you have to realize what a wide
group of agencies play roles with respect to
the Refuse Act and the Federal Water Pollu-
tion Control Act. The Army Corps of Engi-
neers has, of course, the statutory responsi-
bility for the Refuse Act, and the Department
of Justice is assigned responsibility to con-
duct the necessary legal proceedings to en-
force the Refuse Act. As a footnote, I will
remind the few of you who don't know it
already that the Refuse Act contains a pro-
vision to pay informers half of the fine im-
posed for information leading to conviction.
It has been asserted that this entitles an
informer to bring a qui tarn action on his
own for a Refuse Act violation if the U.S.
District Attorney does not, but, to date, no
court to my knowledge has espoused this
view.
The Environmental Protection Agency has
responsibility for administration of the Fed-
eral Water Pollution Control Act and Sections
21 (b) and (c) assign EPA (which succeeded
to the responsibilities of the Secretary of the
Interior in this area by virtue of Reorganiza-
tion Plan No. 3 of 1970) a number of specific
responsibilities with respect to the water
quality aspects of Federal permits: (a) under
Section 21 (b) (2) EPA must determine
whether a discharge has a multistate effect
in which case the other states affected
are given a chance to intervene and protect
their interests, (b) under Section 2Kb)
(9) (A) there is a provision that where the
permit covers activity for which there are
no applicable water quality standards, the
Federal permit issuing authority shall im-
pose a requirement that the permittee shall
comply with the purposes of the Act. Under
this, until there is a more satisfactory stat-
utory provision, we plan that EPA will issue
guidelines to Federal permit granting au-
thorities including the Corps to regulate
discharges of hazardous substances such as
mercury where the applicable water quality
standards do not address the problem, and
(c) under Section 21 (c) EPA is given the
responsibility to provide relevant information
to the permit granting agency as to what
the applicable water quality standards are
and to comment on methods to comply with
these standards. We contemplate that, pur-
suant to this responsibility, EPA will issue
guidelines on how it construes the require-
ment in the present standard for treatment
of industrial discharges in most States that
they receive "secondary or equivalent treat-
ment." In actual practice this will require
the evolution of guidelines for the standard
of the treatment of effluents from some 22
different industries.
You will note that I have spelled out pri-
mary roles for three Federal agencies with
respect to the Refuse Act permit program—
the Corps of Engineers, the Department of
Justice and the Environmental Protection
Agency. (I will not attempt to enumerate
the State or interstate agencies which must
review the applications and which play an
important role.) There are three other Fed-
eral agencies to note: first, there is the
Department of the Interior which must be
consulted in certain circumstances under
the Fish and Wildlife Coordination Act and
which will share this responsibility for cer-
tain fishing grounds with the Department
of Commerce to which the Bureau of Com-
mercial Fisheries was transferred at the
formation of the National Oceanic and At-
mospheric Administration in Reorganization
Plan No. 4 of last year. Finally there is our
own Council on Environmental Quality in
the Executive Office of the President. Under
Executive Order 11514 implementing the Na-
tional Environmental Policy Act the Council
has been assigned to coordinate Federal pro-
grams related to environmental quality. You
will note that in Executive Order 11574 the
Council is assigned responsibility to coordi-
nate the regulations, policies and procedures
of Federal agencies with respect to the Refuse
Act permit program.
At this point I have introduced you to the
principal players with respect to the Refuse
Act permit program in the Executive Branch.
You are undoubtedly aware that at various
points during last year, Interior, Justice and
the Corps all attempted on their own to
bring some coherent relationship between
the Refuse Act and our Federal water quality
legislation. Interior announced that it would
seek prosecution under the Refuse Act of
types of discharge not adequately covered by
our Federal-State standards—notably ther-
mal pollution from power plants and mercury
discharges. Justice issued guidelines to U.S.
district attorneys on when to bring Refuse
Act prosecutions that were intended to draw
a logical distinction between use of the sum-
mary processes of the Refuse Act and the
more protracted enforcement procedures of
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EXECUTIVE ORDERS
3239
the Federal Water Pollution Control legis-
lation. The result of these guidelines was
instead a mistaken public impression that
Justice was attempting to curb local im'tia-
[p. 1681]
tive in use of the Act. Thereafter, without
stating what relationship such a program
would have to applicable water quality stand-
ards, Army announced in the late summer
that it would initiate a Refuse Act permit
program.
In the light of these events the need for
a coordinated program was clear to all. We
in the Council on Environmental Quality
were concerned that such a program when
launched should be legally well grounded,
should relate the Refuse Act permits with
water quality standards in the manner con-
templated in Section 2Kb) of the Federal
Water Pollution Control Act, and should make
the greatest impact on our national water
quality problems consonant with the nature
of the limits on Federal authority in the rele-
vant legislation and the problem of applying
the program to over 40,000 existing discharges
without creating crippling uncertainty and
delays. As the fall progressed and both
Houses of Congress failed to take any action
on the Administration's proposals to fill out
the gaps in Federal authority (principally by
an extension of jurisdiction over the waters
for which the Federal Government must ap-
prove water quality standards from just
interstate waters to all navigable waters and
a new requirement that these Federally ap-
proved standards extend to effluent stand-
ards), we realized that any action on the
Refuse Act permit program would have to
start with admittedly deficient Federal water
quality legislation. We also concluded that
even without these improvements there were
very considerable benefits that could be
achieved by drawing together all our existing
water quality authorities into one coherent
permit program giving strong coordination
from the President through the Council and
starting the program before another year of
debate slipped past us. The culmination of
this effort was Executive Order 11574 signed
by the President December 23—and pub-
lished in the Federal Register Christmas
Day—which initiated the Refuse Act permit
program.
Like many Christmas presents, this pro-
gram met at the outset with a mixed recep-
tion.
My purpose in spelling out all the back-
ground is to give you a basis for making
your own evaluation.
There are four or five reasons for some
questions at this early point about the pro-
gram:
1. There has been a slowness and uncer-
tainty up till now in the enforcement proce-
dures under the Federal Water Pollution
Control legislation which has driven some to
the view that we might as well forget its con-
cepts of Federal and State responsibility and
applicable water quality standards in favor of
a Russian roulette enforcement of the Refuse
Act to attack any discharge into navigable
waters regardless of the Refuse Act's lack of
water quality standards. It became harder to
hold this latter view after passage of Section
2Kb) of the Federal Water Pollution Control
Act last April and with the formation of
EPA, but I still occasionally encounter in its
pristine form the theory that in 1899 Con-
gress granted the Army Corps of Engineers
full power to regulate the water quality
aspects of any and all discharges into the
navigable waters of the United States on any
basis the Corps believes reasonable and that
Congress' efforts to develop satisfactory water
quality legislation since then have been a
misplaced and irrelevant effort.
2. There has been an impression, perhaps
because the flourish of a criminal statute by
a district attorney always makes headlines,
that sporadic prosecutions under the Refuse
Act are a more potent enforcement tool than
any systematic plan to use Federal permits to
bring all discharges up to the mark. Some-
how the mental picture of Federal agents by
the dark of the moon and with muffled oars
scooping up evidence from a single outfall
will always catch the imagination more than
thousands of data cards containing this and
much more information supplied at regular
intervals under a systematic, nationwide per-
mit program. But I suggest that if we are
serious about attaining clean water on some
timetable we think less of enforcement as a
"Fox strikes again" or "High Noon" game
and more as a systematic, nationwide re-
quirement that every discharger bring to the
water quality authorities the full facts on
his discharge, with provision for public avail-
ability of this information, and with regular
monitoring and strong penalties and personal
responsibility for false statements. (Just to
give you a comparison in penalties, the Ref-
use Act provides for up to a year in jail and
a fine of up to $2,500. In contrast the penalty
in Section 18 U.S.C. Sec. 1001 for false state-
ments under the (Refuse Act) permit pro-
gram will be up to five years in jail and
$10,000 in fines.)
3. Another reason for questions about the
Refuse Act permit program has been that
not all the components are yet visible to the
public. In addition to the Executive Order
and draft Corps of Engineers regulations
(which have been put out for 45 days public
comment in the expectation they can be
improved), there will be EPA regulations
covering EPA's role with respect to State
certifications under Section 2Kb) and (c) of
the Federal Water Pollution Control Act,
EPA's guidelines regulating hazardous dis-
charges which are not covered by applicable
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3240
LEGAL COMPILATION—WATER
water quality standards and EPA guidelines
interpreting for some 22 industries what is
meant by "secondary or equivalent treat-
ment," revised Justice Department guidelines
on Refuse Act prosecutions by U.S. district
attorneys, implementing agreements between
the Corps of Engineers and EPA, and further
clarification of the relationship of the Fish
and Wildlife Coordination Act to the pro-
gram. In short, the Executive Order which
triggered this program is like the tip of the
iceberg—not a bad image when we are dis-
cussing a water quality program. I am con-
fident we will see the full outlines of the
program within a. few more weeks. Only then
will it be fair to assess the program's poten-
tial impact.
4. A fourth reason for some of the ques-
tions about the program is that it involves
the necessity of coordinated action by more
than one agency. Some critics say "unleash
the Corps of Engineers without interference
by other agencies"; while others say noth-
ing should be done until it can all be done
by EPA. Our decision was to initiate the
program now, using statutory authorities as
we find them, drawing on the very substan-
tial resources of the Corps but at the same
time making clear within the Federal Gov-
ernment that only one agency decides water
quality questions and that is EPA. We fully
expect that in time arrangements for the
administration of the program can be im-
proved and the Council plans to make recom-
mendations to the President in this respect.
But we felt, particularly after last year's ex-
perience on our water quality legislative
proposals that it would be wise to start the
program now with admittedly imperfect
legislative provisions, rather than wait an-
other year for tidier legislative authority.
5. A fifth ground for questions in forming
a judgment about the Refuse Act permit
program is lack of a full picture as to how
it fits into our legislative proposals. This
question will also be resolved within a few
weeks. At this time I think it is clear that
we will again be supporting an expansion of
Federal supervision of standards to all navi-
gable waters and provision for limitations
on effluents. With this authority the present
distinctions that have to be made about
State certifications for discharges into inter-
state as opposed to intrastate waters will
disappear and the way will be clear for an
overall upgrading of Federal-State water
quality standards.
One label for this program that does not
fit is that the permits will be "licenses to
pollute." The permits will not be granted
unless the discharge satisfies applicable
water quality standards. Where intrastate
waters are involved EPA can fill in gaps in
the standards (as for hazardous discharges)
and cheek the facts; where interstate waters
are involved EPA can do this and issue guide-
lines on what constitutes secondary treat-
ment of industrial wastes. No permit will be
issued for any discharge that would not meet
these standards. I do not believe that there
has been decision by any court under the
Refuse Act to date requiring a higher
standard.
Despite the fact that the Refuse Act spe-
cifically provides that "it shall be the duty
of district attorneys of the United States to
vigorously prosecute all offenders" there have
also been comments in the press that the
permit program would put a damper on effec-
tive enforcement, the comments of the Presi-
dent, Mr. Train and Mr. Ruckelshaus to the
contrary notwithstanding. Here I think the
wisest course may be to let events speak
for themselves, but just in case you have
not pieced these events together, let me sum
up the evidence:
Item. At the time the program was an-
nounced the President said that the phased
implementation of the program would not
be a moratorium on Refuse Act prosecutions
and as a matter of fact new prosecutions
under the Act have been going forward since
the program was announced.
Item. At the time the program was an-
nounced Mr. Ruckelshaus indicated that a
permit application filed by a suspected pol-
luter would be given accelerated review and
if denied would be followed by prompt re-
ferral to the district attorney for prosecution.
Item. The Justice Department Division as-
assigned responsibility for the Refuse Act
has just created a centralized pollution con-
trol operation with authority to give prompt
policy guidance on both the civil and crim-
inal aspects of Refuse Act enforcement.
Item, The Justice Department has under
consideration revised guidelines for district
attorneys which I believe you will find very
flexible, very practical and quite satisfactory.
Do not prejudge the Justice Department on
this score before these guidelines are
available.
To my friends here who have been working
over the Corps of Engineers regulations with
quite thoughtful and legitimate questions
such as:
"Why don't you apply the 'public interest
test' of the dredge and fill permit regulations
to each and every one of these Refuse Act
permit applications?"
"Why haven't you assured that regard-
less of what elements to protect fish and
wildlife are contained in the applicable water
quality standards considered by the State
water quality authority and EPA that the
Department of the Interior gets a full second
review of the same elements under the Fish
and Wildlife Coordination Act?", and
"Why, even though the State water quality
authority has held hearings can't we have
another round of Corps hearings on the same
subject?"
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EXECUTIVE ORDERS
3241
I can only answer that we are trying to
devise a program that has both a sound
legal base and is workable in the context
of decision on 40,000 plus existing discharges
covering the entire range of U.S. industry
and hundreds of millions of dollars in in-
vestment. We need a program that will pro-
duce water quality results—not fascinating
legal arguments.
I find that, as I expected, my layout of
Federal water quality legislation to you has
not gotten much beyond legislation passed
in 1899. But I am sure you will find the
subject lively enough to do some digging
[p. 1682]
on your own and I anticipate that this year
will be one of considerable progress in this
area. You yourself, in the light of the
changes in prospect, should become an expert
in short order.
Let me sum up for you five reasons why
Chairman Train said on December 23, that
the Refuse Act permit program is the single
most important step to improve water qual-
ity that this country has yet taken:
1. For the first time we will have a mech-
anism to make all discharges into all navi-
gable waters of the country come in to
report the content of these discharges and
make periodic follow up reports.
2. We plan to back up this new policy of
requiring what has been called "Truth in
Pollution" by public availability of this in-
formation, spot checks and enforcement of
the substantial penalities for giving false
statements to the Federal Government.
3. We have in the Refuse Act permit pro-
gram and Section 2Kb) of the Federal Water
Pollution Control Act a mechanism for de-
termining the standards applicable to all
discharges into all our navigable waters.
This is an action forcing process that will
bring every State face to face with the hard
question of what effluent rules to apply.
Where the discharge is subject to a Federal-
State standard, EPA will issue guidelines on
these effluent standards.
4. All applications for the State certifica-
tions required must be accompanied by pub-
lic notice and there will be public hearings
on specific applications where appropriate.
5. This program will give EPA and the State
water quality authorities great leverage to
develop consistent water quality policies
applicable to all Federal permits—including
those of AEC for nuclear plants, FPC for
hydro facilities and the Corps of Engineers
for dredge and fill permits.
I greatly appreciate this chance to tell you
something about the Council's thinking on
this very important subject.
ANSWERS or THE ENVIRONMENTAL PROTECTION
AGENCY REGARDING THE REFUSE ACT PERMIT
PROGRAM
(Filed with the Senate Subcommittee on Air
and Water Pollution during an oversight
hearing on the water pollution control
program, February 4, 1971)
Q. Describe the Refuse Act permit program.
A. The President directed by Executive
Order 11574 dated December 23, 1970 that a
permit program be implemented pursuant to
the Refuse Act of 1899, under which dis-
chargers into navigable waters are obliged
to obtain permits from the Army Corps of
Engineers. At the present time there are in
excess of 40,000 industrial dischargers into
navigable waters to which the permit re-
quirement applies. This permit authority of
the Refuse Act has not been used to date. It
does not apply to waste discharges from
municipal sewers. Court decisions have made
it clear that the authority of the Refuse Act
may be addressed to environmental consid-
erations as well as to navigational hazards.
The Corps will now require permits of all
dischargers into navigable waters to which
the permit requirement applies. The Corps
will require as a condition of each permit
that the discharger comply with applicable
water quality standards. The State in which
the discharge occurs will have an opportunity
to certify whether the activity for which a
permit is sought will result in a discharge
in violation of applicable water quality stand-
ards The Corps will also receive advice from
EPA concerning applicable water quality
standards in connection with permit applica-
tions. The advice of EPA in these cases will
consist of an identification, clarification,
complete definition, and interpretation of
applicable water quality standards as neces-
sary. Pursuant to Executive Order 11574, the
Corps is obliged to accept the advice of EPA
concerning water quality standards as con-
elusive. On the basis of State certification
and EPA advice, the Corps will either issue,
deny, or appropriately condition the permit.
The Corps will be precluded from issuing a
permit where State certification is denied.
Through this mechanism we will be able
in a systematic and effective manner to im-
plement water quality standards applicable
to individual dischargers. The obligations
and requirements necessary to meet such
standards will be clearly spelled out in the
permit conditions for the benefit of Federal
and State regulatory authorities and for the
dischargers. This Federal permit program
gives us the opportunity to identify the spe-
cific obligations of a discharger and the re-
medial measures which must be taken before
further pollution occurs. We need not wait
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3242
LEGAL COMPILATION—WATER
until the damage is done and then com-
mence abatement actions on an ad hoc basis.
We believe the permit program will over-
come the problem of uncertainty with re-
spect to the specific requirements of water
quality standards as applied to particular
industrial dischargers.
Q. What is the relationship of the Permit
Program to section 21 (b) of the Federal
Water Pollution Control Act?
A. Under the provisions of section 2Kb)
the State certifies whether or not an ac-
tivity for which a Federal license or permit
is sought will result in a discharge which
violates applicable water quality standards.
In the context of the Permit Program the
State will provide its assessment of the water
quality standards and its determination with
respect to an individual discharger seeking
a Corps permit. At this stage, maximum ef-
fort will be made by EPA field personnel to
work with and to advise the State agency
with respect to the Federal assessment and
interpretation of applicable water standards.
Pursuant to the Permit Program EPA will
have an opportunity to advise the Corps with
respect to the meaning and content of water
quality standards as they apply to an indi-
vidual permit applicant. As we view the two
authorities, the provisions of section 2Kb)
provide the necessary link between the State
and the Corps and the Permit Program pro-
vides the necessary link between the Corps
and EPA. We see these two authorities as
consistent and mutually supportive. We be-
lieve that, taken together, the provisions of
section 2Kb) and the Permit Program will
give us the maximum assurance that water
quality standards will be met by individual
dischargers.
Q. What will be the role of EPA in the
Permit Program?
A. EPA has the responsibility, in the case
of each application for a permit, to advise
the Corps with respect to the meaning and
content of water quality standards as ap-
plied to the particular discharger seeking the
permit. The Permit Program will also serve
as an additional mechanism enabling EPA to
work with State Water Pollution Control
Agencies. Regional arid field people of EPA
will be instructed to work closely with the
States and to advise State Water Pollution
Control Agencies as to EPA interpretations
and determinations with respect to water
quality standards in individual cases. EPA
will not issue or deny or suspend or revoke
permits. However, we will advise the Corps
with respect to water quality standards.
Q. Will EPA's role in the Permit Program
be the same in the case of both interstate
and intrastate waters?
A. EPA's role will be broader with respect
to standards for interstate waters, which are
developed by States subject to Federal ap-
proval, than with respect to standards for
intrastate waters, which under present law
are entirely the responsibility of the States.
In the case of standards for interstate waters,
EPA will be providing the Corps with both
factual determinations and interpretations
of their meaning, content and application.
In the case of standards for intrastate waters,
EPA will provide factual determinations but
will defer to the States with respect to inter-
pretations of their meaning and application
in particular circumstances.
Q. What will be the role of the Corps in
the Permit Program?
A. The Corps has the statutory responsi-
bility under the Refuse Act to issue or deny
permits. In exercising that authority under
the Permit Program, the Corps will address
such factors other than water quality as may
be lawfully considered under that Act. The
Corps will have responsibility for the general
administration of the Permit Program. But
on all questions relating to water quality
standards, it is clear that the determinations,
findings and interpretations of EPA will be
conclusive.
Q. What will the role of the States be In
the permit program?
A. The States will have the central, most
important role in the permit program. They
will provide the Corps with their assessment
of the water quality standards applicable to
particular dischargers and their assessment
of necessary conditions to be included in any
permit so as to insure compliance with such
standards. If a State denies the issuance of
a certification to the effect that a particular
discharge will be in compliance with water
quality standards, the Corps will be pre-
cluded by section 2Kb) of the Federal Water
Pollution Control Act from issuing a permit
with respect to such discharge.
Q. Will EPA have authority to override
State certifications?
A. It is not EPA's purpose here to over-
ride State certifications. The primary func-
tion of EPA in this program is to advise the
Corps of Engineers with respect to the mean-
ing, content and application of water quality
standards, in the interests of ensuring that
permits issued by the Corps will contain
whatever conditions may be necessary to
achieve compliance with those standards. In
most cases we expect our advice in this regard
to be a "completion" of the State certifica-
tion—a "fleshing out"—a more precise and
complete definition of water quality stand-
ards components. In those cases where EPA's
interpretation of Federal-State standards
differs from the State's view, it Is EPA's
view which the Corps must accept. We be-
lieve these cases will be the small exception.
Q. Isn't this permit program inconsistent
with the idea of EPA—a centralization of
environmental authority in one agency?
A. No. We do not believe that the permit
program is inconsistent with the Idea of
-------
EXECUTIVE ORDERS
3243
EPA. Federal responsibility for environmen-
tal concerns, and for water quality standards
compliance in particular, is not fragmented
by the permit program. EPA will make the
conclusive Federal decisions with respect to
water quality standards. This responsibility
is not to be shared with or delegated to the
Corps or any other Federal agency.
Q. Doesn't the permit program weaken the
effective use of the Refuse Act as an abate-
ment tool?
A. No. The permit program does not
weaken the abatement authority under the
Refuse Act. Since all permits will contain
as essential conditions the necessity of com-
plying with applicable water quality stand-
ards and requirements as to hazardous
substances, a violation of such standards will
constitute a violation of the permit and sub-
ject the permittee to liabilities under the
Refuse Act in addition to enforcement pro-
ceedings under the Federal Water Pollution
Control Act.
Q. Describe the function of the so-called
"base level of treatment" criteria.
A. This term refers to criteria which EPA
is developing with respect to 22 major cate-
gories of industrial dischargers. Basically it
is both a determination of the state-of-the-art
of water pollution control In those
[p. 1683]
industries, and an interpretation of what
constitutes the equivalent of secondary treat-
ment for industry. On the basis of this
information, we will be able to specify
requirements for meeting water quality
standards, taking into account existing pol-
lution control technology, with much more
clarity and precision than we have been able
to do to date.
Q. On what basis will a permit be issued
prior to development of the base level of
treatment criteria?
A. Prior to the development of the base
level of treatment criteria we will use all of
the information we presently have with re-
spect to industrial pollution and remedial
measures. However, where our information
lacks precision, we will recommend to the
Corps that permits be issued for limited
durations and with general requirements sub-
ject to later definition and clarification.
Q. How many personnel will be required
at the State and Federal level to implement
the Permit Program?
A. The Corps of Engineers has recently re-
ceived authorization for 200 positions for the
Permit Program for FY 1971 and will request
an additional 200 positions for FY 1972. This
compares with EPA's plans for 432 positions
to be staffed by December 31, 1971.
Our staffing needs are predicated on (1)
the anticipated receipt of approximately 41,-
000 permit applications by June 30, 1971; (2)
the need to develop effluent criteria for the
22 major types of industry; (3) the require-
ment for extensive coordination with the
Corps and the States.
Staffing requirements at the State level will
vary considerably depending on the con-
centrations of water users in each State, the
nature of the discharges, and the effective-
ness of any programs already established in
the States. Although we know the personnel
needs will be large, we cannot at this time
estimate the State staffing requirements. As
regulations and agreements are being final-
ized, we will be meeting with the States and
at that time the figures should become more
evident.
Q. Has provision been made for recruiting
the necessary personnel to carry out the
program?
A. We have prepared and announced tenta-
tive personnel needs for each region, which
includes a variety of professional, technical,
administrative, and clerical positions. Efforts
are being initiated now to publicize the pos-
sible vacancies and to tentatively commit the
required personnel. Although we anticipate
that in some areas of the country there will
be difficulty in obtaining a sufficient number
of highly qualified professionals, we believe
that there will be sufficient technical admin-
istrative, and clerical support personnel avail-
able internally or through outside sources
to meet our needs. Naturally, the more lead
time we have to staff the program prior to its
actual initiation, the better equipped we will
be to process the application workload.
The PRESIDING OFFICER. Is there
further morning business?
Mr. ALLEN. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. ALLEN. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
[p. 1684]
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3244 LEGAL COMPILATION—WATER
2.6 E.G. 11575, ADMINISTRATION OF THE DISASTER
RELIEF ACT OF 1970
December 31,1970, 36 Fed. Reg. 37
PROVIDING FOR THE ADMINISTRATION OP THE
DISASTER RELIEF ACT OF 1970
By virtue of the authority vested in me by the Disaster Relief
Act of 1970, hereinafter referred to as the Act, and section 301 of
title 3 of the United States Code, and as President of the United
States, it is hereby ordered as follows:
Section 1. (a) The authorities vested in the President by sec-
tion 102(1) of the Act to declare a major disaster, by section 251
of the Act to provide for the restoration of Federal facilities, and
by section 253 of the Act to prescribe time limits for granting
priorities for certain public facilities and certain public housing
assistance are reserved to the President.
(b) Except as otherwise provided in subsections (a), (c), and
(d) of this section, the Director of the Office of Emergency Pre-
paredness is designated and empowered to exercise, without the
approval, ratification, or other action of the President, all of the
authority vested in the President by the Act.
(c) The Secretary of Defense is designated and empowered to
exercise, without the approval, ratification, or other action of the
President, all of the authority vested in the President by section
210 of the Act concerning the utilization and availability of the
civil defense communications system for the purpose of disaster
warnings.
(d) The Secretary of Agriculture is designated and empowered
to exercise, without the approval, ratification, or other action of
the President, all of the authority vested in the President by sec-
tion 238 of the Act concerning food coupons and surplus com-
modities.
Sec. 2. The Director of the Office of Emergency Preparedness
may delegate to assign to the head of any agency of the executive
branch of the Government, subject to the consent of the agency
head concerned in each case, any authority or function delegated
or assigned to the Director by the provisions of this order. Any
such head of agency may redelegate any authority or function so
delegated or assigned to him by the Director to any officer or
employee subordinate to such head of agency whose appointment is
required to be made by and with the advice and consent of the
Senate.
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EXECUTIVE ORDERS 3245
Sec. 3. Rules, regulations, procedures, and documents issued
under the authority of the Act of September 30, 1950 (64 Stat.
1109) ; the Disaster Relief Act of 1966 (80 Stat. 1316) ; and the
Disater Relief Act of 1969 (83 Stat. 125) shall remain in effect for
purposes of the Act unless otherwise modified, superseded, or re-
voked by the appropriate Federal official, and, unless inappropri-
ate, all references in those rules, regulations, procedures, and docu-
ments or in any Executive order or other document to the Act of
September 30, 1950, the Disaster Relief Act of 1966, or the Dis-
aster Relief Act of 1969 shall be deemed to be references to the Act.
Sec. 4. In order to assure the most effective utilization of the
personnel, equipment, supplies, facilities, and other resources of
Federal agencies pursuant to the Act, agencies shall make and
maintain suitable plans and preparations in anticipation of their
responsibilities in the event of a major disaster. The Director of
the Office of Emergency Preparedness shall coordinate, on behalf
of the President, such plans and preparations.
Sec. 5. Executive Order No. 10427 of January 16, 1953, Execu-
tive'Order No. 10737 of October 29, 1957, and Executive Order No.
11495 of November 18, 1969, are hereby revoked. Unless inappro-
priate, any reference to those Executive orders in any rule, regu-
lation, procedure, document, or other Executive order, shall be
deemed to be a reference to this Executive order.
RICHARD NIXON
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3246 LEGAL COMPILATION—WATER
2.7 E.O. 11578, OHIO RIVER BASIN COMMISSION
January 13,1971, 36 Fed. Reg. 683
ESTABLISHMENT OF THE OHIO RIVER BASIN COMMISSION
WHEREAS the Water Resources Planning Act (79 Stat. 244, 42
U.S.C. 1962 et seq.) provides for the establishment of river basin
water and related land resources commissions; and
WHEREAS the Governors of the States of the Ohio River drain-
age basin, excluding the Tennessee River drainage basin, and the
Water Resources Council have requested, or concurred in, the es-
tablishment of such a commission:
NOW, THEREFORE, by virtue of the authority vested in me by sec-
tion 201 of the Water Resources Planning Act (42 U.S.C. 1962b),
and as President of the United States, it is ordered as follows:
Section 1. Ohio River Basin Commission. It is hereby declared
that the Ohio River Basin Commission is established under the
provisions of Title II of the Water Resources Planning Act (42
U.S.C. 1962b et seq.).
Sec. 2. Jurisdiction of the Commission. It is hereby determined
that the jurisdiction of the Ohio River Basin Commission referred
to in section 1 of this order shall attend to those portions of the
States of Kentucky, Illinois, Indiana, Maryland, New York, North
Carolina, Ohio, Pennsylvania, Tennessee, Virginia and West Vir-
ginia that are located within the Ohio River drainage basin, ex-
cluding the Tennessee River drainage basin.
Sec. 3. Membership of the Commission. It is hereby determined
that, in accordance with section 202 of the Act (42 U.S.C.
1962b—1), the Commission shall consist of the following mem-
bers:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal depart-
ments and agencies: Department of Agriculture, Department of
the Army, Department of Commerce, Department of Health, Edu-
cation, and Welfare, Department of Housing and Urban Develop-
ment, Department of the Interior, Department of Transportation,
Federal Power Commission, Atomic Energy Commission, and the
Environmental Protection Agency, such member to be appointed
by the head of the department or independent agency he repre-
sents,
(3) one member from each of the following States: Kentucky,
Illinois, Indiana, Maryland, New York, North Carolina, Ohio,
-------
EXECUTIVE ORDERS 3247
Pennsylvania, Tennessee, and West Virginia, and a member from
Virginia when authorized by the legislature of that State, and
(4) one member from each interstate agency created by inter-
state compact to which the consent of Congress had been given
and whose jurisdiction extends to the waters of the area specified
in section 2.
Sec. 4. Functions, Powers, and Duties. The Commission and its
officers, members, and employees shall perform and exercise, with
respect to the area specified in section 2 of this order, their respec-
tive functions, powers, and duties as set out in Title II of the
Water Resources Planning Act.
Sec 5. Reporting to the President. The Chairman of the Com-
mission shall report to the President through the Water Resources
Council.
RICHARD NIXON
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3248 LEGAL COMPILATION—WATER
2.8 E.O. 11613, MEMBERSHIP OF ENVIRONMENTAL
PROTECTION AGENCY ON THE ESTABLISHED RIVER
BASIN COMMISSIONS
August 2, 1971, 36 Fed. Reg. 14299
MEMBERSHIP OF ENVIRONMENT PROTECTION AGENCY
ON ESTABLISHED RIVER BASIN COMMISSIONS
By virtue of the authority vested in me by section 202 of the
Water Resources Planning Act (79 Stat. 247; 42 U.S.C. 1962
b—1) and as President of the United States, it is ordered as
follows:
Section 1. Section 3(2) of each of the following-described
Executive orders is amended by adding "Environmental Protection
Agency," immediately after "Department of Transportation,"—
(1) Executive Order No. 11331 of March 6, 1967, establishing
the Pacific Northwest River Basins Commissions;
(2) Executive Order No. 11345 of April 20, 1967, establishing
the Great Lakes Basin Commission;
(3) Executive Order No. 11359 of June 20, 1967, establishing
the Souris-Red-Rainy River Basins Commission; and
(4) Executive Order No. 11371 of September 6, 1967, establish-
ing the New England River Basins Commission, as amended by
Executive Order No. 11528 of April 24, 1970.
Sec. 2. The Administrator of the Environmental Protection
Agency shall appoint a member to each river basin commission to
serve as the representative of that Agency as soon as practicable
after the date of issuance of this Order.
RICHARD NIXON
-------
EXECUTIVE ORDERS 3249
2.9 E.G. 11331, ESTABLISHMENT OF PACIFIC NORTHWEST
RIVER BASINS COMMISSION
March 6, 1967, 32 Fed. Reg. 3875,
as amended by E.G. 11613, Aug. 2, 1971, 36 F.B. 14299
WHEREAS the Water Resources Planning Act (hereinafter referred
to as the Act, 79 Stat. 244, 42 U.S.C. 1962 et seq.) authorizes the
President to declare the establishment of a river basin water and
related land resources commission when a request for such a com-
mission is addressed in writing to the Water Resources Council
(hereinafter referred to as the Council) by the Governor of a State
within which all or part of the basin or basins concerned are located
and when such a request is concurred in by the Council and by not
less than one-half of the States within which portions of the basin
or basins concerned are located, and in the event the Columbia River
Basin is involved, by at least three of the four States of Idaho,
Montana, Oregon, and Washington; and
WHEREAS the Council, by resolution adopted November 14, 1966,
concurred in the requests of the Governors of the States of Oregon,
Washington, Idaho, Montana, and Wyoming; and did itself request
that the President declare the establishment of the Pacific Northwest
River Basins Commission under the provisions of section 201 of the
Act; and
WHEREAS the requests of the Governors of the States of Oregon,
Washington, Idaho, Montana, and Wyoming, and the resolution of
the Council of November 14, 1966, satisfy the formal requirements
of section 201 of the Act; and
WHEREAS the Governors of the States of California, Nevada, and
Utah have been consulted in regard to small headwater areas in
these respective States that contribute small quantities of water to
or use small quantities of water from the area of jurisdiction of the
Commission; and
WHEREAS it appears that it would be in the public interest and in
keeping with the intent of Congress to declare the establishment of
such a Commission:
NOW, THEREFORE, by virtue of the authority vested in me by
section 201 of the Act, and as President of the United States, it is
ordered as follows:
SECTION 1. Pacific Northwest River Basins Commission. It is hereby
declared that the Pacific Northwest River Basins Commission is
established under the provisions of Title II of the Act.
SEC. 2. Jurisdiction of the Commission. It is hereby determined
that the jurisdiction of the Pacific Northwest River Basins Com-
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3250 LEGAL COMPILATION—WATER
mission referred to in section 1 of this order (hereinafter referred
to as the Commission) shall extend to the entire area of the State
of Washington; the entire area of the State of Oregon, except that
drained by the Klamath River system, the Smith River system, and
that area draining into Goose Lake; and those portions of the States
of Idaho, Montana, and Wyoming lying within the Columbia River
drainage, in accordance with the requests of the Governors of
Oregon, Washington, Idaho, Montana, and Wyoming, and in accor-
dance with the resolution of the Council.
SEC. 3. Membership of the Commission. It is hereby determined
that, in accordance with section 202 of the Act, the Commission
shall consist of the following:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal departments
and agencies: Department of Agriculture, Department of the Army,
Department of Commerce, Department of Health, Education, and
Welfare, Department of Housing and Urban Development, Depart-
ment of the Interior, Department of Transportation, Environmental
Protection Agency, and the Federal Power Commission, such mem-
ber to be appointed by the head of each department or independent
agency he represents,
(3) one member from each of the following States: Oregon, Wash-
ington, Idaho, Montana, and Wyoming,
(4) one member from each interstate agency created by an inter-
state compact to which the consent of Congress has been given
and whose jurisdiction extends to the waters of the area specified
in section 2, and
(5) the Chairman of the United States Entity for the Columbia
River Treaty.
SEC. 4. Functions to be performed. The Commission and its Chair-
man, members, and employees are hereby, authorized to perform
and exercise, with respect to the jurisdiction specified in section 2
of this order, the functions, powers, and duties of such a Commission
and of such Chairman, members, and employees, respectively as set
out in Title II of the Act.
SEC. 5. Consultation with adjoining States. The Commission is
expected to provide for procedures for consultation with the States
of California, Nevada, and Utah on any member which might
affect the water and related land resources of the small headwater
drainages in each of these States that drain into the area of juris-
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EXECUTIVE ORDERS 3250A
diction or the Commission, and to give notice to these States of
meetings of the Commission.
SEC. 6. International Coordination. The Chairman of the Com-
mission is hereby authorized and directed to refer to the Council
any matters under consideration by the Commission which relate
to the areas of interest of jurisdiction of the International Joint
Commission, United States and Canada. The Council shall consult
on these matters as appropriate with the Department of State and
the International Joint Commission through its United States Section
for the purpose of enhancing international coordination.
SEC. 7. Reporting to the President. The Chairman of the Com-
mission shall report to the President through the Council.
LYNDON B. JOHNSON
-------
-------
EXECUTIVE ORDERS 3251
2.10 E.G. 11345, ESTABLISHMENT OF THE GREAT LAKES
BASIN COMMISSION
April 20, 1967, 32 Fed. Reg. 6329, as amended by E.O. 11613,
Aug. 2, 1971, 36 F.R. 14299; E.O. 11646, Feb. 8, 1972, 37 F.R. 2925
WHEREAS the Water Resources Planning Act (hereinafter referred
to as the Act, 79 Stat. 244, 42 U.S.C. 1962 et seq.) authorizes the Presi-
dent to declare the establishment of a river basin water and related
land resources commission when a request for such a commission is
addressed in writing to the Water Resources Council (hereinafter re-
ferred to as the Council) by the Governor of a State within which all
or part of the basin or basins concerned are located and when such
a request is concurred in by the Council and by not less than one-
half of the States within which portions of the basin or basins con-
cerned are located; and
WHEREAS the Council, by resolution adopted March 7, 1966, con-
curred in the requests of the Governors of the States of Indiana,
Michigan, Minnesota, Ohio, and Wisconsin, which have been con-
curred in by the Governors of Illinois, New York, and Pennsylvania;
and did itself request that the President declared the establishment of
the Great Lakes Basin Commission under the provisions of section
201 of the Act; and
WHEREAS the requests of the Governors of the States of Indiana,
Michigan, Minnesota, Ohio, and Wisconsin, and the resolution of the
Council of March 7, 1966, together with written concurrences by the
Governors of the States of Illinois, New York, and Pennsylvania,
satisfy the formal requirements of section 201 of the Act; and
WHEREAS it appears that it would be in the public interest and in
keeping with the intent of Congress to declare the establishment of
such a Commission:
NOW THEREFORE, by virtue of the authority vested in me by
section 201 of the Act, and as President of the United States, it is
ordered as follows:
SECTION 1. Great Lakes Basin Commission. It is hereby declared
that the Great Lakes Basin Commission is established under the pro-
visions of Title II of the Act.
SEC. 2. Jurisdiction of Commission. It is hereby determined that
the jurisdiction of the Great Lakes Basin Commission referred to in
section 1 of this order (hereinafter referred to as the Commission)
shall extend to those portions of the eight Great Lakes States of
Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsyl-
vania, and Wisconsin that are drained by the St. Lawrence River sys-
tem, including the Great Lakes, their tributaries, and tributaries to
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3252 LEGAL COMPILATION—WATER
the St. Lawrence River which reach that river within the United
States, in accordance with the requests of the Governors of Indiana,
Michigan, Minnesota, Ohio, and Wisconsin, concurred in by the Gov-
ernors of Illinois, New York, and Pennsylvania, and in accordance
with the resolution of the Council.
SEC. 3. Membership of the Commission. It is hereby determined
that, in accordance with section 202 of the Act, the Commission shall
consist of the following:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal departments
and agencies: Department of State, Department of Agriculture, De-
partment of the Army, Department of Commerce, Department of
Health, Education, and Welfare, Department of Housing and Urban
Development, Department of the Interior, Department of Justice,
Department of Transportation, Environmental Protection Agency, and
the Federal Power Commission, such member to be appointed by the
head of each department or independent agency he represents.
(3) one member from each of the following States: Illinois, Indi-
ana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wis-
consin, and
(4) one member from each interstate agency created by an inter-
state compact to which the consent of Congress has been given and
whose jurisdiction extends to the waters of the area specified in sec-
tion 2.
SEC. 4. Functions to be performed. The Commission and its Chair-
man, members, and employees are hereby authorized to perform and
exercise, with respect to the jurisdiction specified in section 2 of this
order, the functions, powers, and duties of such a Commission and of
such Chairman, members, and employees, respectively, as set out in
Title II of the Act.
SEC. 5. International coordination. The Council and the Depart-
ment of State shall consult as appropriate on matters under considera-
tion by the Commission which relate to the areas of interest and juris-
diction of the International Joint Commission, United States and Can-
ada, and the Great Lakes Fishery Commission.
SEC. 6. Reporting to the President. The Chairman of the Com-
mission shall report to the President through the Council.
LYNDON B. JOHNSON
-------
EXECUTIVE ORDERS 3253
2.11 E.O. 11359, ESTABLISHMENT OF THE SOURIS-RED-
RAINY RIVER BASIN COMMISSION
June 20,1967,32 Fed. Reg. 8851, as amended by E.0.11613,
Aug. 2,1971, 36 F.R. 14299; E.G. 11635, Dec. 9,1971, 36 F.R. 23615
WHEREAS the Water Resources Planning Act (hereinafter referred
to as the Act, 79 Stat. 244, 42 U.S.C. 1962 et seq.) authorizes the
President to declare the establishment of a river basin water and
related land resources commission when a request for such a com-
mission is addressed in writing to the Water Resources Council
(hereinafter referred to as the Council) by the Governor of a State
within which all or part of the basin or basins concerned are located
and when such a request is concurred in by the Council and by
not less than one-half of the States within which portions of the
basin or basins concerned are located; and
WHEREAS the Council, by resolution adopted December 28, 1966,
concurred in the requests of the Governors of the States of Minne-
sota and North Dakota to which the Governor of South Dakota
has given his concurrence, and did itself request that the President
declare the establishment of the Souris-Red-Rainy River Basins
Commission under the provisions of section 201 of the Act; and
WHEREAS the requests of the Governors of the States of Minnesota
and North Dakota and the resolution of the Council of December
28, 1966, together with written concurrence by the Governor of
South Dakota, satisfy the formal requirements of section 201 of the
Act; and
WHEREAS the Governors of the States of Minnesota and North
Dakota have agreed to, and the Governor of South Dakota has
concurred in, conditions relating to consolidation and termination
of this Commission; and
WHEREAS the Governor of the State of Montana has been con-
sulted in regard to the small headwater area of the Souris River
Basin in Montana that contributes a small quantity of water to
the area of jurisdiction of the Commission; and
WHEREAS it appears that it would be in the public interest and
in keeping with the intent of Congress to declare the establishment
of such a Commission:
NOW, THEREFORE, by virtue of the authority vested in me by
section 201 of the Act, and as President of the United States, it is
ordered as follows:
SECTION 1. Souris-Red-Rainy River Basins Commission. It is
hereby declared that the Souris-Red-Rainy River Basins Commis-
sion is established under the provisions of Title II of the Act.
-------
3254 LEGAL COMPILATION—WATER
SEC. 2. Jurisdiction of the Commission. It is hereby determined
that the jurisdiction of the Souris-Red-Rainy River Basins Commis-
sion referred to in section 1 of this order (hereinafter referred to as
the Commission) shall extend to those portions of the States of
Minnesota, North Dakota, and South Dakota that are drained by the
Souris-Red-Rainy Rivers system, in accordance with the requests of
the Governors of Minnesota and North Dakota, concurred in by the
Governors of South Dakota, and in accordance with the resolution of
the Council.
SEC. 3. Membership of the Commission. It is hereby determined
that, in accordance with section 202 of the Act the Commission shall
consist of the following:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal departments
and agencies: Department of Agriculture, Department of the Army,
Department of Commerce, Department of Health, Education, and
Welfare, Department of Housing and Urban Development, Depart-
ment of the Interior, Department of Transportation, Environmental
Protection Agency, and the Federal Power Commission, such mem-
ber to be appointed by the head of each department or independent
agency he represents,
(3) one member from each of the following States: Minnesota,
North Dakota, and South Dakota, and
(4) one member from each interstate agency created by an inter-
state compact to which the consent of Congress has been given and
whose jurisdiction extends to the waters of the area specified in
section 2.
SEC. 4. Functions to be performed. The Commission and its Chair-
man, members, and employees are hereby authorized to perform and
exercise, with respect to the jurisdiction specified in section 2 of this
order, the functions, powers, and duties of such a Commission and
of such Chairman, members, and employees, respectively, as set out
in Title II of the Act.
SEC. 5. Consultation with adjoining States. The Commission is ex-
pected to provide for procedures for consultation with the State of
Montana on any matter which might affect the water and related land
resources of the small headwater drainage of the Souris River Basin
in Montana, and to give notice to Montana of meetings of the Com-
mission.
SEC. 6. International coordination. The Chairman of the Com-
mission is hereby authorized and directed to refer to the Council any
matters under consideration by the Commission which relate to the
areas of interest or jurisdiction of the International Joint Commission,
United States and Canada. The Council shall consult on these mat-
-------
EXECUTIVE ORDERS 3255
ters as appropriate with the Department of State and the International
Joint Commission through its United States Section for the purpose
of enhancing international coordination.
SEC. 7. Termination. The Commission shall terminate on June 30,
1973, unless, upon recommendation of both the Council and not less
than one-half the number of member States, this order is extended.
SEC. 8. Reporting to the President. The Chairman of the Com-
mission shall report to the President through the Council.
LYNDON B. JOHNSON
2.12 E.O. 11371, ESTABLISHMENT OF THE NEW ENGLAND
RIVER BASINS COMMISSION
September 6,1967, 32 Fed. Reg. 12903, as amended by E.G. 11528,
Apr. 24,1970, 35 F.R. 6695; E.G. 11613, Aug. 2,1971, 36 F.R. 14299
WHEREAS the Water Resources Planning Act (hereinafter re-
ferred to as the Act, 79 Stat. 244, 42 U.S.C. 1962 et seq.) authorizes
the President to declare the establishment of a river basin water and
related land resources commission when a request for such a com-
mission is addressed in writing to the Water Resources Council (here-
inafter referred to as the Council) by the Governor of a State within
which all or part of the basin or basins concerned are located and
when such a request is concurred in by the Council and by not less
than one-half of the States within which portions of the basin or basins
concerned are located; and
WHEREAS the Council, by resolution adopted October 14, 1965,
concurred in the request of the Governor of the State of Maine, as
Chairman of the New England Governors' Conference, and did itself
request that the President declare the establishment of the New
England River Basins Commission under the provisions of section 201
of the Act; and
WHEREAS the request of the Governor of the State of Maine and
the resolution of the Council of October 14, 1965, together with writ-
ten concurrences by the Governors of the States of Maine, New
Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, and
New York, satisfy the formal requirements of section 201 of the Act;
and
WHEREAS it appears that it would be in the public interest and
in keeping with the intent of Congress to declare the establishment
of such a Commission:
NOW, THEREFORE, by virtue of the authority vested in me by
section 201 of the Act, and as President of the United States, it is
ordered as follows:
-------
3256 LEGAL COMPILATION—WATER
SECTION 1. New England River Basins Commission. It is hereby
declared that the New England River Basins Commission is estab-
lished under the provisions of Title II of the Act.
SEC. 2. Jurisdiction of Commission, (a) It is hereby determined
that the jurisdiction of the New England River Basins Commission
referred to in section 1 of this order (hereinafter referred to as the
Commission) shall extend to an area composed as follows:
(1) The State of Maine,
(2) The State of New Hampshire,
(3) The State of Vermont, excluding that portion thereof which is
within the drainage area of the Hudson River and excluding also that
portion thereof which is within the drainage area of Lake Champlain,
(4) The State of Massachusetts, excluding that portion thereof
which is within the drainage area of the Hudson River,
(5) The State of Connecticut,
(6) The State of Rhode Island,
(7) (i) That portion of the State of New York which is within the
drainage area of the Housatonic River, and (ii) that portion of Long
Island (excluding New York City) in the State of New York which
is within the drainage area of Long Island Sound, and
(8) Long Island Sound except the portion thereof which lies west
of a line extended from the Connecticut-New York boundary at the
northern shore of the Sound to the New York City-Nassau County
boundary at the southern shore of the Sound.
(b) The determination set forth in subsection (a) of this section is
made in accordance with the request of the Commission, and is con-
curred in by the Water Resources Council and by the Governors of
the States within the jurisdiction of the Commission.
SEC. 3. Membership of the Commission. It is hereby determined,
in accordance with section 202 of the Act [section 1962b—1 of this
title], that the Commission shall consist of the following:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal departments
and agencies: Department of Agriculture, Department of the Army,
Department of Commerce, Department of Health, Education, and
Welfare, Department of Housing and Urban Development, Depart-
ment of the Interior, Department of Transportation, Environmental
Protection Agency, Atomic Energy Commission, and Federal Power
Commission, each such member to be appointed by the head of each
department or independent agency he represents,
(3) one member from each of the following States: Maine, New
Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, and
New York, and
(4) one member from each interstate agency created by an inter-
-------
EXECUTIVE ORDERS 3257
state compact to which the consent of Congress has been given and
whose jurisdiction extends to the waters of the area specified in sec-
tion 2.
SEC. 4. Functions to be performed. The Commission and its Chair-
man, members, and employees are hereby authorized to perform and
exercise, with respect to the jurisdiction specified in section 2 of this
order, the functions, powers, and duties of such a Commission and of
such Chairman, members, and employees, respectively, as set out in
Title II of the Act.
SEC. 5. International coordination. The Chairman of the Commis-
sion is hereby authorized and directed to refer to the Council any
matters under consideration by the Commission which relate to the
areas of interest or jurisdiction of the International Joint Commission,
United States and Canada. The Council shall consult on these mat-
ters as appropriate with the Department of State and the International
Joint Commission through its United States Section for the purpose
of enhancing international coordination.
SEC. 6. Reporting to the President. The Chairman of the Commis-
sion shall report to the President through the Council.
LYNDON B. JOHNSON
2.13 E.O. 11658, ESTABLISHMENT OF THE MISSOURI
RIVER BASIN COMMISSION
March 22, 1972, 37 Fed. Beg. 6045
The Water Resources Planning Act (79 Stat. 244; 42 U.S.C. 1962
et seq.) provides for the establishment of river basin water and related
land resources commissions. In conformity with the requirements
of that act a majority of the Governors of the States of the Missouri
River drainage basin, as defined in Section 2 of this order, and the
Water Resources Council have requested, or concurred in, the estab-
lishment of such a Commission.
NOW, THEREFORE, by virtue of the authority vested in me by
Section 201 of the Water Resources Planning Act (42 U.S.C. 1962b),
and as President of the United States, it is ordered as follows:
SECTION 1. Missouri River Basin Commission. It is hereby declared
that the Missouri River Basin Commission is established under the
provisions of Title II of the Water Resources Planning Act (42 U.S.C.
1962b et seq.).
SEC. 2. Jurisdiction of the Commission. It is hereby determined
that the jurisdiction of the Missouri River Basin Commission referred
to in Section 1 of this order shall extend to the State of Nebraska and
those portions of the States of Colorado, Iowa, Kansas, Minnesota,
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3258 LEGAL COMPILATION—WATER
Missouri, Montana, North Dakota, South Dakota, and Wyoming that
are located within the Missouri River drainage basin, defined as the
drainage basin of the Missouri River above a point immediately
below the mouth of the Gasconade River.
SEC. 3. Membership of the Commission. It is hereby determined
that, in accordance with Section 202 of the Act (42 U.S.C. 1962b-l),
the Commission shall consist of the following members:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal departments
and agencies: Department of Agriculture; Department of the Army;
Department of Commerce; Department of Health, Education, and
Welfare; Department of Housing and Urban Development; Depart-
ment of the Interior; Department of Transportation; Federal Power
Commission; Atomic Energy Commission; and the Environmental
Protection Agency; such member to be appointed by the head of the
department or independent agency he represents.
(3) one member from each of the following States: Colorado, Iowa,
Kansas, Minnesota, Missouri, Montana, Nebraska, North Dakota,
South Dakota, and Wyoming.
(4) one member from each interstate agency created by an inter-
state compact to which the consent of the Congress has been given
and whose jurisdiction extends to the waters of the area specified in
Section 2.
SEC. 4. Functions,, Powers, and Duties. The Commission and its
officers, members, and employees shall perform and exercise, with
respect to the
[p. 6045]
area specified in Section 2 of this order, their respective functions,
powers, and duties as set out in Title II of the Water Resources
Planning Act.
SEC. 5. International Coordination. The Chairman of the Com-
mission is hereby authorized and directed to refer to the Water Re-
sources Council any matters under consideration by the Commission
which relate to areas of interest or jurisdiction of the International
Joint Commission, United States and Canada. The Council shall
consult on these matters as appropriate with the Department of State
and the International Joint Commission through its United States
Section for the purpose of enhancing international coordination.
SEC. 6. Reporting to the President. The Chairman of the Commis-
sion shall report to the President through the Water Resources
Council.
RICHARD NIXON
[p. 6046]
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EXECUTIVE ORDERS 3259
2.14 E.G. 11659, ESTABLISHMENT OF THE UPPER
MISSISSIPPI RIVER BASIN COMMISSION
March 22,1972, 37 Fed. Reg. 6047
The Water Resources Planning Act (79 Stat. 244; 42 U.S.C. 1962
et seq.) provides for the establishment of river basin water and re-
lated land resources commissions. In conformity with the require-
ments of that act the Governors of the States of the Upper Mississippi
River drainage basin, as denned in Section 2 of this order, and the
Water Resources Council have requested, or concurred in, the
establishment of such a Commission.
NOW, THEREFORE, by virtue of the authority vested in me by
Section 201 of the Water Resources Planning Act (42 U.S.C. 1962b),
and as President of the United States, it is ordered as follows:
SECTION 1. Upper Mississippi River Basin Commission. It is
hereby declared that the Upper Mississippi River Basin Commission
is established under the provisions of Title II of the Water Resources
Planning Act (42 U.S.C. 1962b et seq.).
SEC. 2. Jurisdiction of the Commission. It is hereby determined
that the jurisdiction of the Upper Mississippi River Basin Commission
referred to in Section 1 of this order shall extend to those portions of
the States of Illinois, Iowa, Minnesota, Missouri, and Wisconsin that
are located within the Upper Mississippi River drainage basin, defined
as the drainage basin of the Mississippi River above the mouth of the
Ohio River, excluding the drainage basin of the Missouri River above
a point immediately below the mouth of the Gasconade River.
SEC. 3. Membership of the Commission. It is hereby determined
that, in accordance with Section 202 of the Act (42 U.S.C. 1962b-l),
the Commission shall consist of the following members:
(1) a Chairman to be appointed by the President,
(2) one member from each of the following Federal departments
and agencies: Department of Agriculture; Department of the Army;
Department of Commerce; Department of Health, Education, and
Welfare; Department of Housing and Urban Development; Depart-
ment of the Interior; Department of Transportation; Federal Power
Commission; Atomic Energy Commission; and the Environmental
Protection Agency; such member to be appointed by the head of the
department or independent agency he represents,
(3) one member from each of the following States: Illinois, Iowa,
Minnesota, Missouri, and Wisconsin,
(4) one member from each interstate agency created by an inter-
state compact to which the consent of Congress has been given and
whose jurisdiction extends to the waters of the area specified in
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3260 LEGAL COMPILATION—WATER
Section 2.
SEC. 4. Functions, Powers, and Duties. The Commission and its
officers, members, and employees shall perform and exercise, with
respect to the
[p. 6047]
area specified in Section 2 of this order, their respective functions,
powers, and duties as set out in Title II of the Water Resources
Planning Act.
SEC. 5. Consultation with Adjoining States. The Commission is
expected to provide for procedures for consultation with the States of
Indiana, Michigan, and South Dakota on any matter which might
affect the water and related land resources of the headwater drainages
of the Mississippi River Basin in those States and to give notice to
those States of meetings of the Commission.
SEC. 6. Reporting to the President. The Chairman of the Commis-
sion shall report to the President through the Water Resources
Council.
RICHARD NIXON.
[p. 6048]
-------
Regulations
-------
-------
Regulations
[EPA's regulations are found in the Code of Federal Regulations
(CFR), which is periodically updated by the Federal Register. For a
complete listing of the pertinent regulations, see "Contents 3.1 through
3.21" on pages xxxiii-xxxiv.]
-------
-------
Guidelines
and
Reports
-------
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GUIDELINES AND REPORTS 3267
4.1 EPA ANNUAL REPORT ON NATIONAL REQUIREMENTS
AND COSTS OF WATER POLLUTION CONTROL
As required by 33 U.S.C. §1175(a) as amended (1970)
4.1a Cost of Clean Water, Vol. I, Municipal Investment Needs, Vol. II,
Cost Effectiveness and Clean Water, Environmental Protection
Agency, March 1971
INTRODUCTION
The purpose of this volume is to report to the Congress the results
of the cost estimates for municipal needs as of December 1970, based
upon a survey made by the Water Quality Office, Environmental
Protection Agency. The report also compares the results of the most
recent survey with the January 1970 cost estimates for municipal
waste treatment systems which were provided to the Congress last
year.
The objectives of the December survey were to produce the best
possible estimate of needs, using the most current and accurate in-
formation available at that point and time. Simultaneously with
conducting the survey we also sought to identify the problems which
existed and needed to be resolved in the evolving WQO system for
needs assessment. This report describes in summary form, how this
system has evolved over the past several years.
This volume of the report concerns itself with documentation of
planned facilities for municipal waste handling as developed his-
torically and most important through the December 1970 assess-
ment. It describes the present needs assessment system, and the
techniques utilized in the December 1970 analysis. The estimate is
compared with the January 1970 estimate of $10.2 billion, on a na-
tional and State-by-State basis.
[p.l]
SUMMARY AND CONCLUSIONS
The Federal Water Quality Administration made three assess-
ments in 1970. The first assessment was undertaken in January 1970
and was basically a compilation of information provided by States.
The second assessment, in July 1970, was unique in that, for the first
time, large scale contacts were made directly with the major cities
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3268 LEGAL COMPILATION—WATER
around the nation to ascertain estimates of their construction require-
ments. The December 1970 study was undertaken to obtain the most
up-to-date data on construction needs necessary for the development
of meaningful future authorization levels concomitant with the
preparation of new legislation and followed the pattern of the July
survey.
The December 1970 assessment yielded a total investment need of
$12.6 billion for municipal waste treatment facilities covering the
period December 1970 through the end of Fiscal Year 1974. To pro-
vide a consistent time-frame for comparison of analysis made in
January 1970 and December 1970, it was necessary to adjust for the
construction supported by grants made between January and Decem-
ber which amounted to approximately $1.9 billion.
The difference between the January 1970 and the December 1970
estimates is mostly accounted for by increased expenditures associ-
ated with Enforcement Conferences, upgrading of requirements in
water quality implementation plans, changes in State legislation, and
generally improved quality of the estimates. (The latter was par-
ticularly affected by the imposition of new policies, standards, and
regulations and their effect upon individual States and cities; the
refinement of cost estimates as projects proceed to the construction
stage; the revision of estimates to take account of construction
industry cost increases.)
The December 1970 estimate for municipal waste facilities needs is
believed to be the best representation of national needs obtainable at
this time. At the same time it must be recognized that municipal
waste treatment investment needs are the results of a dynamic process
of assessment and reassessment. In addition, many exogenous factors
which are described elsewhere in this report operate to make this an
elusive and rapidly changing value. However, the dynamic nature of
investment means that we must accept a reasonable magnitude of this
need at any point in time for policy decisions. Continual checking of
progress made against investment goals as well as changes in this
target itself must be monitored closely and any system of investment
assistance must have the flexibility to adjust to these changes in
circumstances.
[p. 2]
In addition, other analyses have indicated that proper cost-effec-
tiveness considerations can serve to reduce investment needs by
increasing the facility productivity. While inflation has been working
to increase needs, cost-effectiveness improvements in planning and
technology transfer can be expected to reduce costs. Because of the
gains expected to be achieved by ongoing efforts in EPA, the total
-------
GUIDELINES AND REPORTS 3269
needs estimate was reduced to $12.0 billion from the assessment value
of $12.6 billion.
[p. 3]
THE NEEDS ASSESSMENT SYSTEM AND HOW IT HAS
EVOLVED
THE PROBLEM
The problem of determining needs for sewage facilities and related
costs has plagued program administrators for years. Not only is he
faced with the dynamic nature of investment needs described earlier,
exogenous factors act to change the need at the same time he is at-
tempting to measure it. He is also faced with the problem of defini-
tion and interpretation of what is being measured and what costs are
involved as well as the availability of appropriate data to resolve these
questions to a high degree of certainty. At least three basic elements
are involved in the technical assessment process.
A. Requirements for waste handling facilities
—Quantity of sewage
—Uses of receiving water: water supply, recreation, navigation,
irrigation, etc.
—Degree of treatment required: secondary, advanced waste treat-
ment, etc.
B. Costing factors
—Climate (choice of unit process)
—Regionalization (economies or diseconomies of scale) and inter-
ceptor/waste treatment plant cost ratio
—Dispersal of customers
—Soil properties
—Topography (gravity flow vs. pumping)
—"Ineligible" costs as collection sewers, trunk sewers, others
—Time schedule
—Existing urbanization
—Treatment technology
C. Aggregation
The method of obtaining projections of costs versus time for com-
munities, and summing these for the nation.
PAST RELATED EFFORTS
The first major effort at consolidating case-by-case estimates into a
national waste treatment cost estimate was the annual reports by the
Conference of State Sanitary Engineers from 1959 to 1966.
[p. 5]
-------
3270 LEGAL COMPILATION—WATER
The Water Quality Office's "Cost of Clean Water" (1968) used
information from a previous inventory of current urban facilities and
a previous survey of present and anticipated urban needs to make a
five-year projection of capital outlay for waste treatment.
The "Economics of Clean Water" (1970) derived its dollar estimate
of national waste treatment needs from two sources: from an existing
case-by-case inventory and from a statistical model approach. These
two approaches yielded very similiar cost estimates on a national
aggregate basis.
The estimates contained in this current report are predominantly
based on detailed case-by-case (locality-by-locality) assessment of
present and planned construction of facilities for municipal waste
management.
HISTORICAL PERSPECTIVE
The Water Quality Office needs assessment system has evolved over
a 14-year period, a period marked by great changes in the national
attitudes toward water quality control. In dealing with "the problem"
on a national basis, a number of relevant events led to the present
situation.
1956 Public Law 84-660, approved July 9, did not provide for a
Federal survey of needs—determination of needs was con-
sidered a State responsibility.
1957 DWSPC, PHS program established "monthly reporting" of
applications in the regional offices, applications reported by
the State agencies as being under preparation in the com-
munities, for short-term work estimates. This covered appli-
cations for funds only, not future needs.
1959 Conference of State Sanitary Engineers (CSSE) agreed to
make annual survey of States to establish long-term needs.
1966 FWPCA "monthly report" was expanded to include under
"applications in preparation" all identifiable needs for which
an application had not been filed with the State agency. The
time frame for the needs was not yet established.
1967 CSSE withdrew from survey after criticism by the Congress of
that annual survey of States to establish long-term needs.
1968 State Program Plan (SPP) instructions were revised to require
a listing of needs on a one-year basis and a five-year basis.
FWQA experience has shown great variation in States'
methodology in responding.
1969 FWQA began conversion of "monthly reports" to provide a
continuous appraisal of treatment plant construction related
to water quality standards.
[p. 6]
-------
GUIDELINES AND REPORTS 3271
1969 FWQA "monthly report" was revised to cover only applications
in the Regional Offices, and needs on the SPP one-year and
five-year lists for Fiscal Year 1970.
1969-
1970 WQO's "Cost of Clean Water" (1969) and "Economics of Clean
Water" (1970) developed projected needs data using statis-
tical techniques. These are described in detail in those
reports.
1970 Monthly reports incorporated the SPP one-year and five-year
lists for Fiscal Year 1971. Regulations now require River
Basin and/or Regional Plans; this will have great impact on
structuring long-range planning, and more valid estimates of
long-range needs should result.
[P. 7]
1970 STUDIES
The first special assessment took place in January 1970, and was
basically a State-oriented effort. States were contacted and requested
to examine their list of projects and costs, which had been reported
to the Federal Water Quality Administration in December 1969, to
determine if they represented the appropriate construction needs at
that time. In general, there was not sufficient time available for the
States to reevaluate their December submissions and update them
accordingly. In States such as the New England States, New York,
Maryland, Indiana and Missouri, where major programs were initiated
in the mid-60's, the information on needs was well defined. However
in the other States assistance programs were either in the early stage
of development (such as New Jersey, Michigan, etc.) or in the early
stages of consideration. Estimates from these States did not include
the kind of data needed for indepth analyses.
The assessment performed in July 1970 was different from previous
studies in that, for the first time, large scale contacts were made
directly with approximately 1,000 major cities throughout the nation
to ascertain estimates of their construction plans. This interim esti-
mate utilized updated information from contacts with States and
municipalities, more recently submitted States needs lists, and approx-
imations of other known needs prepared by the Federal Water Quality
Administration Offices.
The need for the December 1970 assessment was based on the fact
that the present Water Quality Office legislation, with its appropria-
tion authorization, would expire at the end of Fiscal Year 1971.
Accordingly, to effectively prepare new legislation and, more par-
ticularly, develop meaningful future authorization levels, it was
necessary to have available the best possible up-to-date data on con-
-------
3272 LEGAL COMPILATION—WATER
struction needs. The approach selected was to reassess the construc-
tion costs for all communities whose proposed projects were estimated
to cost $5 million or more. Since the cost of these projects represented
about % of the total cost of all projects, it was believed that, by
validating the cost of this block of projects, considerable reliability
could be attributed to the resultant total figure (which includes data
for approximately 9,000 projects identified in the WQO Pending Needs
file).
ASSESSMENT OF NEEDS METHOD
The assessment method alluded to above (Needs Assessment Sys-
tem and How it Evolved) was used in each of the three studies made
in 1970. The basis of the method is the case-by-case (locality-by-
locality) documentations of facilities for municipal waste treatment.
[p. 9]
Results are incorporated in the Facilities Construction Program's
"Pending" File and are updated monthly with new and revised proj-
ect information received from the States.
As part of the perspective in "needs estimation," it is important to
point out that the costs depend on the level of treatment required.
Although State interstate water quality standards must be approved
by the Federal government, each State has latitude in setting goals for
intrastate waters and these goals greatly affect costs. Some States
have not yet received approval of their interstate standards, and some
do not have intrastate standards so investments approximated for
them are not as firm as for others. Other States, as a result of national
awareness of the environment, have reacted by upgrading both water
quality criteria and implementation schedules. The difference be-
tween Water Quality Office's January and July estimates is, in a way,
a measure of this increased response over a six-month period.
Additional information was gathered in the December assessment
(with special emphasis on data for major cities) so that a more de-
tailed analysis of the needs could be performed. In particular, esti-
mates were obtained on the volume of industrial waste associated with
the proposed construction, and on construction needed to comply with
water quality standards and enforcement actions.
[p. 10]
RESULTS OF ASSESSMENT
The results are summarized on the lists attached:
Attachment A—Estimates of Backlog of Needs for Construction of
Sewage Treatment Facilities (Estimates as of December 31, 1969)
-------
GUIDELINES AND REPORTS 3273
Attachment B—Estimated Cost of Construction of Municipal Sew-
age Treatment for the Period December 1970 Through June 1974
Attachment C—Percent Industrial Waste to be Treated by Projects
to be Initiated Through FY 1974 in Cities With Projects Costing $5
Million or More
Attachment D—Portion of Cost of Construction of Sewage Treat-
ment Facilities Through FY 1974, in Cities With Projects Costing $5
Million or More Related to Industrial Waste (By Flow)
Attachment E—Estimated Cost of Construction Through FY 1974,
According to Regulatory Requirements
DISCUSSION
As previously mentioned from an overall point of view the January
1970 figures were lower than the second two estimates. In fact, the
$10.2 billion projected in January would have been lower still had not
some of the States, at FWQA urging, prepared revised estimates based
on their own knowledge regarding shortcomings of their previously
reported estimates.
The $12.2 billion estimate obtained in July 1970 and projected
through FY 1974 represented an assessment in which individual com-
munity estimates for the first time, were given detailed scrutiny. The
$12.2 billion figure was revised to $12.6 billion on the basis of reassess-
ments made in December 1970 chiefly from cities planning the con-
struction of sewage treatment facilities costing $5 million or more (in
States without cities planning projects of this magnitude, the city
having the largest cost under $5 million was selected). A large part
of the total increase was accounted for in one major city—Chicago.
[p. 11]
From an overall point of view there are some general factors which
have had a pronounced effect on the quality and accuracy of the
estimates of construction needs. These factors include:
1. Availability of more Federal and State funds. The combination
of greatly increased levels of Federal appropriations and the establish-
ment by more States of matching grant programs has changed the
indebtedness requirements of many communities planning or required
to construct waste treatment facilities. Debt ridden cities can be more
responsive to meeting their needs in this area when their financial
requirements are reduced from 70% to 25% of the eligible cost of
construction. Communities have been more willing to define needs
and develop concrete plans for moving ahead with construction
programs.
2. Recognition of the need for better estimates. Just as the Federal
government, in the course of providing abatement needs, recognizes
-------
3274 LEGAL COMPILATION—WATER
the necessity for reliable assessments in order to better manage the
program from a financial point of view, so the States, which must
borrow or appropriate funds to meet expected matching grant re-
quirements, recognize a similar (if not greater) need for such ac-
curacy. The combination of pressures from these two directions is
helping to bring about the desired end—a more complete identification
of the needs and a more accurate estimate of the associated costs.
3. Imposition of new policies, standards, and regulations and their
effect upon individual States and cities. Federal and State water
quality standards, enforcement proceedings, basin planning and re-
gionalization requirements do not remain static nationwide, nor are
the timeframes fixed or unalterable. As a result, construction plans
and schedules must adjust to fit these changes, and almost without
exception the changes result in significant cost increases. Thus the
needs figure is a dynamic rather than static quantity.
4. Refinement of cost estimates as projects proceed to the construc-
tion stage. As a project proceeds from the conception to the construc-
tion stages, in addition to undergoing cost refinements, it may also
undergo changes in scope as well as in plant capacity or levels of
treatment. Clearly, such changes have an effect upon costs. Clearly,
too, the larger the project, the greater may be the cost changes.
[p. 12]
5. Cost increases in the construction industry. For example, un-
precedented cost increases in 1970, have resulted in an upward
revision of the previous year's figures.
In the main, the above general reasons account for the cost changes
during calendar year 1970 for the cities identified in the December
1970 assessment.
[p. 13]
COST EFFECTIVENESS AND INVESTMENT NEEDS
The December 1970, assessment indicated an investment need of
$12.6 billion. Consideration of the influence of better reviews to
assure cost-effective projects, better planning of waste management
systems and more rapid utilization of new technology in practical
situations led to a reduction of this need estimate to $12.0 billion in
planning the Federal program.
Our evaluation has revealed that relatively minor adjustments in
project features can yield equivalent waste treatment at a lower
cost. A few examples drawn from actual situations will illustrate
the potentials for better analysis of projects.
First, consider the case of three communities located sequentially
along the same river, with Community A lying upstream of B and B
-------
GUIDELINES AND REPORTS 3275
upstream of C. Communities B and C have adequate waste treatment
facilities; indeed Community C has excess capacity in its treatment
plant and Community B's facility, funded partially by a Federal grant
was explicitly designed to handle the wastes of upstream Community
A and approved on that basis. Subsequently Community A submit-
ted a grant application to fund an interceptor sewer to convey its
wastes to Community C's treatment plant, passing directly by the
previously intended treatment point at Community B. Apparently
there had been a local problem leading to a rift between A and B.
Analysis of this situation showed that this "falling out" would cost
an additional $1 million to be expended on a total project cost of $5.2
million. Returning to the original regional system concept would
show a saving of about 20% over reported needs.
A second case is even more simple in nature. A single community
applying for a grant assumed a growth in per capital sewage flows
y/z.% per year, whereas something on the order of Vz% would have
been more relevant to the situation. The difficulty lay in the fact that
the growth rate was only implicit in the application information re-
quiring thorough analysis to detect it. The project cost, using a more
reasonable rate of per capita sewage flow growth would be reduced
from $820,000 to about $615,000 or a saving of some 25% in what
would have been unused excess capacity. (See Volume II for a
detailed discussion of the overcapacity problem.)
A third illustration hinges on the time phasing of a regional system
development. Existing plans called for a series of local treatment
plants to be constructed now and abandoned at a specified date in the
[p. 15]
future at which time a centralized waste transmission and treatment
facility would be constructed. This might be a conclusion reached in
a situation where future growth was thought to be necessary to de-
velopment of a larger regional system to achieve economics of scale
in transmission. More careful analysis of this situation revealed that
a cost saving of 16% could be achieved by skipping over the local
treatment phase and moving immediately to the regional system.
These are only a few of the many examples which could be cited to
illustrate the point of investment need reduction by wider application
of cost-effectiveness measures. Implementation of the July 2, 1970,
regulations dealing with adequate planning on both a basin and utility
system basis as well as the planning guidelines issued on January 29,
1971, are important steps toward achieving better utilization of the
investment dollar. Design, operation and maintenance guidelines
issued initially in September 1970, and to be supplemented by timely
technical guidelines will serve to further enhance productivity of the
-------
3276 LEGAL COMPILATION—WATER
waste facility investment dollar. Continued efforts in this direction
are underway in the Environmental Protection Agency as a realiza-
tion of the significant effort that must be devoted to a major public
policy problem of the 1970's—efficient investment of the greatly in-
creased resources proposed to be invested in waste treatment
facilities.
[p. 16]
-------
GUIDELINES AND REPORTS 3277
ATTACHMENT A ... ,
Estimates of Backlog of Needs for " .
Construction of Sewage Treatment Facilities' construct/on
[Estimates as of December 31,1969] '
Totals [[[ $10,217,076
Alabama [[[ 35,000
Alaska [[[ 12,025
Arizona [[[ 86,000
Arkansas [[[ 32,052
California [[[ 651,843
Colorado [[[ 133,000
Connecticut [[[ 280,470
Delaware [[[ 28,000
Dist. of Columbia [[[ 355,000
Florida [[[ 200,000
Georgia [[[ 150,000
Hawaii [[[ 14,442
Idaho [[[ 493
Illinois [[[ 437,225
Indiana [[[ 152,585
Iowa [[[ 33,334
Kansas [[[ 61,000
Kentucky [[[ 62,598
Louisiana [[[ 140,000
Maine [[[ 140,924
Maryland [[[ 236,900
Massachusetts [[[ 438,045
Michigan [[[ 253,683
Minnesota [[[ 136,265
Mississippi [[[ 40,000
Missouri [[[ 390,000
Montana [[[ 13,455
Nebraska [[[ 62,000
Nevada [[[ 28,550
New Hampshire [[[ 138,000
New Jersey [[[ 880,000
New Mexico [[[ 9,913
-------
3278 LEGAL COMPILATION—WATER
ATTACHMENT B
Estimated Cost1 of Construction of Municipal Sewage Treatment Works
For the Period December 1970 through June 19742
[million dollars]
Totals $12,565.2
Alabama 27.0
Alaska 28.1
Arizona 51.0
Arkansas 42.0
California 737.5
Colorado 47.4
Connecticut 229.5
Delaware 62.0
Dist. of Columbia 347.2
Florida 444.2
Georgia 74.0
Hawaii 50.8
Idaho 14.5
Illinois : 1,043.6
Indiana 174.8
Iowa 111.9
Kansas 52.7
Kentucky 117.0
Louisiana 132.7
Maine 157.4
Maryland 349.7
Massachusetts 422.6
Michigan 788.8
Minnesota 295.2
Mississippi 34.1
Missouri 268.2
Montana 31.4
Nebraska 49.0
Nevada 47.2
New Hampshire 137.8
New Jersey 1,308.7
New Mexico 19.6
New York 1,721.0
North Carolina 125.3
North Dakota 8.4
Ohio 733.5
Oklahoma 69.8
Oregon 78.6
Pennsylvania 616.4
Rhode Island 37.7
South Carolina 57.6
South Dakota 13.5
Tennessee 88.9
Texas 398.7
Utah 22.6
Vermont 38.0
Virginia 280.1
Washington 216.3
West Virginia 51.4
Wisconsin 190.8
Wyoming 1.7
Guam 9.7
Puerto Rico 93.0
Virgin Islands 14.6
' Based on 1970 dollars.
1 Excluding Storm Water Overflow Facilities.
[p. 18]
-------
GUIDELINES AND REPORTS
3279
ATTACHMENT C —PERCENT INDUSTRIAL WASTE TO BE TREATED BY PROJECTS TO BE INITIATED
THROUGH FY 1974 IN CITIES WITH PROJECTS COSTING $5 MILLION OR MORE
0-30
percent
31-50
percent
51-70
percent
71-100
percent
Total
projects
Totals 787
Alabama 1
Alaska 7
Arizona 7
Arkansas 8
California 146
Colorado 5
Connecticut 11
Delaware 3
Dist. of Columbia 5
Florida 38
Georgia 1
Hawaii 6
Idaho 1
Illinois 25
Indiana 10
Iowa 5
Kansas 4
Kentucky 3
Louisiana 26
Maine 2
Maryland 50
Massachusetts 15
Michigan 21
Minnesota 19
Mississippi 1
Missouri 21
Montana 1
Nebraska 4
Nevada 7
New Hampshire 3
New Jersey 43
New Mexico 3
New York 47
North Carolina 5
North Dakota 1
Ohio 38
Oklahoma 11
Oregon 8
Pennsylvania 23
Rhode Island 2
South Carolina 4
South Dakota —
Tennessee 2
Texas 71
Utah 2
Vermont 1
Virginia 37
Washington 7
West Virginia 1
Wisconsin 10
Wyoming 1
Guam 1
Puerto Rico 12
Virgin Islands 1
54
22
10
'873
17
4
1
7
7
8
150
5
14
3
5
39
3
6
1
44
10
12
4
4
26
4
50
22
26
19
1
21
2
4
7
8
50
3
51
10
1
42
11
8
23
2
4
1
2
71
2
1
39
8
1
15
1
1
12
1
1 Excludes 6 projects which provide storm overflow treatment only.
[P-19]
-------
3280
LEGAL COMPILATION—WATER
ATTACHMENT D.—PORTION OF COST OF CONSTRUCTION OF SEWAGE TREATMENT FACILITIES
THROUGH FY 1974 IN CITIES WITH PROJECTS COSTING $5 MILLION OR MORE
RELATED TO INDUSTRIAL WASTE (BY FLOW) '
[million dollars]
Total cost
Industrial share
Totals 9,302.9
1,629.5
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Dist. of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky ,
Louisiana
Mains
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Guam
Puerto Rico
Virgin Islands
5.9
16.9
19.2
16.1
475.4
43.5
175.7
35.5
347.2
347.9
33.1
27.8
3.1
914.6
72.0
80.4
28.5
65.3
92.4
, 71.3
287.9
282.6
584.8
238.2
6.0
239.4
12.0
33.7
38.8
97.4
1,283.8
11.2
1,337.0
49.7
1.5
580.7
36.3
64.4
172.7
12.0
9.2
5.0
44.7
329.5
2.6
2.2
213.9
140.0
6.0
213.9
6
1.9
88.4
3.1
.6
0
.9
0
67.7
0
38.3
4.3
0
15.0
8.4
2.3
0
316.7
10.0
37.1
0
11.6
0
12.5
1.6
76.7
117.1
50.1
1.1
43.3
3.7
0
1.8
58.3
380.1
0
141.0
5.8
0
74.0
0
9.1
24.4
2.6
0
3.0
11.2
0
.4
0
22.1
5.2
.6
66.0
0
0
4.1
.8
1 Excluding cost of treating storm water overflow facilities.
[P. 20]
-------
GUIDELINES AND REPORTS
3281
ATTACHMENT E—ESTIMATED COST OF CONSTRUCTION THROUGH FY 1974'
ACCORDING TO REGULATORY REQUIREMENTS
[million dollars]
"B"
Other
Total
Totals 5,483.2 2,141.3 874.9 4,065.8 12,565.2
Alabama 27.0 27.0
Alaska 28.1 28.1
Arizona 51.0 51.0
Arkansas 29.0 13.0 42.0
California 129.1 608.4 737.5
Colorado 47.4 47.4
Connecticut 229.5 229.5
Delaware 25.1 36.9 62.0
Dlst. of Columbia 347.2 347.2
Florida 154.6 74.6 215.0 444.2
Georgia 61.0 13.0 74.0
Hawaii 50.8 50.8
Idaho 14.5 14.5
Illinois 914.2 63.7 65.7 1,043.6
Indiana 23.1 66.1 48.6 37.0 174.8
Iowa 111.9 111.9
Kansas 48.8 3.9 52.7
Kentucky 105.3 11.7 117.0
Louisiana 39.0 93.7 132.7
Maine 88.1 69.3 157.4
Maryland 49.0 109.1 191.6 349.7
Massachusetts 385.0 37.6 422.6
Michigan 518.2 41.0 229.6 788.8
Minnesota 186.0 109.2 295.2
Mississippi 34.1 34.1
Missouri 225.3 42.9 268.2
Montana 31.4 31.4
Nebraska 31.7 17.3 49.0
Nevada 40.9 6.3 47.2
New Hampshire 120.4 7.2 10.2 137.8
New Jersey 999.9 157.0 151.8 1,308.7
New Mexico 14.5 5.1 19.6
New York 432.0 509.4 141.1 638.5 1,721.0
North Carolina 125.3 125.3
North Dakota 84 8.4
Ohio 112.9 470.2 49.9 100.5 733.5
Oklahoma 69.8 69.8
Oregon 60.1 1.3 17.2 78.6
Pennsylvania 616.4 616.4
Rhode Island 37.7 37.7
South Carolina 13.8 43.8 57.6
South Dakota 13.5 13.5
Tennessee 88.9 88.9
Texas 398.7 398.7
Utah 22.6 22.6
Vermont 38.0 38.0
Virginia 43.4 111.2 28.9 96.6 280.1
Washington 210.0 6.3 216.3
West Virginia 51.4 51.4
Wisconsin 145.6 45.2 190.8
Wyoming 1-7 1.7
Guam 9.7 9.7
Puerto Rico 93.0 93.0
Virgin Islands ".6 14.6
> Excluding Storm Overflow Facilities.
"A" Implementation plans
"B" Enforcement actions
"C" State orders or other State regulatory requirements
[p. 21]
-------
3282 LEGAL COMPILATION—WATER
VOLUME II
CONTENTS
Introduction . 1
Investment in 1970 and the National Goal .. 3
The Capitalization of Waste Treatment Facilities .. . 13
Trend of Waste Discharges . . . .... . . . 25
Prevalence and Sources of Water Pollution . 45
Diseconomies in Public Waste Management Facilities . ... ... 67
Operation and Maintenance Costs . . .. 87
Planning Decisions and Institutional Behavior . 103
Appendix A—Survey Questionnaire Study of Water
Pollution Abatement Costs ... 121
LIST OF TABLES
1. The Investment Picture, 1969 and 1970 4
2. Individual States' Assessment of Five Year
Capital Requirements 1969 and 1970 . 5
3. Fluctuations in State Estimates of Capital
Needs June 1970 and December 1970 6
4. Industrial Investment in Air and Water Pollution Control 8
[p. vii]
5. Components of National Sewered Waste Discharge, 1968 . . 12
6. Distribution of Municipal Waste Treatment Techniques, 1962 and 1968 13
7. Estimated Investment for Waste Treatment Works, 1952-1968 ... 15
8. Federal Construction Grants Related to Public Construction Activity 19
9. Annual Value of Federally Assisted Waste Treatment
Works Construction . .... . . .... 21
10. Effective Rate of Recapitalization, 1962-1968 . 23
11. Estimated Increase in Gross Production of BOD5, 1957-1968 . . 29
12. Estimated Increase in Phosphorus Discharged as Municipal Sewage . 34
13. Projected Interaction of Technological Limits
and Existing Rates of Waste Increases . 36
14. Components of Change in Production of Two Major Pollutants 39
15. Net Shift—In Terms of 1962 Population Served—
In Waste Treatment Plant Size and Type, 1962-1968 43
16. Disposition of Increases in Two Major Pollutants, 1964-1968 44
17. Aspects of Regional Sewage Services, 1968 . . . . ... 54
18. Generalized Prevalence of Pollution, 1970 56
19. Prime Causes Stream Pollution, All Second Order Watersheds . . 59
20. Prime Causes of Stream Pollution, by Extent of Pollution . 62
21. Relative Growth of Population and Sewer Service, 1962-1968 68
[P. viii]
22. Calculated Increase in Sanitary Waste Discharge Directly Attributable
to Accelerated Sewering—Northeastern States, 1962-1968 . ... 70
23. Regional Distribution of Utilization Rates, 1968 ... ... 74
24. Shifts in Utilization of Waste Treatment Capacity, 1962-1968 76
25. Utilization of Metropolitan and Non-Metropolitan
Waste Treatment Capacity, 1968 .. 78
26. Capital Penalties of Under-Utilization . 80
27. Distribution of Waste Treatment Investments, 1962-1968 82
-------
GUIDELINES AND REPORTS 3283
28. Estimated Operating and Maintenance Cost Penalties for
Plants Operating at Less Than Full Capacity . , 97
29. Incidence of Operating and Maintenance Costs
Penalties by Utilization Classes, 1968 . 98
30. Interest Penalties in $Millions for 1968 101
31. Statistical Relationships Between Capacity Utilization and the
Ratio of Peak Load to Average Daily Flow .. .119
LIST OF FIGURES
1. Relationship of Treatment Plant Size to Per-Capita Waste Loading .. 4
2. Second Order Drainage Systems Classified by
Prevalence of Water Pollution . ... 49
3. Regional Configurations . . . .. .50
4. National Water Quality Assessment .... 53
5. Relative Population Growth Expansion by Class of
Community Based on 1950-1960 73
6. Unit Cost Curves for Primary Plants .. . ... . 90
[p. ix]
7. Unit Cost Curves for Trickling Filter Plants . 91
8. Illustration of a Penalty Cost for Activated Sludge Plants . 93
9. Unit Costs and Utilization of Capacity . . 94
10. Replacement Value of Treatment Plant Capacity
in 1962 and 1968 in $Billions . . .... 100
11. Unit Cost Curves for Design Capacities ... . 116
[P.x)
COST EFFECTIVENESS AND CLEAN WATER
INTRODUCTION
This is the fourth in a series of reports to the Congress that have
been prepared in compliance with Section 26 (a) of the Federal Water
Pollution Control Act, as amended, that directs that the Administrator
of the Environmental Protection Administration "make ... a compre-
hensive analysis of the national requirements for and the cost of
treating municipal, industrial, and other effluents to attain . .. water
quality standards ... established pursuant to this Act or applicable
State law."
Previous studies have examined the total amount and the distribu-
tion of waste treatment requirements for public agencies and for in-
dustry, and have considered, to the extent that information and
programs were developed, the kinds and costs of controls that might
be directed at non-sewered pollutants.
The data which have been presented and analyzed in the previous
reports have been addressed to normative rates of investment on a
national basis, although last year's report began to investigate regional
differences in costs. Data available then as well as new data provided
the Agency by States in the past year show wide disparities in unit
-------
3284 LEGAL COMPILATION—WATER
prices. Indicated per capita investment requirements reported by the
States for municipal waste treatment over the next five years range
from almost $500 to less than $10.
Over the last decade, the nation has almost doubled its waste treat-
ment capitalization and will double it again in the next five years. Yet
the public hears little of accomplishment, and, quite the contrary is
often led to believe that little has been done to control sewered wastes.
An immutable tendency seems to be that as Federal financial as-
sistance and investment increases, physical plant expands; and as
physical plant expands, the volume of capital needs involving Federal
financial assistance also expands. The more we invest, the more we
seem to need to invest. The reasons for and effects of factors causing
this are discussed in Volume I.
But it is also possible that much of the capital need flows from
institutional inefficiencies at all levels of government, that some of the
increase in costs of pollution abatement could be controlled by more
efficient utilization of capital, and that more rapid progress in pollu-
tion abatement could be achieved by alternative investment
arrangements.
[P.I]
This volume of the report, then, considers the question of efficiency,
directing its attention to: 1) the distribution of investments as com-
pared to the distribution of polluting activities and the location of
water pollution: 2) the results of municipal and industrial waste
treatment investments made over the life of the Federal construction
grant program, in terms of reduction of oxygen demand and nutrients
in sewage; 3) avoidable increase in local operating, maintenance,
financing, and overhead costs of waste treatment; and 4) the question-
able strategy of making use of investment capital essentially to fore-
stall some future needs, and at the same time permitting the
persistence of existing treatment system deficiencies.
[p. 2]
INVESTMENT IN 1970 AND THE NATIONAL GOAL
A significant change in the conduct of water pollution control
programs took place in 1970, when the Federal Government estab-
lished a distinct objective for programs in support of public waste
treatment. The program was intended to "provide every community
that needs it with secondary waste treatment, and also special addi-
tional treatment in areas of special need ...". From this posture, to be
met in a five-year period, can be inferred the attainment of a condition
in which required investments for waste treatment and related pur-
poses (i.e., projects entitled to Federal assistance under Public Law
84-660) would be no greater in any year than the amount of the
-------
GUIDELINES AND REPORTS 3285
requirements generated in that year. On the basis of exhaustive
analysis involving two parallel studies that employed widely different
methods—macroeconomic projection of the interaction of demand
constituents on the one hand, inventorying of locally determined
construction requirements on the other—it was determined that no
less than $2 billion a year of investment must be elicited over the five
years 1970 to 1974 if the goal were to be attained. Descriptions of these
analyses were transmitted to the Congress in the March, 1970 report,
The Economics of Clean Water. That report emphasized that the
amount of necessary expenditure was not fixed, but rather was a
consequence of a series of functions, including price level changes,
technological mixes, resource availability, and—most significant of all
—the annual rate of investment.
As indicated in Volume I, during the course of the year 1970 it be-
came obvious that several conditions were acting to upset the resolu-
tion of the proposed $10 billion investment program. These include
more stringent treatment requirements, improved perception of needs,
refinements of estimates and construction sector inflation.
At the same time and in spite of the availability of expanded Federal
and State financial assistance, investment in 1970 did not achieve the
$2 billion annual level thought to be required to sustain progress
toward the provisional five-year goal of complete availability of waste
treatment services compatible with water quality standards. By the
end of 1970, over $3 billion of Federally assisted works were under
construction, and about $1.2 billion worth of Federally assisted proj-
ects were begun during the year—up from $865 million in 1969. But
neither value could be considered sufficient to sustain progress toward
the targeted goal. Table I shows a comparison of actual events in
1970 with those of 1969.
[p. 3]
TABLE I.—THE INVESTMENT PICTURE 1969 AND 1970
[Million dollars]
1969 1970
Works under construction 2224 3398
New starts 937 1174
Completions 375 187
Most of the States seem to be recognizing the impact of these events
on their own circumstances. Each State was requested during June
1970 to estimate on a point by point basis the desirable level of capital-
ization of waste treatment works for the four fiscal years 1971 through
1974 as described in Volume I.
Faced with a similar request in 1969, the States had estimated a
-------
3286
LEGAL COMPILATION—WATER
total need for $10.2 billion of investment capital over five years. In
June 1970, they expressed a collective need for $12.2 billion—but in
four years, (cf. Table 3). A more recent survey taken as of Decem-
ber 1970 shows a total need of $12.6 billion somewhat higher than the
$12.2 billion estimate. The December 1970 estimates are shown in
Table 3.
A careful State-by-State review of the data summarized in Tables
2 and 3 suggests that there may be a significant amount of uncertainty
involved in local estimates of needs. In the course of a single year,
ten States' estimates of need increased by 100% or more, in spite of
investment occurring in the year. Granted that the scheduling of
particular, large projects will have a significant effect on the distribu-
tion of requirements in any period, it seems unlikely that one State
in five would suddenly feel that need to initiate projects of such
significant magnitude in a single year. Rather, it would appear that
there were either real changes in conditions, or that much of what was
required in 1969 was simply overlooked in that year.
On the brighter side, sixteen States provided capital estimates that
suggest that they have reduced their backlog of needed works during
1970. Fewer dollars will be required, if their estimates are good, to
improve and maintain their public waste handling systems in the four
years 1971 to 1974 than in the five years 1970 to 1974. In addition, nine
States held their own, in the sense that their projected levels
[p. 4]
TABLE 2.—INDIVIDUAL STATES' ASSESSMENTS OF CAPITAL REQUIREMENTS, 1969 AND 1970
Location
California
Oregon
Pacific Coast
Iowa . . . ....
Minnesota
Missouri
Nebraska
North Dakota
South Dakota
Wyoming
Arizona
Arkansas
Kansas
Indicated FY
1971-4 Needs
$Mil- $Per-
lions Capita*
922 79
11 44
. 57 86
. . . 104.65
214.74
1311.48
66.77
161.67
... 327 10
. 15 67
74.70
7.55
17.25
1.80
672 51
78.75
30.50
45.10
61.80
47.81
16.27
128.87
52.12
65.55
50.96
24.07
44.33
70.72
22.62
51.91
12.04
26.30
5.71
45.51
47.36
15.36
22.08
26.95
Indicated FY
1970-4 Needs
$Mil- $Per-
lions Capita*
651.8
0.5
28.6
135.0
160.0
975.9
33.3
136.3
390.0
13.5
62.0
22.0
27.0
12.0
696.1
86.0
33.0
133.0
61.0
33.77
0.71
63.97
67.23
48.84
37.92
12.00
37.37
84.32
19.48
43.09
35.09
41.16
38.10
47.11
51.71
16.62
65.10
26.60
%
Change
In Annual
Net Change Per-
$Mil- $Per- Capita
lions Capita* Needs
+271.0
+ 10.9
+ 29.3
-30.4
+ 54.7
+ 335.5
+ 33.5
+ 25.4
-62.9
+ 2.2
+ 12.7
-14.5
-9.8
-10.2
236
-7.3
-2.5
-87.9
+ 0.8
+ 14.04
+ 15.56
+65.17
-15.11
+ 16.71
+ 13.04
+ 12.07
+ 6.96
-13.60
+ 3.17
+ 8.83
-23.05
-14.86
-32.38
-1.60
-4.36
-1.26
— 43.03
+ .35
77
2764
152
-3
50
68
151
48
5
45
51
-57
-20
-81
21
14
16
— 58
27
-------
GUIDELINES AND REPORTS
3287
Indicated FY
1971-4 Needs
Location
New Mexico
Oklahoma
Texas
Utah
Southern Plains
Alabama
Florida
Georgia
Kentucky
Louisiana
Mississippi
North Carolina
South Carolina
Tennessee
Virginia
Southeast
Delaware
District of Columbia
Illinois
Indiana
Maryland
Michigan
Ohio
West Virginia
Wisconsin
Central
Connecticut
Maine
Massachusetts
New Hampshire
New Jersey
New York
Pennsylvania
Rhode Island
Vermont
Northeast
Alaska
Guam
Hawaii
Puerto Rico
Virgin Islands
Non-Contiguous . . .
U.S. total
SMil-
lions
10.60
78.80
5;'3.7fl
CI3.67
912.92
45.45
4S7.10
i;'7.62
1)4.59
102.00
42.96
l;!2.02
!i8.29
1118.08
2:>0.70
1518.81
153.20
3.50.50
635.27
151.17
247.68
690.69
442.32
49.87
139.88
28l>0.58
231.60
137.90
470.40
163.15
1187.60
1859.80
567.07
43.30
41.20
4702.02
35.89
14.23
82.55
61.95
16.56
yil.it
121 89.48
$Per-
Caplta*
10.54
31.27
52.26
32.56
38.81
12.77
74.31
38.88
29.38
43.48
18.33
23.82
21.88
34.74
48.03
38.04
118.35
470.33
63.26
29.87
65.98
79.04
41.78
27.67
33.14
61.52
78.16
141.29
86.01
232.41
167.43
102.88
48.35
47.37
96.94
97.25
130.97
18.97
105.84
22.75
44.76
43.12
60.62
Indicated FY
1970-4 Needs
SMil-
lions
9.9
65.3
525.0
11.7
924.9
35.0
200.0
150.0
62.6
140.0
40.0
69.3
75.0
105.5
151.0
1028.4
28.0
355.0
437.2
152.6
236.9
253.7
432.5
44.3
243.7
2183.9
280.5
140.9
438.0
138.0
880.0
1900.1
432.0
51.5
70.0
4331.0
12.0
6.2
14.4
28.9
15.4
76.9
10217.1
$Per-
Capita*
9.84
25.91
47.83
11.32
39.32
9.39
32.52
32.84
19.44
37.57
17.06
13.53
28.15
26.54
32.86
28.61
52.43
438.81
39.78
30.15
63.11
29.03
40.85
24.58
57.74
46.97
94.67
144.36
80.09
196.58
124.07
105.11
36.83
56.35
164.71
89.58
43.80
8.27
18.46
10.61
41.62
18.68
50.81
%
Change
in Annual
Net Change
$Mil-
lions
+ 0.7
+ 13.5
+ 48.7
+ 22.0
-12.0
+ 10.5
+ 257.1
+ 27.6
+ 32.0
+ 22.0
+ 3.0
+ 52.7
— 16.7
+ 32.6
+ 69.7
+ 490.5
+ 35.2
+ 25.5
+ 258.1
— 1.4
+ 10.8
+ 437.0
+ 9.8
+ 5.6
-103.8
676.8
-48.9
-3.0
+ 32.4
+ 25.2
+ 307.6
-40.3
+ 135.1
— 8.2
— 28.8
+ 371.1
+ 23.9
+ 8.0
+ 68.2
+ 33.1
+ 1.2
+ 134.4
+ 1972.4
$Per-
Capita*
+ .70
+ 5.36
+4.44
+ 21.25
-.51
+ 2.94
+ 41.80
+ 6.05
+ 9.93
+ 5.90
+ 1.26
+ 10.29
-6.27
+ 8.20
+ 15.17
+ 13.64
+ 65.92
+ 31.52
+ 23.48
— .28
+ 2.87
+ 50.00
+ .93
+ 3.09
-24.60
14.55
-16.50
-3.07
+ 5.92
+ 35.83
+ 43.37
-2.23
+ 11.52
— 8.97
-67.76
+ 7.68
+ 87.19
+ 10.71
+87.37
+ 12.14
+ 3.14
+ 32.65
+ 9.81
Per-
Capita
Needs
34
51
37
260
23
70
186
48
89
45
34
120
-3
64
83
66
182
34
99
24
31
240
28
41
-28
64
3
22
34
48
69
22
64
5
-26
36
274
187
617
168
34
189
49
U.S. Bureau of Census Estimate of 1968 Population
[p. 5]
-------
3288
LEGAL COMPILATION—WATER
TABLE 3. —FLUCTUATIONS IN STATE ESTIMATES OF CAPITAL NEEDS
JUNE 1970 AND DECEMBER 1970
(Million Dollars)
Location
June 1970
Indicated FY 1971-4 Needs
December 1970
% Change
Needs Increase >75%:
Montana 15.67
New Mexico 10.60
Minnesota 161.67
Needs Increase 50-74.9%:
Iowa 66.77
Ohio 442.32
Illinois 695.27
Puerto Rico 61.95
Needs Increase 25-49.9%:
Maryland 247.68
Arkansas 30.50
Wisconsin 139.88
Virginia 220.70
Idaho 11.44
Needs Increase 10-24.9%:
Kentucky 94.59
Indiana 151.17
Michigan 690.69
Maine 137.90
North Dakota 7.55
New Jersey 1187.60
Needs Increase 5.1-9.9%:
Pennsylvania 567.07
Colorado 45.10
Needs Change ±5%:
West Virginia 49.87
North Carolina 122.02
Washington 214.74
Connecticut 231.60
South Carolina 58.29
Delaware 63.20
Florida 457.10
Needs Decrease 5.1-10%:
Wyoming 1.80
New York 1859.80
Vermont 41.20
District of Columbia 380.50
Needs Decrease 10.1-25%:
Massachusetts 470.40
Oklahoma 78.80
Virgin Islands 16.56
Rhode Island 43.30
Kansas 61.80
New Hampshire 163.15
Missouri 327.10
Louisiana 162.00
Nevada 57.86
California 922.79
Mississippi 42.96
Alaska 35.89
South Dakota 17.25
Oregon 104.65
31.4
19.6
295.2
111.9
733.5
1043.6
93.0
349.7
42.0
190.8
280.1
14.5
117.0
174.8
788.8
157.4
8.4
1309.7
616.4
47.4
51.4
125.3
216.3
229.5
57.6
62.0
444.2
1.7
1721.0
38.0
347.2
422.6
69.8
14.6
37.7
52.7
137.8
268.2
132.7
47.2
737.5
34.1
28.1
13.5
78.6
100.4
84.9
82.6
67.6
65.8
50.1
50.1
41.2
37.7
36.4
26.9
26.7
23.7
15.6
14.2
14.1
11.3
10.2
8.7
5.1
3.1
2.7
0.7
-0.9
-1.2
-1.9
— 2.8
-5.6
-7.5
-7.8
-8.8
-10.2
-11.4
-11.8
-12.9
-14.7
-15.5
-18.0
-18.1
-18.4
-20.1
-20.6
-21.7
-21.8
-24.9
-------
GUIDELINES AND REPORTS 3289
Location
Needs Decrease >25.1%:
Texas
U.
Utah
Nebraska
Arizona
Hawaii
Alabama
Georgia
S TOTALS ....
June 1970
573.70
.... 14 23
. . 33.67
74 70
78.75
138 08
82.55
45.45
177.62
12 189.48
Indicated FY 1971-4 Needs
December 1970
398.7
9.7
22.6
49.0
51.0
88.9
50.8
27.0
74.0
12,565.2
% Change
-30.5
— 31.8
— 32.9
-34.4
-35.2
-35.6
-38.5
-40.6
-58.3
3.1
[p. 6]
of expenditures did not increase more than indicated by the impact
of 1970 inflation—9.8%, given the normal mix of transmission and
treatment plant investment. Twenty-five of the fifty-four States (i.e.,
fifty States, plus the District of Columbia, Guam, Puerto Rico, and
the Virgin Islands) reduced or maintained the backlog of needed
works, while twenty-nine indicated that backlogs increased during
1970.
Due to the changeable nature of the State-by-State estimates made
in 1969 and 1970 it seems reasonable to conclude that the $12.6 billion
estimate in Table 3 does not represent a fixed estimate of investment
need. As discussed in following chapters it appears that cost-effective
opportunities exist which, if carefully implemented, could result in
substantial overall savings for the nation. These chapters describe
various practices and policies which affect cost. It is clear from these
estimates showing a $2.4 billion increase over the 1969 estimate, that
annual investment will have to be accelerated above the $2 billion
level deemed necessary in the last years report.
As in previous years, estimates of industrial capital expenditures
were available only from sources outside of government. Perhaps the
best of these is the McGraw-Hill survey, conducted annually as a
portion of that service's quarterly capital spending survey. The
report's results—which do not distinguish between air and water
pollution control investments—are contained in Table 4.
There are some interesting features hidden in the data. First actual
investments reported for 1968 are somewhat above the investments
previously reported for that year. Presumably, the deviation results
from the process of extrapolating from a differently constituted
sample. Though not a significant difference (7.2% for the manufac-
turing sector), the fact of difference indicates some of the difficulties
involved in dealing with these very slippery facts. Second, actual
investments reported for 1969 are 15% higher than planned for that
year—almost an exact reversal of the previous year, when outlays
-------
3290 LEGAL COMPILATION—WATER
did not meet initial intentions. Perhaps the easing of the capital
spending boom eliminated delivery and construction bottlenecks—
or perhaps the differences are attributable to sampling variability.
While the McGraw-Hill survey provides no information with respect
to the distribution of expenditures for air pollution control vs. water
pollution control, another source, the National Industrial Conference
Board, does make that distinction. Unfortunately, the NICB's most
recent survey was for the year 1968, and so is of less immediate
interest than the McGraw-Hill report. It may be considered signifi-
cant, however, that the NICE data corroborate a steady upward trend
in total industrial investment for environmental pollution control.
[p. 7]
TABLE 4. —INDUSTRIAL INVESTMENT IN AIR AND WATER POLLUTION CONTROL McGRAW-HILL SURVEY
Millions of Dollars
Textiles
Manufacturing
total
'Normalized
Water
Component
48%
NA
60%
20%
40%
NA
48%
65%
50%
48%
75%
55%
NA
50%
1967
130
43
46
76
48
45
92
94
102
7
42
53
785
1968
119
15
113
54
40
68
109
82
10
170
9
23
20
832
1969
179
41
83
92
63
172
140
143
9
260
10
58
31
1281
1970 (Planned)
199
84
149
120
95
163
226
184
20
205
23
91
57
1614
Electric and gas
Utilities NA 215 244 285 544
Mining NA 66 56 105 126
1 Based on series of NICE surveys and not a part of the McGraw-Hill report.
[p. 8]
They also suggest that a steadily decreasing share of that investment
goes into water pollution abatement facilities. From 55% in 1962,
water's share has dropped to 50% of manufacturing outlays in 1968;
and some of the larger and more significant industrial components—
primary metals, petroleum, and chemicals—now would seem to de-
vote less than half of their pollution control investment to water
pollution purposes. Whether the phenomenon is due to a more
stringently enforced set of regulations or to a more fully available
set of wastewater treatment controls it is impossible to say, given our
-------
GUIDELINES AND REPORTS 3291
limited existing knowledge of industrial waste treatment facilities
and investment.
It is expected that the recently initiated National Industrial Waste
Inventory will improve our base of knowledge in the industrial sector.
The next report in this clean water series should be able to provide
an assessment of the progress made toward control of industrial
wastes. In addition to the data which will become available through
the inventory, the study being conducted for the Environmental
Protection Agency, Water Quality Office by the National Industrial
Conference Board will provide investment information on industrial
waste treatment facilities in place and planned for the future. This
report should be completed during the middle of calendar year 1971.
[p. 9]
THE CAPITALIZATION OF WASTE TREATMENT FACILITIES
SITUATION
Aggregate daily waste production and discharge, in terms of five
day biochemical oxygen demand (BOD5), are estimated to have a
configuration approximately like that shown in Table 5. Mean waste
production is estimated to be over 120 million pounds per day, and
mean discharge 45 to 50 million pounds per day, thirty percent reach-
ing water through the outfalls of public systems in standard metro-
politan statistical areas, Jive percent occurring through the discharges
of communities outside SMSA's, sixty-five percent occurring through
separately discharging factories. Over-all effectiveness of waste
treatment is estimated to amount to greater than sixty percent
reduction of BOD, or very close to seventy percent of theoretical limits
for conventional waste treatment; and reduction of oxygen demand of
sanitary sewage approaches 65%. (cf. Table 6.)
Those relationships represent a substantial, though generally un-
recognized, accomplishm ent of the American economy. Consider the
situation. When World War II ended, less than 75 million Americans
were provided with sewer services, compared to 140 million today.
And of those 75 million, roughly 30 million—or forty percent—were
discharging raw wastes. Industrial waste treatment simply did not
exist in 1945, except as provided by light industry attached to sewers
in communities that happened to supply waste treatment. While we
have no information or. either the distribution of waste treatment
techniques or the volume of industrial waste, it is not unreasonable to
assume that no more than half of municipal waste treatment capacity
represented secondary treatment and the professional judgement of
the period included the* assessment that industrial wastes were as
-------
3292 LEGAL COMPILATION—WATER
great in volume as domestic (probably a considerable underestimate,
in the light of later knowledge). Using such crude estimates, the
aggregate level of BOD reduction could have been little more than
16% to 33% of domestic waste strength, and nothing for an equal
volume of industrial wastes.
Between 1945 and 1968, then, the economy increased the relative
effectiveness of its waste treatment fourfold, in the face of an expan-
sion of waste production that may have amounted to as much as
390% of the 1945 level. Certainly that investment program must
stand beside highway construction and physical expansion of educa-
tional facilities as an accomplishment, though the latter phenomena
have received a great deal of attention, while the expansion of waste
treatment has gone almost unnoticed. Here, however, the discussion
relates only to the significant magnitude of construction works. As
shall be discussed later, this same significance does not carryover to
change in pollutants discharged to the nation's water's.
[p. 11]
-------
GUIDELINES AND REPORTS
3293
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3294
LEGAL COMPULATION—^
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-------
GUIDELINES AND REPORTS 3295
Much of the expansion of waste treatment services has taken place
fairly recently. Between 1945 and 1949 incremental waste treatment
service reached only 2 million persons, and public works activities
of all types were slow paced during the Korean War. But from 1952
to the present, outlays for construction of waste treatment plants and
related works have increased in almost every year. (cf. The Cost of
Clean Water and Its Economic Impact, U.S.D.I., January 1969, Tables
4, 5). In sum, that investment is estimated to have exceeded $16
billion at this writing.
The general dimensions of the investment, through 1968, are sum-
marized by source in Table 7. Some of the obvious aspects of the
current investment picture come into clear relief when arrayed in
this form:
(1) The major burden of investment has been borne by public
agencies, and particularly by those located in standard metropolitan
statistical areas where almost 70% of U.S. population is concentrated.
(2) A significant portion of the higher investment by the public
sector may be ascribed, to the necessity of transmitting wastes to and
from treatment plants. The network of interceptor sewers, pumping
stations, and outfalls required in connection with the waste treatment
process accounts for 70% of investment in metropolitan areas, and
almost 25% in nonmetropolitan urban areas and in rural communities.
(3) Unit investments vary sharply between metropolitan, non-
metropolitan, and industrial waste sources. The pattern follows
closely the relative volume of wastes from the three sources, in that
the more significant the waste-producing category, the less must be
invested to achieve a given degree of treatment effectiveness, since—
as Table 5 indicates—the aggregate degree of treatment is estimated
to be approximately the same for metropolitan areas, non-metropol-
itan areas, and for industry. Those relationships are largely deter-
mined by some basic condition sets that have been examined at length
in earlier reports in this series. (See The Economics of Clean Water,
U.S.D.I., FWQA March 1970.)
(a) The relative efficiency, in terms of unit cost of removal, dis-
played by metropolitan area and industrial waste treatment systems
arises in part from the obvious economies of scale available to them.
Concentrated wasteloads, either expressed as number of people avail-
able within the reach of a given treatment plant, or in terms of the
volume of wastes of a given factory, reduce fixed costs per unit.
(b) Industry, in particular, may enjoy scale advantages, in that
the smaller manufacturing unit within the reach of a public system
usually has the option of connecting to that system when the cost of
[p. 14]
-------
3296 LEGAL COMPILATION—WATER
TABLE 7. —ESTIMATED INVESTMENT FOR WASTE TREATMENT WORKS
1952-1968'
Aggregate Investment
2. Dollars Per LB.
of 1968
BOD.
Source of Investment 1. Million of Dollars Removal
TOTAL
8,549.3
1,953.7
3,619.8
14,122.8
336.59
465.17
73.42
179.00
3. Dollars Per LB. of
1968 BODs Removal
Excluding Transmission
102.40
338.60
73.42
96.52
1 Excludes Collecting Sewers
[p. 15]
separate treatment appears to be greater than that of joint treatment.
In increasing measure, the same mechanism is being utilized by metro-
politan area communities. The decision to install separate treatment
or to cooperate with one's neighbors becomes available to a commu-
nity where population is sufficiently concentrated in a given area;
and the lack of such options forces the outlying community (or
factory) to provide treatment at a relatively high cost.
(c) The higher transmission costs characteristic of metropolitan
areas are an obvious consequence, indeed, the precondition, of lower
treatment costs. Use of larger waste treatment plants requires
transmission of wastes over longer distances or in greater volumes.
(d) Industry, viewed in the aggregate, not only enjoys the advan-
tage of choice of technology and location, but combines with it low
relative unit transmission cost. Proprietary treatment plants are
almost invariably located at the factory site, so that sewering to the
treatment plant is apt to cost little more than for untreated disposal.
And when industry has the use of a public system available to it, it
tends to occur within a format of developed waste transmission serv-
ice, so that it may cost no more to transport the wastes of a factory to
the plant site than it does a single household.
(e) The apparent unit investment advantage enjoyed by industry
is exaggerated by an accident of time. Where a substantial portion
of the nation's stock of public waste treatment works dates back to
the nineteen-thirties, and a few units are even older, waste treatment
had only begun to be a factor in industrial planning by the late
nine teen-fifties. Essentially all of the industrial treatment projects
that have been undertaken over the last decade are first generation
facilities. In contrast, a very significant part of public capital spend-
ing has had to be devoted to replacement and improvement of exist-
ing facilities. Expenditures of substantial sums that result in no
incremental waste reduction lend the appearance of high relative cost
to public works as compared to industrial ones, but the disparity may
be expected to disappear progressively over the course of the next
-------
GUIDELINES AND REPORTS 3297
decade, as American industry becomes involved in the replacement
and improvement process.
THE INFLUENCE OF FEDERAL CONSTRUCTION GRANTS
The expansion of waste treatment services over the last decade
and a half is hardly conceivable without the intervention of Federal
monies. Per-capita investment has doubled since enactment of Fed-
eral grants, and with time, the amount and the proportion of total
public spending
[p. 16]
provided by Federal government has increased steadily. In conse-
quence of the availability of the Federal funds, not only the
prevalence of waste treatment but the nature of its application
has changed. Interjection of large sums would appear have worked
a qualitative as well as a quantitative change in the conduct
of public waste handling services; and the scale of the problem-
solving effort has enlarged so much as to effectuate a transformation
of its character.
Rapid extension of sewer services, cooperative utilization of facili-
ties by groups of communities, long-distance transmission lines, public
treatment of industrial wastes, and the development of area-wide sani-
tary authorities may all, in some measures, be considered to be cor-
relates of Federal investment. For with the availability of Federal
assistance there has come an enlarged sense of the scope of the water
pollution problem, and a more aggressive and imaginative public
approach to the problem.
But much of the force of Federal financial assistance still remains
to be felt. Amendment of Public Law 660 has resulted in a progres-
sively larger Federal share of the total cost of waste handling
projects, and has elicited additional matching funds from State
government. It is possible to argue that these funds are entirely
responsible for expansion in public waste handling practices over the
last decade; for while total public investment for waste treatment
advanced from $350 million on 1956 to well over a billion dollars in
1970, local government's share of the capital has remained fairly
constant at about $300 to $400 million a year.1 Federal monies—in-
cluding claims on still unappropriated funds available under the
reimbursement provisions of PL 660—and those of State governments
are essentially responsible for expansion.
Even given the situation that local expenditures for waste handling
' Correlation of total value of PL-660 eligible contracts, Federal Grants, and volume of
local government bond financing indicates a $302.7 million local government annual spend-
ing base (standard deviation $65 million) during the life of the Federal Assistance program.
-------
3298 LEGAL COMPILATION—WATER
services are relatively constant, so that higher Federal and State
outlays translate without a multiplier into new projects and ulti-
mately into new works, the massive interjection of Federal monies
currently being experienced in the market for waste handling
[p. 17]
facilities is sufficient to work an enormous alteration not only on the
scale of water pollution control, but in its very substance. Appropria-
tions for waste treatment plant construction grants in 1970 amounted
to almost two-thirds of cumulative Federal appropriations for the pur-
pose to that time, and exceeded the level of cumulative cash outlays
(made in the form of progress payments) during the entire fourteen
year life of the assistance program. Further, California, Oregon,
Kansas, Ohio, and Illinois followed the lead of other States and ini-
tiated or implemented State fund-matching programs to enable them
to take full advantage of the enlarged availability of Federal capital.
As described later, even a $200 million level of Federal funds has been
absorbed into the economy only with the accompanying appearance
of some very inefficient resource allocations; and there is some ques-
tion as to the utility of a good portion of the expenditures made to
date. The development of mechanisms to effectively utilize larger
amounts of Federal funding will pose one of the significant public
policy problems of the 1970's.
Another aspect of the impact of Federal construction grants on
municipal pollution abatement capabilities makes it difficult to antici-
pate effects. The funds are devoted to major public works, that are
usually among the most costly and the largest capital facilities oper-
ated by local government. As one would anticipate, significant lags
are involved in their installation. The mean time lapse between the
award of a Federal construction grant and the initiation of construc-
tion is 15 to 18 months, and an even longer period is devoted to actual
construction. Those lags are responsible for the growing gap between
Federal grant awards and actual disbursements. Time elapsed be-
tween the initiation of a project and its completion tends to be in-
creased by the Federal allocation formula, which establishes each
State's initial entitlement to grant assistance on the basis of popula-
tion and income. In the past, there have consistently been States that
could not allocate a year's full entitlement to funds in the same year;
and the small list of States whose needs were not sufficient to take
up allocations at a $100 to $200 million level will unquestionably
expand at the much higher assistance levels proposed for the
nineteen-seventies.
Time lags interfere, too, with our ability to gage the effect of Federal
construction assistance. In the early years of the grant program,
-------
GUIDELINES AND REPORTS 3299
dollar amount limitations and specific reservation of a significant
segment of Federal funds for the use of small communities sharply
reduced the reach of assistance. In general, application of Federal
funds was limited to rather simple engineering projects whose scale
and complexity seldom involved extended periods of construction.
In consequence, little more than half of the value of waste treatment
projects undertaken in the first years of the Federal program involved
Federal assistance, and mean construction time for those that did
[P. 18]
TABLE 8. —FEDERAL CONSTRUCTION GRANTS RELATED TO PUBLIC CONSTRUCTION ACTIVITY
[Millions of dollars]
Year
1957
1958
1959
I960
1961
1962
1963
1964
1965
1966
1967
1968
1969
Totals
Total value
of contracts
351
389
349
359
449
545
679
51
522
553
597
652
865E
6824
Federal grant
appropriations
50
45
45
46
46
80
90
90
93
121
153
203
214
1276
Federal
grant
awards
38
48
46
49
45
66
93
85
84
120
134
194
203
1205
Federal
disburse-
ments
1
17
36
40
44
42
52
66
70
81
84
122
135
790
Appro-
priations
basis
14.3
H.6
12.9
12 8
102
14,7
13.3
17.5
17.8
21.9
25.6
31.1
24.7
18.7
Awards
basis
10.8
12.3
13.2
13.7
10.0
12.1
13.7
16.5
16.1
21.7
22.5
29.8
23.5
17.7
[p. 19]
was about two years. But with larger amounts of Federal grant
appropriations the dollar amount limitations were removed entirely,
and the effective force of the fixed value reservation for use of small
communities was dissipated. Since 1966, almost every municipal
waste treatment project has involved PL 660 funds; and over the last
three years, the value of Federally assisted new starts has exceeded
the value of total contract awards—an anomally produced by the
reimbursement provision of PL 660, as well as by time lapsed between
the award of a contract and the start of construction. In the future,
it is probably safe to assume that as long as Federal construction
assistance is available, no community will begin a waste treatment
project without the assurance of Federal grants.
With the expansion of the scale of projects for which Federal fund-
ing has become available, the time to completion of such projects has
steadily extended. The 1968 conditions evaluated at some length in
this report include the effects, on average, of construction projects
begun in 1966. The much greater rate of activity initiated in 1970
will not be translated into average effects until 1973 or 1974.
-------
3300 LEGAL COMPILATION—WATER
Considering the entire life of the Federal program of assistance for
construction of waste treatment works, about half of the value of all
construction projects initiated between 1957 and the end of October
1970 had actually been completed, (cf. Table 9. Adjusting for infla-
tion makes some difference, since the amount of resources expended
has increased as their purchasing power has declined; but even with
the adjustment, almost 40% of the total value of projects undertaken
with the assistance of PL 660 grants represented works still under
construction in the third quarter of 1970.)
CAPITAL OVERHEAD
One sometimes receives the impression, from popular commentary
on the water quality situation, that great volumes of untreated munic-
ipal sewage are being discharged into the nation's waters, and that
these are a significant source of water pollution. In point of fact, only
seven percent of the sewered population of the U.S. was discharging
raw wastes in 1968; and the figure is probably closer to five percent
today. Moreover, both treated and untreated municipal wastes are
currently estimated to be responsible for little more than 20% of
stream pollution, as discussed in a later section of the report.
It would be a mistake to infer from those relationships that capital
requirements are subsiding. While there is definite room to complete
the provision of waste treatment service, to upgrade the level of waste
treatment effectiveness, and to accommodate expansion requirements,
there is also a need to service the very considerable capital base
[p. 20]
TABLE 9.—ANNUAL VALUE OF FEDERALLY ASSISTED WASTE TREATMENT WORKS CONSTRUCTION
Value of federally assisted projects in millions of dollars Cumulative
completions
Calendar Under construction as a percent
year New starts Completions at year end starts'
1957
1958
1959
I960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
Cumulative
165
184
173
203
248
291
449
443
365
490
397
765
937
11352
6164
5
65
142
166
172
160
193
402
340
398
265
194
375
158=
3035
160
279
310
348
423
554
811
843
868
960
1091
1662
2224
320P
2.9
20.1
40.6
52.1
56.5
56.2
52.7
60.8
65.4
68.0
67.9
60.1
56.4
49.22
Lag in
months,
starts =
completions'
27
23
21
22
26
24
34
34
37
43
46
482
' Federally assisted projects only.
210 months, January 1970 through October 1970.
[P. 21]
already in existence. That overhead demand on capital has for some
-------
GUIDELINES AND REPORTS 3301
years been the prime features of public waste treatment investments.
Yet it has generally been overlooked.
At the levels of capitalization of the nineteen-sixties, recapitaliza-
tion projects absorbed most of the waste treatment investment made
by public agencies. That—though in lesser measure than the fact that
municipal waste management is directed to only a part of the total
water pollution problem—is a reason that public expectations have
been dissappointed. To deal with the complexities of public waste-
water management, it must be recognized that most of the necessary
capital base already exists, that its very existence creates a significant
demand for capital services, and that great damage can result if we
allow the existing system to deteriorate.
The dimensions of the overhead demand for replacement capital
have been quantified. Replacement values of waste treatment plants
in place in 1962 and 1963 were calculated, giving full weight to scaling
and technological differences, in terms of constant (1957-59) dollars;
and the values were compared to constant dollar investment over the
period. Approximately $2.1 billion of investment in waste treatment
works (interceptor sewers, outfalls, and pumping stations are ex-
cluded from the analysis) produced only $780 million worth of addi-
tional physical capital. The difference between the investment
amount and the capital increment may be considered to constitute
the value of recapitalization of existing works that took place over
the period.
As presented in Table 10, where recapitalization or depreciation is
expressed as the difference between the annual rate of investment
and the annual rate of expansion of the capital base, recapitalization
demand amounted to 4.4% of replacement value of fixed capital over
the period. If depreciation is calculated on the basis of the average
rate of depreciation of a moving capital stock, the rate amounted to
4.1% a year. Both values are very close to the design norm of 4% a
year utilized by the sanitary engineering profession. That general
agreement would seem to provide some confidence about the magni-
tude of waste treatment plant recapitalization requirements for any
given capital stock, if one assumes that relative shortage of available
capital did not constrain recapitalization expenditures to something
below an optimum rate. On that matter there can be no assurance
until the aggregate level of investment moves distinctly upward, to
allow some scrutiny of the distribution of investments in a more
generously funded condition set.
It may be noted that while the national rate of depreciation is very
close to the 4% norm, there is distinct regional variation. Two
factors may be considered to be operative. The age composition of
[p. 22]
-------
3302
LEGAL COMPILATION—WATER
TABLE 10.—EFFECTIVE RATE OF RECAPITALIZATION, 1962-1968 (WASTE TREATMENT PLANTS ONLY)
Millions of 1957-59
Region 1962
Pacific Coast
Northern Plains ...
Southern Plains . . .
Southeast
Central
Northeast
United States
Capital
. 364.8
. 297.5
. 503.2
. 507.7
. 698.3
. 566.4
.2938.3
1962-68
Investment
185.2
210.0
177.3
383.3
502.4
589.4
2056.5
dollars
1968 Capital
474.3
363.0
594.0
710.0
869.9
725.8
3719.9
Investment
(percent)
6.0
8.0
4.4
8.2
8.1
10.9
7.9
Annual rate
Capitalization
(percent)
3.8
2.2
2.4
4.9
3.2
3.6
3.5
Indicated
depreciation
(percent)
2.2
5.8
2.0
3.3
4.9
7.3
4.4
[p. 23]
waste treatment plants varies from area to area; and the higher the
average age, the greater the effective rate of depreciation. The other
consideration is something of a mathematical fluke. Replacement
value of plants at either period was calculated on the basis of national
average costs, and so should conform closely to the national distribu-
tion of investment in facilities. There are, however, extreme varia-
tions in design and construction efficiency from region to region, (cf.
The Economics of Clean Water, U.S.D.I., FWQA, March 1970, pp.
40-52.) Without exception, the higher than average depreciation
rates occur in high cost regions, the lower than average depreciation
rates occur in the low cost regions. Thus when the analysis moves
from the national total to a region, what is presented as depreciation
or recapitalization is a compound of recapitalization and efficiency
differentials that apply in the construction activity. In part, compar-
ison of the 7.3% indicated depreciation rate for the Northeast with
the 2.2% rate of the Pacific Coast weighs the fact that it costs consid-
erably more to build a waste treatment plant in New York than to
build a similar plant in California.
[p. 24]
TREND OF WASTE DISCHARGES
One possible measure of the effectiveness of State and Federal
water pollution control programs and expenditures is a comparison
of the amounts of sewered waste materials flowing into waterbodies
over time. It must be recognized that the test is by no means a satis-
factory one—too many elements other than collected wastes bear
upon the quality of water. Such a comparison, however, does have
considerable validity as measurement of capital efficiency, in that the
primary emphasis of the nation's water pollution control efforts has
been to increase the degree of treatment of collectable wastewaters;
and that activity has been very nearly the exclusive avenue for invest-
ment of funds intended to serve water quality purposes.
-------
GUIDELINES AND REPORTS 3303
Unfortunately, there is no set of records to provide such a com-
parison on a macroeconomic basis. It is possible, however, to synthe-
size the information by calculating estimated waste production and
discharge at different periods.
Performance of the calculations for two significant waste constitu-
ents, biochemical oxygen demand and dissolved phosphorus, at three
points in time is scarcely reassuring. The estimates indicate that the
gross oxygen demand of wastes discharged in 1968 was almost un-
changed from—and probably slightly larger than—the level of 1957;
and that in the same period, the total pounds of phosphorus discharged
with domestic sewage had more than doubled. Almost $15 billion of
public and private monies were invested in waste handling facilities
during that period—and as a consequence of that investment, annual
operating charges increased by about $300 million.
BIOCHEMICAL OXYGEN DEMAND
Five day biochemical oxygen demand (BOD5) is probably the most
useful general indicator of the strength of organic wastes. It is the
measure of the amount of oxygen utilized in a fixed period of time and
at a fixed temperature by the biological processes involved in the
stabilization of organic matter. In itself it provides a very useful
measurement of the strength of organic wastes or the amount of
organic material present in a stream at any point in time. It is also
an extremely useful indicator of the general quality of a waterbody,
in that it has a loose and varying but largely dependable sort of
association with other water quality measurements. In most cases
we can assume that a stream with a high concentration of BOD5 is apt
to be marked by some lowering of concentrations of dissolved oxygen,
a significant chemical oxygen demand, and elevated levels of bacterial
presence. For this reason—and because there are standardized,
generally accepted tests for BOD—it is the most widely used means
[p. 25]
of expressing, in almost shorthand fashion, the general quality of
water, and it is accepted by sanitary engineers if not ecologists as a
surrogate for other parameters in broad descriptions of waste char-
acteristics or of stream quality. However useful this measure is in
describing overall quality, one cannot in actual fact rely solely on it
in specific cases of pollution. It does not comprehend such significant
pollutants as mercury, pesticides, and other toxic and hazardous
substances.
Because of its well established position as the prime measurement
of waste strength, BOD reduction is the standard indicator of waste
treatment plant efficiency, and the municipal waste inventories pro-
-------
3304 LEGAL COMPILATION—WATER
vide an excellent guide to the oxygen demand of public wastes; but
it must be admitted that the estimates of industrial production and
discharge of BOD present in the tables that follow are gross approxima-
tions. The technique employed to calculate production of BOD by
manufactures involved the application of the ratio of the 1964 to the
1957 and the 1968 Federal Reserve Board Indices of physical produc-
tion for various industrial sectors to annual waste reproduction cal-
culated for the same industrial sectors in 1964. (The base data are
summarized in Table II-2, p. 63 of The Cost of Clean Water, USDI;
Washington, D.C., January, 1968.) The principal problem with the
method—given the validity of the industrial production indices and
the calculated base year wasteloads—is the assumption of a constant
waste to output ratio. The assumption is crude, but the fact is that
there is not sufficient information to attempt modification. A variety
of recent events indicate that more adequate industrial waste infor-
mation will be available to the Environmental Protection Agency in
the coming year. Results of a questionnaire survey conducted for the
Agency by the National Industrial Conference Board will be forth-
coming in the next months. The survey is designed to provide infor-
mation on current and expected waste control practices and expendi-
tures. The questionnaire is reproduced as Appendix A.
In the late 1970, approval was gained to initiate an industrial waste
inventory, on a national basis. A preliminary mailing of 250 ques-
tionnaires has been made to develop base information on anticipated
response rates and completeness of data.
Activities related to implementing the Permit Program under the
1899, Refuse Act (33 U.S.C. 407) as called for by the President in
Executive Order 11574, December 25, 1970, will shed further light
on the industrial situation. Contracts for industry studies of those
industrial sectors generating over three fourths of the total volume
of wastes discharged directly by industry have been let. These con-
tracts will produce guideline data on the most prevalent methods of
industrial waste reduction as well as assessing the best waste reduc-
tion available with current technology.
[p. 26]
The permit applications themselves will provide an unequalled and
hitherto unavailable source of information on the magnitude,
distribution and remedial needs of the industrial community.
These coordinated efforts should essentially provide a quantum
increase in useful information for assessing and evaluating all aspects,
both physical and economic, of the industrial pollution abatement
problem.
Gross production of "BOD wastes" is only a portion of the picture.
-------
GUIDELINES AND REPORTS 3305
Pollution results from the strength and nature of wastes that are
ultimately discharged. From the estimates of waste production we
must deduct that portion of the polluting materials that is reduced by
treatment. The gross effectiveness of industrial waste treatment
was calculated from the ratio of investment capital in place to total
estimated capital requirements for each industrial sector. (Estimated
capital requirement,* modified by a factor equal to the production
index for the given year divided by the 1968 production index.
Capital in place in 1957 and 1964 was derived by deducting from the
1968 calculated replacement value, reported annual capital inputs
after subtracting four percent of each year's capital in place—the four
percent figure intended to eliminate replacement/depreciation ex-
penditures to arrive at a value for net capital.) Treatment effective-
ness, then, is expressed in terms of the proportion of the optimum
capital supply available in aggregated industrial sectors at points in
time. The optimum capital supply, by a loose interpretation of the
definition established by the guidelines used to adopt interstate water
quality standards, is that which is required to achieve 85% reduction
of BOD5.
Adjustment of the industrial waste load to account for that portion
of industrial wastes that is sewered to public waste treatment facilities
probably imparts a slight downward bias to the calculated degree
of BOD reduction, because there is no accounting—from either
municipal or industrial sources—of the sectoral distribution of the
industries discharging to public facilities. It is possible to estimate
with some degree of precision just how much industrial waste is
handled by public facilities, but not what industries develop those
wastes. To produce a comprehensive BOD model, then, it is neces-
sary to work at the aggregate level, deducting from the total indus-
trial load that portion which can be assigned to municipal or other
public sources. Possible distortion in attributed efficiency of the self
treating component occurs because the capital effectiveness of the
treatment dollar varies between industries, due to scale factors and
differences in waste composition. The distribution of total wastes
[p. 27]
and of costs is, however, so strongly influenced by a few industries
(pulp and paper, organic chemicals, oil refining) that average costs
are in effect little more than the average costs that apply to thei
preponderant group of industries. The sensitivity of over-all effi-
ciency to the sectoral incidence of use of public facilities is probably
very slight. The 61% aggregate BOD5 reduction efficiency calculated
to apply to independently discharging factories 'in 1968 changes little
* As developed In THE COST OF CLEAN WATER
-------
3306 LEGAL COMPILATION—WATER
more than 2.5% in either direction when one calculates the effect of
consigning either the most capital-efficient block of industries or the
least capital-efficient group entirely to the segment of plants making
use of public facilities.
Determination of the discharges of public waste handling systems
involves much less uncertainty than do attempts to estimate the same
values for industry. The Municipal Waste Inventory provides us
with a knowledge of the number, kind, size, and served population of
waste treatment plants, as well as the number and service population
of sewer systems without waste treatment service. A couple of
thousand investigations of waste treatment plant operations provide
a solid grasp of the range of waste loadings and the range of effi-
ciencies associated with treatment plants of various sizes and types.
By applying appropriate loading and reduction rates to the reported
stock of waste handling systems, the order of magnitude of the wastes
that pass through the nation's system of public sewers can be
ascertained with considerable confidence.
If the validity of the data can be accepted, the largest problem in
framing an estimate of publicly discharged wastes is distinguishing
between domestic and industrial sources that are served by the same
set of facilities. While modern data imply strongly that the rule
of thumb which holds that the characteristic relationship of one
hundred gallons of water and one-sixth of a pound of BOD per person
overstates the "normal" domestic wasteloading, the latter value has
been adopted in assessing the total domestic wasteload. The rela-
tionship has been accepted so generally and so long that its use has
the great merit of reducing possible objections. And in view of the
uncertainty associated with estimating the gross volume of factory
wastes, a slight understatement of their proportionate share of the use
of public systems does not seem to offer a problem of relative moment.
The sets of products of the various calculations are presented in
Table 11.
While the details and the precision of the listed values may be
subject to considerable suspicion, there is little reason to doubt the
general validity of the relationships or the order of magnitude of the
values. The story that they tell is not reassuring one for those con-
cerned with environmental protection.
[p. 28]
-------
GUIDELINES AND REPORTS
TABLE 11—ESTIMATED INCREASE IN GROSS PRODUCTION OF BODs, 1957-68
3307
Millions of pounds of BODs per year
Waste source
Food processing
Textile mill products
Paper and allied products .
Chemical and allied products
Petroleum and coal
Rubber and plastics
Primary metals
Machinery
Transportation equipment
All other
Manufacturing total
Sewered population ....
Total
Annual rate ...
Reduced by treatment
Annual rate
Discharged . .... .......
Annual rate . . ....
Aggregate treatment efficiency ... .
Ratio of domestic to industrial BOD . . . .
Increas0
1957
3400
660
4300
5500
410
20
350
100
50
300
15,090
5,700
20,790
8,090
12,700
39%
1;2.6
1964
4300
890
5900
9700
500
40
480
130
120
390
22,460
7,600
30,060
14,090
15,970
47%
1:2.9
1968
4600
1100
7800
14200
550
60
550
180
160
470
29,670
8,500
38,170
24,610
13,560
64%
1:3.5
1957-64
900
230
1600
4200
90
20
130
30
70
90
7370
2100
9470
5.4%
6000
8.2%
3270
5.9%
21%
1:3.9
1964-68
300
210
1900
4500
50
20
70
50
40
80
7220
900
8120
6.2%
10,520
15.0%
— 2410
-4.2%
36%
1:8.0
[p. 29]
The gross biochemical oxygen demand generated in the collectable
wastes of economic activities almost doubled between 1957 and 1968.
Within the period, the process took place at an accelerating rate—
increase in waste production for the four years 1964 to 1968 almost
matched the total increase that took place in the seven previous
years.
Manufacturing activities—paced by production of chemicals and
chemical products, estimated by 1968 to account for more than a
third of total BOD production—far outweighed domestic activities
as waste sources in 1957, and steadily increased their lead with the
passage of time. That rapid growth of industrial wastes traces not
only to the raw increase in industrial production that occurred during
the period, but to its composition. The economy of the U.S. has been
marked not only by a voracious absolute demand for more goods, but
by a relative preference for goods whose production involves a
substantial wasting of organic materials to water.
Countering the increase in volume of organic wastes has required
an enormous expansion of the prevalence and intensity of waste
treatment. While total wastes, as measured by BOD5, almost
doubled in the period under consideration, the amount of reduction
of oxygen demand through the application of waste treatment is
calculated to have tripled. Overall, then, there appears to have been
-------
3308 LEGAL COMPILATION—WATER
only a slight increase in the oxygen demand exerted on the nation's
water resources as a result of the discharge of collected wastes.
And since 1964, the rate of change in the oxygen demand of waste
discharges has been strongly negative.
NUTRIENT PHOSPHORUS
Streams, lakes, estuaries and their beds are in many instances
producing rooted and floating flora in such profusion that they cause
nuisances or profound alteration in aquatic ecology. The condition
clearly relates to some significant set of changes in the circumstances
that govern the life processes of aquatic organisms. But since many
conditions have changed, there is no certainty as to what the critical
productive mechanism may be. Increased clarity of waters as a
result of sediment control and reduction of wastewater solids results
in increased light penetration, clearly favorable to vegetable produc-
tivity. Escalation of the gross volume of materials discharged to
water adds to the availability of all of the elements that nourish life
forms. Heightened temperature—a result not only of heated waste
discharges but of stream impoundment and reduction of streamflow—
accelerates the life cycle processes of growth and decay. And there
are known to have been substantial increases in the discharge to
water of specific nutrient materials critical to the life forms involved.
[p. 30]
Explanations and control efforts, however, have been directed
increasingly toward the relative availability of a single nutrient
element, phosphorus. Underlying the attention to phosphorus are a
set of probabilities derived from the law of the minimum. The
hypothesis is supported by evaluation of production factors bearing
upon the relative availability of phosphorus in water, by observations
drawn from knowledge of the characteristics of treated wastewater,
and by controlled laboratory demonstrations. It would seem probable
that phosphorus is, indeed a key to problems posed by extremes in
aquatic productivity.
In the context of a shift in all, or many, of the factors that affect
biological productivity in water, investigators have attempted to
deduce the most likely avenue for control by use of observations
based upon the law of the minimum—a logical principle that holds
that where more than one condition must be satisfied in order to
produce a given event, that condition which is least abundant with
reference to demand requirements will determine the magnitude of
the consequent event.
In the case of algae and other water plants, the conditions required
for development are the presence of energy in the form of sunlight
-------
GUIDELINES AND REPORTS 3309
and a supply of nutrient materials, principally carbon, nitrogen, and
phosphorus in the approximate relationship (for algae) of 106:16:1.
(Other nutrient elements are required in trace amounts, but the
insignificant quantities involved defeat any possibility for effective
biological controls.) Because algae can normally satisfy carbon
requirements from carbon dioxide in the atmosphere, and from the
natural carbonate in water, efforts to control aquatic production
settled very early upon nitrogen and phosphorus. Recognition of
the fact that blue-green algae, and perhaps other types as well, can
also draw nitrogen from the atmosphere, led to the conclusion that
attempts to control growth solely by limiting availability of dissolved
nitrogen in water would also be of little purpose. By process of
elimination, then, attention has come to focus on phosphorus; and
observations about the gross availability and the form of dissolved
phosphorus strengthen the probability that it is the route to con-
trolling the increased productivity problem.
There is no question that the gross increase in waterborne wastes
has resulted in a significant increase in total amounts of dissolved
forms of carbon, nitrogen, and phosphorus. But because of atmo-
spheric availability of the others, only phosphorus can be considered
to have experienced an increase in usable supply from waste dis-
charges. Further, the relative availability of phosphorus to biota
has been supplemented by the extension of secondary waste
treatment.
The relationship between the prevalence of secondary waste treat-
ment and relative availability of phosphorus is well understood, but
often ignored because of its embarrassing conflict with other water
pollution control requirements and prevailing strategies of water
[p. 31]
pollution control. Conventional waste treatment reduces the quantity
of phosphorus dissolved in wastewater. But the average relation-
ship of carbon to nitrogen and phosphorus utilization by the bacterial
organisms that accomplish conventional waste treatment permits
only a fraction of the nitrogen and phosphorus of sewage to be
incorporated into sewage sludges; so that the major portions of these
wastewater constituents remain in the discharged effluent. Further-
more, while biologic treatment reduces fractionally the amounts of
nitrogen and phosphorus in sewage, it also stabilizes them, so that
they are contained in the effluent in a form immediately available
to fertilize growth. In the case of an untreated waste, or one sub-
jected to only primary treatment, the discharged effluent also con-
tains nutrient materials but in a different organic composition, so
that they become available to algae as natural decomposition occurs.
-------
3310 LEGAL COMPILATION—WATER
The whole process has been accelerated by another factor, the
replacement of ABS-based by phosphorus-based synthetic deter-
gents. Where human metabolic processes are variously estimated
to result in the wasting of from less than a pound to about a pound
and a half of phosphorus per person per year, average phosphorus
loadings in municipal wastewaters during the late nineteen-sixties
were consistently found to be equal to about four pounds per person
per year. Most of the difference has been attributed to the sewering
of used detergents.
To heighten problems of phosphorus availability, a significant
change in detergent formulations was accomplished during the early
nineteen sixties. Previously, detergents had demonstrated a distress-
ing tendency to resist decomposition in either waste treatment plants
or in the natural environment. Due to the slow stabilization of the
compounds, foaming and discoloration became evident in many
streams as consumption of detergents increased. Steps to abate that
water pollution problem contributed to the creation of the problem
of excessive productivity. The detergent industry was able to develop
formulations that suffered no reduction in cleansing power, but
broke down readily in waste treatment plants. That stabilization
made the phosphatic constituents of wasted detergents available as
aquatic nutrients. To add to the dimensions of the problem, "soft"
or "biodegradable" detergents typically contain significantly more
phosphorus per pound than the "hard" formulations that they
replaced.
Such, in very general terms, are the qualitative dimensions of the
matter as they are defined by what has come to be the conventional
wisdom. Its quantitative aspects are not so readily manipulated.
Evaluations, must rely on limited samples, general acceptance of
some provisional relationships, and some functional derivations.
Those circumstances mean that only order of magnitude accuracy can
be claimed for the following analysis. It is unlikely, however, that
greater precision would serve any useful purpose in this report.
Remedial actions must take place in the context of conditions that
apply in discrete river basins. At the level of macroeconomic over-
view, consideration of
[p. 32]
relative magnitudes over time would seem to provide a sufficient
and credible level of detail.
Table 12 presents such a generalized description. While it must be
emphasized that unit values for phosphorus content represent fairly
arbitrary choices from ranges of cited values for influent and effluent
wastewaters, the calculated net per-capita discharge of 3.3 pounds
-------
GUIDELINES AND REPORTS 3311
per year agrees generally with the value of 3.5 pounds per-capita per
year estimated by the International Joint Commission in its report
on Lake Erie and with values reported by the Committee on Govern-
ment Operations in its report Phosphates in Detergents and the
Eutrophication of America's Waters. Estimated reduction of phos-
phorus by waste treatment processes is a particularly uncertain ele-
ment of the system. Reductions are generally expressed in the
literature in percentage terms, and the number of citations is de-
pressingly slim—over half of the reported values from which the
tabular data were deduced came from one survey in the State of
Texas. The logic of the values presented depends on the concept
that phosphorus reduction is a function of biochemical oxygen de-
mand reduction, in that utilization of phosphorus is dependent on
the degree of stabilization of dissolved organics in wastewater. The
amount of phosphorus utilized in decomposition processes is largely
dependent on the total quantity of organic matter stabilized rather
than the amount of available phosphorus, given that phosphorus is
available in amounts equal to or greater than nutrient requirements,
so that percentage expression is considered to be an inappropriate
means of gaging relative effectiveness in phosphorus reduction.
(Complete elimination of dissolved phosphorus in domestic sewage is
theoretically feasible at the point that concentrations in influent
wastewaters are equal to nutrient requirements of bacteria).
There can be no doubt that industrial utilization of detergents as
well as direct processing of phosphate and phosphorus products adds
to nutrient availability, but there is simply not enough information
to even attempt to make an estimate of quantities. Natural sources—
decomposition products, resuspension of bottom muds, leaching—as
well as mining and agriculture add to the gross quantity of phosphorus
transported in water. To a considerable extent, however, these
sources are reduced in their ability to produce excessive growth by
the propensity of phosphorus to be absorbed by soils. So contained,
phosphorus can be released to the water column through decomposi-
tion of rooted bottom plants. For these reasons, remedial attention
has been devoted largely to phosphorus in sanitary sewage.
SOURCES OF WASTE INCREASES
Biochemical oxygen demanding materials and nutrient phosphorus
are only two of the scores of possible pollutants with which the
economy must deal. They have been selected for quantification and
discussion because they are most amenable to generalized analysis,
and because they serve to illustrate principal features of existing
control programs. But it should not be inferred that they are the
[p. 33]
-------
3312 LEGAL COMPILATION—WATER
TABLE 12—ESTIMATED INCREASE IN PHOSPHORUS DISCHARGED AS MUNICIPAL SEWAGE
SBwered population (millions of persons)
per-capita phosphorus production, pounds:
(a) From metabolic process
(b) From consumption of detergents
Total sewered phosphorus (million pounds in year) . .
Less phosphorus Incorporated in sewage sludge:
(a) Primary treatment @ .5 Ibs. per capita (million pounds in year) ,
(b) Secondary treatment @ 1.3 Ibs. per capita (million pounds
in year)
Total discharged phosphorus (million pounds in year)
1957
. 98.4
1.0
2.0
. 2952
. (12.9)
. (63.6)
218.7
1964
119.6
1.0
3.0
478.4
(20.4)
(81.3)
376.7
1968
139.7
1.0
3.3
600.7
(21.8)
(111.8)
467.1
[P- 34]
only significant causes of pollution. Rather, they are convenient
indicators of the dimensions of pollutant production and of the
relative magnitude of pollutant sources, and while a broad group of
pollutants and activities remains outside of the reach of current
technology, traditional sewered sources of pollution such as solids,
bacteria and BOD should be receding before the application of waste
treatment.
But even in their cases, there may be doubts about our ability to
maintain existing relationships between the rate of increase in waste
generation and the rate of expansion in effectiveness of waste treat-
ment. If the same processes were to continue into the future at the
rates that obtained between 1957 and 1968, at some point in 1974-5
we would have reached the approximate threshold of waste treat-
ment effectiveness that is attainable with conventional technology—
85% to 90% BOD reduction. From that point forward, residual
waste strength might be expected to add in full measure to the
polluting pressures exerted on the national water resource; and in
the 1980's that steadily increasing wasteload would again attain, then
proceed to exceed, the peak levels of 1963 or 1964. (See Table 13).
These considerations are not presented as a prediction, but only as a
projection of the circumstances that will come into play in the future
if substantial structural changes are not affected in ecological pos-
tures. Of course, current conventional waste treatment technology
is in no way an ultimate barrier. Advanced water treatment tech-
niques are available being refined, and coming into increasing uses.
But technological shifts in water treatment tend to occur as series of
step functions; and each translation to a higher step would seem to
at least double the aggregate cost of treatment. Moreover—and
perhaps most significant—waste treatment, regardless of its cost, is
not an absolute good. There are secondary effects, not always fore-
seeable or beneficial, when one tampers with the quality of water in
order to produce obviously desirable purposes.
-------
GUIDELINES AND REPORTS
3313
The tentative conclusion that waste treatment is no more than a
convenient point of departure for any meaningful strategy of water
pollution control is reinforced by examination of the sources of recent
increase of pollutants. Underlying the growth of available bio-
chemical oxygen demand and of phosphorus are basic economic
forces. To counter the polluting effects of fundamental features of
twentieth century technology and social organization would seem to
call for fundamental remedies.
[p. 35]
TABLE 13—PROJECTED INTERACTION OF TECHNOLOGICAL LIMITS AND
EXISTING RATES OF WASTE INCREASES
Million Pounds of BOD Per-Year
Year
1968
1972
1974
1975
1976
1980
1984
1988
1992
Produced
38,170
47,560
53,120
56,150
59,260
73,840
92,000
114,630
143,290
Reduced by Treatment
At 85 percent
At 90 percent
24,610
36,915
45,220
47,730
50,370
62,760
78,200
97,440
121,790
50,535
53,330
66,460
82,800
103,170
128,960
Discharged
At 85 percent
At 90 percent
13,560
10,645
7,900
8,420
8,890
11,080
13,800
17,190
21,500
5,615
5,930
7,380
9,200
11,460
14,330
[p. 36]
Total Increase:
Between 1964 and 1968, the population of the U.S. was estimated
to have increased from 191.4 million persons to 199.9 million
persons, about 4.4% or just under 1.1% per year. During the same
period, estimated annual production of biochemical oxygen demand
advanced by a total of 8.1 billion pounds, or 27%, six times as fast as
population, compounding at a 6.1% annual rate. And while the in-
crease in the phosphorus content of sanitary sewage was not so great
in absolute amount, an estimated 122 million pounds over the four
years, it was equal in relative terms, rising almost 26%, an annual
rate of increase of 5.9%.
Population Increase:
Population increase is, of course, related to the increase in produc-
tion of pollutants, but it can by no means account for major part
of the growth. If expansion of sewered domestic wastes had been
directly proportionate to population growth, the rise in BOD of sani-
tary sewage would have amounted to 330 million pounds between
1964 and 1968, and the increase in the phosphorus component of
sanitary sewage would have been limited to 23 million pounds. Ex-
-------
3314 LEGAL COMPILATION—WATER
pansion of industrial output to accommodate increased population at
precisely the level and composition of per-capita consumption of
1964 would have added about 990 million pounds a year to BOD
production by 1964. Pure growth of population, then, can be as-
signed the responsibility for no more than 16.3% of the gross expan-
sion of BOD production and 19.1% of the incremental phosphorus
production took place over the four year period.
Expansion of Sewer Service:
The effects of population increase on production of water-borne
pollutants were heightened by a pronounced expansion of sewer
service. Where population grew at 1.1% annual rate, sewered
population increased at a 2.8% annual rate, so that an incremental
570 million pounds a year of BOD and 33 million pounds of phos-
phorus had become available through the expansion of sewer services
by 1968. The application of conventional sanitary engineering in
the form of expansion of sewer service offset about half of the gain in
reduction of BOD of sanitary sewage that was effectuated by in-
creasing the prevalence and intensity of waste treatment during the
period. It caused a net loss in the degree of phosphorus control, in
that incremental phosphorus reduction—not a significant feature of
conventional waste treatment—was well under the volume of phos-
phorus in the water-borne sewage produced by net expansion of
sewering. Seven percent of the total increase in BOD and 27% of
the growth of phosphorus in domestic sewage between 1964 and 1968
can be traced to extension of sewer services in excess of the rate
required to match population growth.
[p. 37]
Gross Increase in Consumption:
The lion's share of responsibility for rise in production of pollu-
tants must go to the gross improvement and the distribution of per-
capita production and consumption of goods that took place during
the four years. Almost 77% of incremental BOD production and
53% of the increased discharge of phosphorus to sewers can be
traced to the amount and composition of rising consumption of goods
by Americans. Significantly, much of that production cannot be
considered to have improved the real economic well being of con-
sumers. Twenty-three percent of the total increase in BOD occurred
as a result of the growth of pulp and paper output, where more
elaborate packaging has provided much of the impetus for growth.
Similarly, no less than 55% of the larger output of BOD arose from
chemicals production; and an indeterminate but large portion of that
increase must be ascribed to expanding use of various disposable
products. In the same general way, an estimated 42 million pounds
-------
GUIDELINES AND REPORTS 3315
of sewered phosphorus can be ascribed to increased utilization of
phosphorus in detergent formulations—an increase in unit use that
was again reinforced after 1968 with the appearance of phosphorus-
rich "enzyme" pre-soaks and detergent compounds.
DISPOSITION OF WASTE INCREASES
The more than 8 billion pounds of biochemical oxygen demand
that were added to the annual waste production of the American
economy between 1964 and 1968 represented not only an enormous
potential to pollute water, but a significant materials handling prob-
lem. Eight billion pounds of BOD, given mean concentrations, im-
plies the discharge of more than 4 trillion gallons of wastewater
annually, well over 13 billion gallons per day. Quite apart from the
matter of abating the polluting effects of materials carried in waste-
water, the very volume of the water being discharged under condi-
tions of unrestrained growth of wastes creates a source of continuous
pressure on capital. For every dollar that was invested by public
agencies for waste treatment, more than $1.75 had to be invested in
waste transmission facilities—for metropolitan areas it was $2.37—
and 750 was invested for collecting sewers. In reviewing the situa-
tion, one cannot help but wonder if the exigent pressures posed by
the need to simply drain away the wastes of our cities are not so
great that they divert a significant amount of the resources intended
for water pollution control for purposes of simple waste disposal.
In terms of relative strength, manufacturing was responsible for
almost 90% of the increase in BOD that occurred in the period.
However, manufacturing outfalls are estimated to account for under
70% of the increase in ultimate volume of waste discharges. An
amount of industrial waste equal to over 20% of the increase in
industrial waste production was consigned to public facilities, so
[p. 38]
-------
3316 LEGAL COMPILATION—WATER
TABLE 14—COMPONENTS OF CHANGE IN PRODUCTION OF TWO MAJOR POLLUTANTS 1964-68
Total Increase in BOD
From people
From industrial production
Sources of Increase in BOD:
Population growth
Net expansion of sewer service
Production to accommodate population growth
Increased per-capita consumption
Total Increase in Phosphorus .
Population growth
Net expansion of sewer service
Increased per-capita consumption
Change,
Millions
of pounds
+8110
+900
+7210
+ 330
+570
+ 990
+6220
.. +122.3
+ 23.4
+ 33.5
+ 65.4
1964-68
Annual
rate (percent)
+6.1
+ 2.8
+ 7.2
+ 1.1
+ 1.7
+ 1.2
+ 6.3
+ 5.9
+ 1.1
+ 1.7
+ 3.3
[p. 39]
that for every incremental pound of BOD entering public waste
handling systems from domestic sources in 1964-68, about one and
three quarters additional pounds from manufacturing plants is esti-
mated to have also been accepted.
That broader exercise of public authority over the waste dis-
charges of industry unquestionably played a large part in the ability
of the economy to reduce total strength of waste discharges. Where
an estimated 8 billion additional pounds of BOD were produced in
1968 as compared to 1964, the ultimate strength of wastes discharged
was about 2.4 billion pounds less. And though 90% of the incre-
mental wastes were generated by factories, 30% of incremental net
removal is estimated to have occurred in public waste treatment
plants.
That trend can be very closely traced through the size distribution
of the stock of waste treatment plants over time. There is a distinct
and well documented relationship (See figure 1) between the size
of a waste treatment plant and the per-capita volume and strength
of the waste that enters it. Given the fairly homogenous set of social
preferences and of product distributions in the U.S., it is unlikely
that the relationships trace to different consumption patterns between
residents of large and small towns. (Moreover, in the U.S. today the
small town with a waste treatment plant is slightly more likely to
be a suburb—and thus essentially urban in consumption pattern—
than it is a rural place.) The assumption upon which the quantifica-
tion of publicly treated industrial wastes is based is that increase of
per-capita loadings that accompanies an increase in size of plant can
be attributed to the discharge of industrial wastes. And while it is
true that some rise in hydraulic loadings occurs when increase in size
and area add to the probability of infiltration, it should be noted
-------
GUIDELINES AND REPORTS
3317
that per-capita area and infiltration probability tend to decline with
population. Even more significant is the fact that increase in waste
strength (BOD per-capita) takes place on a far more sharply sloped
curve than that for per-capita flow. Given the higher average con-
centration of industrial wastes, one would expect precisely that sort
of relationship between per-capita BOD in any situation marked by a
significant amount of industrial waste discharge.
Some of the major outlines of the recent public investment program
for waste treatment works are well understood, but the significance
of larger plants is often neglected. Over the last decade and a half
there has been a constant reduction in population discharging un-
treated sewage, a steady rise in the degree of sewage treatment, and
a rapid growth of the proportion of the population that maintains
sewer service. Less obvious, but equally well documented, is the
fact that all of these converging lines of public activity have been
accompanied by a steady increase in the size of waste treatment
works. That increase in size implies a growing propensity by public
agencies to assert control over the treatment of industrial wastes.
[p. 40]
RELATIONSHIP OF TREATMENT PLANT
SIZE TO PER- CAPITA WASTE LOADING
Figure 1
.30
.20
.10
B005 PER WHW /
\/
HOW pm cum
500
200
100
1.0 10.0
PLANT SIZE AVERAGE DAILV FLOW. IN MILLION GALLCNS
100.0
[p. 41]
-------
3318 LEGAL COMPILATION—WATER
Increase in average size of waste treatment plant was distributed
fairly broadly through the economy, and is not a mere function of
population growth. The average population served by a waste treat-
ment plant has been declining as a result of emphasis on facilities
for small rural and suburban towns. At least 70% of the new waste
treatment plants coming into operation between 1962 and 1968 were
in towns of 10,000 persons or less (the maximum normal service
population for a million gallon per day waste treatment plant), and
at least 28% of the new plants were located in towns of less than 1,000
persons. As a result, average population per plant dropped from
10,860 to 10,350. Yet 90% of the incrementally served population
was connected to plants of more than a million gallons per day—50%
of them by plants larger than 10 million gallons per day.
On the basis of the assumption that larger plants correlate posi-
tively with presence of industrial wastes, the general dimensions of
the trend toward more treatment of industrial wastes by public
facilities that provide a steadily rising degree of treatment is traced
in Table 15.
It should be noted that the tendency to larger plants is by no means
uniformly distributed through the U.S. There are distinct regional
differences in per-capita loading of waste treatment plants of all
sizes, and so, one assumes, in propensities to treat industrial wastes
in public facilities. While the distinction in per-capita loading be-
tween regions of the nation is far more pronounced than is the
distinction for size, and while Figure 1 represents a composite for the
U.S., so that its application to any place is apt to result in distortion,
all parts of the nation show evidences of the trend to larger plants
and broader service.
The result of the expanding prevalence and intensity of public
waste treatment services, and what we can infer from sample-based
reporting of industrial waste treatment expansion, has been a suffi-
cient improvement in the application of waste treatment to compen-
sate for the net increase in biochemical oxygen demand that has
occurred since 1964, and to eliminate much of the net growth of BOD
discharges that occurred between 1957 and 1964 as well.
But the failure of broad gauge waste treatment strategy that is
unaccompanied by efforts to reduce or eliminate sources of polluting
wastes leaps into sharp prominence when attention is turned from
BOD to phosphorus. In that area of water pollution control—
municipal waste handling—where knowledge is greatest, where the
reach of controls exceeds all others, where government and the public
interest are involved directly and not as an external regulating force,
estimated growth of phosphorus discharged after treatment was
almost equal to increase in phosphorus discharged to sewers. A
-------
GUIDELINES AND REPORTS 3319
marginal reduction in the percentage of discharged phosphorus was
achieved by the increased relative prevalence of secondary—as op-
posed to primary—waste treatment. But on the basis of imputed
removal effectiveness, we must conclude that three of every four
additional pounds of phosphorus that entered sewers between 1964
and 1968 were discharged directly to water. (CF. Table 16.)
[p. 42]
TABLE 15.—NET SHIFT—IN TERMS OF 1962 POPULATION SERVED—
IN WASTE TREATMENT PLANT SIZE AND TYPE, 1962-68
Capacity,
million
gallons
per day
Unknown
0.5
0.5 - .999
1.00- 4.99
5.00- 9.99
10.00-49.99
50.00-99.99
100.0
TOTAL
Change,
Primary
Treatment
-1.7
-0.2
0.2
0.8
0.6
1.0
2.0
0.9
3.6
as a percent of 1962 sewered population, in population served
Intermediate
treatment
and Lagoons
0.5
1.3
0.4
0.9
0.1
-0.6
0.7
— 1.0
2.3
Secondary
treatment
0.9
0.6
0.4
3.6
2.4
4.8
3.2
4.8
20.7
Greater than
secondary
treatment
— 0.2
-0.1
-1.0
0.1
0.3
— 0.3
...
— 0.5
Total
-0.5
1.6
0.9
5.2
3.1
5.5
5.6
4.7
26.1
[p. 43]
TABLE 16—DISPOSITION OF INCREASES IN TWO MAJOR POLLUTANTS 1964-68
Disposition of Net Increase in BOD:
Public sewers, factory connections
Net Discharge of BOD
From public systems
Net Increase in Phosphorus
Change,
Millions
of pounds
+ 900
+1570
+5640
—2410
— 610
—1800
, +122.3
1964-68
Annual rate
(percent)
+ 2.8
+ 8.4
+ 6.9
— 4.3
— 3.3
— 4.6
+ 5.9
[p. 44]
PREVALENCE AND SOURCES OF WATER POLLUTION
BACKGROUND
The proposed substantial expansion of Federal grants for construc-
tion of waste treatment works, places the nation at the threshold of
an enormous investment program. Current plans call for at least a
50% expansion within the next five years of the value of waste
treatment capital put in place during the twentieth century.
-------
3320 LEGAL COMPILATION—WATER
Paradoxically, this massive spending program is being undertaken
at a time when only about five percent of the sewered population of
the nation is not served by waste treatment, and when the degree
of waste reduction accomplished by treatment is greater than it has
ever been before for the population of the United States.
There is little question that the money can be spent. Indeed, public
comment on the question of funding tends to be directed exclusively
to the possibility of deficiencies in the proposed level of spending.
And if the public's tendency to question the adequacy of municipal
waste treatment funding may be thought to arise more from an
awareness of water pollution problems and from urgency with
respect to their abatement than from knowledge of the causes of
pollution or the status of municipal waste treatment, it is sophisti-
cated analysis of the rate of growth of waste loadings, the shift of
industrial waste treatment responsibilities to the public sector, the
pressures of upgrading and replacement, and the effects of inflation
and technological modification that is responsible for the enlarged
investment targets.
There is some question, however, whether the money will be spent
effectively. And here, the record of the past is not reassuring. The
data indicate that cost-effectiveness may be low in the conduct of
public waste disposal services without significant changes in existing
practice, there is slim hope that the rate of environmental improve-
ment will be proportionate to the rate of spending.
Evaluation of programs to abate water pollution on the basis of
cost-effectiveness is scarcely possible, without first determining the
prevalence and causes of water pollution. Prior to the enactment
of water quality standards, such determinations were literally im-
possible, and the definition of a state of pollution was little more
than a subjective exercise. While different persons could bring to
the exercise varying degrees of knowledge and experience, no one
person or group could claim more than self-constituted authority.
Amendment of the Federal Water Quality Act in 1966, and the
establishment of water quality standards pursuant to the Act, has
completely changed that
[p. 45]
situation. At this time it is possible to take water samples at
any point on an interstate water body and, on the basis of a
comparison of laboratory determinations with legal definitions
specific to that reach of that water body, determine that a state
of pollution does or does not exist with respect to a given water
quality parameter. Current intra-state standards and, if passed,
legislation extending Federal standards to navigable, ground and
-------
GUIDELINES AND REPORTS 3321
contiguous zone waters provide almost universal objective evalua-
tion standards. Armed with those legal definitions, it is possible
to speak with considerable confidence on the current prevalence of
water pollution. The Federal Water Quality Administration * at-
tempted in the summer of 1970, for the first time in the history of the
nation, to make just such an assessment for all waters of the nation.
Field offices in the nine FWQA Regions estimated the percentage
of the stream miles in each of the 233 second order watersheds in
the contiguous United States (in addition to Alaska, Hawaii, Puerto
Rico, Guam, the Virgin Islands, and American Samoa) that could
be said to be polluted. Pollution was defined very strictly as a
demonstrable and recurrent breach of any of the physical or chemical
criteria applying to waterbodies, and not merely as violation of
regulatory requirements imposed upon waste dischargers. In addi-
tion, for each watershed the assessors estimated the relative weight
of eight general classes of activity in causing pollution.
Water pollution may take so many forms that experience and
judgement are essential in making determinations. A few years ago,
for example, few even considered the possibility that mercury might
be a significant pollutant: the element is so scarce and so expensive
that its wasting was considered to be highly improbable. There was,
then, no known pollution of water by mercury so long as nobody
looked for mercury. And any of the natural elements in any of their
inconceivably large number of compounds—including living ones—
may pollute when present in excessive concentrations. The task of
identification is an enormous one, and it is possible that the assess-
ment fails to include the effects of obscure or unexpected pollutants.
Given these difficulties, it is impossible at this time to produce any
objective comparative index of pollution which takes account of the
multi-dimensional factors which cause pollution. At this point,
assessment can be made with fair assurance with respect to one
dimension of a
[p. 46]
multidimensional problem. It can be said that water pollution
from a specific pollutant does or does not exist for specific places in
waterbodies at a given point in time. But there is no universal
procedure for relating to the statement of prevalence either time or
intensity in a completely general way. It can for example, be said
that a river is more polluted or less polluted than it was five years
ago if the concern is with adverse effects of the same pollutant.
* Now the Water Quality Office, Environmental Protection Agency under provisions oi
Reorganization Plan No. 3, 12-2-70.
-------
3322 LEGAL COMPILATION—WATER
Similarly, comparisons may be made between Stream A and Stream
B if the measure of concern is common. But the quantitative measure
of the change in the state of pollution if the types of polluting sub-
stances are varying is undefined. How, after all, does one weigh a
one part per million improvement in the dissolved oxygen con-
centration of the Delaware River in August against a fifty percent
increase in annual production of blue-green algae in Lake Erie?
Can one possibly set a five part per million reduction in the fluoride
level of Idaho's Portneuf River against a two degree average tem-
perature increase in Maryland's Anacostia River and say that the
aggregate water quality of the nation is better or worse?
Another point deserves to be made about the water quality assess-
ment that is summarized here. It is obviously impossible to provide
sufficient data over a sufficient period of time to define in precise,
quantitative terms what the quality of the nation's waters may be at
any time. Rich as the U.S. is, its economy does not have the resources
to conduct such an undertaking. What exist are samples of water
quality made at different points and different times. In many cases
fixed location testing stations provide recurrent data. In other
cases, particular water quality monitoring campaigns have produced
background data at a single point, or series of points, on a single
occasion or at intervals. On the basis of such data, knowledge of
streamflow, and other influences on quality, the assessors have
extra-polated judgements. They are, like most scientific generalities,
quasi-objective status reports and not actual measurements. The
assessors, then, are critical elements of the assessment. The evalua-
tions considered were prepared by men who are, by training and by
inclination, attuned to the probability of pollution. The jobs they
perform, the experiences they have accumulated, their status, the
whole complex of conditions that has given them a particular view
of the world, incline them to pessimism. If they err, it is likely to be
in the direction of overstatement. These reservations are expressed
not to cast doubts on the assessment—it is, after all, a compendium
of the judgements of the best qualified professionals—but to indicate
the volatile nature of the pollution phenomenon and to provide possi-
ble explanations of what may seem to be anomolies.
[p. 47]
A REGIONAL BASE FOR COMPARISONS
The assessment of the prevalence of pollution prepared by Regional
Offices finds that almost a third of U.S. stream miles are character-
istically polluted. (CF Figure 2.) Half or more of the total stream
-------
GUIDELINES AND REPORTS 3323
miles of over 20% of all second order drainage systems* in the U.S.
have been assessed to be polluted. In almost 50% of our watersheds,
20% to 50% of total stream miles are considered to be polluted. Less
than 10% of U.S. second order drainage systems were characterized by
the assessors to be unpolluted or moderately polluted.
There are distinct regional differences in the prevalence and osten-
sible causes of pollution. The most general statement of the distinction
is that States lying west of the Mississippi River appear to have rela-
tively more miles of polluted stream than do States that lie east of the
Mississippi. The fact is entirely consistent with our understanding of
the causes of water pollution, the effects of which are magnified by
low natural streamflows. Much of the Western United States is arid,
and that underlying deficiency in the quantity of water makes the task
of insuring adequate quality more difficult than in the humid East.
But the distinction between East and West does not adequately
characterize the variety of the American water pollution condition.
Comparative analysis requires somewhat finer distinctions. For an-
alytical purposes, then, a set of regional groupings are proposed here to
distinguish groups of States characterized by similar climatic and
hydrologic circumstances, and also by obvious consistencies in eco-
nomic specialization, demographic trends, and water pollution con-
trol strategies. Six broad groups are proposed, three lying east of
the Mississippi River, three west of the Mississippi, (See Figure 3.)
The Pacific Coast States (Washington, Idaho, Oregon, California,
and Nevada) combine moderate, humid climates in a thin, densely
populated coastal corridor with an arid, sparsely settled eastern pla-
teau that occupies most of the land area. Population growth exceeds
that of the other five broad regions; and a distinctly larger portion of
the area's population is concentrated in standard metropolitan sta-
tistical areas than in the other regions. A very high percentage of the
* The nation's river systems are geographically classified for purposes of hydrologic de-
scription. There are major basins which encompass the waters of the coterminous U.S.
These are further subdivided into 233 sub-basins. It is to these that the term "second order"
drainage systems apply. They are shown in Figure 4.
[p-48]
-------
3324
LEGAL COMPILATION—WATER
Figure 2
SECOND ORDER DRAINAGE SYSTEMS
CLASSIFIED BY PREVALENCE
OF WATER POLLUTION
so
40
i 30
20
10
0-5 5-I5 15-25 25-35 35 45 45-55 55-65 65-75 75-85 85-95 >95
' % OF MILES POLLUTED -
[p.
-------
GUIDELINES AND REPORTS
3325
o
o
UJ
ee
[P. 50]
-------
3326 LEGAL COMPILATION—WATER
total population has sewer connections. Waste treatment is almost
universal; but the prevalence of secondary waste treatment is rela-
tively low.
The Northern Plains States (Montana, North Dakota, Minnesota,
Wyoming, South Dakota, Nebraska, Iowa, Missouri) constitute the
most sparsely populated of the regional groupings; and in spite of the
presence of three metropolitan areas having populations well over a
million persons each (St. Louis, Kansas City, Minneapolis-St. Paul),
very close to half of the total population is non-metropolitan. Popula-
tion growth is slower than in the other regions, as is the rate of increase
in sewering. A substantial portion of the total population was without
waste treatment in 1968, at least as compared to the other western
regions; though that relative deficiency has been considerably reduced
with the completion of the major St. Louis waste treatment plant and
the extension of its services to outlying areas. (Over 800,000 persons
were discharging raw waste in the St. Louis SMSA in 1968).
Southern Plains States (Utah, Colorado, Kansas, Arizona, New
Mexico, Oklahoma, Arkansas, and Texas) make up the most arid of
the six regions, the one with the highest incidence of sewering, and
the highest applications of waste treatment. Although recent popula-
tion growth has occurred at a rate no greater than the nation's, popula-
tion of the 38 SMSA's has increased at a rate equivalent to that of
southeastern SMSA's, and little lower than that of those of the Pacific
Coast. A relatively large, but declining, non-metropolitan population
component is responsible for the apparent low rate of population
growth. Because water is scarce, attention to it is imperative; thus the
region not only stands first in incidence of sewering, but leads by a con-
siderable margin in the application of waste treatment at the secondary
and higher levels.
The Central States (Wisconsin, Michigan, Illinois, Indiana, Ohio,
West Virginia, Maryland-District of Columbia, and Delaware) com-
prise the most industrialized of the groups of States, are very densely
populated compared to the Southeastern or any of the Western groups
of States, and are growing in population at just about the same rate as
the nation. A large proportion of the metropolitan population is
sewered, but a surprisingly small proportion of the non-metropolitan
population receives sewer service. Virtually all of the sewered popu-
lation receives waste treatment; and the incidence of secondary
treatment is considerably higher than for the nation as a whole.
The Northeast (New York, Vermont, New Hampshire, Maine, Mas-
sachusetts, Connecticut, Rhode Island, Pennsylvania, and New Jer-
sey) is the most populous of the six regions, and the smallest in area.
[p. 51]
-------
GUIDELINES AND REPORTS 3327
Prevalence of sewering is well above the national average for both
metropolitan and non-metropolitan communities; but in spite of the
incidence of sewering and its highly concentrated population, applica-
tion of waste treatment in the Northeast lags the rest of the nation.
Almost 12% of the sewered population was without waste treatment
in 1968; and those 4.5 million persons constituted 45% of all persons
estimated to be discharging untreated sanitary sewage that year (as
compared to the region's 24.4% of U.S. population). Relative inten-
sity of treatment, too, is distinctly below the national average, with
almost half of the sewered population provided with less than second-
ary waste treatment, as compared to a little over a third on a national
basis.
Southeastern States (Kentucky, Virginia, Tennessee, North Car-
olina, Mississippi, Alabama, Georgia, South Carolina, Louisiana, and
Florida) are the most rural in composition of the six groups of States,
but stand second only to the Pacific Coast in rate of population
growth. Incidence of sewering is lowest among the six regions,
though the rate of expansion of sewer services exceeds that of the
other areas east of the Mississippi. The region led all others in rela-
tive discharge of untreated sewage in 1968, due in large part to the
substantial segment of the sewered population of some of its principal
metropolitan areas that was not provided with waste treatment
services. (Charleston, S.C. 120,000; Columbia, S.C. 99,000; Jackson,
Miss. 130,000; Memphis, Tenn. 522,000; Montgomery, Ala. 164,000;
New Orleans, La. 542,000; Savannah, Ga. 124,000; Shreveport, La.
234,000.)* In fact, the metropolitan population without waste treat-
ment of these States exceeded by a considerable amount the com-
bined total for all persons west of the Mississippi plus the central
States.
PREVALENCE OF WATER POLLUTION
A substantial portion of American waterways is characterized by
FWQA assessors to be persistently polluted. Of 233 second order
drainage systems in the forty-eight contiguous States, FWQA could
define only 19 in which no greater than 5% of stream miles were con-
tinually or recurrently in violation of established physical, chemical,
or bacteriological criteria—and 16 of those 19 are found in one area,
the region distinguished here as the Southeast. Even with the rela-
tively low prevalence of pollution in the Southeastern United States,
[p. 52]
* Sewage treatment plants are presently under construction or planned for In these
communities.
-------
3328
LEGAL COMPILATION—WATER
[p. 53]
-------
GUIDELINES AND REPORTS
3329
o
a
S2
rococo
If) i-H **
** c UD
r*. oo ft
rH tH rH(\)(OO)O
m 04 to r-. oo en n o ^ oo •-< m
ps. *H 00 tO O
CN in
c
CD
e
00
S A
i I
v> =
00 <»
f f
gs «
as a
1
V)
c
^H c
c
o>
V.
•a
c
tf.- ll^ll
^5 o"!S™^.. "5'«^J*3*=
% 2 Q.£| 0 « •£ ,3 £ ™ &^
4?4>a>(ua>aj
Suo^yo
3*oc:a)a>iua>«a)oov|ua}a)«
Q- H- < 0. 5Q_Q,Q.O-tOQ_CLQ-CLCL
-------
3330 LEGAL COMPILATION—WATER
we find that the median and modal incidence of pollution for the na-
tion occurs at over 30% of stream miles (cf. Table 18). More than a
third of total stream miles are defined to be polluted in every region
of the United States except the Southeast.
The incidence of pollution, as it is defined by the FWQA national
assessment, fits none of the accepted patterns of cause. The con-
ventional wisdom offers no ready explanations for the phenomenon.
The fact that the Northeastern States have the highest indicated pre-
valence of pollution is almost comforting, in that it fits all of the
preconceptions. The area is characterized by large and highly con-
centrated population, massive manufacturing capacity, a relative de-
ficiency in waste treatment. The region should, according to the
conventional scenario, have a great number of polluted stream miles.
But the Northern Plains States stand second to the Northeast in the
average prevalance of pollution, and exceed the Northeast in the
relative number of watersheds in the most polluted category, re-
actions become more than a little uncomfortable. That the sparsely
populated Dakotas, almost completely unindustrialized, where every
small town has its secondary waste treatment plant, should have
relatively more polluted stream miles than New York State is un-
settling. And to find that the nation's best water quality—in terms
of compliance with water quality standards—is to be found in the
region with the lowest incidence of waste treatment does additional
violence to any complacency about the direction of existing pollution
abatement programs.
Not even the most ancient of our conceptions of sources of water
quality degradation, deficiency of streamflow, holds up entirely.
While eastern streams, in total, are judged to be less extensively pol-
luted than western streams, the better showing traces entirely to the
waters of the Southeastern States. Pacific Coast States provide a con-
sistently better record of compliance with water quality standards
than either the Central or the Northeastern States; and even the most
arid of the six regions, the Southern Plains, compares quite favorably
with the Northeast and not unfavorably with the Central States.
We are left, then, with only a single certainty. A very large portion
of all U.S. waters consistently demonstrates quality characteristics
that violate established criteria. These violations occur in densely
populated and sparsely populated areas, in humid and arid climates,
in industrialized, in agricultural, and in forested regions, and appar-
ently without reference to either the prevalance or the intensity of
waste treatment. The lack of a pattern makes it impossible to judge
whether conditions are improving or deteriorating; but the consist-
-------
GUIDELINES AND REPORTS 3331
ency of the pattern of pollution suggests that there may be ineffic-
iencies in current approaches to pollution abatement.
[p. 55]
TABLE 18—GENERALIZED PREVALENCE OF POLLUTION, 1970
Region
Pacific Coast . . ...
Southern Plains
Central
West of Mississippi River
United States
Percent of
stream miles
polluted
33 9
40 0
38.8
233
36.6
43.9
. . . 31 6
35.5
32.6
Percent of
Predominantly
polluted '
14.8
37.5
27.3
14.3
23.2
36.1
23.0
24.1
23.7
Watersheds li
Extensively
polluted 2
59.3
333
51.5
41.1
51.8
55.6
48.7
47.1
48.5
n Pollution i
Locally
polluted3
22 2
25 0
18.2
16 1
21.4
56
15.5
20.7
17.7
Status
Slightly
polluted "
37
42
6.1
28 6
3.6
2 8
12 8
4.6
9.9
1 Predominantly polluted-. > — 50 percent of stream miles polluted.
1 Extensively polluted: 20 — 49.9 percent of stream miles polluted.
3 Locally polluted: 10 — 19.9 percent of stream miles polluted.
' Slightly polluted: > — 10 percent of stream miles polluted.
CAUSES OF WATER POLLUTION
[p. 56]
The apparently erratic geographic distribution of water pollution
may be explained in part by a review of apparent causes. The na-
tional assessment of the prevalence of water pollution included an
evaluation for each second order watershed of the indicated causes
of pollution, in terms of relative weight.
Causes of pollution were classified according to their association
with categories of human activity. Natural causes of poor water
quality were not considered, on the basis that water quality standards
are, at least in theory, developed in terms of water uses that are
possible within the framework of natural conditions. Recognized
sources of pollution for the assessment were eight:
(1) Municipal Wastes include all wastes that are collected and
transmitted through community systems of sanitary sewers. Both
commercial and domestic sanitary wastes, and the wastes discharged
by manufacturing plants to public sewer systems, fall into the
category.
(2) Other Urban Wastes include the waterborne residues of urban
activity that do not routinely enter the system of sanitary sewers.
Direct runoff from urban areas, overflows and bypasses of waste
treatment plants caused by combined storm and sanitary sewers, and
the unassimilated drainage of septic tanks comprise the major el-
ements of the category.
-------
3332 LEGAL COMPILATION—WATER
(3) Industrial Wastes include the separately discharged wastes of
manufacturing. Both process waters and manufacturers' cooling
waters fall under this heading.
(4) Electrical Generating was defined to include the discharge of
heated cooling waters of thermal power generating stations, the pres-
ence of radioactivity from nuclear fueled power plants, and the par-
ticulate fallout and acidity associated with fossil fueled power plants.
In several watersheds, however, the disruption of the natural hyro-
logic regimen associated with generation of hydroelectric power was
included by assessors under this category rather than the general
category of "other" which was intended to include all water manage-
ment activities.
(5) Agriculture, as a source of water pollution, includes the effects
of runoff on siltation of streams, organic and nutrient loadings orig-
inating with livestock, concentrations of pesticides and herbicides
from the runoff of agricultural lands, and salinity that occurs with
leaching and evapotranspiration in the irrigation process.
[p. 57]
(6) Mining's effects on water quality include siltation from scarred
lands, acid drainage from reaction of water with exposed mineral
seams, and pumping of brine deposits.
(7) Spills, which receive a great deal of attention because of their
often catastrophic nature, include the deposit in water of any pollut-
ing or toxic material as the result of accident.
(8) Other sources of water pollution are, obviously, unlimited in
concept, since they include any human event or activity not con-
sidered under one of the other seven categories of polluting activity.
In practice, however, the "other" category resolves into three prin-
cipal classes: water management in the highly regulated streams of
the west, the promotion of sedimentation by construction, and the
effects of transportation—principally navigation—including stream
dredging.
The use of the eight categories of polluting practices is valuable for
analytical purposes and for program formulation, but the real world
distinction among pollution's causes are not nearly so distinct as the
employment of the specific categories would imply. In practice,
water pollution can rarely be traced to a single cause. In most cases,
all eight forms of activity occur in the same watershed—and several
of them may be found at approximately the same stream point. Dis-
tinguishing their relative impact, then, is very largely a matter of
judgment and study.
The indicated causes of pollution, it must be stressed, do not con-
stitute as reliable an assessment as that of the prevalence of pollution.
-------
GUIDELINES AND REPORTS 3333
Judgment as to the occurrence or absence of pollution requires ex-
trapolation between measured points in space and in time. In the
case of causes, it requires a rather fine distinction among simultane-
ous occurrences, a weighting of the relative significance of inter-
related conditions.
As in the case of the prevalence of pollution, this study's procedure
includes no effort to revalue the judgments of the assessors. All data
have been accepted as they were given, on the basis that the ex-
perienced judgment of the men on the scene must in most cases be
better than that of the analyst removed from the event.
On the other hand, it must be recognized that there is something
that is essentially specious about any effort to quantify the relative
contribution to water pollution of various activities. The distinctions
are simply too fine and interdependent for accuracy. For this reason,
the analytical method has attempted to further separate the various
influences on water quality into distinguishable prime causes and all
other.
[p. 58]
TABLE 19—PRIME CAUSES OF STREAM POLLUTION, ALL SECOND ORDER WATERSHEDS
Prime causes, In
descending rank
Industrial wastes
Municipal
Other . ...
Other urban wastes
Power generation
Spills
Percent of stream pollution attributed to
United
States
23.7
21.8
11.2
3.7
2.8
0.9
0.4
01
646
Pacific
Coast
12.7
13;0
19.1
11.8
2.4
1.5.
60.5
Northern
plains
21.0
15.6
28.8
0.6
2.6
68.6
Southern
plains
9.2
14.2
27.6
16.6
12.6
0.1
70.3
Southeast
34.7
21.2
1.3
1.7
0.3
0.7
0.6
60.5
prime causes
Central
21.5
28.5
5.8
04 .
4.9
1.9
0.6
02
63.8
Northeast
33.5
27.1
0.5
26
1.3
0.1
65.1
[p. 59]
The selection principle was simple enough. In every watershed
the assessors indicated that from five to eight of the categories of ac-
tivity added to pollution of water. The analytical procedure was to
select the smallest number of those causes that could be added to-
gether to account for at least 50% of the indicated pollution. These
were then considered to be prime causes for that watershed. There
is no difference in the aggregate between the categories of activity
that are considered to be prime causes of pollution and those that are
considered to be contributory causes. The distinction was made
separately for each second order watershed. In most instances, one
or two causes were thought to account for half or more of the pollut-
ing effects. For all watersheds, the mean number of prime causes
-------
3334 LEGAL COMPILATION—WATER
was 1.8, and the proportion of pollution attributable to them was
greater than 65%—indicating that, in general, the major indicated
cause of pollution in any instance is substantially more significant
than other causes. Comparative significance of prime causes was as-
signed, within regions as well as for the nation as a whole, in terms
of index numbers based on stream miles and degree of pollution.
([percent prevalence of pollution multiplied by stream miles multi-
plied by percent pollution attributed to a prime cause] divided by [the
sum of percent prevalence of pollution multiplied by stream miles]
= percent of pollution attributed to a prime cause.) Again, the pro-
cedure is by no means precise, but by limiting the analysis to prime
causes, it is hoped that uncertainty attributal to background con-
ditions is reduced, so that we distinguish the more obvious (and thus,
hopefully, better founded) portions of the assessment.
The array of pollution sources reveals sharp differences in their im-
pacts. Municipal and industrial wastes are evaluated to be the ma-
jority sources of pollution (cf. Table 19), and to be of approximately
equal impact on a national basis. Industrial wastes emerge as the
principal source of pollution in two regions, municipal wastes in one.
In total, industrial wastes are indicated to be a fractionally greater
cause of pollution; but the values are so impressionistic that the dif-
ference can scarcely be considered real much less significant. The
parity accorded the two kinds of wastes by the assessors is unex-
pected, in view of greater quantity of industrial waste and the
slightly higher estimated treatment efficiency in the public sector.
(Surprising, too, is the fact that the one region in which municipal
wastes are considered to be the leading cause of violations of stream
criteria is the Central States, the most industrialized of the six
regions.) One must presume that the relative importance assumed
by municipal wastes strongly reflects frequent violation of bacterio-
logical standards and increased fertility of water attributed to phos-
phorus discharges. Other possible explanations include the
[p. 60]
diffusion of municipal waste sources—significant to an assessment
based on prevalence rather than intensity of pollution, concentration
on traditional sanitary interests, and difficulty in measuring effects
of some of the more obscure industrial wastes.
Agriculture, standing third nationally as a source of water pollu-
tion, is considered to be the leading cause in each of the three
western regions—and by a distinct margin over either municipal or
industrial wastes in each case.
Mining and "other" sources of pollution each receive some con-
sideration as prime sources of water pollution, with mining's con-
-------
GUIDELINES AND REPORTS 3335
tributory effect noted in all six regions, "other" sources largely
restricted to the Pacific Coast and Southern Plains.
"Other urban wastes," power generation, and spills tended to be
relegated by the assessors to the category of secondary or subsidiary
sources of pollution. Their combined contribution, as prime sources,
amounts to less than 1.5% of the total; and each tends to occur only
in particular, scattered instances. While this might be expected in
the case of spills, which occur mainly as accident, and so only in an
actuarial or probabilistic sense in any listing of causes of recurrent
pollution, one receives the distinct impression that the polluting ef-
fects of power generation and of unsewered urban drainage may well
have been overlooked in many instances as a result of concentration
on the obvious. Certainly the technical literature is full of examples
of adverse water quality impacts from these sources.
The full range of differences between east and west becomes
sharply evident when attention is shifted to the comparative con-
tribution of the several categories of activities to stream pollution
under varying degrees of prevalence, (cf. Table 20).
While the polluting influence of agriculture tends to remain con-
stant over the various degree of pollution categories in the west, and
the relative influence of municipal wastes declines with increased
prevalence of pollution, the exact opposite is true in the east. At
least two explanations come readily to rnind. On the one hand,
there is a distinctly lower incidence of waste treatment east of the
Mississippi, together with a much larger total population. So it is
entirely conceivable that some of the polluting effects of agriculture
are masked by the overriding influence of 'municipal (and industrial)
wastes. On the other hand, western agriculture is vastly different
in the aggregate from that of the east. It is more extensive, char-
acterized by larger land units, row crops, and highly mechanized
operations. It tends to be more wasteful in its use of soils in order
to make fuller use of its larger capital inputs. (Thus, for example, a
[p. 61]
-------
3336 LEGAL COMPILATION—WATER
TABLE 20—PRIME CAUSES OF STREAM POLLUTION, BY EXTENT OF POLLUTION
Percent of pollution attributed to prime causes
Prime causes and (rank)
All Predominantly Extensively Locally Slightly
streams polluted polluted polluted po.iuted
Industrial Wastes (1)
East of Mississippi River (1) . .
West of Mississippi River (2) .
Municipal Wastes (2)
East of Mississippi River (2) .
West of Mississippi River (3) .
Agriculture (3)
East of Mississippi River (4)
West of Mississippi River (1)
Other (2)
East of Mississippi River (7)
West of Mississippi River (4)
Mining (5)
East of Mississippi River (3)
West of Mississippi River (5)
Other Urban Wastes (6)
East of Mississippi River (5)
West of Mississippi River (7)
Power Generation (7)
East of Mississippi River (6)
West of Mississippi River (6)
Spills (8)
West of Mississippi River (8) .. . .
23.7
28.9
14.6
21.8
26.0
14.4
11.2
2.9
25.8
3.7
0.6 .
9.3
2.8
2.9
2.5
0.9
1.4
0.4
0.5
0.4
0.1....
0.1
24.9
31.0
14.8
232
26.5
17.8
10.5
1.4
25.5
3.1
8.2
3.0
3.9
1.5
1.0
1.6
0.3
0.6
24.0
28.3
15.7
19.6
25.0
9.9
110.8
3.0
26.5
4.6
1.2
11.4
2.3
2.2....
3.0
0.9
1.4
0.6
0.4... .
09
0.1
02
14.9
19.6
8.4
23.7
29.4
15.7
18.9
14.0
25.7
3.2
1.3....
5.7
2.5
6.0
0.2... .
0.4
20.8
18.2
12.4
27.2
34.5
34.3
5.5
5.4
19.1
0.4
4.8
5.8
7.1
9.5
0.9
1.2
[p. 62]
study of sedimentation in the Palouse River Basin of Washington and
Idaho found, over a period of years, a much tighter correlation of
silt loadings to fertilizer sales than to streamflow or precipitation. As
farmers found it cheaper to synthesize new soils with chemical ferti-
lizers than to preserve them, farming practices apparently altered in a
fashion that promoted erosion.) There is relatively less forest and
pasture cover to hold western agricultural land. A large portion of
the cultivation of the west is an irrigated agriculture, in which water
represents a planned resource input, increasing opportunities for
hydraulic displacement of soils, depleting streams, and enhancing
salinity. Western agricultural practices relating to livestock, too, are
inherently more pollutional, in that feeding operations that concen-
trate large numbers of animals in a limited space have become an
integral part of the industry. Such feed lots produce point sources
of wastes that, under some conditions, equal the polluting effects of
major metropolitan areas.
Other obvious distinctions relate to the influence of mining and
"other urban wastes." Mining, as a prime source of pollution in the
east, seems to exercise some of its effects in the watersheds where
pollution is most prevalent, as do "other urban wastes." The reverse
is true in the west, where mining would seem to be a source of local-
-------
GUIDELINES AND REPORTS 3337
ized pockets of pollution rather than a basin-wide influence. The dif-
ferences probably trace to the character of the industry. Eastern
coal mining is an essential part of the industrial base, with population
and manufacturing centers located near the coal fields. The petro-
leum and heavy metals extraction of the west tend to be isolated; and
the nature of the mining process and of soils tends to produce en-
vironmental impacts that are less extensive as well as less apt to be
reinforced by other activities. In the category of "other urban
wastes," precipitation patterns and a smaller scale of metropolitan
units may limit relative pollution effects in the west, as may the
lesser incidence of combined storm and sanitary sewers.
Perhaps the most dramatic of the differences between east and west
is hidden in the undifferentiated category "other." The role of water
management in arid areas is seldom considered in connection with
water pollution; but the modification of streamflows that can vary
from complete interruption of flow during the storage period to flood-
ing rushes when storage reservoirs are filled, when the irrigation
season is underway, or with peak generation of hydroelectricity,
creates an environment that is inimical to maintenance of water
quality standards. In the more extensively polluted watersheds of
the Pacific Coast and the Southern Plains, the category is given a
weight that is roughly equal to that of municipal wastes as a cause of
pollution.
[p. 63]
The value of the assessment in resource allocation decisions as dis-
cussed next is significant. Because this was the first such assessment
attempted, there may well be reservations as to the precision of its
results; but it does provide a new and enlightening view of the entire
water pollution picture. Future activities in this area will be de-
signed to reduce the imprecision and reservations to enhance the
utility of this form of assessment.
POLLUTION CAUSES AND RESOURCE ALLOCATION
Having established, in an admittedly subjective manner, the rela-
tive significance of major categories of polluting activities, the way
is open to consider current resource allocation procedures that affect
water pollution control. The task is by no means an easy one. Re-
liable data are simply not available for most of the eight kinds of ac-
tivities known to cause water pollution, so that one is forced to make
do with order of magnitude statements.
When there was a substantial amount of untreated sanitary sewage
being discharged, there could be little doubt of the utility of increas-
ing the prevalence of waste treatment. But untreated discharge is
-------
3338 LEGAL COMPILATION—WATER
now a rarity; and attention is shifting to higher degrees of treatment,
to reworking sewerage systems, to provision of "fail safe" procedures,
to providing for anticipated growth. There can be undoubted merit
in all of these kinds of investments; but there is also a probability that
there may be higher potential returns available in other areas.
Industrial wastes, which account for almost 80% of sewered oxygen
demand and for 34% of estimated stream pollution, have been the
source of about half a billion dollars a year of investment and several
hundreds of millions a year of operating costs over the last three
years. Current targets call for investment to be increased to over
$600 million a year.
Municipal wastes, which account for a little over 20% of sewered
oxygen demand and are presumed to be the principal source of nu-
trient phosphorus, are estimated to be responsible for a third of all
stream pollution. Investments, about a billion dollars a year over
the last three years, will to step significantly as a result of increased
Federal financial assistance. Operating costs, that currently approach
$300 million a year, should come close to half a billion by the middle
of the current decade. A very minor part of the added financial
burden will be directed toward alleviating the nutrient problem, be-
lieved to be the principal mechanism by which sanitary sewage causes
water pollution today.
Agriculture, estimated to cause almost 20% of all stream pollution,
makes almost no direct investment for pollution control purposes.
Costs of remedial procedures—including erosion control, limitation
of use of some pesticides, locational practices for feed lots and dairies
[p. 64]
—may amount to several tens of millions of dollars each year, with
the benefits experienced in such areas as nuisance alleviation, in-
creased productivity, and land resettlement alternatives as much as
in water pollution control.
Other activities producing pollution—water management practices,
construction, navigation, and recreation—are estimated to cause
slightly more than 6% of stream pollution, most of it west of the
Mississippi. Again, control measures can amount to no more than
tens of millions, occurring principally in the form of higher con-
struction costs.
Mining is estimated to account for about 5% of stream pollution,
concentrated largely in the Appalachian coal mining region. The
petroleum industry has indicated that its expenditures for pollution
control consequences of production exceed $100 million a year.
While no estimates of costs have been presented for other mining
sectors, it is considered improbable that their total would approach
-------
GUIDELINES AND REPORTS 3339
half of that claimed for petroleum extraction.
Other urban wastes, estimated to account for a little over 1% of
stream pollution, are approached almost entirely as a function of the
system of storm and sanitary sewers that currently sustains an annual
investment of about $600 million. It is uncertain to what extent the
sewering program serves to alleviate water pollution due to urban
drainage—indeed, there is some concern that the net effect of such
programs is negative with respect to water quality.
Power generation is estimated to be directly responsible for less
than 1% of stream pollution. Current investment in cooling water
recycling facilities by the steam power industry is in the area of $200
million a year. Air pollution control investments are approximately
equal; and these have collateral water pollution control benefits in
some cases, a function of reduction in fallout of particulate matter.
Spills are accorded responsibility for almost no recurrent water
pollution, though intermittent spill damages have proved in some
cases to be locally catastrophic. It is impossble to estimate costs of
spill control measures, both because procedures are undefined in
some cases, and because controls tend to be an inextricable part of
the—largely industrial—production system that results in spills.
It is a crude sort of balance sheet drawn up here, but it does indi-
cate that there may be distortion in the way resources are allocated
[p. 65]
for water pollution control. Sewered wastes have been estimated in
these pages to account for more than two-thirds of stream pollution.
They also receive almost all of the accountable expenditures for pol-
lution control—very close to $3 billion year—with the amount certain
to rise sharply over the next few years. Other kinds of polluting ac-
tivities receive about $300 millon of accountable expenditures by the
petroleum extraction and steam power generating industries, and
possibly several tens of millions from a variety of other interests.
Polluting effects, estimated to be twice as great for sewered wastes
as for other kinds of polluting activities, are countered by an alloca-
tion process that devotes almost ten times as much for sewered wastes
as for the other procedures that may cause water pollution.
On the other hand, one cannot make the off-hand judgment that
control of sewered wastes is overfunded relative to other categories
of pollution control. There is so tenuous a grasp of control possibil-
ities for unsewered pollutants that we do not know what control
measures are possible in many cases, much less what is necessary
or practical. Relative prices, then, will have to be taken into ac-
count, together with pollution reduction potential in making de-
terminations of the aggregate effectiveness of water pollution control
-------
3340 LEGAL COMPILATION—WATER
allocations. Current relationships could conceivably be optimal.
The fact that we do not know the optimum relationships enough,
however, to indicate that the nation is devoting an insufficient amount
of attention to the relative seriousness of pollution resulting from
sources other than sewered wastes.
[p. 66]
DISECONOMIES IN PUBLIC WASTE MANAGEMENT ACTIVITIES
Although the preceding discussion suggests the possibility that the
allocation processes that assign resources to remedy water pollution
are flawed by excessive concentration on sewered wastes, the fact is
currently impossible to determine. So exclusive has been the thrust
of water pollution control in the one direction, that there is only gen-
eral and impressionistic basis for suggesting that other pollution-
producing economic activities are neglected. No basis for comparing
any distribution of resources with a theoretical optimum at any level
of national expenditure can be developed as long as determinations
have not been made regarding the cost, desirability and degree of
control for non-sewered pollution sources. On the other hand, it is
possible to determine generally what economic loss, on a national
basis, ensues from suboptimal allocation of resources within the cat-
egory of sewered wastes and treatment for those wastes. (That is
not to say that definition of diseconomies offers any prospect of re-
ducing their dimensions. For the most part, the economic losses stem
either from uncertainty or from institutional constructs so strongly
rooted that their elimination might involve a higher cost than that
of the diseconomy they create.)
From an economic standpoint, though perhaps not from a regula-
tory one, there are continuous and substantial losses that ensue from
two sources; promotion of sewering, and overdesign of facilities, may
be viewed as institutionalized allocational impediments to totally cost
effective investment.
PROMOTION OF SEWERING
Diseconomies that stem from unnecessarily accelerated sewer con-
nections are significant. While a direct measurement of their amount
would require costly and extensive surveys, their general dimensions
can be determined by reference to relative growth of U.S. population
and of sewered population, (cf Table 21.)
Bureau of Census estimates indicate that between 1962 and 1968
national population increased by roughly 14 million persons. Esti-
mates of sewered population compiled by State health and water
pollution control agencies indicate that in the same period sewered
-------
GUIDELINES AND REPORTS
3341
population increased some 20 million persons, almost half again as
much in gross numbers, more than twice as fast in terms of rate of
increase.
[p. 67]
TABLE 21—RELATIVE GROWTH OF POPULATION AND SEWER SERVICE 1962-68
1962 Population, 1000's 1968 Population, 1000's
Region
Other
Other
S. Plains Metro
Other
S East Metro
Other
Central, Metro
Other
N. East Metro
Other
TOTAL Metro
TOTAL Other
United States
Total
. 18,246
4,547
. . . . 7,343
7,092
12,191
9,784
15 986
. , 20 665
31,190
11,218
. . 37,373
8,538
. , 122 328
61 845
184 173
Sewered
13,333
1,959
5,361
3,038
9,062
4,679
9,596
6,565
24,905
3,857
30,180
3,950
92,437
24,049
116,486
sewered
73.1
43.1
73.0
42.8
74.3
47.8
60.0
31.8
79.9
34.4
80.8
46.3
75.6
38.9
63.3
Total
21,519
4,217
7,903
6,879
14,016
9,506
18,505
21,418
34,187
11,503
39,743
8,605
135,873
62,127
198,000
Sewered
18,322
2,269
5,720
3,342
11,877
5,682
11,080
8,020
28,132
4,162
32,934
5,051
108,065
28,526
136,591
sewered
85.1
53.8
72.4
48.6
84.7
59.8
59.9
37.4
82.3
36.2
82.9
58.7
79.5
45.9
69.0
Annual rate
of change
(percent)
2.8
5.4
-1.1
2.5
1.2
1.1
-0.4
1.6
2.4
4.6
-0.5
3.3
2.5
2.4
0.6
3.3
1.5
1.8
0.4
1.2
1.0
1.5
0.1
4.2
1.8
2.7
0.1
2.9
1.2
2.7
[p.68]
While there is no direct relationship between rate of population
growth and a desirable rate of sewer connections, since local popula-
tion density and soil conditions are the basic factors that dictate use of
sewers rather than individual septic tank systems, there should be
some underlying correspondence of the two rates. But both the
higher overall rate of growth of sewering and the disproportionate
growth of sewering in rural and non-metropolitan urban areas lead
to the inference that sewering is being extended far beyond any cir-
cumstances dictated by physical need. At a time when the non-
metropolitan population of the United States increased by some
300,000 persons, sewer service to the population component added
some 4.5 million persons; and even in the areas west of the Mississippi,
where non-metropolitan population was declining, non-metropolitan
-------
3342
LEGAL COMPILATION—WATER
sewered population increased by some 1.6 million.
The critical point to be made here is that sewering, considered in
an environmental sense, is one of the prices paid for our urban con-
dition. To the point that the assimilative capacity of soils is not
exceeded, it is infinitely preferable to use ground disposal procedures.
They have the great virtue of recycling the materials so disposed, both
by replenishing water tables and by converting and utilizing organic
and inorganic waste matter in natural life processes of decay and
growth. Their secondary merit is more germane to this discussion.
Water reaching watercourses after passage though the filtering and
decomposition processes afforded by soil is far purer—provided that
soil loading rates are not exceeded—than any waste treatment pro-
cess short of distillation could make them. The effect of sewering is
to transfer conditions of soil pollution or groundwater pollution to
surface waters. To make that transfer where sewage loadings are not
so great as to threaten soil or groundwater pollution is to create
surface water pollution.
Yet there is a tendency to regard sewering as a progressive and
sanitary process in all cases, and as a general rule to discourage and
impede the alternative of ground disposal. Many State health depart-
ments actively promote sewer installations, as do Federal programs.
Sewering beyond the level dictated by environmental considera-
tions, then, must be conceded to be a polluting influence, with the
influence exercised in surface waters. That pollutional impact is
reinforced by the fact that local resources diverted to sewer installa-
tion may be denied to necessary waste treatment works. The situa-
tion is a universal one, but its effects are most noticeable in the
Northeast.
[p. 69]
TABLE 22—CALCULATED INCREASE IN SANITARY WASTE DISCHARGE DIRECTLY ATTRIBUTABLE TO
ACCELERATED SEWERING—NORTHEASTERN STATES, 1962-1968
1962 Sewered Population
Mean Waste Reduction T
Daily Waste Discharge, 1962
Additional Sewering, 1962-68 ....
Mean 1968 Waste Reduction '
Daily Waste Discharge 1968
Increase 1962-68
Directly Attributable to Accelerated Sewering
Thousand population equivalents
Metropolitan
30,179.6
.697
9,144.4
1841 0
913.3
.679
10,571.8
1,427 .4
293.2
of BOD
Other
3950.3
.674
1287.8
237
1076.9
.621
1914.3
626.5
408.1
' .35 PP + .85 P.
P
where Pp = sewered population with primary treatment
P, = sewered population with secondary treatment
P = total sewered population
[p. 70]
-------
GUIDELINES AND REPORTS 3343
In that region, where untreated sanitary waste discharges are
massively concentrated, water pollution abatement has been retarded
significantly by the allocation of resources to the sewering of rural
communities. The effects—not adjusted for overloading of waste
treatment plants or public treatment of industrial wastes—are dem-
onstrated in Table 22, which depicts a significant increase in oxygen
demand of both total sanitary wasteload and of discharged sanitary
wastes occurring between 1962 and 1968 as a result of a substantial
sewered population increment beyond that indicated by population
growth alone, and a related decline in the intensity of waste
treatment.
OVER-CAPITALIZATION OF TREATMENT WORKS
A recent newspaper story carried a two column photograph with
the following caption:
Control Panel Inspected
... inspects a control panel at the $2 million ... sewage plant ex-
pected to go into operation ... by the end of the year. The plant,
under construction since a year ago last summer, is expected to
handle three million gallons of waste a day. It is being built
simultaneously with a $1 million expansion of the ... plant. The
facilities have been designed to serve a population of 100,000, four
times the present... population.
One senses in the intent face of the inspecting technician who has
been photographed a certain efficient satisfaction with the bank of
controls and recording instruments; and the flat, no-nonsense jour-
nalistic prose of the caption has only a faint hint of civic pride in the
new facilities. There is no indication that anyone is, or should be,
disturbed at the thought of spending $3 million to construct facilities
that, when completed, will be 75% unused, at financing the unutilized
capacity at about 6% a year, or at assuming excess annual operating
costs of approximately $15,000 per million gallons a day of sewage
throughput. These things are, apparently, taken for granted. And
the situation cited is by no means unique—more than 7% of the
municipal waste treatment plants in the United States are scaled to
accommodate four or more times their current loading. (Such plants
account, however, for only 4.4% of gross capacity, due to the tendency
for over-design to occur principally with smaller plants in smaller
communities.) (cf Table 23.)
[p. 71]
The conventional explanation for installing multiples of currently
needed capacity is that they are intended to provide for future
growth. And in the case cited, the community is part of an SMSA
-------
3344 LEGAL COMPILATION—WATER
that has experienced extraordinary population growth since World
War II, thus a considerable amount of spare capacity might be a
good idea. However—if the city should continue to grow in popula-
tion at the very high rate (2.8% a year) experienced from 1940
through 1970, it would take 50 years to fully utilize its current capac-
ity. Should its population growth expand to that of the total SMSA
over the last 20 years (3.8% a year), it would be using up its excess in
only 37.5 years. And if population expansion should really skyrocket
to the overall rate of the county, in which it is located (5% a year),
only 28.5 years would be required to get 100% utilization of a set of
facilities built to serve over a 'normal' operating span of 25 years.
In defense of the communities like the one cited, it should be noted
that overdesign of waste treatment plants is not generally considered
to be an abuse. To the contrary, standard design practice calls for
the construction of facilities that are scaled to some "prudent" mul-
tiple of the existing loading rate, both to provide against loading
surges and to have them available for larger future needs. The pro-
cedure makes such obvious good sense when contained within 'pru-
dent' limits that there should be no need to call attention to it.
But there is room for disquiet when one takes into account the fact
that fully a quarter of metropolitan area waste treatment plant capac-
ity is less than half utilized, and that for non-metropolitan commun-
ities, over thirty percent of total waste treatment plant capacity is
utilized at less than half of design rating. When one excludes the one
sixth of all waste treatment plants that are overloaded, the mean
utilization rate for publicly operated plants in the U.S. is found to be
just under 63%—almost two-fifths of the total capacity of plants of
every vintage, then, is simply unused. Worse, in terms of aggregated
probabilities, much of it will never be used. The formal useful life of
a waste treatment plant is 25 years. At the rate of population growth
that applied during the 1950's only the fastest growing classes of com-
munities could make full use of the capacity of a plant designed to
serve twice its initial loading (cf. Figure 5). The rate of population
growth has been declining without interruption since 1957; and dur-
ing the 1960's it sank to 70% of the rate for the previous decade.
Under those circumstances, one would anticipate that the margin of
excess capacity would decline. Instead it has been rising.
[p. 72]
-------
GUIDELINES AND REPORTS
3345
RELATIVE POPULATION GROWTH EXPECTATIONS
BY CLASS OF COMMUNITY BASED ON 1950-60
ANNUAL RATE OF INCREASE
METRO-SUBURBAN
METRO TOTAL
METRO-CITY
URBAN TOTAL
OTHER URBAN
RURAL 1000-2500
RURAL -=1000
US TOTAL
YEARS TO
DOUBLE
70
87
too
[p. 73]
TABLE 23.—REGIONAL DISTRIBUTION OF UTILIZATION RATES 1968
Percent of capacity in utilization categories
Region
Pacific Coast, total
Metropolitan
Other
Northern Plains
Metropolitan
Other
Southern plains
Metropolitan
Other
Southeast
Metropolitan
Other
Central
Metropolitan
Other
Northeast
Metropolitan
Other
United States
100
percent
4.1
2.7
13.5
16.9
22.3
5.4
11.1
10.6
12.3
13.0
14.0
11.7
28.5
32.8
15.6
16.4
14.3
29.4
12.7
80-100
percent
23.7
25.4
12.5
12.5
10.6
16.5
21.6
21.9
20.7
11.7
9.0
15.7
27.7
29.2
22.2
26.3
27.8
17.4
23.0
67-79.9
percent
7.8
7.6
9.2
18.9
17.8
21.4
17.8
19.3
13.8
22.7
24.7
19.7
18.0
18.7
15.4
20.9
22.7
9.8
17.0
50-66.9
percent
18.0
18.5
14.6
22.7
21.4
25.5
17.4
15.0
24.1
25.9
29.5
20.8
13.2
10.3
23.9
22.5
22.7
21.3
18.9
25-49.9
percent
40.5
42.3
28.6
21.9
20.5
24.8
26.6
27.8
23.5
20.8
17.0
26.2
11.0
8.7
19.7
9.5
8.3
16.6
20.7
25
percent
5.9
3.5
21.6
7.1
7.3
6.5
5.4
5.3
5.7
5.9
5.6
5.9
1.6
1.2
3.2
4.4
4.3
5.5
4.4
[p- 74]
In the period 1962-1968, the average daily loading of public waste
treatment plants increased some 4.1 billion gallons. Total available
-------
3346 LEGAL COMPILATION—WATER
waste treatment capacity increased 6.9 billion gallons, (cf. Table 24.
The table is based on the roughly 50% of all waste treatment plants
for which both design capacity and average daily loading were re-
ported in the respective Municipal Waste Inventories. The sample
was scaled to an approximate total on the basis that the distribution
of capacity to loading for all plants was similar to that for reported
plants in the metropolitan and non-metropolitan categories within
each region.)
Thus for every two gallons of added sewage, more than three gal-
lons of added capacity was installed. The relationship can, perhaps,
best be viewed by a simple comparison of annual rates of expansion.
Between 1962 and 1968:
Population provided with sewer services increased 2.1% a year;
Waste treatment plant hydraulic loadings increased 3.2% a year;
Waste treatment plant capacity increased 4.0% a year; Idle waste
treatment plant capacity increased 6.1% a year.
That set of numbers does not adequately reflect a significant feature
of the idle capacity phenomenon. To fully appreciate the force of the
trend that is apparently in effect, one must take into consideration the
fact that 76% of all of the plants in operation in 1968 were also in
operation in 1962, and that much of the growth of loadings occurred
in such plants. Incremental idle capacity, as reported, is offset to
some extent by the takeup of idle capacity in plants already in place.
In logic, the total amount of excess capacity should begin to decline
as a result of progressive utilization at some indeterminate point
when the total stock of available capacity exceeds 50% of the re-
quired stock. Whatever that point may be, we have not reached it.
Unused capacity as a percentage of total capacity and of utilized
capacity continues to grow.
There are distinct and obvious penalties inherent in this situation.
The cost of the construction project is increased materially—though
not proportionately—by overbuilding, as are the costs of operating
and financing the project. Assuming the substitutability of unin-
vested capital in one place for another, and a generally fixed level of
funding, overbuilding at one set of points at the same time that un-
treated waste discharges and overloaded waste treatment plants occur
at other points contributes to the persistence of pollutional conditions.
Up to 80% of the cost of construction is now borne by Federal and
State governments. The amount of such assistance that is used to
[p. 75]
-------
GUIDELINES AND REPORTS
3347
o^iHCD^t^r-.eor'". c^i *"; t£J*~!°^u?R°jo» fr«
&
CO Ift CM O CM «-H 00 CM
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??• — ^ ,-^ K< .« >n .* IN. in r-\ CM o> »-^ '
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-------
3348 LEGAL COMPILATION—WATER
capitalize idle capacity when it might be alloted for productive pur-
poses can under conditions of resource scarcity only be considered to
contribute to the persistence of pollution, since, unlike local funds, it
is potentially available for a number of other projects. The effect
of that misallocation is most evident when one considers the fact that
both overloading and idle capacity increased between 1962 and 1968;
and that if only 10% of the surplus capacity installed during the
period had gone instead to points of more immediate need, reported
overloading of waste treatment plants could have been eliminated.
(cf. Table 24.) Finally, capacity in place limits the flexibility of a
community in adjusting to changing conditions including improve-
ments in technology and requires regular capital expenditures to
sustain operating efficiency. Such overhead penalties are an ines-
capable result of any capital investment. The effect of surplus capac-
ity is to add unnecessarily to the overhead burden and to tie the
owners to a less manageable fixed cost base.
The tendency to overbuild is a general one; though it seems to be
most strongly in force in the Pacific Coast States, where almost 24%
of total idle capacity was located in 1968. With the exception of the
Southern Plains region, the relative prevalence of idle capacity is
greatest in non-metropolitan areas. Though the 1962-68 trend was
for greater relative growth of surplus capacity in metropolitan than
in non-metropolitan areas, the 1962 surplus in non-metropolitan areas
was great enough that the proportion of capacity utilized at less than
half design rating in 1968 remained greater in non-metropolitan com-
munities in most of the Nation. Thus the excess, ostensibly installed
largely to provide for future growth of service, tended to be located
where growth is less pronounced, (cf. Table 25.)
DOLLAR COSTS OF IDLE CAPACITY AND SEWER PROMOTION
It is probably safe to assume that the major costs of misallocating
funds to purposes that have a low marginal utility—specifically, add-
ing to the stock of idle waste treatment capital and sewering portions
of communities that do not require sewering—are borne by the en-
vironment. Continued pollution of water is the prime price that the
economy pays for directing investments into projects that offer a
low return relative to other, more directly profitable, purposes.
But if environmental costs are of great, if unmeasurable, magni-
tude, dollar costs are by no means inconsequential. And they can be
estimated. Another section of this report will examine the impact of
[p. 77]
-------
GUIDELINES AND REPORTS
3349
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-------
3350 LEGAL COMPILATION—WATER
excess capacity on local operating cost structures. At this point it is
concerned with the amount of the diversion of capital to relatively
unproductive excess capacity and sewerage expansion.
Dollar value penalties of idle capacity have been calculated for both
1962 and 1968 by means of an uncomplicated, mechanical evaluation
process.
The Municipal Waste Inventory for each year was scanned, State by
State, with a digital computer. Wherever both design capacity and
actual daily loading were recorded, the cost of building a plant of the
given design size and general description (activated sludge, primary,
trickling filter, oxidation pond) was calculated by the computer on
the basis of the size to unit cost relationships developed by Robert L.
Michel in Construction Costs of Municipal Wastewater Treatment
Plants (U.S.D.I., FWQA, Washington, D.C., September 17, 1969).
Where actual daily loading was less than 80% of rated capacity, the
cost of the same type of plant, sized at 125% of average daily loading
(80% operating rate) was also calculated. The differences between
the two sets of values were summed, and the regional sums were
scaled to include all plants on the basis of the assumption that the
distribution of capacity was similar for all plants and for reported
plants. Values are presented in Table 26 as the "under utilization
penalty".
Penalties are assessed in terms of national average prices, a mod-
erate (25%) allowance for growth of demand, and they include full
consideration of the economies of scale that exist in the cost to size
relationships observed for waste treatment plant construction. In
total, the dollar value penalty associated with plants operated at less
than 80% of rated capacity in 1968 was $670 million, or 18% of the
total value of public waste treatment plants.
Perhaps more significant than the total amount of the penalty is its
trend. As noted earlier in terms of hydraulic capacity, the amount of
capital incorporated in idle facilities increased substantially between
1962 and 1968. ($180 million in constant dollars, probably $205 mil-
lion in value of actual dollar cost of construction projects, $260 mil-
lion in 1970 replacement value.)
The calculated value of the incremental capital sunk into idle capac-
ity between 1962 and 1968 does not, however, present the full amount
of the penalty. Incremental idle capacity amounted to $180 million
worth of waste treatment works. But the principal purpose of over-
building is to provide for future growth, and in the aggregate the
nation replaced every unit of idle capacity taken up by the growth
[p. 79]
-------
GUIDELINES AND REPORTS
3351
ZAT10N
OF UNDER-UTIL
ITAL PENALTIES
TABLE 26.— CAP
of 1957-59 doll
Millions
investment
Incremental
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-------
3352 LEGAL COMPILATION—WATER
process and added to it. Thus the total 1962-68 investment for un-
used capacity is distributed throughout the $670 million worth of idle
capacity, and is not restricted to the $180 million increment. Put
another way, in terms of the total economy, surplus capacity available
in 1962 proved, on balance, to be totally useless to the nation over the
next six years.
Given available information with respect to investment between
1962 and 1968, changes in the physical stock of capital, changes in the
number of users of waste treatment facilities, and changes in the
hydraulic loading of waste treatment plants, it is possible to assign
the approximate distribution of the nation's capital investment be-
tween 1962 and 1968 to several broad categories of activity. The
distribution, for the nation and for regional groupings of States, is
presented in Table 27.
Total investment, in constant dollars, amounted to just over $2 bil-
lion for waste treatment plant construction, expansion, upgrading, re-
placement and major modifications. (A significantly larger sum was
invested in interceptor sewers, outfalls, pumping stations, and col-
lection sewers. Such investments are not taken into account in this
analysis. While investments for those purposes have a major impact
on waste treatment needs and on the quality of water, they do not
serve a direct pollution abatement purpose.)
Recapitalization of existing facilities absorbed the lion's share of
investment during the period, (cf. discussion pp. 13-25.) The fact
is unexceptionable, given the high prevalence of waste treatment in
1962. The significance of the high capital overhead imposed by the
size of the capital base is that less than 40% of capital made available
for waste treatment plant construction during the period could be
utilized to increase the aggregate level of control of wastes. Given
the level of investment and of depreciation, a low marginal return
was the best that the nation could anticipate, making the relative
impact of any misallocation far more severe.
The attempt to quantify the marginal utility of the investment in
terms of the various uses to which capital was applied involves an-
alysis of reported growth in hydraulic loading of waste treatment
plants and of population served by waste treatment plants. The total
replacement value of waste treatment plants was calculated to have
increased some $780 million, of which $180 million represented a net
addition to idle capacity. To the utilized $600 million worth of facil-
ities we can assign a series of functions, based on shifts in population
connections and hydraulic loadings. (The assignments are less precise
[p. 81]
-------
GUIDELINES AND REPORTS
3353
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-------
3354 LEGAL COMPILATION—WATER
than that for idle capacity, since they depend on proportional tech-
niques and do not scale factors into account.)
Reducing the number of sewered persons discharging raw wastes
accounted for 4.4% of total investment between 1962 and 1968, and
11.7% of the capital available after recapitalization demand had been
satisfied. Sixty-five percent of this kind of investment occurred in the
Southeast and the Northeast, where the bulk of the nation's popula-
tion without treatment was concentrated through the period.
Providing treatment to meet demands presented by growth of
sewer services accounted for 18.2% of total investment, 47% of in-
vestment available to extend treatment services. On the basis of the
assumption that normal growth of sewer services should be propor-
tional to growth of population,* more than half of this investment
component was applied in the area of promoted or unnecessary sewer-
ing. Of the total amount of capital available for marginal extension
of waste treatment, 25.4% was diverted to the purpose.
Increased treatment of industrial wastes exercised a claim on 6%
of total capital investment, 20.7% of the net investment available
after the recapitalization. The value attributable to incremental in-
dustrial demand for waste treatment services would have been much
greater, except that there was a negative shift in demand in two
regions, the Pacific Coast and the Northeast.
That shift should not be construed to conflict with the tendency of
factories to utilize public systems, in view of the method. Industrial
waste loadings were deduced from per-capita discharge attributed to
the sewered population, with loadings in excess of 100 gallons per
capita per day assigned to industrial sources. Two quite logical ex-
planations of the apparent decline in industrial usage come readily
to mind. The nature of industrial specialization was changing in
each region, moving away—in a relative sense—from heavy industry
and first stage processing toward higher processing stages, fabrica-
tion, and low waste industries. The impact of that development is
[p. 83]
borne out by the fact that decline in reported per-capita discharge
was limited to metropolitan areas in either region; non-metropolitan
wastes per-capita continued to increase, suggesting the effects of
connection of decentralized agricultural processing and pulp and
paper production. Further, both areas have a fairly long history of
public treatment of industrial wastes, at least as compared to the
Southern Plains and the Central States. One of the characteristic
• The assumption accounts In part for concentration factors by recognizing the differential
growth rates of metropolitan and non-metropolitan communities. That accounting was re-
inforced in computation by the constraint that in no case could growth be negative—after
all, one cannot move sewers from place to place.
-------
GUIDELINES AND REPORTS 3355
features of municipal finance during the nineteen-sixties was estab-
lishment of user charges for public utility and other services, includ-
ing sewer services. Industrial waste discharges are known to be
highly variable and controllable; and the use of sewer service fees
provides an incentive to industrial management to limit the volume of
its discharges. So that, where industrial use of public systems had
become established prior to initiation of fee systems or to the increase
in fees required in many cases to finance system improvement or ex-
pansion, a reduction in gross volume of industrial discharge might be
expected, even where the number of industrial connections was
increasing.
Reduction of the incidence of overloaded waste treatment plants
had almost no net impact on aggregate capitalization, due to a sharp
increase in overloading in the Central States. Overloading declined
markedly in the Northeast, and in a relative sense on the Pacific
Coast, where little was reported in 1962; and it remained fairly con-
stant in other areas. Individual expansion projects unquestionably
reduced overloadings of many waste treatment plants during the
period, but we deal here with net effects. And those expansion
projects were apparently offset in the aggregate by the other factors
evaluated—population growth, sewer promotion, industrial wastes.
On a national basis, meaningful reduction of overloading occurred
only with reduction of industrial waste discharges in two regions.
There is a suggestion in the fact that the factors that govern the in-
crease of waste loadings are to some meaningful extent unpredictable.
If uncertainty does, in fact, play such a large part in distribution of
growth processes, should not the strategy of installing significant
[p. 84]
amounts of excess capacity to support growth be subject to greater
question?*
* A note on method: the relationships discussed above were determined by use of the
following formulae. Each formula Is keyed to a numerical notation on Table 26.
-------
3356 LEGAL COMPILATION—WATER
(1) (Rj-Rg) 100 . I
where I = Constant dollar investment excluding value attributed to recapitalization
and idle capacity
Rz = Sewered population without treatment in 1962
R8 = Sewered population without treatment in 1968
100 = Gallons per capita per day, the norm for domestic wastes
C = Increase in gallons per day of sewage throughput between 1962 and 1968
(2) [(P2G)-P2] 100 . I
where Pz = Sewered population in 1962
G = Appropriate growth factor, based on U.S. Bureau of Census population
estimates, for metropolitan and non-metropolitan components of each
regional grouping, subject to the constraint that Pa. G may not be negative
[p. 85]
(3) lOOPs-IPj. G)-P2]100 . I
C
where Ps •= Sewered population in 1968
(4) C-100 (Ps-Pa) . I
C
(5) Oi-Os . I
where Os = Net hydraulic overloading in 1968
Oa = Net hydraulic overloading in 1962
[p. 86]
OPERATION AND MAINTENANCE COSTS
BACKGROUND
Operation and maintenance costs of waste treatment plans consist
of expenditures for operators and technicians, power, chemicals and
miscellaneous supplies. A previous volume in this series documented
the magnitude of operations and maintenance costs. The Cost of
Clean Water and Its Economic Impact, Volume I, FWQA, U.S. De-
partment of the Interior, 1969. Furthermore, it was reported then
that there has been a failure to appreciate the magnitude of this cost
and rather to concentrate on plant investment. Further statistical
analyses summarized here, indicate that annual operation and main-
tenance expenditures have been somewhat underestimated in pre-
vious reports. The revised estimates are that in 1962 operating and
maintenance costs totaled $185.7 million (1962 = 100) and that in
1968 the total was $230.0 million (in 1962 dollars), a 23.8 percent in-
crease. The objective of this chapter is: to reevaluate the method of
measuring these costs; to recalculate the total amount of annual O&M
costs; and to evaluate the relationship between the size of the treat-
ment plant, the degree of utilization of the plant, and the resulting
costs of operating and maintenance.
Annual operation and maintenance (O&M) expenditures should be
-------
GUIDELINES AND REPORTS 3357
considered as a short run cost rather than a long run cost. Traditional
methods of estimating O&M costs have assumed that these costs were
of a long run nature. The approach used in this chapter assumes
that O&M costs are short run, the basic difference being that the
plant size is fixed in the short run while in the long run it is allowed
to vary. This method of estimating O&M costs provides an O&M cost
curve for each plant size category. Thus the O&M cost for treat-
ment plants of different sizes within the U.S. can be estimated. Also,
this approach provides a framework for evaluating the excess cost
incurred for constructing a plant that has a larger capacity (size) than
is needed at a given time.
The 1969 Cost of Clean Water report also discussed factors tending
to lead to an increase in operating costs on a national aggregate basis
not the least significant of these are the pressures for improved op-
erational efficiency. This analysis does not address an optimum level
of operation and maintenance expenditures; the total will well exceed
current levels. However, in the face of a significant total increase in
this area, the inefficient use of operation and maintenance expendi-
tures becomes more critical. The section therefore concerns itself
with more efficient allocation of such funds within the context of a
growing expenditure.
DETERMINANTS OF OPERATING AND MAINTENANCE COSTS
A number of factors influence the level of operating and main-
tenance costs of a sewage treatment plant. First, as the degree of
[p. 87]
treatment becomes higher for a given concentration of wastes in the
influent, operating and maintenance costs will increase.
Second, the operating and maintenance costs vary with the type of
treatment and the waste characteristics to which applied. Technolog-
ical characteristics differ among treatment types which, in turn, will
lead to corresponding differences in costs for different rates of flow,
quality of effluent, and geographical characteristics. For example, for
85 percent BOD removal at an average flow rate of 15 million gallons
per day (MGD) with a highly concentrated influent, an activated
sludge process may prove to be less expensive to operate than a
standard rate trickling filter, but at a considerably lower flow rate
with a less concentrated influent, the standard rate filter would prob-
ably prove to cost less to operate and maintain than an activated
sludge process. Within a given category of treatment, no simple
ordering of process types by operating and maintenance costs is pos-
sible, but given the full characteristics of the waste treatment needs
of a community, one type of treatment will generally yield the min-
-------
3358 LEGAL COMPILATION—WATER
imum attainable level of operating costs consistent with a desired
effluent quality. Population density and the mix of industrial ac-
tivities are two rather obvious features that partially determine both
the hydraulic loading and waste concentration demands on a treat-
ment plant and, thus, partially determine the level of operating and
maintenance costs of the plant.
Third, the location and geographical characteristics of a community
will, in part, determine the level of operating and maintenance costs
that the community will experience subsequent to the installation of
a waste treatment plant. Among the locational factors influencing
operating costs are the prices of power and personnel and the general
level of prices facing the community. Climatic conditions affecting
operating costs include thermal patterns and the frequency, duration,
amount and intensity of precipitation. Topographic characteristics
can sometimes affect treatment plant costs, particularly pumping and
transmission costs. Ascertaining the specific impact of these loca-
tional and geographical factors on the costs of operating and main-
taining a treatment plant is beyond the scope of this study, but it is
necessary to recognize that they are part of the complex of determi-
nants affecting the levels of operating and maintenance costs.
Finally, an additional determinant of a treatment plant's operating
and maintenance costs which has not generally received attention is
the interaction between the design capacity of the plant and the actual
rate of capacity utilization of the plant. The design capacity of a
plant can be identified as the rate of flow that the plant can treat,
at a desired degree of waste removal. It is also the rate which is
expected to yield the lowest unit costs of operation and maintenance.
For an operating plant of given design capacity, with the exception
of some stabilization ponds, certain costs are necessarily incurred.
A minimum amount of personnel is required for operation, main-
tenance and surveillance. To not maintain minimum numbers of
personnel is to risk plant breakdown and to sacrifice quality of
[p. 88]
effluent. In order that chemical treatments have their intended ef-
fects on influent, certain minimal chemical feed rates depend not only
on the actual flow into the plant but also on the volume and surface
.area of the tanks in the plant. Even at the lowest rates of capacity
utilization, a minimum level of power consumption is necessary for
the treatment plant to be operative. All of these minimum tech-
nological requirements imply that a treatment plan will incur a
necessary minimum level of operating and maintenance costs, and
these costs are a direct function of the design capacity of the plant.
Such costs are referred to as overhead costs.
-------
GUIDELINES AND REPORTS 3359
Overhead costs increase as the design capacity of a treatment plant
increases, other things being equal. A bigger plant simply requires
larger minimum amounts of personnel, chemicals, and power. Up to
a point in the neighborhood of design capacity, then, for a treatment
plant of a given type and design capacity, unit operating and main-
tenance costs should decline with increased plant utilization. As
utilization increases from lower rates toward 100% of design capacity,
the overhead costs are spread over a greater average daily flow and
input units become more effective. Conversely, unit operating and
maintenance costs should rise as the rate of capacity utilization de-
clines below design capacity. This cost behavior is illustrated in
Figures 6 and 7 by the statistically estimated cost functions for pri-
mary treatment and trickling filter treatment plants of 2.5 and 10
MGD design capacity.
In the range of zero to fifty percent of capacity, unit costs decline
rapidly and begin to level off thereafter and the unit cost curve for
the larger plant lies above that of the smaller plant, in the ranges
depicted, reflecting cost differences between design capacities.
Thus, it is clear that in addition to the degree of wastewater treat-
ment, treatment plant technology, and the hydraulic and geographical
characteristics of a community, the design capacity of a community's
treatment plant, together with the actual rate at which the capacity
is utilized, will have a significant bearing on the level of operating
and maintenance costs that a community will experience. This last
factor is important not only for the purposes of understanding the
underlying determinants of operating and maintenance costs, but
also provides, in part, a basis for assessing and evaluating the eco-
nomic consequences of over-capacity in sewage treatment plants in
the United States.
THE CONCEPT OF A PENALTY COST
From an earlier discussion in this volume, it is apparent that under-
utilization of capacity is the rule in the operation of sewage treatment
plants in the United States. Taking eighty percent utilization of
plant as benchmark for effective capacity utilization, it can be seen
from Table 25 that in 1968 (the most recent year for which data are
available) 61.1 percent of the plants in metropolitan areas and 65.7
[p. 89]
-------
3360
LEGAL COMPILATION—WATER
UNIT COST CURVES FOR PRIMARY PLANTS -
2.5 AND 10.0 DESIGN CAPACITY
7 8 9 10
AVERAGE DAIiniOWlMGDl
[p. 90]
-------
GUIDELINES AND REPORTS
UNIT COST CURVES FOR TRICKLING FILTER PLANTS-
2.5 AND 10.0 DESIGN CAPACITY
3361
9 10
WEflAGE DAILY F10W MD
[p. 91]
-------
3362 LEGAL COMPILATION—WATER
percent of the plants in non-metropolitan areas are operating at less
than the eighty percent rate—82.2 percent of the metropolitan plants
and 84.6 percent of the non-metropolitan plants operated below stated
design capacities. It is of interest for this cost effectiveness study to
attempt to assess the economic consequences of the prevalence of
underutilization of treatment plant capacity, and to inquire as to the
possible reasons for the prevalence of underutilization.
A community incurs a pecuniary penalty in at least two ways by
operating its treatment plant at rates below full utilization or, equiv-
alently, by possessing a treatment plant with a design capacity in
considerable excess of its current needs. First, by operating a plant
at less than full utilization a community is incurring a penalty in that
lower costs could be achieved for the same average daily flow and
treatment effectiveness by operating a plant of smaller scale. That
is, had a community with excess treatment plant capacity built a plant
of a design capacity in line with their actual needs, then the com-
munity would be experiencing lower operating and maintenance costs
than it is currently experiencing. This is because of the effects of the
interaction between design capacity and actual flow discussed in the
previous section. Though it is generally true that lower unit operat-
ing and maintenance costs obtain with a larger plant rather than a
smaller plant when operated in the neighborhood of design capacity,
it is not usually the case that for a given rate of flow a large plant op-
erating considerably below design capacity will have lower unit
operating and maintenance costs than a smaller plant operating close
to design capacity.
An example of the operating and maintenance penalty cause by
underutilization of treatment plant capacity is illustrated in Figure 7
by statistically estimated cost curves for the activated sludge process.
In this example both the 2.5 and 10.0 MGD design capacity plants are
processing an average daily flow of 2.0 MGD. The larger plant re-
quires unit operating and maintenance expense of $39,400 (1962 =
100) but the smaller plant's annual unit operating and maintenance
expense is $20,600 (1962 = 100). The difference between these two
figures multiplied by the average daily flow is the total penalty cost,
which amounts to $37,600 (1962 = 100) for the year and is illustrated
by the shaded area in Figure 8. Though the data do not allow a pre-
cise definition of cost curves through the entire range of utilization,
there are unquestionably financial penalties for overloading, as in-
dicated by the calculated extension of the curves presented in Figure 9.
The second type of penalty associated with overbuilding is the in-
terest which must be paid on the difference in capital costs between
a community's relatively oversized treatment facility and a treatment
plant with a design capacity closer to the community's actual needs.
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GUIDELINES AND REPORTS
3363
This type of penalty cost can be computed in a manner similar to the
computation of the operating and maintenance cost penalty: estimates
of the construction costs of the two sizes of plants are made and an
[p. 92]
ILLUSTRATION OF A PENALTY COST
FOR ACTIVATED SLUDGE PLANTS
5
8 9
AVERAGE DAILY FLOW (MGD)
[p. 93]
Si 50
a £
ii
IS <°
IIT COSTS AND UTILIZATION OF CAPACITY
20
[p. 94]
-------
3364 LEGAL COMPILATION—WATER
appropriate rate of interest is applied to the differences in costs; in
order to determine the community's interest burden, a factor measur-
ing the community's share of the financing is applied.
Adding the operating and maintenance cost penalty and the interest
change penalty provides an estimate of a community's annual out-of-
pocket expenses attributable to building a treatment plant with a
capacity in excess of the community's needs. Although the under-
utilization penalty incurred by one community may not appear large
when viewed for a single year, the aggregate value of all such penal-
ties may be of a considerable magnitude; and the cumulative value of
the community's penalties over time may prove to be of some signifi-
cance. Thus, the next step in this study of cost effectiveness will be to
utilize existing data to make estimates for the United States of the
monetary penalty associated with the existence of excess capacity in
sewage treatment plants.
PENALTY COSTS FOR OVERCAPACITY
Absolute precision in estimating the costs of treatment plant over-
capacity is unattainable for at least three reasons: First, actual
operating and maintenance cost data are collected for only a rela-
tively small number of plants; second, to derive the operating and
maintenance costs that a community would obtain if it had a treatment
plant with a design capacity in line with its actual needs would
require detailed knowledge of the design characteristics of this
hypothetical plant—this point also applies to the computation of the
interest charge penalty and third, no universally acceptable definition
of full capacity utilization is available. In spite of these obstacles
to precision, estimates of the costs of overcapacity can be obtained
through the use of statistical procedures.
Through the use of data on operating and maintenance cost, average
daily flow, and stated design capacity for a representative sample
of treatment plants, operating and maintenance cost functions for
various plant technologies have been statistically estimated. These
cost relationships explicitly include the interaction between average
daily flow and design capacity as determinants of unit operating and
maintenance costs. These relationships provide estimates of the unit
operating and maintenance costs for a plant with stated average daily
flow, design capacity, and plant technology which are statistically
"best". Examples of the cost functions are illustrated in Figures 6
and 7 in the previous section.
In addition to providing an estimate of a plant's operating and
maintenance costs, given its reported average daily flow and design
capacity, the cost functions allow an estimate to be made of the
operating and maintenance costs that an underutilized plant could
-------
GUIDELINES AND REPORTS 3365
achieve at its reported average daily flow, but with a plant of design
[p.95]
capacity more in line with its actual needs. The difference between
the former and latter quantities is an estimate of the operating and
maintenance cost penalty incurred by the underutilized plant in
question. Estimates of the operating and maintenance cost penalties
for the entire United States for the years 1962 and 1968 have been
derived for treatment plants having needed data reported in the 1962
and 1968 municipal waste inventories. These figures were adjusted
by an appropriate scaling factor to account for plants not having
necessary data reported in. the inventory.
By a procedure analogous to the one described above, interest
charge penalties caused by overbuilding of treatment plants have
been estimated. Statistical investigations of capital cost functions
for treatment plants which have been made make it possible to esti-
mate the cost of building a given plant with a given average daily flow
and the cost of building a plant designed to operate at a rate closer to
full utilization. The difference between the former and latter magni-
tudes is an estimate of the total construction cost penalty caused by
overbuilding. Multiplication of this aggregate figure by an average
rate of interest will indicate roughly the total interest burden caused
by overbuilding.
In Table 28 estimated operating and maintenance cost penalties, by
TABLE 28.—ESTIMATED OPERATING AND MAINTENANCE COST PENALTIES FOR PLANTS
OPERATING AT LESS THAN FULL CAPACITY (Dollars Millions, 1962 = 100)
Northeast
United States
1!
Millions
penalty
(dollars)
3.04
99
1.70
2.58
3.12
2.35
13.76
962
Percent
of
total
O&M
14.4
12.6
16.1
17.1
14.0
11.3
14.1
Millions
penalty
(dollars)
3.69
1.99
2.14
378
3.43
4.31
19.33
1£
Percent
of
total
O&M
17.5
13.1
16.3
15.4
13.0
15.3
15.0
168
Annual
rate of
rate
of
Increase
(percent)
33
12 3
3.9
6.6
1.6
10.7
5.8
[p-97]
regions and for the nation, are reported. Eighty percent has been
taken as the benchmark of full utilization; that is, the operating and
maintenance cost penalties have been calculated only to the degree
that treatment plants were operating at less than eighty percent of
their design capacity. The estimate for the entire United States is
not large in magnitude for either 1962 or 1968: for 1962 the amount
-------
3366 LEGAL COMPILATION—WATER
of annual operating and maintenance costs that could have been saved
by building plants that could serve communities' needs at a rate of
utilization of eighty percent is just under $14 million (1962 = 100)
and the analagous figure for 1968 is just over $19 million (1962 =
100). On a per capita basis, the estimated operating and maintenance
cost penalty for 1968 amounts to roughly 22 cents per person served
per year.
Though the magnitudes of the operating and maintenance cost pen-
alties are slight, both in absolute and per capita terms, it should be
noted that these penalties amounted to 14.1 and 15.0 percent of the
operating and maintenance costs of underutilized plants in 1962 and
1968, respectively. That is, underutilized plants, on average, could
have reduced operating and maintenance costs by 15 percent in 1968
by having built plants in line with their actual treatment needs. The
possible cost savings by utilization categories are reported in Table
29. The incidence and relative magnitude of operating and main-
tenance cost penalties are notable. As can be seen in this table, the
relative penalty increases as capacity utilization decreases, increasing
from 4.4 percent for a range of utilization between 60 and 80 percent
[p. 96]
TABLE 29.—INCIDENCE OF OPERATING AND MAINTENANCE COSTS PENALTIES
BY UTILIZATION CLASSES, 1968
[Utilization defined as average daily flow/design capacity]
Share of total penalty
Percentage of all plants .
Percentage of underutilized plants
0 - .2
. 59 8
21.6
.5.6
... 8.2
.2 - .4
32 8
31.5
15.1
22.1
.4-6
146
33.8
243
35,7
.6- .8
44
13.4
24.0
33.9
[P- 98]
up to 59.8 percent for the range zero to 20 percent. At around 60 per-
cent capacity utilization, the cost penalty begins to become marginal,
being equal to about ten percent of total operating and maintenance
costs. With regard to the incidence of cost penalties, plants working
at less than 40 percent of capacity account for 53.1 percent of the total
penalty costs but only account for 20.7 percent of all plants. Thus,
though the total monetary burden stemming from operating and
maintenance cost penalties is not massive, it is generally not in a
community's interest to build treatment plant capacity far in excess
of its needs.
The other source of additional costs to a community that arises from
the existence of excess capacity is the additional interest that must
be paid for the construction of excess capacity. In Figure 10 it can
be seen that the estimated replacement value (rather than original
-------
GUIDELINES AND REPORTS
3367
cost) of treatment plant capacity, exclusive of land, interceptors, and
outfalls, was $2.94 billion and $3.72 billion (1957-59 = 100) in 1962
and 1968, respectively. Of these totals, $490 million and $670 million
went into excess capacity, using 80% as the full utilization bench-
mark. These latter amounts are represented by the shaded areas
in Figure 10.
FIGURE 10
Replacement value of treatment plant capacity in 1962 and 1968
in $ billions (1957-59=100)
1968
1962
2.94
3.72
[p. 100]
In order to estimate precisely the interest burden for communities
with excess capacity, interest rates paid by communities and the
communities' share of construction costs are necessary. For purposes
of this analysis such precision did not seem warranted in view of the
-------
3368 LEGAL COMPILATION—WATER
difficulty in assembling these data. Consequently, the total interest
penalties have been calculated for a range of reasonable values for
1968, and are presented in Table 30. As can be seen in this table, the
TABLE 30.—INTEREST PENALTIES IN MILLIONS OF DOLLARS (1962 = 100) FOR 1968
Interest rates (percentage)
Community share:
.5
.6
.7
.03
10.8
12.9
15.1
.04
14.3
17.2
20.1
.05
17.9
21.5
25.11
[p. 101]
values range from $10.8 million to $25.1 million. On a per capita basis
these estimates work out roughly to a range of $.12 to $.29 per person
served per year. Thus, as in the case of operating and maintenance
costs, the total and per capita interest costs incurred by overbuilding
are of a rather small magnitude.
In spite of the small size of the estimated penalties it is worthwhile
comparing them for 1962 and 1968 to discern any trends. First, it
should be noted that excess capacity has been increasing between
1962 and 1968: 23% of non-replacement investment has gone into ex-
cess capacity (see Table 26) and the construction excess depicted in
Figure 10 has increased from 16.7% to 18.0%. Second, operating and
maintenance cost penalties relative to total operating and mainte-
nance costs increased from 14% to 15% between 1962 and 1968. It
appears, then, that there has been no tendency for the practice of
overbuilding and its consequent costs to decrease. It is expected that
total expenditures from all sources for treatment plant plant construc-
tion will continue to increase substantially over the next several
years. Because excess capacity in public investments is indicative of
a misallocation of resources, an examination of the possible causes for
overbuilding in treatment plant construction should prove helpful in
planning for the future growth of waste treatment facilities.
[p. 99]
PLANNING DECISIONS AND INSTITUTIONAL BEHAVIOR
BACKGROUND
Under a system of pure competition, economists postulate, the firm
(or other economic unit) acts according to a set of desirable condi-
tions. In the absence of non-market constraints, the firm, will continue
to produce up to the point where the cost of producing an additional
unit of output—marginal cost—is equal to the average cost which, in
turn, equals the price of the product. This pricing and sizing rule, pro-
-------
GUIDELINES AND REPORTS 3369
vides a minimal or least cost solution for the firm working under these
conditions.
In the public sector—including the construction of waste treatment
facilities—the allocation process is not guided by a market mechanism
and relationships at the margin do not constrain decisions. Rather,
institutional arrangements of a non-market nature determine the
amount of goods and/or services to be produced and the price to be
charged. The size of pollution abatement facilities is dependent upon
myriad factors—population projections, waste projections, engineers'
design rules, regulatory impositions, local aspirations and financial
resources (including State and Federal grants). The pricing mech-
anism depends on an equally complex mixture of factors, ranging
from the amount of wastes produced to assessed value of property.
The absence of an internally operating allocation scheme places the
responsibility for maintaining optimal sizing and pricing rules within
the controlling institutions. The institutional configuration should
not ignore the principles of efficient and optimal resource allocation.
Instead, it must first attempt to recognize how the institution affects
the pattern of resource allocation, and when this pattern deviates from
some predetermined optimum the allocation design should be altered.
The institutions that bear directly upon production decisions in the
area of municipal waste handling include local government and the
balance of local interest groups that determine its direction, local
financial conditions as modified by Federal and State financial
assistance, State regulatory boards, and the design-construction
industry.
The explanation for the prevalence of waste handling diseconomies
may be found in the fact that among these institutions, only one is so
structured as to include economic efficiency among the values that go
into the formulation of an optimum solution of a waste handling prob-
[P. 103]
lem; and often this is manifested as a disinclination to finance waste
facilities at all in the absence of legalistic incentives. Local finances are
constrained by basic scarcity in the direction of efficient use of re-
sources. None of the other institutional forces has any incentive to
maximize investment utility.
State regulatory agencies, in general, have taken the position that
waste treatment is a good and desirable thing; and that, all other
things being equal, the more effective the treatment, the better the
situation. Federal regulatory philosophy has generally concurred in,
and sometimes run ahead of, the State attitude. The optimum solu-
tion for regulators, then, is one which includes the widest application
of the highest degree of waste treatment.
-------
3370 LEGAL COMPILATION—WATER
The local government and the constituencies that give it legitimacy,
are often severely hampered in the decision process by lack of knowl-
edge. Waste handling matters tend to assume complex technical
configurations that are beyond the range of knowledge of the normal
municipal agencies. Except in the case of the largest cities or consoli-
dated metropolitan sanitary districts, local government's decision role
tends to be limited to "sewer or don't sewer, treat or don't treat."
Once a decision is made and most often it is a forced decision stem-
ming from Federal or State action, it is the prisoner of the regulatory
agencies of higher levels of government and of its own consultants.
Moreover—as we shall see—even the definition of its own financial
self interest is altered by the administration of State and Federal
grants.
The major thrust of this study has been to identify the pattern of the
resource allocation process existent in the construction of pollution
abatement facilities—in particular the construction of waste treat-
ment and transmission facilities. Chapter II of this report describes
the recognizable increase in the amount of sewering and treatment
that occurred in the period 1945-1968. The incentive effect of Federal
grants in achieving this dramatic upswing in construction activity is
well documented. This section will analyze the allocation effect that
controlling institutions have on investment in pollution abatement.
FEDERAL GRANTS
Chapters V and VI of this study demonstrated that the capacity
expansion (sizing) of treatment facilities was not optimal, except in
terms of the postulated objectives of regulatory agencies and the
construction industry. Excess capacity has been detected in a large
number of plants, while in many cases under-capacity exists. The
opportunity costs or penalties of excess capacity on a national basis
[p. 104]
have also been calculated. The circumstance to be analyzed in this
section is the effect that Federal grants have had on the magnitude of
this opportunity cost. Although this section considers only the rela-
tionship of Federal grants to excess capacity penalties, from a resource
allocation standpoint, those plants with under-capacity are just as
relevant. Because these under-sized plants not only incur an eco-
nomic penalty, namely, higher average costs, they also produce an
environmental penalty caused by lower removal efficiencies. Ade-
quate information is not available at the present to estimate such
penalties. Therefore, the analysis and conclusions drawn from this
analysis may be considered to be biased to the low side because of the
exclusion.
-------
GUIDELINES AND REPORTS 3371
Since the passage of Public Law 84-660 in 1956, Federal grants have
been continually increasing. Federal grants, and where existent,
matching State grants have been a major impetus to communities to
increase waste treatment construction activity. While increased in-
vestment activity, on the surface, demonstrates progress in the con-
struction of waste facilities, the excess capacity prevalent in
investment dilutes the effectiveness of the dollars expended. There-
fore, in order to identify the effective impact of grants, the relationship
between grants and excess capacity must be isolated.
Before this relationship can be analyzed, the fiscal environment in
which grants are allocated must be understood. If expenditure levels
for local government services increase at a rate equivalent to the
post-1945 experience—and there is good evidence they will increase—
while local revenue patterns, which are already extended, do not
change, then local governments will be faced with increasing deficits.
This fiscal pressure facing local governments has been acknowledged
by the President in his statements on "Fiscal Federalism." Grants
from Federal and State governments have become the prime methods
of filling these gaps.
Pollution abatement programs are one reason for increased local
expenditures. Public Law 84-660 was designed to alleviate some of
the fiscal pressures created by this demand. This program specifically
designates that certain types of local government expenditures for
pollution abatement—projects related to treatment plants, intercep-
tors and outfalls—are eligible to receive grant monies. Discussions in
other parts of this report have pointed out that expenditures for those
projects constitute only a portion of the funds needed for total water
pollution abatement programs. Aside from determining the nature of
expenditure to be supported, the grant component of Public Law 84-
660 as amended has a prescribed life span, being scheduled to terminate
in 1971. It would appear that a community faced with an increased
demand for abatement facilities that is constrained by local fiscal
[P. 105]
pressures would seek grant aid. If the existence of the grant program
is uncertain over the long run, and the investment categories are
specified, then construction of excess capacity in the eligible categories
is likely.
Another statutory element of the grant program that is likely to
cause excess capacity is the allocation formula. The allocation for-
mula of the existing program is based on a combination of State per
capita income and population. If the needs for funds within a given
State are not related to these allocation criteria, then over or under
funding for the State may occur. Those States with an excess of
-------
3372 LEGAL COMPILATION—WATER
alloted funds are likely to allocate the money on a less competitive
basis than States near or below the level of funding where supply of
funds equal demand.*
Excess capacity incentive effects of grants can be approximated by
comparing investment trends, grant allocations and changes in excess
capacity. The comparison will be made for the 1962-68 period.
Earlier chapters estimated the opportunity cost due to excess capacity
for both 1962 and 1968. While Federal construction grants have been
made since 1957, the opportunity cost calculations for this earlier pe-
riod are not available. The opportunity cost for plants operating at
80% or less of capacity in 1962 was 490 million dollars, while the
opportunity cost for 1968 was calculated at 670 million dollars. One
would expect the opportunity cost for 1962-68 to decrease in view of
the high prevalence of treatment in 1962—as communities with ex-
cess capacity absorbed that capacity through a process of natural
population and industrial growth. In fact, the amount of excess
capacity became larger.
Aside from the penalties derived from excess capital costs, there is
a related higher operation and maintenance cost for plants with excess
capacity. Chapter VI developed and documented the concept that
size, independent of the degree of utilization, does not necessarily
produce economies of scale. Plants with excess capacity have higher
unit operation and maintenance costs than smaller plants that are
fully utilized. Where excess capacity is constructed, due to the avail-
ability of a Federal grant or other cause, the community will be
faced with higher operation and maintenance costs. Similarly, if a
* Review of Financing the Section 8 Construction Program, Federal Water Quality Ad-
ministration, U.S. Department of the Interior, Office of Survey and Review, October 1970.
[p. 106]
community has excess capital it will be paying interest on the excess
capital investment. As interest rates rise such costs will constitute
higher penalties. The operation and maintenance costs penalty to-
gether with the interest penalty constitute an annual penalty which,
when cumulated, might offset the Federal fiscal aid provided for the
capital expenditures. It should also be noted that grants are not allo-
cated for operation and maintenance and interest payments. There-
fore, the grant might initially help the capital investment position of
the local entity, but distort its long run operating budget by causing
communities to operate on the higher portion of their average cost
curve.
Aside from the effect of encouraging communities to operate on an
inefficient level of average cost, excess capacity constructed from
grant outlays constitutes an opportunity cost for the larger economic
-------
GUIDELINES AND REPORTS 3373
community. This opportunity loss may be viewed either from a fiscal
or an expenditure view. From the expenditure side, grant monies
that go to communities with excess capacity are potentially diverting
money from communities which need capacity in conditions of re-
source scarcity which have indeed prevailed with respect to Federal
grant funds. When viewed fiscally, those communities which are
constructing excess capacity with the help of Federal and State aid
are able to finance this excess at the expense of citizens located out-
side the boundaries of the community in question. If a majority of the
expense is financed by means external to the local entity, then the
community's financial share of the facility is lessened. Thus, the
average out of pocket fixed cost to the community is lessened by the
grant financing.
Both economic losses—the opportunity costs and higher average
variable costs—are demonstrated in the following example.
Consider a community of 8,500 persons that decides to build a waste
treatment plant. The community's immediate need (and allowing for
some short term growth) is for a 1 million gallon per day secondary
waste treatment plant (high rate trickling filter, for the sake of exam-
ple) , that will have a useful life of 25 years and can be financed
serially at 6% in a situation marked by 25% State and 50% Federal
matching grants. Under these conditions, annual costs will be:
[p. 107]
(1) Depreciation (capital cost) . . . . . $21,000
Operation and maintenance . 15,500
Interest 15,800
Total 52,300
(Assuming national average prices in 1962 dollars)
of that, the community's share will be:
(2) Depreciation .. .. . . $ 5,250
Operation and maintenance . . 15,500
Interest 3,950
Total 24,700
If, instead of a 1 million gallon per day plant, the community decides
to construct a 2.5 million gallon per day plant, then annual cost will
be:
(3) Depreciation $37,200
Operation and maintenance 20,500
Interest 27,900
Total 85,600 or 64% more;
of which the community's share will be:
(4) Depreciation ... . $ 9,300
Operation and maintenance . . . 20,500
Interest . . 7,000
Total 36,800 or 49% more.
-------
3374 LEGAL COMPILATION—WATER
Regardless of the design size, the community will only have an
immediate need for 1 million gallons of capacity per day, thus any
capacity in excess of the needed capacity will be idle, at least initially.
By obtaining grants, the community is capable of increasing the de-
sign capacity of the plant by 150% while the capital cost (deprecia-
tion) obligation increases by 64%. While the average fixed costs on
a total cost basis is higher, Item 3 the average fixed cost incurred by
the community out of pocket is lower, Item 4, and the difference in
average fixed cost is charged against revenue sources extraneous to
the community. When variable costs enter the analysis—and opera-
tion and maintenance—the financial picture is not as advantageous
for the community. Total costs to the community increase by 50%,
indicating that the capital cost advantage is more than cancelled by
the increase in other costs.
[p. 108]
The example is highly simplified, and the analysis is static; never-
theless, it does demonstrate the losses possible from a construction
program that is structured without efficiency constructs.
In sum, the structure of the Federal waste treatment plant construc-
tion program does affect the allocation process of treatment plant
construction. Both the specific categories eligible for funding and
the temporal limitations of the program have created incentives that
may be construed to modify capacity expansion practices. To the
extent that this has occurred, the grants act counter to the basic
concepts of efficient resource allocation. Either a more flexible or
a more closely constrained program might encourage cities to define
their system needs more accurately, and might enable cities to direct
expenditures to meet these needs. Essentially, the design of the grant
system must take into consideration the allocative effect of institu-
tional constraints. This realization will be important for the duration
of the construction grant program for waste facilities and for related
future programs.
LOCAL GOVERNMENTS
Policy and programs instituted on a Federal level which affect local
and State governments must consider the behavior of the govern-
mental units. The water quality program is determined on a national
level, but the main participants in the program are the local entities.
Thus a better understanding of the modus operandi of this level of
government is essential to an effective program.
While a discussion of local government activity seems logical and
while its importance seems obvious, there has been little organized
research and analysis on the subject. Rather, this crucial phase of
-------
GUIDELINES AND REPORTS 3375
program analysis is often left to vague impressions of the analyst
and/or decision-maker on the Federal level. Based on these particu-
lar impressions generalized rules of local behavior are postulated; and
programs are formulated on the strength of the postulates. This
section does not attempt to be a definitive work on the behavior of
State and local government, a subject that needs to be researched
further. Rather, it presents some hypotheses about local behavior
and its effect on efficient allocation of resources.
A number of interesting hypotheses have been proposed by John M.
Richardson, Jr. and Howard Maier of Case Western University.*
* J. M. Richardson and H. Maier, "Incongruent Goals, Politics and the Pollution of Lake
Erie," a paper delivered at the Fourth Annual Midwest Student Seminar on Urban and
Regional Research, Northwestern University. April 24-25, 1970.
[p. 109]
Their research, based on a study of local governments surrounding
Lake Erie, concludes that we have the engineering answer for most
sewage problems. However, the optimum solution may not be
implemented because of important intervening political factors. Ex-
amples of such political factors abound and form the core of the
following hypotheses.
(1) Each local governmental organization has as its chief goals:
(a) continuation of its existence; (b) if possible, an increase in its
power. Local governments often exist which are responsible for only
one part of pollution abatement. Responsibility often overlaps. Such
fragmented structures will carefully guard their existing functions,
for should these functions be assumed by another governmental unit,
their raison d' etre would disappear. While continuing to perform its
distinctive functions, each local unit—at the same time—competes
with other local structures for new functions being delegated to the
local level. Such behavior is modified by a desire to maintain the
unit's political autonomy and its relative importance vis-a-vis other
local units. Maintenance of one's organization and the increase,
where possible, of one's power constitute only one element of a situa-
tion in which local goals may conflict with a "best solution" to a
given problem.
(2) Local government goals may conflict with the goal of a least cost
clean environment because of the role played by personal goals in the
decision process. Richardson studied a pollution problem having only
two viable alternatives: a regional solution and a local solution. In
his case study, the desire to represent community attitudes favored
the local treatment approach. The goal of community protection was
also seen by the local Mayor and city council as best served by the
local treatment alternative. Clearly the decision-making process is
-------
3376 LEGAL COMPILATION—WATER
not that simple. Goals may be congruent or conflicting, and their
interrelationships greatly affect the policy outcome.
It is a general hypothesis of organization theory that a decision
making unit having two or more conflicting goals will be most influ-
enced by the more operational goal. And the more operational goal
of the local government official may be assumed to be the one which
satisfies the above hypotheses. Maintenance of political power or
increased political gain, when in conflict with a goal to achieve a clean
environment using a least cost solution, will dominate. Thus the
priorities of those organizations supporting a least cost goal may often
be in conflict with those of local government.
Further, if two goals are nearly equally operational, Richardson
hypothesizes the dominance of the salient one for the decision-maker
[p. HO]
For example, a local official's immediate political goals would dictate
the choice of a continuing pollution problem rather than the choice
of raising taxes significantly for a new treatment plant. For the
ecologist, the options would presumably be reversed. Richardson and
others point out that the local politician is not an ecologist; he is,
rather, a person who identifies with his organization and whose goals
are highly operational where the organization is concerned. In short,
his predominant concern is with maintaining the existence of the
organization and, where possible, with increasing its power.
The process of preserving the environment must operate within the
political milieu described briefly above. The precepts of regionalism,
systems, and comprehensiveness must contend with political impedi-
ments characteristic of government at all levels. In terms of resource
allocation on a national scale, local behavior patterns add another
dimension to the institutional constraints preventing the concepts of
marginality from working. In the previous section the possible dis-
tortion caused by Federal activity was described. Because of con-
straints inherent in the grant allocation mechanism, misallocations
occur and economic efficiency is hampered. Local government
behavior also may prevent the optimum solution from being employed.
That optimum solution can be described in a theoretical way by
taking the economic concepts of marginality which apply to the single
firm, and extending the principles to the operation of the market hav-
ing many firms. In theory, each firm (city) should be able to define
the average and marginal costs of its treatment facilities. The market
then combines these costs curves and derives a market share rule—
which can be interpreted as a sizing or capacity expansion criteria—
and a pricing rule. At a market level the marginality rules form the
basis upon which these other rules are determined. The optimum
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GUIDELINES AND REPORTS 3377
solutions described by such a system are often thwarted by non-eco-
nomic decisions. The least costly solutions, the comprehensive
systems approaches, are usually not implemented.
The relationship between economic efficiency concepts and political
decision making and its effect on the problem of capacity expansion
will be translated into more real terms and illustrated by means of
case study.
On a single community basis, in which the community has no neigh-
bors, the capacity expansion problem involves an estimation of popu-
lation growth, behavior of cost functions, (e.g., a recognition of
economies of scale) operating cost levels, and decisions concerning
uncertainty.
[p. Ill]
When regional concepts are introduced, the number of technical
variables to be considered multiplies. Regionalism involves a new
set of cost functions. The trade-offs between components of the sys-
tem become greater; e.g., shall more interceptors be constructed,
requiring more pumping but permitting a larger treatment plant to
be constructed? Or is the plant of sufficient size so that unit costs
actually increase as the plant size increases? There are technical
bottlenecks which cause modal points in the definition of cost curves;
at these points, either economies or diseconomies of scale occur.
Technically it is feasible to estimate what the modal points are, and
to make comparisons of the mix of alternatives. The environmental
field has not been slow in adopting the kinds of systems analysis tools
that were used so successfully in the space program. But once the
cost functions are identified, the system is identified, and the market
shares estimated, this allocation process breaks down and institutional
constraints dominate.
Richardson and Maier demonstrate such a breakdown in implemen-
tation. A city must increase the size of its treatment plant. Because
the plant operates at full capacity or more, the city officials contem-
plated joining the system of the major city in the metropolitan area,
which has developed a regional plan for the metropolitan area. As
negotiations for a cooperating agreement began, the desire to preserve
autonomy also began to grow. The mayor and council were faced
with a dilemma: the existing plant site was limited—reached a point
of diseconomies of scale—and cooperation with major city was unde-
sirable to some local values. In the situation, local autonomy proved,
rather than technological effectiveness or economic efficiency, to be
the determining factor. A large number of case studies demonstrating
the conclusion that institutional values of a non-economic—or even
uneconomic—nature are critical could be repeated. Nor is local
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3378 LEGAL COMPILATION—WATER
autonomy alone in producing sub-optimum problem solving. Health
department rigidity, uninformed rate-making, established client rela-
tionships with engineering firms, industrial management's influence
on local government—a host of organizational and sociological con-
structs stand between the technocrat's dream of efficiency and the
real world of political decisions. This may be desirable for non-eco-
nomic reasons but the costs should be assessed and the decision made
on an informed rational basis.
LOCAL FINANCE
A community's share of treatment plant construction cost is often
met by issuing bonds. The issuance of bonds, though, must often be
approved by the electorate of a community; and this necessary but
[p. 112]
desirable process can create problems for the efficient allocation of
resources to water pollution control and abatement. Specifically,
problems associated with local bond financing can induce municipal
officials to build waste treatment facilities in considerable excess of
their current and near-term needs, to reduce the occasions when they
must go before the voters.
Alternative methods of dealing with treatment plant design uncer-
tainty can be categorized into two broad strategies. First, a commu-
nity can build a capacity which is far in excess of current needs, and
as a consequence be reasonably assured that additions will not be
needed for quite a number of years. Second, a community can build
capacity to meet increases in waste treatment demands as these de-
mands occur. The first strategy requires an initially large issuance
of local debt, but with the anticipation of little or no subsequent issu-
ance for a considerable length of time. The second strategy requires
a lesser initial capital expenditure, but subsequent expenditures
must be incurred at relatively frequent intervals. Several structural
features of local finance tend to lead municipal officials to favor the
first strategy over the second, because a number of problems are
created by frequent bond issues for the same activity. Among those
problems are: possible voter rejection because of frequent reappear-
ance of proposals for the same purpose, the fixed costs associated with
marketing a bond issue, and current uncertainty about future interest
rates and inflation.
Frequent reappearance of bond issues for the same program may
make local voters suspicious of the program. Voters may feel that the
program has been misrepresented in the past if the same bond issue
reappears frequently and, consequently, may be led to seriously ques-
tion the necessity of yet a further funding of the same program. Also,
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GUIDELINES AND REPORTS 3379
repetition of the same kind of bond issue may lead voters to assume
that the program has not been conducted in the most effective manner
in the past and that ineffectiveness should not be, in a sense, rewarded.
To the extent that a significant number of members of the local elec-
torate react in these fashions to a frequently repeated issue, local
officials must weigh the risks of voter rejection of a frequently pre-
sented bond issue against the risks of rejection of one large bond
issue. With respect to treatment plant construction, then, these con-
siderations can lead local officials to opt for the strategy of over-
building rather than adding increments to capacity to meet demand as
it occurs.
After a bond issue is authorized by an electorate, the sale of the
bonds must be effected. The sale is not a costless transaction. Rather,
market information must be obtained and brokerage fees must be
[p. H3]
paid. Part of these costs are independent of the amount of the issue.
The more frequently a community markets a bond issue, the more
often these necessary transaction costs will be incurred. The implica-
tion of this feature of the financial markets for treatment plant con-
struction bond issues may prove to be cheaper to administer than the
alternative of marketing bond issues at more frequent intervals.
It is a well-established economic phenomenon that inflation creates
the expectation of further inflation, along with an attendant anticipa-
tion of higher interest rates. Such expectations, in turn, lead to an
acceleration in the purchase of durable goods and structures. Local
officials are not exempt from this syndrome of inflation. With regard
to treatment plants, an inflationary situation may induce a "big push"
attitude: construct as large a plant as possible within political and
financial limits before prices and interest rates rise further.
Thus, a number of problems associated with local bond finance lead
to a bias toward overbuilding treatment plant capacity in many com-
munities. But treatment plant overbuilding is just one of the many
consequences attributable to the maladroitness of local finance in
coping with ever increasing demands for public services.
ECONOMIES OF SCALE
Every published investigation of the relationship between treatment
plant construction costs and design capacity has indicated that econ-
omies of scale in treatment plant construction exist. That is, as the
design size of the plant increases, unit construction costs decline.
These studies indicate that, over the valid size ranges, a 10% increase
in design capacity will lead to an increase in unit construction cost
-------
3380 LEGAL COMPILATION—WATER
in the range of six to eight percent, depending on the type of plant.*
It would appear, then, that for a given target treatment flow that it is
less costly to build one plant rather than two or more plants to accom-
modate this flow. However, in assessing the potential economies in an
actual system design, the costs of interceptors required to con-
vey the wastes to a single plant must be considered. In addition,
if existing facilities with remaining usefulness are to be scrapped in
the process of moving to a large single plant, the salvage value of that
facility must also be included in the analysis to reach a true cost
effective solution.
* See P. M. Berthouex and L. B. Pollowski, "Design Capacities to Accommodate Forecast
Uncertainties," Journal of the Sanitary Engineering Division, Vol. 96, No. SA5, October 1970,
p. 1191. It should be noted that the costs exclude the costs of interceptors, outfalls, and
land acquisition.
[p. 114]
Previous studies of operating and maintenance costs for treatment
have tended to substantiate the belief that there are economies of
scale in treatment plant operation. The usual practice in these inves-
tigations is to statistically fit a relationship between annual unit oper-
ating and maintenance costs and average daily flow or design capacity
(but not both) for a sample of treatment plants. Generally, the re-
sults indicate that unit operating and maintenance costs decline as the
rate of flow increases.
In hopes of achieving the greatest economies possible, many com-
munities have built treatment plants and/or added treatment plant
capacity in considerable excess not only of their initial needs but also
of their needs over the near future, say five to ten years. On the one
hand, construction costs per unit of flow, and, thus, interest payments,
should decrease with plant size. On the other hand, based on past
investigations, community officials might expect to attain lower unit
operating and maintenance costs with increasing plant capacity. Re-
inforcing the strategy of overbuilding is the apparent assurance of
being able to meet the additional treatment needs caused by an
increase in population growth. Thus, for reasons of economy and
uncertainty it would appear that the practice of overbuilding treat-
ment plant capacity rests on substantial economic and engineering
grounds.
Upon closer investigation, however, the economic foundations for
the practice of overbuilding are, in part, illusory and if not properly
assessed will entail higher effective unit construction costs and oper-
ating costs than would be the case if the alternative strategy of build-
ing and adding treatment plant capacity in accordance with current
and near-term needs was followed. First, lower construction and
interest costs per unit of flow can only be achieved if a treatment
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GUIDELINES AND REPORTS
3381
plant is actually operating near or at its design capacity, (cf Figure
11) Chronic operation at less than full utilization will result in higher
construction and interest costs per unit treated than would be the
case with a smaller plant. Second, similar considerations apply to
the proposition that lower unit operating and maintenance costs will
necessarily be achieved with larger plant sizes. From the discussion
in a previous chapter, it is clear that lower unit operating and
maintenance costs may not be achieved with a plant capacity in con-
siderable excess of actual needs. In fact, it is generally the case that
for any given actual flow that can be accommodated, operating and
maintenance costs will be higher for a larger plant than for a smaller
plant. Economies of scale in operation will be attained only if a
treatment plant is operated near its intended capacity.
[p. 115]
UNIT COST CURVES FOR DESIGN CAPACITIES
of. 5,1.0,2.5,5.0,and 10 OMGD
AVLBAK 05111 FLOW IMG 0
[p. H6]
Finally, to build an overdesigned treatment plant in order to meet
possible unexpected increases in demand is a one-sided strategy that
ignores the full range of alternatives. The possibility that future
demand might exceed forecasted demand arises because of the con-
fidence with which the forecast is held. However, if a forecast is not
held with certainty, then it is generally the case that future demand
can fall short of the forecast with about the same probability as rising
-------
3382 LEGAL COMPILATION—WATER
above the forecast. What, then, are the alternative design strategies
when demand forecasts are not held with certainty? On the one
hand, a plant can be built to accommodate treatment needs in excess
of currently forecasted needs. However, if actual future demand is
not above forecasted demand, then the community incurs higher
construction, operating, and interest costs on both a total and per-
unit basis than would be the case if a smaller plant had been built.
On the other hand, a plant can be built to meet current and short-
range needs, say five to ten years, and the community can build
increments to treatment plant capacity to meet additional needs as
they occur. A potential loss is associated with this latter strategy,
though; namely, if future demand is higher than forecasted, then
the economies of scale associated with a larger plant have been fore-
gone. Under uncertainty, which of these two general strategies
should be pursued? A recent study has indicated that the strategy of
overbuilding treatment plant capacity in order to meet unexpected
increases in future treatment needs is generally imprudent.* The
rationale behind this finding is that, generally, the expected loss from
building incrementally to meet short-term needs stemming from the
potentially foregone economies of scale is less than the expected
loss from overbuilding stemming from the potential higher costs of
construction and operation.
Thus, economies of scale and safety margins are not, in and of
themselves, sufficient economic justifications for overbuilding treat-
ment plant capacity. Only if a community is expected to operate its
treatment facility near full capacity within the near future, say five
to seven years, will the potential cost savings be realized. In general,
a strategy of building capacity to meet current and near-term needs
will yield lower costs of construction and operation than the strategy
of overbuilding.
PEAK LOADING
A community's hydraulic characteristics must be incorporated
into the design characteristics of its treatment plant in order to attain
[p. H7]
target degrees of treatment. The expected peak load is one of the
most important characteristics that must be considered in meeting
design efficiencies of a plant on a continual basis. Peak loads can
be met by a combination of three basic methods: varying detention
times and recirculation rates, use of flow equalization devices or tanks
to smooth the flow of influent and permit processing at non-peak
' Ibid. pp. 1195-1206.
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GUIDELINES AND REPORTS 3383
periods, and building sufficient operating capacity to handle peak
loads as they occur.
If it is the case that anticipated peak loads are met primarily by
building sufficient capacity to meet them as they occur, then this
practice will contribute to the prevalence of stated excess capacity.
To illustrate, suppose that two communities plan to treat the same
average daily flow, say one million gallons per day, but that the first
community has an average peak at a daily rate of 1.2 million gallons
and the second has a peak of 2.0 million gallons. If these peaks are
met solely by building capacity to handle them, then the first com-
munity will build a plant with a smaller design capacity than will the
second community. Consequently, the first community's plant will
have a higher calculated utilization rate (actual flow/design flow)
than the second community's plant. From this example it can be
seen that if it is common design practice to build enough treatment
plant capacity to meet peak loads as they occur, then it might be
expected that observed lower rates of utilization are associated with
higher peak loads.
The validity of this partial explanation for the prevalence of excess
capacity can be statistically tested by computing the correlation be-
tween the rate of capacity utilization and a measure of peak loading.
A negative correlation between these two variables is expected if the
practice of using excess capacity in order to meet peak loads is
prevalent. The rate of utilization is measured by the ratio of actual
average daily flow to design capacity and peak loading is measured
by the ratio of peak load to average daily flow.
The statistical results are reported in Table 31. As can be seen by
inspection of the first row of this table, the correlation between peak
loading and utilization rates is negative but low (a value of —1.0
denotes perfect negative correlation, 0 is perfect non-correlation, and
1.0 is perfect positive correlation). Each correlation is, however,
significantly negative (i.e., significantly below zero) by the usual
tests of statistical significance. In the second row of the table the
[p. US]
TABLE 31.—STATISTICAL RELATIONSHIPS BETWEEN CAPACITY UTILIZATION
AND THE RATIO OF PEAK LOAD TO AVERAGE DAILY FLOW
Treatment type
Correlation coefficient ,
Percent of variation explained
Average of peak load/average dally flow . .
Number of plants in sample
Primary
— .221
49
.62
3.55
158
Activated
sludge
292
86
67
2.75
77
High-rate
trickling
filter
224
5 0
64
2.85
159
Standard-
rate
trickling
filter
— .290
84
66
4.18
77
Stabili-
zation
ponds
— .188
3.5
.67
2.25
41
[p. 119]
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3384 LEGAL COMPILATION—WATER
percentages of variation between plants in capacity utilization at-
tributable to variation between plants in peak loadings are reported.
The percentage of explained variation ranges from a low of 3.5 per-
cent for stabilization ponds to a maximum of only 8.6 percent for the
activated sludge process. In other words, less than nine percent of
variation in utilization rate can be accounted for by peak loading,
and so justifiable on an engineering basis. The remaining 90-odd
percent is attributable to factors other than peak loading.
[p. 120]
APPENDIX A—SURVEY QUESTIONNAIRE STUDY OF WATER POLLUTION ABATEMENT COSTS
GENERAL DIRECTIONS
A separate report should be prepared for each plant. It is necessary to know
these data for each plant so as to relate the production and financial data to the
waste-water abatement cost data when making cost burden and incentive analyses.
A plant is defined as the total facilities and operations at one location. Whether
a few or many products are made at this location, it still should be considered
one plant. This excludes facilities restricted entirely to such operations as ware-
housing and storage, research and development, and sales offices.
In the preparation of this survey questionnaire, care was taken to request in-
formation, wherever possible, in terms identical to those utilized in various
reports to the Bureau of the Census. This was done to provide a recognized
standard for some of the information requested and to permit the respondent to
provide information similar to that which has been compiled for other reports.
Please report for calendar year 1969 unless otherwise specified. If this is not
possible, specify the reporting period for which data are provided
Please return the completed form to Leonard Lund, National Industrial Conference
Board, S45 Third Avenue, New York, New York 10022. Do not indicate your name or
company on this form. The Code Number on this page identifies you to The Conference
Board. No personal or corporate identification will appear in any report based on this
survey without your explicit authorization.
[p. 121]
ITEM 1. PRODUCT INFORMATION
(a) Principal product (s) of this plant _
(Describe by using categories defined in the Standard Industrial Classifica-
tion Manual, e.g., "Chemicals and Allied Products," "Industrial Gases,"
"Food and Kindred Products, Fluid Milk," "Transportation Equipment,
Motor Vehicles," or similar descriptive phrases.)
(b) Standard Industrial Classification Code(s). (If known)
(4 digit code (s) )
-------
GUIDELINES AND REPORTS
3385
ITEM 2. NTTMBER OF EMPLOYEES
(a) Production Workers—Workers
(up through the working fore-
man level) engaged in fabricat-
ing, processing, assembling,
inspecting, receiving, packing,
warehousing, shipping (but not
delivering), maintenance, repair,
janitorial, watchman services,
product development, auxiliary
production for plant's own use
(e.g., powerplant), recordkeep-
ing, and other closely associated
services. Exclude proprietors
and partners.
(b) All Other Employees—Nonpro-
duction personnel, including
those engaged in the following
activities: supervision above
working foreman level, sales (in-
cluding driver salesmen), sales
delivery (truck drivers and help-
ers), advertising, credit, collec-
tion, installation and servicing of
own products, clerical and rou-
tine office functions, executive,
purchasing, finance, legal, per-
sonnel (incl. cafeteria, etc.), pro-
fessional and technical. Exclude
proprietors and partners.
(c) Total number of employees (sum
of lines a and b)
Number of production employees
during typical month
Number of all other employees
during typical month
ITEM 3. PAYROLLS
Enter the total (before deductions) of
wages, salaries, bonuses, commissions,
and other remunerations paid in 1969
to "Production Workers," and "All
Other Employees," as defined in Item
2 above.
(a) Production workers'
wages
(b) All other employees'
salaries and wages
(c) TOTAL PAYROLL
(Sum of Lines
a and b)
$
[P. 122]
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3386 LEGAL COMPILATION—WATER
ITEM 4. PRODUCTION COSTS
(a) What were the costs of materials, fuels, electricity and contract work put
into production in 1969?
$ _ _
Note: The figures reported should represent the total cost of
materials, supplies, semi-finished goods, fuels, etc., actually
consumed or put into production as In reports to the Census
Bureau.
If your records do not show the amounts actually consumed
or put Into production, the reported figures may be derived
from purchase and other records.
(b) What were the depreciation charges in 1969? $ .
ITEM 5. VALUE OF SHIPMENTS
What was the value of products shipped in 1969? $
ITEM 6. VALUE AND AGE OF FIXED ASSETS
In order to obtain an estimate of the value and age of the plant and equipment,
please answer the following:
(a) What was the gross investment in plant and equipment as of December 31,
1969 $
(b) What was the book value (gross investment minus straight line depreciation)
of plant and equipment? $ _
(c) Was the plant built within the last five years? Yes D No D
(d) Was the capacity of this plant expanded significantly (more than 50%) within
the past five years? Yes D No D
(e) Was more than 50% of the production equipment hi this plant installed or
significantly modified within the past five years? Yes D No D
[p. 123]
-------
GUIDELINES AND REPORTS 3387
ITEM 7. CAPITAL EXPENDITURES FOR ABATEMENT FACILITIES
(a) Please estimate the capital expenditures for the purpose of water pollution
abatement at this plant for each year of the period 1965-1969. Report sepa-
rately the amounts spent for replacement and modernization of existing
facilities and the amounts spent for new facilities including expansion.
Note: Report only those expenditures made for the purpose
of pollution abatement. If improvements have been made
in the production process which provides an incidental ben-
efit in the abatement of pollution do not include the expen-
diture for that improvement.
Replacement and modernization New facilities Total
Year of existing facilities Including expansion Expenditure
196S $
1966 $
19*7 $
1968 $._,.
1969 f
Total (1965-1 9RQ) $
•f
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3388
LEGAL COMPILATION—WATER
ITEM 8. PLANNED CAPITAL APPROPRIATIONS FOR POLLUTION ABATEMENT FACILITIES
Please report:
(a) Capital appropriation for abate-
ment facilities for 1970
(b) Number of years in which to be
spent
(c) For which type of measures:
(see 7b)
Manufacturing process
changes D
Wastewater treatment D
Water cooling (see Note 7b) D
Other (specify) D
Please report:
(d) Total future capital requirements,
including 1970, to meet present
water quality standards
$ _
(e) Number of years in which to be
spent
(f) For which type of measures:
(see 7b)
Manufacturing process
changes D
Wastewater treatment D
Water cooling (see Note 7b) D
Other (specify) D
ITEM 9. WATER POLLUTION ABATEMENT MEASURES
Using the accompanying chart of abatement measures (Attachment I), please
indicate the code numbers of those measures already in place in this plant, and in
the order in which applied. In the event that wastewaters from more than one
source within the plant are combined for treatment in a common facility (e.g.,
process and sanitary wastewaters) please indicate this by showing which sources
are combined.
Wastewater Source
Manufacturing process .
Sanitary
Cooling (see Note 7b)
Other—(please specify)
Abatement Measure
Code Numbers
[p. 125]
-------
GUIDELINES AND REPORTS
3389
ITEM 10. VOLUME AND CHARACTERISTICS OF DISCHARGED WASTEWATERS
(a) Average daily volume of discharged wastewater by source:
(Report typical discharges in million gallons per operating day.)
Discharged to
Public Sewer
Source
Discharged Directly
Treated Untreated TreatedUntreated Treated
Other manner of
disposal (specify)
Untreated
Manufacturing Process . .
Sanitary . . _
Cooling (see Note 7b) .
Other (specify) .
mgd mgd mgd mgd mgd mgd
Total _
(b) Wastewater constituents discharged directly by source:
(Report in pounds per day, pH units, degrees Fahrenheit)
Biochemical Oxygen Chemical Oxygen Suspended Temperature Other (Please
Source Demand (Five Day) Demand Solids pH Rise specify)
Manufacturing Process .
Sanitary .
Cooling (see Note 7b) . . .
Other (Please specify) . .
TOTAL
(c) Please describe any seasonal aspects of production that may affect the quan-
tity of wastewater discharged.
[p. 126]
ITEM 11. EXPENDITURES FOR OPERATION AND MAINTENANCE
OP WATER POLLUTION ABATEMENT FACILITIES
(a) Annual expenditures for operating and maintaining existing water pollution
abatement facilities. 1968$ . . 1969$
(b) Estimate of annual expenditures for operating and maintaining abatement
facilities upon completion of construction noted in ITEM 8d. $
(c) Estimate of number of employees engaged in operating and maintaining pol-
lution abatement facilities in 1969
(Equivalent full-time manpower)
-------
3390
LEGAL COMPILATION—WATER
ITEM 12. USE OF PUBLIC SEWER SYSTEMS
(a) Is there a public sewer system available for use by this plant?
Yes D No D
(b) If yes, does this plant discharge wastewater into public sewer?
Yes D No D
If answer to (b) is Yes:
(c) What was annual payment by this
plant to municipality or other
authority for sewer service,
excluding property tax?
$
(d) What was basis of payment?
(Check all relevant boxes)
Water use D
Waste strength D
Over-strength surcharges D
Other (Specify) D
If answer to (b) is No:
(e) If plant does not, does this plant
plan to use public sewer in the
future? Yes D No D
(f)
If yes, when?
Next year?
In five years?
Later?
n
n
n
(g) If yes, what kind of wastewater
will be discharged?
Please check.
All wastewater D
Manufacturing process only D
Sanitary only Q
Manufacturing process
and sanitary
Cooling (see Note 7b)
Other (specify)
Q
D
ITEM 13. OTHER CONTRIBUTIONS TO FINANCING OF PUBLIC SEWER SYSTEM
(a) What payments were made to a local government unit for sewer service in
the form of property taxes or assessments? $
(b) What, if anything, has been contributed to the capital cost of constructing a
new public wastewater treatment facility or expanding of an existing facil-
ity in cooperation with a municipality or other public authority in addi-
tion to amounts reported above?
$
[p. 127]
ITEM 14. GENERAL OBSERVATIONS
We would appreciate any observations which you would care to make regarding
features of the operation or location of this plant that you feel would make for
special problems in wastewater treatment; and any comment you may wish to
make concerning this questionnaire or the use of the data provided. If any costs
have been incurred or are anticipated because of plant relocation or process change
primarily influenced by water pollution abatement requirements, please describe
their nature and costs in this section.
-------
GUIDELINES AND REPORTS 3391
ITEM 15.
Name and title of person to be contacted in the event that additional corre-
spondence may be required.
Name ..
Title
[p. 128]
4.1b ECONOMICS OF CLEAN WATER, VOL. I, AND
SUMMARY, ENVIRONMENTAL PROTECTION AGENCY,
APRIL, 1972
PART I
Page
Water Pollution in 1971 3-15
PART II
Trends in Industrial Water Use—Discharge and Treatment 17-34
Process and the Use of Water in Industry 35-47
Industrial Cost Model 49-39
Cost of Industrial Waste Treatment .... 61-73
Current Level of Industrial Water Treatment Costs 75-84
Waste Treatment Costs Through 1976 85-101
Appendix: The Industrial Waste Treatment Model 103-111
PART III
Planned Construction of Municipal Waste Treatment Facilities 113-148
PART IV
Environmental and Economic Benefits and Costs Related to Various
Water Pollution Abatement Strategies 149-157
LIST OF FIGURES
PART I
1. Relative Water Pollution ... 10
[P. vii]
PART IV
1. Total Control Costs as a Function of Effluent Control Levels 151
LIST OF TABLES
PART I
1. Prevalence of Stream Quality Criteria Violations—1971 6
2. Relative Incidence of Water Pollution 8
3. Distribution of Pollution by Major Drainage Areas 12
4. Water Pollution Index Summarized for Major Drainage Areas,
1970 and 1971 13
5. Shifts in Prevalence of Pollution Summarized for Major Drainage
Areas, 1970 and 1971 15
-------
3392 LEGAL COMPILATION—WATER
PART II
1. Industrial Waste-water Discharge and Value Added by Industrial
Water Use Regions, 1959-1968 21
2. Industrial Wastewater Discharge and Value Added by Industry
Groups, 1959-1968 22
3. Regional Incidence of Industrial Waste Discharge, by Major
Industrial Sectors, 1968 . 23
4. Sources of Industrial Waste Discharge, by Major Industrial
Sectors, 1968 24
5. Percentage of Industrial Wastewater Receiving Treatment and
Growth in Treatment by Industrial Water Use Regions, 1959-1968 26
6. Percentage of Industrial Wastewater Receiving Treatment and
Growth in Treatment by Industry Groups, 1959-1968 27
7. Percentage of Industrial Wastewater Discharged to Sewers and
Growth of Sewered Discharge by Industrial Water Use Region,
1959-1968 31
[p. viii]
8. Percentage of Industrial Wastewater Discharged to Sewers and
Growth of Sewered Discharge by Industry Groups, 1959-1968 32
9. Percentage of Industrial Wastewater Discharged to the Ground and
Growth of Ground Discharge by Industrial Water Use Regions,
1959-1968 33
10. Percentage of Industrial Wastewater Discharged to the Ground and
Growth of Ground Discharge by Industry Groups, 1959-1968 . 34
11. Volume of Intake and Percent Consumed by Industry Groups, 1968 37
12. Composition of Industrial Water Intake and Waste Concentration
by Industry Groups, 1968 ... . 38
13. Trends in Industrial Water Intake and in Measures of Process
Change by Industrial Water Use Regions, 1959-1968 . . 41
14. Trends in Industrial Water Intake and in Measures of Process
Change by Industry Groups, 1959-1968 42
15. Average of 1968 Intake as a Percentage of 1959 Intake for Industrial
Water Use Regions Classified by Ratio of Withdrawals to Median
Water Supply and Growth in Value Added 45
16. Average of 1968 Value Added/Intake as a Percentage of 1959 Value
Added/Intake for Industrial Water Use Regions Classified by Ratio
of Withdrawals to Median Water Supply and Growth in
Value Added 45
17. Average of 1968 Recycle Ratio for Industrial Water Use Regions Clas-
sified by Ratio of Withdrawals to Median Water Supply and Growth
in Value Added 45
18. Average of Percentage of Discharge Treated, 1968, for Industrial
Water Use Regions Classified by Ratio of Withdrawals to Median
Water Supply and Growth in Value Added . . 46
19. Average of 1968 Treated Discharge as a Percentage of 1959 for
Industrial Water Use Regions Classified by Ratio of Withdrawals to
Median Water Supply and Growth in Value Added 46
20. Average of 1968 Ratio of Treated to Total Discharge as a Percentage
of 1959 for Industrial Water Use Regions Classified by Ratio of
Withdrawals to Median Water Supply and Growth in Value Added . 46
-------
GUIDELINES AND REPORTS 3393
21. Comparison of Census Reported Establishment and Water Data for
Factories with Intake 20,000,000 G/YR. with Modeled Factories ... 51
22. Flow & Employment Comparison by U.S. Bureau of Census Water
Use Regions 53
23. Flow & Employment Comparisons by Industry ... ... 54
24. Basic Elements of the Industrial Waste Treatment Model 58-59
Relative Inflation, Measured by Selected Price Indices . . 62
25. Maximum Industrial Waste Treatment Requirements, 1968
Conditions ... . 63
26. Variation in Capital Requirements Under Alternative Water
Utilization Regimens, 1968 Conditions 65
27. Annual Operating and Maintenance Costs as a Function of
Capitalization .. 70
28. Annual Costs of Waste Treatment Under 1968 Production
Conditions 73
29. Current Replacement Value and Annual Costs Associated with
Reported Industrial Waste Treatment, 1968 77
30. Percentage of Required Waste Treatment Supplied by
Industry, 1968 79
31. Volume of Manufacturers Wastes, Sewered and Treated Prior
to Discharge Break, 1968 80
32. Value and Percentage of Industrial Waste Treatment Requirements
Supplied Publicly in 1968 .. .... 81
33. Industrial Waste Treatment Situation Summary, 1968 .... .... 84
34. Investment, 1969-1971 (As Reported by McGraw Hill & Co.) . 87
35. Annual Expenditures Consistent with Standards Compliance by
1976 89
36. Manufacturers' Assessment of Investments Required to Comply
with Pollution Control Requirements, January 1971 . . . 92
37. Projected Cash Outlays Associated with Attainment of Discharge
Standards by 1976 96
[p.x]
38. Incremental Waste Treatment Costs Related to Values Added
by Manufacturers, 1968 98
39. Increases in the Prices of Manufactured Goods to be Attributed to
Waste Treatment Compliance, 1968 Conditions . . 101
A. Cost to Flow Relationships, Basic Waste Treatment Processes 108
B. Evaluation of Industrial Waste Disposal Practices, 1968 . . . Ill
PART III
1. Summary of Survey Responses ... 115
2. Estimated Cost of Construction of Planned Municipal Waste
Treatment Facilities for Municipalities with or Serving
Populations of 10,000 or More, for Period FY 1972-1976, Based on
Survey Completed in December 1971 .... . 116
3. Survey Results of Estimated Construction Cost of Sewage Treatment
Facilities Planned for the Period FY 1972-1976 ... 117
4. Evaluation of Capital in Place and of Defined Needs 120
5. Pattern of Existing Facilities 121
6. Computed Values for Various Categories of Needs Over Time 123
7. Increase in Defined Waste Treatment Needs Over Time . . 124
Five-Year Backlog Elimination Schedule at 7.5 Percent Inflation 125
-------
3394 LEGAL COMPILATION—WATER
8. Model Investment Schedule, Investment Needed to Reduce
Backlog by 1976 127
9. Estimated Cost of Construction of Municipal Sewage Treatment
Works for the Period December 1970 Through June 1974 .... 129
10. Changes in State Sewage Treatment Investment Needs Expressed,
1969-1971 131
11. Value of Projects Pending Construction and Under Construction
as of October 31,1971 134
12. Federally-Assisted Starts in Construction of Municipal Waste
Treatment Facilities 136
13. Projected Federally-Assisted Starts in Construction of Municipal
Waste Treatment Facilities 137
[p.xi]
14. Estimated Cost of Construction in Accordance with Regulatory
Requirements 140
15. Cost Summary of Needed Facilities by Description and Type . . . 141
16. Estimated Cost of Tertiary Treatment, Nitrate and Phosphate
Removal Facilities Planned for Construction During FY 1972-
1976, by Municipalities with or Serving Populations of
10,000 or More 143
17. Expected Year of Operation of Projects to be Initiated in Fiscal
Years 1972-1976 in Municipalities with or Serving Populations
of 10,000 or More 144
18. Number of Municipalities, Having Construction Needs in the
FY 1972-1976 Period, with User Charges, and the Method Upon
Charge Based and Year Rate Established . 145
19. Estimated Number of Employees Needed to Man Facilities,
Proposed for Construction During FY 1972-1976, and Fiscal
Year Facilities Expected to Be Operational . . . 147
20. Program Accomplishments . . 148
PART IV
1. Index of Pollution Control Investment Costs Related to Level
of Abatement . .... . 152
2. Municipal Costs . . ... 153
3. Industrial Costs . . 154
4. Total National Costs . 156
[p. xii]
-------
GUIDELINES AND REPORTS 3395
WATER POLLUTION IN 1971
INTRODUCTION
This section describes a procedure that is being developed by EPA
for evaluation of water pollution. The indexing procedure allows
any waterbody or set of waterbodies to be described with respect
to water pollution characteristics. Data on the prevalence of pollu-
tion for this index has been collected for the years 1970 and 1971.
A further development of this index is to include duration and
intensity of water pollution as factors in describing waterbodies.
Such data were collected for the first time in 1971. These results
show that pollution varies from region to region and is a response
to geographical as well as economic circumstances.
[p. 3]
METHODOLOGY USED TO CALCULATE INDEX
The Environmental Protection Agency is continuing its efforts to
develop a comprehensive measure of relative water quality. It has
developed internally a procedure for measuring not water quality in
the absolute, but deviations from established standards of water
quality.
Water Quality Standards
Interstate water quality standards are the basis of the definition
of the condition of pollution.
The water quality standards are a three-fold device that established
for discrete stream reaches: (1) a statement of the uses of water
that are physically and chemically possible in nature and which are
desired by the users and potential users of those waters, (2) a defini-
tion—generally in quantitative terms—of the physical, chemical, and
biological conditions that are minimally consistent with those uses
(subject to the general constraint that where one or more of those
conditions were superior to the scientifically-determined minimum at
the time the standards were developed, the existing quality of the
waters in question would constitute the acceptable minimum for such
parameters), and (3) a plan for meeting water quality criteria.
The "water pollution index" addresses only the first two of the
three elements of the standards. It is concerned with observable,
verifiable environmental fact rather than legal, regulatory, adminis-
trative, or technological arrangements of implementation plans.
COMPARISON TO STANDARDS—PREVALENCE OF POLLUTION
The basic element of the index is a simple measurement or judge-
ment. Once standards have been determined for a set of water
-------
3396 LEGAL COMPILATION—WATER
quality parameters, the procedure calls for a comparison of those
standards with measured quality. Where any variable or combina-
tion of variables do not meet or exceed the standard, then a state of
pollution exists—by definition.
This rather rudimentary test was first applied in 1970, when a ratio
of polluted waters to total waters was established for the nation,
using the simple formula:
p
-JTJ = prevalence of pollution
Where P = number of stream and shoreline miles in which one or
more of the established chemical and biological criteria
had not been met one or more times.
[p. 4]
M = total stream and shoreline miles, to and including third-
order tributaries
1970 Results
The assessment of the prevalence of pollution made in 1970, indi-
cated that almost 27 percent of America's stream miles were polluted.1
1971 Results
Measuring the prevalence of pollution alone (which excludes
duration and intensity factors; cf. Table 1), it appears that water
pollution increased from 1970 to 1971. While the 1970 assessment
indicated that water quality criteria violations occurred over almost
70,000 stream miles, the assessment in 1971 suggested that more than
76,000 stream miles did not conform to water quality criteria. In
terms of relative prevalence, pollution extended from 26.8 percent
of the nation's waters to 29.3 percent.
In point of fact, the assessed prevalence of water pollution in 1971
may understate the amount of the increase. Several States of the
Upper Mississippi Basin and the Southwest have included in their
water quality standards exceptions for conditions due to precipita-
tion. The 1970 evaluation of stream conditions took into account only
in-stream violations of water quality criteria, without making the
stipulated allowance for source. On the other hand, the addition of
stream miles predominantly polluted by acid mine drainage in the
1 As originally reported in Cost Effectiveness and Clean Water, the value was given as 31.2
percent. Continuing analysis of the data Indicated that (1) length of minor tributary
streams was under-reported in the aggregate and (2) overlapping administrative boundaries
caused double-counting of polluted miles in some cases. When adjusted for these factors,
reported prevalence of pollution dropped to 26.8 percent.
-------
GUIDELINES AND REPORTS 3397
Ohio Basin would tend to overstate the increase since they were not
assessed in 1970.
Regional Variation in Pollution Prevalence
Every part of the nation has some water pollution, but the shares
are very unevenly distributed. There were in 1971 almost twice as
many polluted stream miles east of the Mississippi River as west of it.
When viewed from the standpoint of the ten Federal Administra-
tive Regions, as presented in Table 1, pollution was more than five
times as common in the Chicago Region as in the Kansas City Region.
(It should be noted, however, that the Kansas City Region is one
where assessment is heavily affected by the exclusion of stream
[p. 5]
TABLE 1.—PREVALENCE OF STREAM QUALITY CRITERIA VIOLATIONS—1971
EPA region
1 Boston
II New York
Ill Philadelphia
IV Atlanta
V Chicago
VI Dallas
VII Kansas City
VIM Denver
IX San Francisco
X Seattle
Contiguous United States
East of Mississippi River
West of Mississippi River
Stream and
shoreline
miles
29,701
4,889
24,311
39,125
28,769
46,646
19,189
22 693
16,693
28,166
260,324
126,795
133,529
Miles of
criteria
violation
4,869
2,071
8,437
14,840
18,569
10,010
2,396
5,688
3,956
5,477
76,299
48,777
27,522
Percent
of miles
polluted
16.4
42.4
34.7
37.9
64.5
21.5
12.5
25.0
23.5
19.4
29.3
38.5
20.6
Percent
of total
U.S. miles
11.4
1.9
9.3
15.0
11 1
17.9
7.4
8.7
6 5
10.8
100.0
487
51 3
Percent
polluted
miles
6.4
2.7
11.1
10.4
24.3
13.1
3.1
7.4
5.2
7.2
100.0
63.9
36.1
[p. 6]
quality criteria violations traceable to precipitation.) While the
Chicago Region was the only one in which polluted natural waters
were more common than unpolluted, more than a third of the waters
of the New York, Philadelphia, and Atlanta Regions were found to
be polluted during 1971*
COMPARISON TO STANDARDS
DURATION AND INTENSITY OF POLLUTION INCIDENCE
An assessment of pollution in terms of mere prevalence is essen-
tially unsatisfactory—rather like equating cancers, chronic appendi-
citis, and the common cold in an assessment of health conditions.
Degree of pollution and its persistence are significant dimensions of
the phenomenon—perhaps the more significant, given the range of
uncertainties that attach to the water quality criteria. EPA is
developing the pollution index to include such factors.
-------
3398 LEGAL COMPILATION—WATER
The water pollution index, using 1971 data, takes these factors into
account by establishing separate weighting values to a circumstance
of pollution, according to its seasonal characteristics and its inter-
ference with uses sanctioned by the water quality standards. The
simple formula for determining the prevalence of pollution becomes
only slightly more complex, but the level of effort and judgement
required to apply the formula is increased enormously:
P• D •!
—=rj— = Water Pollution Index
M
Where D = a factor ranging from 0.4 to 1.0 to express the inter-
seasonal duration of pollution.
I — a factor ranging from 0.1 to 1.0 to express the intensity
of water pollution in terms of damage.
(An explanation of these variables is contained in the Technical
Appendix [Volume II of this report].)
When reach-by-reach pollution conditions are weighted to give
expression to duration and intensity an index is formed which pro-
vides a consistent measurement of unequal variables against a
common base—in this case, the water quality standards.
Relationship of the Duration-Intensity Factors
to Prevalence of Pollution—1971
The relative water pollution standing of Federal Administrative
Regions is not significantly changed when the frame of reference
shifts from simple prevalence of pollution to an index of prevalence
weighted by relative duration and severity (cf. Table 2).
[p. 7]
TABLE 2.—RELATIVE INCIDENCE OF WATER POLLUTION
EPA region
1 Boston
II New York
Ill Philadelphia
IV Atlanta
V Chicago
VI Dallas
VII Kansas City
VIII Denver
IX San Francisco
X Seattle
Contiguous United States
East of Mississippi River
West of Mississippi River
Percent of stream
miles polluted
16.4
42.4
34.7
37.9
64.5
21.5
12.5
25.0
23.5
19.4
29.3
38.5
20.6
Duration
intensity
factor
0.62
.45
.58
.45
43
.37
.33
.23
.20
.11
.41
.48
.28
Duration-intensity
as a percent of
U.S. mean
151
110
141
110
105
90
81
56
49
27
100
117
68
Percent
polluted
U.S. miles
6.4
2.7
11.7
19.4
24.3
13.1
3.1
7.4
5.2
7.2
100.0
63.9
36.1
[p. 8]
-------
GUIDELINES AND REPORTS 3399
In general, the greater the prevalence of water pollution, the higher
the aggregated duration-intensity factor. There are, however, ex-
ceptions. The Boston Region—that is, the New England States—is
second only to the Kansas City Region with respect to the portion of
its waters that is not polluted; but it is the worst region in the nation
with respect to persistence and damage. The Denver Region, which
stands fifth among the ten administrative regions in extensiveness
of pollution, is a creditable ninth with respect to duration and in-
tensity. And though the Chicago Region has the worst pollution
index, it is largely because it has the highest prevalence of pollution,
since it is no worse than fifth in terms of persistence and damage.
These distributional features become more apparent when the
categorical focus is shifted from political to natural boundaries. For
comparative purposes, then, the discussion from this point will be
framed in terms of nine sets of physical drainage areas (cf. Figure 1):
1. "The Northeast Basins" is composed of those watersheds
that drain directly to the Atlantic from the Canadian border on
the north to the drainage area of Chesapeake Bay on the South;
2. "The Middle Atlantic Basins" comprises drainage to the
Atlantic from Chesapeake Bay southward to the drainage of the
Santee River;
3. "The Southeastern Basins" consists of the drainage to the
Atlantic from the Santee River southward, the east bank drain-
age to the Mississippi from the Tennessee River southward, and
direct drainage to the Gulf of Mexico east of the mouth of the
Mississippi;
4. "The Great Lakes Basins" consists of the drainage of the
Great Lakes and the St. Lawrence River;
5. "The Ohio Basin" is the area drained by the Ohio River;
6. "The Missouri River Basin" consists of the drainage area of
the Missouri and the Souris-Red-Rainy systems, as well as direct
western discharges to the Mississippi River north of the con-
fluence with the Missouri River;
7. "The Gulf Basins" consists of the west bank discharges to
the Mississippi River that occur south of the drainage of the
Missouri, together with direct discharges to the Gulf of Mexico
that occur west of the Mississippi River;
8. "The California Basins" includes the area drained by all
discharges to the Pacific Ocean south of the Oregon-California
border, together with discharges to the Gulf of California and
the closed watersheds of the Great Basin; and
9. "The Columbia North Pacific Basins" includes the area
drained by the Columbia River and all direct discharges to the
Pacific Ocean between the Canadian and California borders.
-------
3400 LEGAL COMPILATION—WATER
When the pollution index data are framed in these hydrologic
terms, the degree to which water pollution is concentrated becomes
more evident. The three broad hydrologic groupings for which both
the prevalence factor and the duration-intensity factor are above the
national mean include 48 of the 61 second-order watersheds in which
[p. 9]
-------
GUIDELINES AND REPORTS
3401
o
_ Q.
uj OL
ce. LU
ill
UJ
o:
[p. 10]
-------
3402 LEGAL COMPILATION—WATER
more than half of all stream and shoreline miles are reported to be
polluted. The same three (Ohio, Southeast, Great Lakes) also in-
clude 79 of the 113 second-order watersheds in which aggregated
duration-intensity factors exceed the national value. Among them,
they include 23.9 percent of the nation's stream miles (third-order
streams or greater), but 48.9 percent of the polluted stream miles.
The smaller the units of the hydrologic system that are considered,
the more apparent it becomes that water pollution may be far more
concentrated than is generally supposed. Table 3 provides a demon-
stration of that fact. It arranges the 241 first-order tributaries of
the nine broad, synthetic hydrologic groupings in class intervals
according to prevalence of pollution and duration-intensity. The
table makes it clear that extensive pollution is very nearly limited
to the Ohio, Great Lakes, and Southeastern drainage systems. And
though the Northeastern watersheds are in a class with the other
three with respect to duration and intensity of pollution, they tend
to dominate that measure as well.
Thus the median class interval for prevalence of pollution is:
21-30 percent of stream and shoreline miles for the U.S.
81-90 percent for the Ohio River Basin,
21-30 percent for the Southeastern Basins,
41-50 percent for the Great Lakes Basins, and
11-20 percent for the rest of the nation.
Similarly with respect to duration-intensity of pollution, where the
median is:
.410-.509 for the nation,
.410-.509 for the Ohio River Basin,
.610-.709 for the Southeastern Basins,
.410-.509 for the Great Lakes Basins, and
.310-.409 for the rest of the nation.
It is not appropriate to compare 1970 and 1971 conditions of water
pollution on the basis of the separate national assessments. The
quality of the 1971 survey was far superior to its predecessor, due
largely to the facts that an informational and experiential base was
established by the 1970 survey that resulted in an improved second
effort, and that a more rigorous methodology was imposed on the
assessors in 1971. Further, the 1971 assessment included provision
for the duration and intensity factors that go into the water pollution
index.
A comparison of the common factor of prevalence, however, can
be made. Such an evaluation is summarized by major drainage area
in Table 4. In general, the major drainage areas with the higher
prevalence of pollution in 1970 became even worse in 1971.
[p. 11]
-------
GUIDELINES AND REPORTS
3403
RAINAGE AREAS
F POLLUTION BY MAJOR D
TABLE 3.— DISTRIBUTION 0
iber of Tributary Basins
Hs
ra
Columb
1
i
i
n
15
u
0."
•B
1
H
53
I
O
i
s
4-1 ~O
ill
O. V) Q.
CM
*<
C"
f
C
ootor»*ncMCMi-
f-i ro TH
in oo «-i 2 ^
CO
10 ^- **
IOU">^LO*trH^CMi'^CMOl °*
J5 CO f
CM CM (O^CMCni-i 5
CM 00
• • • • c
• • o ' <" ,_
CM (O
5; CM c>
CM en co
ft-W
co^S
«
s-
S! "
Intensity
9
i
= • 2 =>
0 ,_ ••! <•>
i*^
i ^
ss
I— t
CM
ft
-------
3404
LEGAL COMPILATION—WATER
TABLE 4.—WATER POLLUTION INDEX SUMMARIZED FOR MAJOR DRAINAGE AREAS, 1970 AND 1971
Polluted miles
Major watershed
Ohio
Great Lakes
Northeast
Middle Atlantic . .
California
Gulf
Missouri . . .
Columbia
United States . . .
United States less
United States less
Stream miles
28,992
11,726
21,374
32,431
31 914
28,277
64,719
. . . .10 448
.30 443
260 324
Ohio .... 231,332
Columbia 229,881
1970
9,869
3,109
6,580
11,895
4,620
5 359
16 605
4,259
7 443
69 739
59,870
62,296
1971
24,031
4,490
8,771
5 823
5 627
8429
11 604
1 839
5 685
76 299
52,268
70,614
Change
+ 13746
+ 1,381
+2,191
— 6072
+869
+2499
5 001
2 420
1 758
+5 435
-8,311
+7,193
1971 D.I. factor
0.42
.74
.45
.61
47
27
35
31
12
41
.40
.43
[p. 13]
Unfortunately, of the four apparently significant shifts in reported
water pollution that took place—in the Ohio, Gulf, Missouri, and
Northeastern Basins—three are so obscured by variations in proce-
dure that it is difficult to evaluate the degree of real change. Both
the Gulf and the Missouri Basins reported an enormous improve-
ment in compliance with water quality standards. But in each case,
the 1970 assessment failed to make allowance for legally sanctioned
breaches of water quality criteria that resulted from precipitation;
and in either case, that exception is a significant matter. Apparent
improvement, then, can only be ascribed with assurance to com-
pliance with a legal standard, not to better water. And in the case
of the Ohio River Basin, the 1970 assessment concentrated on the
quality of major waterbodies, overlooking smaller tributaries. But
in the Ohio, a phenomenon that is almost unknown elsewhere is
common, in that many streams are polluted at the source as a result
of the acid drainage of mountain coal mines. Of twenty-one river
systems in the Ohio River Basin, nine—the Little Miami, the Licking,
the Miami, the Kentucky, the Salt, the Green, the Wabash, and the
East and West Forks of the White—are in violation of water quality
criteria over their total span during at least part of each year. Three
others—the Guyandot, the Hocking, and the Cumberland—have only
a few miles free of pollution. Failure to account for this total
prevalence of pollution in 1970 is at least partially responsible for the
increase in reported pollution in 1971.
On the basis of the data available, if data anomalies are over-
looked, we may conclude that substantially the same number of river
miles was polluted in 1971 as in 1970 and that the western States
had less water pollution and less severe water pollution than eastern
States. (The evaluation holds for changes in the water quality of
discrete river systems as well as for gross hydraulic groupings (cf.
-------
GUIDELINES AND REPORTS
3405
Table 5).2 In coming years as comparable data is developed, the
water pollution index will be able to better identify trends in pollu-
tion for the nation.
* Appendix—presents Instructions for calculating the pollution indices, and Index data
summarized for second-order watershed.
[p. 14]
TABLE 5.—SHIFTS IN PREVALENCE OF POLLUTION SUMMARIZED FOR MAJOR DRAINAGE
AREAS, 1970 AND 1971
Number of tributary basins '
Ohio River Basin ...
Southeastern Basins
Great Lakes Basins
Northeast Basins . . .
Middle Atlantic Basins
California-Colorado-Closed Basins
Gulf-Southwest Basins
Missouri Basin
Columbia-North Pacific Basins
United States
Pollution
increased
18
13
... 25
5
5
11
4
3
4
88
Unchanged
(± 10 percent)
1
24
5
5
2
4
6
1
2
50
Pollution
decreased
0
1
18
18
5
9
20
12
8
91
' 1970 Data not available In all cases.
[p. 15]
I
TRENDS IN INDUSTRIAL WATER USE—DISCHARGE AND TREATMENT
INTRODUCTION
The chapter traces quantitatively trends in manufacturing use of
water between 1959 and 1968, concentrating on growth of discharge
volume, rates, and waste treatment, and relating them to changes in
the institutional setting.
SUMMATION
Industrial water intake and discharge is increasing at a less pro-
nounced rate than industrial output. The proportion of industrial
wastewater discharge that is treated continues to grow, and amounted
to 37 percent of discharge in 1968. Waste treatment growth was less
between 1964 and 1968 (3.1 percent annual rate of increase), however,
than between 1959 and 1964 (10.5 percent annual rate of increase).
Most of the increase in industrial waste treatment occurred at the
factory. For, although use of public sewers and waste treatment
plants is the main method of waste disposal for a number of manu-
facturing sectors, the portion of industrial effluent discharged to public
facilities dropped from almost 9 percent in 1959 to little more than 7
percent in 1968.
[p. 17]
-------
3406 LEGAL COMPILATION—WATER
Publication of Water Use in Manufacturing, 1967 permits a survey
of trends over the period 1959 to 1968 and re-examination of findings
reported in Volume II of the Cost of Clean Water for 1967. Also
available for analysis of industrial practices with respect to handling
of liquid-borne wastes is a recent survey conducted by the Conference
Board. Under the sponsorship of the Federal Water Quality Admin-
istration, the Conference Board (formerly the National Industrial
Conference Board) conducted a survey of establishments in the seven
heaviest water-using manufacturing groups.1 From the almost 800
responses, a number of significant findings emerged.
THE INSTITUTIONAL
Important changes in institutions and attitudes with respect to in-
dustrial waste discharges, and discharge of pollutants generally, oc-
curred during the sixties. Amendments to PL 660 (the Federal
Water Pollution Control Act) in 1966 required the States, in consulta-
tion with all users of interstate waterways and to the satisfaction of
the Secretary of the Interior, to set standards for interstate water-
ways. The standards were to account for all uses of the waterways
except as a medium for the disposal of wastes. Negative sanctions
for dischargers, including industrial dischargers, who violated the
standards were also developed. As a consequence of State and Fed-
eral efforts to attain, or in some cases maintain, water quality stand-
ards, a largs number of industrial dischargers have indicated they
will comply with the standards by installing treatment measures,
altering processes, or curtailing pollutant-generating activities. Prior
to the promulgation of water quality standards, a number of States
had some kind of pollution surveillance and enforcement program.
These provide an indication of the differences in intensity of water
pollution control activities between the first and second half of the
sixties. Man-years of such programs in the United States grew at an
annual rate of 3.3 percent from 1959 to 1964, but from 1964 to 1968 the
annual rate of growth was 13.4 percent; and since 1968 the annual
rate of growth has been almost 21 percent. Assuming that there is a
positive correlation between effectiveness of a program and the re-
sources allocated to it, the growth in State water pollution control
activities has provided an additional impetus to curtailment of waste
discharges by industries.
1 The Industry groups surveyed were Food and Kindred Products (SIC 20), Textile Mills
Products (SIC 22), Paper and Allied Products (SIC 26), Chemical and Allied Products (SIC
28), Petroleum and Coal Products (SIC 29), Rubber and Plastics Products (SIC 30), and
Primary Metals (SIC 33).
[p. 18]
Amendments to the Water Pollution Control Laws during the last
-------
GUIDELINES AND REPORTS 3407
decade have increased both the amount of federal funds devoted to
municipal wastewater treatment works and the federal share of the
total funds. To the extent that local communities are primarily
interested in recovery of local out-of-pocket costs rather than total
system costs from those connected to the system, the increased federal
share and funding levels represent an increase in subsidies to con-
nected industrial establishments. This added incentive to treat wastes
should have resulted in increased industrial connections to municipal
treatment works, and, presumably, more adequate treatment of
industrial wastes.
Continued pressures on existing supplies of freshwater, both sur-
face and ground, have, in a large portion of the continental United
States, increased the cost of obtaining additional units of water suit-
able for industrial application. In order to obtain additional units of
water, industry has had to turn to poorer quality water, such as
brackish water or treated sewage effluent, and to sink deeper wells.
In effect, the price to industry of obtaining water has generally in-
creased during the last decade and has provided an incentive to
economize on water intake. Process change, including recycling,
directed towards more efficient use of water can have a number of
benefits. Process changes may decrease the amount of water-borne
residuals per unit of product produced. Industrial recycling and
reuse of water will often result in a highly concentrated end-of-stream
effluent which generally eases the problems of waste handling and
disposition, and can make by-product recovery a profitable activity.
In addition to the problem of increasing pressures on available sup-
plies of freshwater, the Northeastern drought of the early 'sixties
has probably brought the necessity for planning for adequate indus-
trial water supplies into many capital budgeting decisions. In fact,
a study of the response of local government and industry to the North-
eastern drought in the State of Massachusetts indicates that industry
primarily adjusted to the situation by investing in equipment to
recirculate water—almost 70 percent of the reported investments
to adjust to the drought were for recirculation facilities.2
One additional change in the climate in which decisions concerning
ultimate disposition of industrial waste discharges were made is the
increased public relations value to a firm of industrial pollution
control measures. In the late 'sixties environmental and consumer
issues received considerable attention from citizens and politicians.
This concern has increased the value to a firm of installing and
publicizing a pollution control facility.
1 Clifford S. Russell et al., Drought and Water Supply (Johns Hopkins Press, 1970), p. 110.
[p. 19]
-------
3408 LEGAL COMPILATION—WATER
Although all of the above developments might be expected to pro-
vide an incentive to industry to curtail and treat liquid-borne wastes,
other trends mitigate against reduction in the discharge of industrial
pollutants. The sheer growth of manufacturing output and the
associated production of residuals continues to create waste handling
problems. Over the period 1959-1968 the Federal Reserve Board
Index of Industrial Production for manufacturing increased 59 per-
cent, and for the five major water-using industries—food products,
paper, chemicals, petroleum, and primary metals—the index grew by
29, 48, 94, 33, and 52 percent, respectively. In addition to water
demand growing directly out of production growth, industry's con-
tinued accumulation of capital created both a direct demand for
cooling water and indirect demand by increasing the consumption
of thermally generated power used by industry.
In summary, a number of economic and institutional changes in
the last decade lead to the expectation that incentives have been
provided for industry to curtail and treat liquid-borne wastes. Off-
setting these incentives are growth of production and consequent
residuals production.
/
INDUSTRIAL WATER USE AND DISCHARGE 1959-1968
According to the Water Use in Manufacturing, 1967, 14,276 billion
gallons of wastewater were discharged in 1968 by manufacturing
establishments using 20 million gallons of water or more. The 1968
figure represents an 8.5 percent increase over 1964 and 24.7 percent
increase over 1959. However, as Tables 1 and 2 indicate, discharge
across the nation and for most industries over the period 1959 to 1968
grew at a slower rate than did value added (in constant dollars), as
is also the case for most of the industrial water use regions.
For those industries for which this was not the case the following
observations can be made. Data anomalies result from industry
concentration which leads to fewer and larger firms with a higher
number of establishments in the over 20 MGY category. Some in-
dustries using lower grade raw materials have more need for residuals
elimination and some could have operations at a lower percent of
capacity on a more heavily capitalized base.
Estimates of industrial production of BOD5 presented in the 1971
Cost of Clean Water3 indicated that this component of total waste
produced increased by 97 percent between 1957 and 1968, though, of
course, a significant portion of this load was withheld from surface
water bodies through treatment.
The geographical incidence of industrial waste discharges in 1968
is shown in Table 3. Not surprisingly, the industrial Northeast and
Midwest are the largest repositories of industrial discharges, with
-------
GUIDELINES AND REPORTS
3409
the Western Gulf area also receiving a significant portion. The
industrial sources of discharges within regions are indicated in
Table 4.
8 U.S. Environmental Protection Agency, Water Quality Office, Cost Effectiveness and
Clean Water (1971), p. 29.
[p. 20]
TABLE 1.—INDUSTRIAL WASTEWATER DISCHARGE AND VALUE ADDED BY
INDUSTRIAL WATER USE REGIONS, 1959-68
Industrial water use region:
New England
Delaware and Hudson
Chesapeake Bay
Ohio .
Tennessee-Cumberland
Southeast
Western Great Lakes
Upper Mississippi
Lower Mississippi
Missouri
Arkansas-White-Red
Western Gulf ...
Great Basin
California
National '
Total industrial
wastewater
discharges, 1968
(billions of gal.)
558.4
1191.9
754.7
2295.4
. . . 1459.7
535.9
1099.6
1811.3
581.6
744.6
141.9
184.6
.. .. 1899.1
18 3
26.8
314.1
532 5
14150.4
1968 industrial
wastewater discharge
as a percentage of
1959 discharge
113.0
98.1
133.8
111.2
112.0
185.7
140.1
131.4
144.7
175.6
102.1
114.0
135.8
261.4
116.5
110.6
119 4
124.6
1968 value added
(deflated) as a
percentage of
1959 value added
131.6
114.6
140.8
133.1
120.3
196.1
162.0
136.9
131.4
179.0
147.5
105.0
185.0
256.6
179.7
154.4
159 4
138.6
1 Excludes Hawaii and Alaska.
[p. 21]
TABLE 2.—INDUSTRIAL WASTEWATER DISCHARGE AND VALUE ADDED BY INDUSTRY GROUPS, 1959-68
Industry
Total industrial
wastewater discharged,
1968 (billions of gal.)
1968 industrial
wastewater discharge
as a percentage of
1959 discharge
1968 value added
(deflated) as a
percentage of
1959 value added
Food and kindred products
Textile mill products
Lumber
Paper
Chemicals
Petroleum and coal
Rubber
Leather
Stone, clay, and glass
Primary metals
Fabricated metals
Machinery
Electrical equipment
Transportation equipment .
. 752.8
136.0
92.7
2077.6
4175.1
1217.0
128.4
14.9
218.4
4695.5
65.0
180.8
118.4
293.1
131.9
113.3
73.8
113.9
136.4
101.1
107.9
125.0
82.6
132.2
158.5
109.6
134.5
128.0
130.3
122.1
99.9
133.4
181.9
178.7
137.8
143.2
116.1
122.5
148.7
157.7
242.3
179.6
[p. 22]
-------
3410
LEGAL COMPILATION—WATER
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-------
GUIDELINES AND REPORTS
3411
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-------
3412 LEGAL COMPILATION—WATER
With the exception of the petroleum industry in the Delaware-
Hudson and California regions, paper, chemicals, and primary metals
are the principal sources of industrial discharges. Clearly, these
industries in the industrialized areas create the largest demand for
curtailment of waste discharges.
INDUSTRIAL WASTE TREATMENT, 1959-1968
Although industrial wastewater discharge has not grown as rapidly
as industrial production—and the gap between the two rates of
growth has widened"—the volume of industrial waste discharge
must still be handled to attain, or maintain, acceptable levels of water
quality. Four broad methods of curtailing the polluting effects of
industrial liquid-borne wastes can be distinguished; (1) Waste treat-
ment facilities can be added prior to discharge; (2) A plant can also
discharge its wastes to a sewer and thereby place the responsibility
for treatment upon a political jurisdiction; (3) Application to land,
either through surface irrigation or well injection, can be a very
thorough treatment technique, provided that precautions to prevent
ground water contamination or run-off of pollutants are exercised;
(4) Process change is, from both an environmental and administra-
tive standpoint, perhaps the most attractive technique because of its
reliability, predictability, and potential for recycling of waste ma-
terials. Process change, though, is part of the economics of water
use generally. Accordingly, a discussion of process change is deferred
to a later chapter which concerns water as an industrial input.
Superficial inspection of Tables 5 and 6 suggests that progress in the
treatment of wastes by industry has been made during the last decade.
In 1968, over 30 percent of industrial wastewater was reported to have
received some kind of treatment performed by industry. This
represents an increase of about 87 percent in treated discharge since
1959. In all regions and for most industries, the amount of waste-
water treatment performed by manufacturers increased both ab-
solutely and relative to total discharge over the period. Based on a
consideration of the development of water quality standards, greater
regulatory activity and other developments discussed in the previous
section, these findings might be expected. It cannot, however, be
inferred from these data that the amount of industrial pollutants
reaching water has necessarily decreased.
4 Excluding Alaska and Hawaii, between 1959 and 1964 value added (In constant dollars)
grew at an annual rate of 2.2 percent and industrial discharge grew at a rate of 2.7 percent;
but between 1964 and 1968 value added grew at a rate of 4.8 percent which exceeds the 2.1
percent rate of growth of discharge by a wide enough margin to give the entire decade a
creditable showing with respect to water productivity in manufacturing.
[p. 25]
-------
GUIDELINES AND REPORTS 3413
TABLE 5— PERCENTAGE OF INDUSTRIAL WASTEWATER RECEIVING TREATMENT AND GROWTH IN
TREATMENT BY INDUSTRIAL WATER USE REGIONS, 1959-68
Industrial wastewater
discharge
Annual rate of growth
of treated discharge
Percent treated
Water use region
Chesapeake Bay
Ohio
Eastern Great Lakes
Tennessee-Cumberland . . .
Southeast
Western Great Lakes
Upper Mississippi ...
Missouri
Arkansas-White-Red
Western Gulf
Great Basin
California
Pacific Northwest
1959 '
4.7
25.0
24.5
14.5
20.3
, ... 18.0
17.3
. 19.4
. 16 9
6.4
. . 16.5
. . 30.9
. 31.3
143
13.0
. 518
.... 14.3
19642
11.4
40.2
25.6
17.7
31.7
31.3
36.8
34.8
35.0
23.8
48.1
50.6
22.6
31.3
58.6
59.7
29.6
1968
10.0
42.0
28.5
23.3
22.0
26.4
43.1
41.7
23.7
21.0
45.5
67.0
23.2
19.1
42.9
55.4
36.3
1959-68
10.4
5.7
5.1
6.6
2.2
11.8
14.9
12.2
8.2
21.6
12.2
10.6
.1
14.9
16.1
1.9
13.1
1959-64
19.1
9.6
5.8
6.7
11.6
19.6
19.3
15.3
21.0
38.0
22.0
15.2
-2.6
38.0
41.0
5.3
20.0
1964-68
0.4
.8
4.1
6.5
-8.3
2.9
9.6
8.5
-5.5
2.9
1.0
8.9
3.5
-8.5
-9.3
-2.2
4.8
National ^ 20.3 29.2 30.4 7.2 10.5 3.1
1 Volume of treated discharge derived from 1958 Census of Manufacturers.
1 Volume of treated discharge derived from 1963 Census of Manufacturers.
3 Excludes Alaska and Hawaii.
[p.26]
TABLE 6.—PERCENTAGE OF INDUSTRIAL WASTEWATER RECEIVING TREATMENT AND GROWTH
IN TREATMENT BY INDUSTRY GROUPS, 1959-68
Percent of industrial
wastewater discharge treated
Industry group
Food and kindred products . .
Textile mill products
Petroleum and coal .
Rubber
Leather
Stone, clay and glass
Primary metals
Fabricated metals . .
Machinery
Electrical equipment ....
Transportation equipment . . .
1959
.. 13.0
. 14.2
246
41 8
16 3
545
34
. 16 7
. 4.2
15 1
73
188
80
. 9.6
1964
22.9
25.9
27.6
36.4
16.0
76.4
7.8
63.6
18.8
26.9
12.0
8.0
17.0
10.3
1968
24.6
39.7
20.4
44.0
16.1
75.4
5.4
66.7
16.5
30.8
13.8
13.8
23.7
7.8
Annual rate of growth
of treated discharge
1959-68
10.7
13.7
2.1
3.4
3.8
6.4
19.6
14.1
11.5
13.0
-2.3
16.7
.5
1959-64
16.4
15.5
1.9
1 0
3.4
8.9
17.6
28.5
30.0
16.7
14.9
-17.4
16.5
1.8
1964-68
4.0
11.5
-13.5
6.7
3.4
-1.8
-6.3
9.3
-3.2
5.4
10.7
20.0
16.9
-1.1
[p. 27]
Available data do not permit estimation of the degree of treatment
received by final industrial waste discharge. In the absence of
inventories of industrial treatment facilities analagous to the Munici-
pal Waste Inventories, it is presently impossible to estimate the
amount and rate of change of the discharge of industrial liquid-borne
pollutants.
-------
3414 LEGAL COMPILATION—WATER
Another reason that the apparent increases in wastewater treat-
ment by industry do not necessarily imply a decrease in industrial
pollutants is that treatment of industrial wastewater is often a require-
ment for discharge to sewers. As presented in the 1968 Water Use in
Manufacturing, the data did not allow an estimate of treatment prior
to sewer discharge or application to land. In 1964 the volume of
industrial waste receiving treatment prior to discharge to sewers or
ground appears to have been about 5 percent of the total treated
discharge. This percentage may have increased by 1968 because of
the growth in municipal waste treatment and associated pretreatment
requirements for industrial connections.
One disturbing finding which emerges from an examination of the
data over the period 1959 to 1968 is that treatment of wastes by
industry grew at a considerably faster rate from 1959 to 1964 (10.5
percent annual rate) than from 1964 to 1968 (only a 3.1 percent
annual rate, cf. Table 5). In fact, in five of the seventeen water use
regions and five of the fourteen industries there was both a relative
and absolute decline in the amount of industrial wastewater receiving
some kind of treatment over the period 1964-1968. As a consequence
of the differing rates of growth in treatment, the amount of untreated
wastewater discharged by industry grew at an annual rate of 1.6
percent over the 1964-1968 period, even though total discharge of
industrial wastewater grew at a slower rate in the later period (2.1
percent annual rate of growth) than in the earlier period (2.8 per-
cent). The nature and detail of available data do not permit an
investigation as to the many possible reasons for the decline in the
rate of growth of industrial wastewater treatment. However, the
period 1964-1968 experienced generally increasing rates of interest
which, because the rate of interest is an integral part of the cost of
capital investments to industry, may have discouraged or postponed
investment generally and investment for industrial treatment facili-
ties in particular. Another conjecture which might bear on the
decline in the rate of growth of industrial treatment concerns the
responses of firms to increased scarcity of fresh water for industrial
use and increased regulatory pressures. More stringent effluent
requirements and increased enforcement of such requirements pro-
vide an incentive to industry to amend production processes to curtail
the production of liquid-borne pollutants and/or to find profitable
uses for the would-be waste discharges. Also, while regulatory
constraints on industrial discharges have become tighter, the demand
on available water supplies has increased, which provides an incentive
to economize on water intake and discharge. The total effect of
these pressures may have been to drive below the 20 million-gallons-
[p.28]
-------
GUIDELINES AND REPORTS 3415
a-year threshold some of the establishments which had reported in
the Water Use in Manufacturing series prior to 1968. Thus, these
establishments did not report in the 1968 survey. In other words,
establishments which significantly altered processes to decrease the
amount of their discharge to be treated may have thereby eliminated
themselves from the request to report their discharges and associated
amount of treatment to the Bureau of the Census, and decreased the
apparent rate of growth in industrial wastewater treatment.
It should also be noted that quantitative representations of waste-
water treated over time may not be an accurate indication of growth.
Industrial management's view of what constitutes treatment is un-
constrained by definition, so that waste-amending practices tend in
all cases to be reported as treatment. But as waste treatment require-
ments become more stringent, intake economies and segregation
modify utilization practices in such fashion that the amount of waste-
water treated declines in rough proportion to the intensity of treat-
ment. (For example—a factory in which water application is divided
equally among cooling, process, and sanitary purposes might have
discharged in 1959 through a common outfall, with coarse screening
the only treatment provided, and have reported treatment of 100
percent of its aqueous wastes; by 1968, as a result of regulatory
pressures, the same factory might be discharging sanitary wastes to
a public sewer, discharging once through cooling waters through a
separate outfall to prevent contamination by other wastewaters and
providing a high degree of treatment to process wastes, yet report—
quite accurately—that only 33 percent of its wastes were treated.)
To what extent such considerations are reflected in the apparent
slowing of waste treatment growth we cannot guess.
PUBLIC TREATMENT OF INDUSTRIAL WASTES
Discharge of industrial wastewater to public sewers places the
requirement for adequate waste treatment upon local public agencies
responsible for municipal waste treatment. As wastewater treatment
at the secondary level (i.e., about 80 to 90 percent BOD reduction)
or above becomes more prevalent among municipalities, the degree
of treatment of sewered industrial wastewater should generally in-
crease. However, as municipalities raise their target rates of waste
removal, they must become more discriminating about the types and
timing of industrial discharges that they will accept in order to
prevent adverse consequences on the operation of their treatment
works. Increased selectivity of acceptable discharge to sewers gen-
erally means outright prohibition on the discharges of certain indus-
trial residuals and/or pretreatment requirements. For the sewered
manufacturing plant, greater selectivity can translate into separation
-------
3416 LEGAL COMPILATION—WATER
of waste streams and/or treatment of discharges bound for the sewer,
both of which entail an increase in costs. From the data reported in
the Water Use in Manufacturing series it appears that these develop-
[p.29]
ments have been an offset to the subsidies provided by Federal and
State grants for municipal wastewater treatment plant construction.
From 1959 to 1968 the percentage of industrial wastewater dis-
charged to sewers declined from 8.7 percent to 7.2 percent (cf. Table
7). However, all of this decline took place in the 1959-1964 period,
and over the 1964-1968 span relative discharge to sewers remained
virtually constant, with the absolute amount of sewered discharge
increasing slightly. Although the relative amount of industrial dis-
charge going to sewers is rather small, it can be inferred from Table 8
that municipal waste treatment is the primary method of curtailing
industrial liquid-borne pollutants from the food processing, textiles,
rubber, leather, and the various metal manufacturing industries.
(The percentages in Table 8 probably understate the relative
amount of industrial discharge going to sewers by a percentage point
because municipal waste treatment is also the primary method by
which the water-borne wastes of minor urban manufacturing estab-
lishments whose intake is less than 20 million gallons a year are
handled.)
GROUND DISPOSAL OF INDUSTRIAL WASTES
Discharge to the ground can be an effective method of treating
industrial wastewater. Direct application to land utilizes the evapo-
rative powers of the atmosphere and the filtering action of soil and
rock strata to eliminate and purify industrial wastewater. Deep-well
injection is a method of withholding and isolating particularly dan-
gerous or conservative industrial wastes from surface streams. The
use of disposal to land as a technique is constrained by the cost and
availability of land, the possible contamination of ground waters, and
the possible nuisances of noxious odors and aesthetic degradation.
However, as long as proper precautions are taken, applications to land
are valuable in cleansing and recycling liquid industrial discharge.
Discharge of industrial wastewater to the ground is not a prevalent
disposal technique; according to the data presented in the Water
Use in Manufacturing, 1968 only 1.3 percent of industrial wastewater
was discharged to the ground (cf. Table 9). The use of land as a
disposal medium has grown however, between 1959 and 1968 indus-
trial discharges going to the ground grew at an annual rate of 7.8
percent. From Table 9 it appears that ground discharge is a signifi-
cant technique of disposal in the sparsely populated and arid regions
-------
GUIDELINES AND REPORTS 3417
of the Colorado Basin and Great Basin, where the wastes may have
an economic value for irrigation use. Ground discharge is generally
least used in the humid and often densely populated areas east of the
Mississippi River and in the Western Gulf. Among industries, the
food and kindred industry group discharged the largest percentage
of its wastewater to the ground—5.8 percent in 1968 (cf. Table 10) —
and the chemicals and primary metals groups discharged to the
ground 40.3 billion gallons and 38.1 billion gallons, respectively.
[p.30]
TABLE 7.—PERCENTAGE OF INDUSTRIAL WASTEWATER DISCHARGED TO SEWERS AND GROWTH OF
SEWERED DISCHARGE BY INDUSTRIAL WATER USE REGION, 1959-68
Industrial wastewater discharge Annual rate of growth of
percent discharged to sewers sewered discharge
Water use region
New England
Delaware-Hudson
Chesapeake Bay
Ohio
Eastern Great Lakes
Tennessee-Cumberland
Southeast
Western Great Lakes
Upper Mississippi
Lower Mississippi
Missouri
Arkansas-White-Red
Western Gulf
Colorado Basin
Great Basin
California
Pacific Northwest
National '
1 Excludes Alaska and Hawaii.
1959
12.6
7.4
5.0
5.4
.... 10.1
3.5
5.0
. . . . 17.7
. . . . 26.4
6.4
.... 20.1
4.9
9
42.9
4.4
. ... 15.1
9.6
8.7
1964
10.0
4.0
5.6
7.1
10.7
2.7
5.4
9.8
21.1
3.5
27.9
8.0
.8
25.0
6.9
15.1
6.7
7.3
1968
8.4
7.3
4.3
7.5
13.9
2.6
5.2
7.4
18.5
3.1
17.8
7.9
.8
20.2
6.3
16.8
5.7
7.2
1959-1968
-3.0
-.4
1.7
4.9
4.9
3.7
4.3
-6.5
.2
-1.9
— 1.2
6.8
1.7
2.4
6.1
2.3
-3.8
.3
1959-1964
-5.0
-11.8
7.4
8.2
3.1
1.9
4.3
-8.9
4
-5.8
5.1
11.8
1.5
5.9
14.9
2.2
-3.5
-.9
1964-1968
-0.5
16.1
-5.1
.8
7.1
6.0
4.3
-3.3
.9
3.2
-8.5
.7
2.1
-2.0
-4.0
2.5
-4.5
1.9
[p. 31]
TABLE 8.—PERCENTAGE OF INDUSTRIAL WASTEWATER DISCHARGED TO SEWERS AND GROWTH OF
SEWERED DISCHARGE BY INDUSTRY GROUPS, 1959-68
Industrial wastewater discharge Annual rate of growth of
percent discharged to sewers sewered discharge
Industry group
Textile mill products ...
Lumber . .
Paper
Chemicals .
Petroleum and coal
Rubber ....
Leather
Stone clay and glass
Primary metals ....
Fabricated metals ...
Machinery . .
Electrical equipment ...
1959
36 6
31 7
6.3
4.4
3.5
9
19.3
50.0
8.0
7.4
70.7
22.4
46.6
36.2
1964
350
32.6
3.3
4.2
4.2
2.4
15.5
63.6
8.7
3.6
64.0
26.8
53.8
33.3
1968
31 6
37.2
2.7
3.5
4.3
.6
17.4
68.0
9.4
3.1
59.4
24.6
62.8
26.3
1959-1968
1 4
3.2
— 12.1
— 1.2
6.0
— 4.1
— .3
6 1
2
— 6.5
3.2
2.1
6.8
— 8
1959-1964
2 9
30
— 130
0
7.4
23.0
.9
3 1
— 2.0
— 9 8
2.0
1 6
3.6
— 1 0
1964-1968
0.3
3.6
— 11.1
— 2.7
4.3
— 43.0
— 1.7
9.9
1.8
— 2.2
4.8
2.7
11.0
— .6
[p. 32]
-------
3418
LEGAL COMPILATION—WATER
TABLE 9.—PERCENTAGE OF INDUSTRIAL WASTEWATER DISCHARGED TO THE GROUND AND GROWTH OF
GROUND DISCHARGE BY INDUSTRIAL WATER USE REGIONS, 1959-68
Industrial wastewater discharge
percent discharged to ground
Annual rate of growth of
discharge to ground
Water use region
New England
Delaware-Hudson
Chesapeake Bay
Ohio
Eastern Great Lakes
Tennessee-Cumberland
Southeast
Western Great Lakes
Upper Mississippi
Lower Mississippi
Missouri
Arkansas-White-Red
Western Gulf
Colorado-Basin
Great Basin
California
Pacific Northwest
National '
1959
0.4
1.1
1.2
6
6
4
9
4
1.7
2
7
1.2
2
28.6
N.R5
4.6
2.2
8
1964
0.4
1.3
1.5
.6
.6
2.5
1.3
.5
1.2
.5
16
1.7
.1
6.3
6.9
6.0
3.7
1.1
1968
0.9
1.5
.6
.5
.5
.3
1.7
.6
4.3
1.5
1.4
2.8
.5
44.3
21.3
6.1
4.1
1.3
1959-68
10.9
3.7
1.7
- .3
-1.8
6.8
11.3
6.6
15.1
35.0
8.0
11.2
13.0
16.8
N.R'
4.3
10.8
7.8
1959-64
0
4.2
7.4
2.9
2.4
N.C»
11.4
5.9
- 3.0
25.0
14.9
8.4
- 7.8
-12.9
N.R'
7.9
14.9
7.7
1964-63
26.0
3.0
- 5.0
- 4.5
- 6.8
N.C'
11.3
7.5
43.0
39.0
0
14.7
N.C'
N.C*
30.0
0
5.9
7.9
1 Excludes Alaska and Hawaii.
' Exceeds 50 percent in absolute value.
1 Calculation not possible because the necessary datum was not reported.
[p.33]
TABLE 10.—PERCENTAGE OF INDUSTRIAL WASTEWATER DISCHARGED TO THE GROUND AND GROWTH OF
GROUND DISCHARGE BY INDUSTRY GROUPS, 1959-68
Industrial waste discharge
percent discharged to ground
Annual rate of growth ot
discharge to ground
Industry group
Food and kindred products
Textile mill products
Lumber
Paper
Chemicals
Petroleum and coal
Rubber
Leather
Stone, clay and glass
Primary metals
Electrical equipment
Transportation equipment
1959
4.2
1.7
1.6
5
6
4
1.7
8.3
1.9
6
1.1
1.7
1964
11.5
3.7
2.4
.6
1.0
.4
1.7
0
8.3
1.3
3.4
2.1
1968
5.8
1.0
4.1
.8
1.0
1.1
2.0
2.7
5.3
.9
3.3
2.5
1959-1968
6.8
-3.9
7.4
6.5
8.7
11.5
2.5
-9.7
9.8
5.4
14.9
6.9
1959-1964
27.0
20.0
8.4
4.1
14.9
0
0
—
29.0
14.9
24.6
4.6
1964-1968
-13.9
-27.3
6.1
9.7
1.5
28.0
5.7
—
-10.4
- 5.4
6.1
9.9
[p. 34]
II
PROCESS AND THE USE OF WATER IN INDUSTRY
INTRODUCTION
The chapter considers the utility of water as an industrial raw
material, the increasing intensity of its application, the substitution
of capital for water inputs, and the relationship of these phenomena
to water quality and effluent treatment.
-------
GUIDELINES AND REPORTS 3419
SUMMATION
The real price of water—measured by its scarcity and the cost of
its application—is increasing for industry. In consequence, manu-
facturers are using it with growing intensity. Use of capital to provide
more effective utilization of each intake unit at each application and
to increase the number of applications by recycling is indicated by
positive correlations between growth of output per intake gallon
with (a) growth of output, and (b) water scarcity. Neither charac-
teristic correlates with growth of industrial waste treatment, sug-
gesting that management response to an increase in the price of water
is limited to each firm's internal operations and does not extend to
measures that will reduce prices for society as a whole. Neverthe-
less, increased demand for water leads to processing methods that
result in reduced dependence on the available supply, thus supple-
menting—and in some degree substituting for—the effect of waste
treatment.
[p.35]
PROCESS CHANGE AND THE USE OF WATER IN INDUSTRY
UTILITY OF WATER IN MANUFACTURING
In 1968 about 15.5 trillion gallons of water were withdrawn in the
United States by manufacturers (cf. Table 11)—an increase of 27.5
percent from 1959. According to U.S. Geological Survey sources,
industry, exclusive of electrical utilities, accounted for 14.5 percent
of withdrawals in the United States from 1950 to 1965. Water pro-
vides a number of productive services within manufacturing pro-
cesses. A number of products, notably beverages and prepared foods,
incorporate water directly into the product. Water can be used to
transport materials in a manufacturing process; for example, water
is used to carry partially prepared fruits and vegetables between
stages of production. But the most common use of water by industry
is to transport or flush away residual matter, the inevitable by-
products of manufacturing processes that must be carried away in
order to prevent counter-productive effects.
Much of the intake of water by industry is directly toward cooling;
in 1968, the percentage of initial intake for the purpose of cooling
amounted to 65.5 percent (cf. Table 12). Cooling water is used to
absorb the heat arising from the difference between thermal energy
generated and that used in production. The heat, in turn, can be
identified as a residual from industrial production. Although cooling
tends to be the major use of water in industry, process water carried
almost all residuals other than heat. Respondents in the Conference
Board survey indicated that 93.4 percent of the BOD, 89 percent of
-------
3420 LEGAL COMPILATION—WATER
chemical oxygen demand (COD), and 85 percent of suspended solids
contained in their wastewater were contributed directly by the
production process. Table 12 indicates waste concentrations in
process water, generally highest for paper and allied products.
Clearly, it is the use of water directly in the production process which
creates a need for curtailment of the amount of residuals discharged
to waterways.
PROCESS CHANGE—AN ALTERNATIVE TO TREATMENT
The trends presented in the previous chapter indicated that waste-
water treatment by industry has increased over the past decade, but
that considerable increases in the amount and, probably, the degree
of wastewater treatment are necessary in order to meet current
regulatory standards for waterways. An alternative to end-of-stream
treatment as a method for reducing the discharge of liquid-borne
residuals is alteration of production processes so that the production
of residuals decreases. Process change can involve adoption of known
low-residual techniques, development of new techniques, alteration
of product lines from high-residual to low-residual goods, and use of
low-residual raw materials.
[p. 36]
TABLE 11.—VOLUME OF INTAKE AND PERCENT CONSUMED BY INDUSTRY GROUPS, 1968
Industry
Food and kindred products
Fabricated metals
Electrical equipment
Transportation equipment
All manufacturing
Intake, 1968
(billions of gallons)
811
154
118
2252
4476
1435
135
16
251
5005
68
189
127
313
15467
Percent
consumed, 1968
7.2
11 7
212
7.7
6.7
15.2
52
63
13.1
6.2
4.4
4.2
7.1
6.4
9.6
[p. 37]
-------
GUIDELINES AND REPORTS 3421
TABLE 12.—COMPOSITION OF INDUSTRIAL WATER INTAKE AND WASTE CONCENTRATION
BY INDUSTRY GROUPS, 1968
Waste concentration of process
Percent of intake, 1968 water (in p.p.m.)'
Industry
Food and kindred products .
Textile mill products
Paper
Chemicals ...
Petroleum and coal
Rubber ....
Primary metals
Fabricated metals
Machinery
Electrical equipment
All manufacturing
Cooling
. . . 52.6
. .. 15.3
. . 28.9
789
85 7
70 9
72 6
284
72 0
38.4
25 6
. . . 65.5
Process
35.8
70.7
65.6
16.4
6.6
17.6
24 1
54 8
15 3
36 8
20 2
27.8
Other
11.6
14.0
5.5
4 7
7 7
11.5
3 3
16 8
12 7
248
54 2
6.7
BOD
87
304
336
130
52
17
18
2 N A
N A
N A
N A
N.A.
COD
114
327
3565
378
210
57
80
N A
N A
N A
N A
N A
SS
703
70
388
225
76
30
259
N A
N A
NA
N A
N A
' Source: Conference Board Survey of 800 manufacturing establishments.
2 N.A.—not available.
[p. 38]
Most of the documented cases of process changes which reduced
the pollutant loadings per unit of product indicate that the reduction
in wastes produced was fortuitous rather than deliberate. For ex-
ample, in the pulp and paper industry the substitution of the sulfate
process for the older and much more residual-intensive sulfite process
has occurred primarily because the newer process effects lower unit
costs of production than the older process. The consequent decrease
in residuals production has been, from the point of view of the pulp
producer, an incidental benefit.
One piece of evidence suggests that firms are directing investments
toward process change in order to reduce waste loadings. The survey
on water pollution abatement costs conducted by the Conference
BoardJ indicates that 27.9 percent of capital expenditures for water
pollution control by the sampled plants were for manufacturing
changes to reduce water pollution. This percentage varied from 35.6
percent in paper and allied products to 2.8 percent in textile mill
products.
Lack of data prevents an analysis and evaluation of the extent and
changes over time in alterations of production process that reduce
the amount of residuals generated. Only a few case studies of process
change exist, and these have generally examined plants in which a
dramatic change in production technique was instituted. Most
process changes, like technological progress in industry generally,
tend to be incremental and cumulative. No systematic and inclusive
collection of data related to process change over time (for example,
investment for process change and waste loads produced) has ever
been undertaken, and, thus, direct assessment of the rate of process
-------
3422 LEGAL COMPILATION—WATER
change and its effects on waste loadings is not possible.
Indirect inferences concerning changes in the pollutant content of
industry's discharged wastewater can be made by examining changes
in the intake, use and discharge of water over time in industry. As
stated in an earlier volume in this series of reports to the Congress,
"there is an indication that reduction in volume of wastewater is
often accompanied by a reduction in the volume of pollutants dis-
charged. While concentrations of pollutants might, in the normal
order of things, be expected to rise in direct proportion to the decline
in the volume of carrying liquid, this is simply not the case for in-
dustry as a whole. The reason is that operating practices—"good
housekeeping"—have a high degree of influence on the volume of
wastes produced in a factory; and when hydraulic controls are
1 U.S. Environmental Protection Agency. The Economics of Clean Water, Vol. Ill, January
1972.
[p. 39]
tightened there is a corollary reduction in materials losses. In addi-
tion to this influence on waste volume, there are direct reductions
attributable to engineering improvement specifically aimed at ma-
terials reclamation." 2 In other words, economizing on water intake,
and thus discharge, is often accompanied by increased attention to
the production and handling of water-borne residuals, and materials
control generally, which have a negative effect on the amount of
pollutants discharged.
In addition to having a generally depressing influence on the pro-
duction of residuals, economizing on water intake will have beneficial
effects for environmental enhancement and protection. Water not
withdrawn for the purpose of residual elimination means more water
is available in streams for assimilative processes. Recycling and reuse
of water is a common method of economizing on water intake per
unit of product. Recycling of water can cause an increase in the
concentration of pollutants in industrial wastewater which generally
lowers the cost of treatment per unit of waste and cheapens the cost
of by-product recovery.
The trends in water intake for industrial water use regions and
industry groups reported in Tables 13 and 14 indicate that water
intake increased over time for all regions and for most industries.
This finding is not surprising, given the growth in production in the
economy over the period 1959-1968. However, growth in production
alone hardly accounts for differences in the trends in water intake
across regions and across industries; the percentages of variation in
water intake growth explained by growth in value added are only
18 and 21 percent for regions and for industries, respectively, neither
-------
GUIDELINES AND REPORTS 3423
of which is different from zero by the usual tests of statistical
significance. In other words, growth in water withdrawals by in-
dustry has not been primarily conditioned by growth in industrial
production.
Examination of the ratio of growth in value added (in constant
dollar) to growth in water intake (cf. Tables 13 and 14) indicates
that production has generally grown more rapidly than water intake.
Productivity, which is most often defined with respect to labor, can
be defined as the ratio of the rate of growth of output to the input
in question. The sources of productivity increases are improvements
in the quality of the input, increased application or substitution of
other inputs, and technological progress, by which is meant improve-
ments in products and production processes. Although the treatment
of wastewaters discharged to surface streams has increased in both
2 U.S. Department of the Interior, Federal Water Pollution Control Administration, The
Cost of Clean Water, Vol. II (U.S. Government Printing Office, 1968), p. 82.
[p. 40]
TABLE 13.—TRENDS IN INDUSTRIAL WATER INTAKE AND IN MEASURES OF PROCESS CHANGE
BY INDUSTRIAL WATER USE REGIONS, 1959-1968
1968 as a percentage of 1959
Value added Value added Value added Recycle
Intake (deflated)/Intake (deflated)/use (deflated)/discharge ratio, 1968
New England
Middle Atlantic '
Ohio
Eastern Great Lakes
Tennessee-Cumberland . . .
Southeast
Western Great Lakes
Upper Mississippi
Lower Mississippi
Missouri
Arkansas-White-Red
Western Gulf
Colorado Basin
Great Basin
California
Pacific Northwest
National "
... 105.3
... 110.7
... 114.3
... 117.5
... 187.3
... 138.4
... 135.6
... 157.6
... 178.2
... 108.2
... 120.3
... 136.4
... 122.6
... 113.9
... 113.5
... 128.1
126.9
125.0
109.8
116.4
102.4
104.7
117.1
102.4
83.4
100.4
136.3
87.0
136.2
209.3
157.8
136.0
124.4
109.2
108.8
128.8
105.1
94.9
127.9
97.6
114.7
83.8
99.5
121.6
89.4
117.7
227.5
118.5
121.7
104.5
103.5
116.4
110.0
119.7
107.4
105.8
115.7
104.2
90.8
101.9
144.5
92.1
136.8
98.2
154.2
139.6
133.6
111.2
1.65
1.78
1.68
1.72
1.85
3.15
1.52
2.18
2.30
3.56
6.93
3.49
6.15
5.50
4.09
2.82
2.31
1 Delaware-Hudson and Chesapeake Bay.
2 Excludes Alaska and Hawaii.
[p. 41]
-------
3424 LEGAL COMPILATION—WATER
TABLE 14.—TRENDS IN INDUSTRIAL WATER INTAKE AND IN MEASURES OF PROCESS CHANGE
BY INDUSTRY GROUPS, 1959-68
[1968 as a Percentage of 1959]
Value added
Intake (deflated)/ intake
Food and kindred products .
Textile mill products
Lumber
Paper
Petroleum and coal
Rubber and plastics
Leather
Stone, clay and glass
Primary metals
Fabricated metals
Machinery
Transportation equipment . .
. 130.0
. 114.1
. 84.3
. 116.3
. 138 1
108.8
. 106.3
. 133.3
. 100.0
. 135.2
. 154.5
. 110.5
. 136.6
. 120.4
100.2
123.5
118.5
106.8
122.0
163.1
129.6
107.4
116.1
90.2
96.2
141.7
159.4
119.4
Value added
(deflated)/ use
125.6
78.2
89.7
115.1
93.5
140.8
111.7
100.2
115.9
89.0
62.4
116.3
93.6
82.4
Value added Recycle
(deflatedj/discharge ratio, 1968
98.8
124.3
135.3
109.0
123.5
175.6
128.1
114.6
116.9
92.3
93.8
142.8
162.4
112.4
1.66
2.13
1.74
2.90
2.10
5.08
1.99
1.25
1.64
1.55
2.48
1.79
2.91
2.91
[p. 42]
volume and degree, it is unlikely that stream quality has increased
to the point where less water per unit of product is needed. Instead,
increased deterioration of surface waterbodies can lead to an increase
in water productivity: decreased quality of intake can lead to in-
creased treatment prior to application, which effectively raises the
cost of utilizing an additional unit of water and provides an incentive
to economize on intake. It would appear, then, that the increased
productivity of water in industry is attributable to substitution of
other inputs (primarily capital and less pollutional raw materials)
and improvements in production technique.
Similarly, the ratio of the growth in value added (deflated) to the
growth in industrial wastewater discharge generally increased over
the 1959-1968 period. In fact, for most of the regions and industries
this ratio grew at a slightly faster rate than did the ratio of value
added to intake. (Water use is defined as the quantity of water that
would have been required if no water were recirculated or reused,
less consumption and evaporative loss.) Use measures the actual
application of water in production processes. From Tables 13 and 14
no clear pattern emerges with respect to the growth of value added
relative to use; increases and decreases in this ratio are almost equally
numerous across regions and industries although nationally there
was a slight trend toward using less water per (constant) dollar of
production.
Clearly, there has been a discernible, and apparently deliberate,
effort by industry to economize on water intake. Additionally, casual
inspection of the first and second columns of Tables 13 and 14 shows
that there has been considerable variation between regions and indus-
tries with respect to trends in intake and productivity of intake.
-------
GUIDELINES AND REPORTS 3425
These trends are consistent with the proposition that water is not
treated as a freely available commodity by industry. What, then,
have been the incentives which have led industry to economize on
water intake?
INFLUENCES ON PROCESS MODIFICATION
One possibility is that incentives to economize on water use emanate
from the price of water and product demand. To examine this possi-
bility, the sixteen industrial water use regions were cross-classified
by (1) regional growth in value added being above or below the
median value and (2) the ratio of total freshwater withdrawals in
1965 to median available supplies being above or below the median
value. Averages of the magnitudes of interest for each category
were computed and are reported in Tables 15 through 17. The price
of water to industry cannot be directly measured because most of the
water used in industry is self-supplied; according to Census sources,
87.2 percent of freshwater intake and 89.7 percent of total intake
came from company sources in 1968. However, it is highly likely that
as withdrawals of freshwater, both from surface and ground sources,
increase relative to available supplies, the cost of securing an addi-
[p.43]
tional unit of water will increase. In other words, increased demand
for water relative to supply will, de facto, increase the implicit price
of water to industry.
The averages reported in Tables 15 through 17 indicate that the
pressure on available supplies of fresh water and growth in value
added have provided incentives to industry to economize on water.8
Intake increased most rapidly for regions which experienced above
average growth in production but increased more slowly for regions
in which pressures on water supplies were above the average (cf.
Table 15). Growth in the ratio of value added to water intake, a
measure of the productivity of water in industry, was higher for the
faster growing regions and for regions in which water demand relative
to supply was above average (cf. Table 16). Recycling and reuse
of water is a prevalent method of economizing on industrial water
intake. The results in Table 17 indicate that, excluding the Arkansas-
White-Red region from the computations,4 the recycle is a positive
function of both growth in product demand and the implicit price
of water. Thus, it appears that the incentives for economizing on
water in industry are much the same as those for any other industrial
input.5
An interesting question arises from this conclusion: namely, do the
same incentives which, in part, guide industrial water intake and use
-------
3426 LEGAL COMPILATION—WATER
influence the amount of wastewater treatment performed by industry?
Based on the same type of analysis, the answer to this question is
negative. Tables 18 through 20 show that there is no consistent
pattern among different measures of increases in industrial waste
treatment (i.e., the ratio of treated discharge to total discharge in
1968, the growth in the ratio of treated discharge to total discharge
from 1959 to 1968, and the growth in treated discharge from 1959 to
1 There is a high degree of confidence that the ROW averages are different from one
another as are the column averages. In the language of the statistician, difference between
ROW means and differences between column means are significantly different from zero at
the .10 level.
4 The Arkansas-White-Red region, which had the highest computed recycle ratio among
the regions, deviates from the relationship between recycling and the growth in production
and the pressure on available freshwater supplies. One possible reason for this deviance
is that much of the surface water in this region is acknowledged to be of poor quality which,
in turn, increases the need for treatment prior to application. The treatment is an ad-
ditional cost of using the water which creates an incentive for further recycling.
1 A multiple regression analysis using value added and the ratio of withdrawals to avail-
able supplies as explanatory variables also supports this conclusion.
[p.44]
TABLE 15.—AVERAGE OF 1968 INTAKE AS A PERCENTAGE OF 1959 INTAKE FOR INDUSTRIAL
WATER USE REGIONS CLASSIFIED BY RATIO OF WITHDRAWALS TO MEDIAN WATER SUPPLY
AND GROWTH IN VALUE ADDED
Ratio of withdrawals to median
available supply, 1965 Row mean
Growth in
value added, 1959-68 Below median Above median
Below median 123.5 118.9 123.5
Above median 158.0 121.6 140.1
Column mean 141.1 120.3
TABLE 16.—AVERAGE OF 1968 VALUE ADDED/INTAKE AS A PERCENTAGE OF 1959 VALUE
ADDED/INTAKE FOR INDUSTRIAL WATER USE REGIONS CLASSIFIED BY RATIO OF WITHDRAWALS
TO MEDIAN WATER SUPPLY AND GROWTH IN VALUE ADDED
Ratio of withdrawals to median
available supply, 1965 Row mean
Growth in
value added, 1959-68 Below median Above median
Below median 101.3 113.7 107.8
Above median 111.7 159.8 136.1
Column mean 106.8 137.0
TABLE 17.—AVERAGE OF 1968 RECYCLE RATIO FOR INDUSTRIAL WATER USE REGIONS
CLASSIFIED BY RATIO OF WITHDRAWALS TO MEDIAN WATER SUPPLY AND GROWTH
IN VALUE ADDED
Ratio of withdrawals to median
available supply, 1965 Row mean
Growth In
value added, 1959-68
Below median .
Below median
1 1 87
253
2 20
Above median
2 12
480
3.46
2 00
367
' Excludes Arkansas-White-Red region.
[p. 45]
-------
GUIDELINES AND REPORTS 3427
TABLE 18—AVERAGE OF PERCENTAGE OF DISCHARGE TREATED, 1968, FOR INDUSTRIAL WATER
USE REGIONS CLASSIFIED BY RATIO OF WITHDRAWALS TO MEDIAN WATER SUPPLY
AND GROWTH IN VALUE ADDED
Ratio of withdrawals to median
available supply, 1965 Row mean
Growth in
value added, 1959-68 Below median Above median
Below median 34.5 33.2 33.9
Above median 31.5 35.0 33.2
Column mean 33.0 341 ....
TABLE 19.—AVERAGE OF 1968 TREATED DISCHARGE AS A PERCENTAGE OF 1959 FOR
INDUSTRIAL WATER USE REGIONS CLASSIFIED BY RATIO OF WITHDRAWALS TO MEDIAN
WATER SUPPLY AND GROWTH IN VALUE ADDED
Ratio of withdrawals to median
available supply, 1965 Row mean
Growth in
value added, 1959-68 Below median Above median
Below median 196.0 215.7 205.8
Above median 376.0 255.6 315.8
Column mean 286.0 235.6
TABLE 20.—AVERAGE OF 1968 RATIO OF TREATED TO TOTAL DISCHARGE AS A PERCENTAGE
OF 1959 FOR INDUSTRIAL WATER USE REGIONS CLASSIFIED BY RATIO OF WITHDRAWALS
TO MEDIAN WATER SUPPLY AND GROWTH IN VALUE ADDED
Ratio of withdrawals to median
available supply, 1965 Row mean
Growth In
value added, 1959-68 Below median Above median
Below median 163.8 189.7 176.8
Above median 219.3 176.8 198.0
Column mean 191.6 183.2
[p.46]
1968) and the growth in value added and the ratio of withdrawals
to median available supply. Other regional characteristics, such as
regulatory activity, might explain variations in regional differences
in industrial wastewater treatment.
Economic behavior, then, leads to process changes which can be
expected to decrease industrial waste loadings. At first appearance
it might seem paradoxical that increased industrial production and
increased pressures on available supplies of fresh water, both of which
are pointed to as prime causes of environmental deterioration, also
lead to industrial process changes that have—at least relative—
environmentally beneficial effects. The paradox is easily resolved by
viewing industrial intake and discharge of water as activities subject
to the same set of rational calculations that govern the use of any
productive input.
[P-«]
-------
3428 LEGAL COMPILATION—WATER
III
INDUSTRIAL COST MODEL
INTRODUCTION
The chapter outlines the major assumptions and data sources for
the calculation of industrial waste treatment costs presented in
subsequent chapters.
SUMMATION
Industrial waste treatment costs are dependent on flow volumes,
residuals characteristics, waste segregation opportunities, and avail-
able technology. Although these vary greatly from plant to plant,
they can be generalized for industrial categories, and evaluated on
the basis of reported flows and flow-to-cost relationships for specified
engineering constructs.
[p. 49]
MODEL COMPONENTS AND LOGIC
The data and interpretations that constitute the remaining chapters
of this report are based largely upon a modelled restructuring of
Water Use in Manufacturing. This portion of the Census of Manu-
factures, 1967 provides a data catalog on the water use characteristics
of 9402 manufacturing establishments that reported an intake of 20
million gallons or more of water in 1967, and responded to a detailed
questionnaire on their water utilization for the year 1968.
MODEL CHARACTERISTICS
The characteristics of the evaluation model can best be appreciated
by a comparison of its aggregated structure with that of the establish-
ments covered in Water Use in Manufacturing, 1967.
The basic distinction between the evaluation model and its Bureau
of Census source is the expansion of the model to include establish-
ments with an intake of 10 to 20 million gallons a year, where census
data include only users of 20 million gallons or more. The total
number of establishments covered is increased by this device by more
than 50 percent (cf. Table 21). But in the case of food processing,
wood products, and leather, an approximate doubling occurs. These
industries tend to be broadly distributed and characterized by
moderately-sized plants rather than a few dominant factories (food
processing in particular which accounts for 25 percent of the Census-
reported sample and 42 percent of the entire expansion in number of
modelled factories) so that a truly significant portion of their
pollution-associated features are concealed if only larger plants are
considered.
-------
GUIDELINES AND REPORTS
3429
A second distinction between the two data structures is critical to
the assessment of waste treatment requirements. The manner in
which an industry uses water is at least as important to a considera-
tion of its pollution characteristics as is the amount of water it uses;
and the distribution of pollution potential—as measured by calculated
treatable discharge, which includes process water, sanitary sewage,
and cooling water recirculation to process applications—varies signifi-
cantly from the distribution of total discharge. Pulp and paper
production, third in gross water use, becomes the largest source of
treatable wastewater, due to the large amount of the industry's
intake for processing. Conversely, petroleum refining slips behind
[p. 50]
TABLE 21.—COMPARISON OF CENSUS REPORTED ESTABLISHMENT AND WATER DATA
FOR FACTORIES WITH INTAKE >20,000,OOOG/YR. WITH MODELLED FACTORIES
SIC
20
??
24
26
'H
m
11
i?
11
11
IS
Ifi
37
Industry
Food and kindred products . .
Textiles
Lumber and wood products . .
Paper and allied products . . .
Chemical and allied
Rubber and plastics . .
Leather
Stone, clay, glass
Fabricated metals
Machinery
Electrical equipment
Transportation equipment . . .
Manufacturing .
Percent of
Intake
. 5.2
.9
.8
. 14.6
. 29.0
.9
.1
1.6
.. 32.6
.4
1.2
.8
. 2.0
. 100.0
Percent of
calculated
discharge
8.3
2.1
1.9
29.5
27 8
.6
.5
2.3
17.8
1.1
1.0
1.4
1.6
100.0
Reported
2,345
684
188
619
1 125
301
92
586
841
569
471
562
392
9,402
Establishments
Modelled
4,494
1 021
405
862
1 421
459
215
945
1,137
1,037
790
817
562
14,499
Difference
Percent
+ 91
+ 49
+116
+ 39
+21
+52
+ 134
+61
+ 35
+82
+ 68
+45
+ 44
+54
[p.51]
food processing as a source of treatable wastewater, not so much as
a result of the expansion of the food industry's evaluated discharge
as because of refineries' relatively heavy use of water for cooling
rather than processing. The leather industry—mainly its tanning
component—stands out as the one whose relative significance is most
affected by the modelling procedure. Heavy use of process water,
combined with a large relative number of units with an intake of 10
to 20 million gallons a year, make the industry's share of waste
treatment demand five times as great as its reported share of total
water demand.
The aggregate impact of these distributional features is not great.
Though more than half again as many factories are covered by the
evaluation model as by the report of the Bureau of Census, employ-
ment in industries covered is only increased by 18 percent, and water
-------
3430 LEGAL COMPILATION—WATER
use by an even lesser percentage (cf. Table 22). However, the logic
of the recirculation device employed in the model, plus the broaden-
ing of the population covered, provide a treatable discharge value
that not only exceeds reported process intake for plants using 20
million gallons by a gross factor of almost 2.4 to 1, but also exceeds
total reported intake for the larger users alone in seven of the four-
teen (two digit SIC) industries. It is clear that while a relatively
few factories account for the bulk of manufacturers' use of water and
for discharge of pollutants, water use technology and size distribution
of a number of industries for which water is not so significant a
resource tend to conceal a somewhat larger pollution potential than
might be thought.
The modelling procedure also affects the interregional distribution
of discharges, and so of costs. Not surprisingly, treatment costs for
the Colorado, Great Basin, and California regions experience a
significant increase in relative dimension when calculated treatable
discharge is compared to reported process intake. In those arid areas,
resource constraints act to hold an atypical proportion of manu-
facturers below an intake of 20 million gallons a year, and also to
promote recycling. In two of the more humid and less industrialized
regions—Southeast and Pacific Northwest—a substantial increase in
treatable discharge, as opposed to reported total intake, traces to the
presence of a larger number of moderate-sized food processors and a
lesser number of wood products factories that would not be included
in an evaluation limited to plants with an intake of 20 million gallons
or more. These five regions—together with the Western Gulf, where
the high degree of recycling characteristics of the petroleum based
industries inflates calculated treatable discharge—all experience a
significant expansion of indicated waste treatment costs as a result
of the procedures employed (cf. Tables 22 and 23).
[p.52]
-------
GUIDELINES AND REPORTS
3431
TABLE 22.—FLOW AND EMPLOYMENT COMPARISON BY U.S. BUREAU OF CENSUS
WATER USE REGIONS
Number of employees
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Water use region
New England
Delaware-Hudson
Chesapeake
Eastern Great Lakes ....
Ohio
Cumberland-Tennessee . .
Western Great Lakes
Upper Mississippi
Lower Mississippi
Missouri
Arkansas-Red-White ....
Western Gulf . .
Colorado
Great Basin
California
Pacific Northwest
National Totals ..
Census Modelled Process
reported ' establishments 2 Intake '
525,800
738,500
. . 385,500
. . 878,700
. . 1,014,000
. . 174,600
686,000
. . 862,400
. . 556,100
95,000
147,300
168,800
244 500
40,700
17,800
. . 419,400
. . 209,100
.. 7,275,600
721,838
937,824
447,107
947,579
1,284,711
215,130
889,309
1,010,992
558,473
124,459
149,789
190,533
259,663
45,602
16,939
579,946
210,695
8,590,589
245
228
164
413
424
117
548
674
200
116
67
104
420
12
18
115
353
4,295
Total water use (BGY)
Total
Intake '
585
1,259
816
1,626
2,455
558
1,181
1,924
695
780
162
237
2,031
23
35
370
599
15,467
Total
DSGE'
558
1,192
755
1,460
2,295
536
1,100
1,811
582
745
142
185
1,899
18
27
314
533
14,276
Synthesized
process
discharge J
459
478
312
709
912
209
1,654
1,043
359
388
146
185
2,059
35
35
375
876
10,231
1 Reported by U.S. Bureau of Census for establishments with an intake > 20 million gallons in 1968.
2 Developed by E.P.A. for establishments with an intake > 10 million gallons in 1968.
[P. 53]
TABLE 23.—FLOW AND EMPLOYMENT COMPARISONS BY INDUSTRY
Number of employees (1,000's)
SIC
20
22
24
26
28
29
30
31
32
33
34
35
36
37
Census Modelled Process
Industry reported1 establishments 2 intake1
Food and kindred products
Textiles
Lumber and wood products
Paper and allied products
Chemical and allied products
Petroleum and coal
Rubber and plastics
Leather
Stone, clay, glass
Primary metals
Fabricated metals
Machinery
Electrical equipment
Transportation equipment..
633.3
413.5
63.4
267.6
526.8
106.3
214.2
32.0
224.8
894.5
357.2
673.2
978.9
1,304.0
7,275.6
924.0
548.5
149.4
348.5
781.9
127.3
304.3
102.3
325.7
1,025.7
586.0
995.3
1,254.1
1,080.5
8,590.6
290.6
109.0
36.5
1,477.9
733.4
94.6
23.8
13.9
89.1
1,027.2
37.1
28.9
46.6
63.3
4,295.1
Total water use (BGY)
Total
Intake '
810.9
154.2
117.9
2,252.0
4,476.2
1,435.1
134.9
15.8
251.1
5,004.7
67.7
189.0
126.6
312.8
15,466.5
Total
DSGE'
752.8
136.0
92.7
2,077.6
4,175.1
1,217.0
128.4
14.9
218.4
4,695.5
65.0
180.8
118.4
293.1
14,275.9
Synthesized
processes
discharge !
852.0
216.6
193.9
3,014.7
2,844.3
430.3
61.5
51.1
239.9
1,821.5
110.1
99.2
139.4
159.5
10,231.1
1 Reported by U.S. Bureau of Census for establishments with an intake > 20 million gallons in 1968.
1 Developed by E.P.A. for establishments with an intake > 10 million gallons in 1968.
[p.54]
WASTE TREATMENT PROCESSES EVALUATED
Treatment of the liquid wastes of manufacturing processes is so
different in application from sewage treatment that it is very nearly
a separate concept. Sewage treatment occurs at the nodal point of a
-------
3432 LEGAL COMPILATION—WATER
complex of collection and transmission works. Central processing
of a relatively homogeneous materials input through a sequence of
similarly scaled steps is the essence of the method.
Industrial waste treatment, on the other hand, tends to be practiced
in terms of the residuals characteristics of separate manufacturing
processes. Segregation, rather than collection, of waste streams
becomes a prime method of increasing treatment effectiveness and
controlling treatment costs. Each waste stream tends to receive only
that treatment that is appropriate to its volume and constituents.
Uncontaminated waste waters—the prime example is cooling water
that does not come into contact with other materials—are segregated
and discharged directly or recycled. Complementary waste streams
sometimes provide effective treatment without the intervention of
any process other than natural mixing—the combination of an acid
with an alkaline waste stream, for example, will often provide an
appropriate remedial reaction. Even where conventional primary
and secondary waste treatment are practiced, it is common that dilute
waste streams enter the secondary (biological) stage directly in order
to reduce capacity required for sedimentation.
The nature of the procedure has many implications for both in-
dustrial water use and for analysis of the costs of industrial waste
treatment. (1) Given the significance of segregation of waste streams,
there is no configuration of treatment modes that can be assigned as
ideal for any group of industrial plants. To some degree, each factory
becomes a separate and distinct unit of account, with not only the
nature of its processes, but even their physical configuration within
the plant dictating the most efficient sequence of liquid waste treat-
ment measures. (2) Because waste streams may be segregated and
treated according to waste characteristics, some processes become
integral parts of the manufacturing operation rather than waste
treatment per se. In effect, the interjection of the treatment process
obviates the need for pumping and treatment of fresh intake water
and promotes water recycling. (3) Faced with the added cost of
waste treatment, management has an incentive to use water more
sparingly in other ways than recycling, and may, in fact, abandon
some hydraulic processes altogether.
Any consideration of industrial waste treatment, then, must start
from the view that it is an integral part of the production process, and
must be approached in terms of the general issue of water produc-
tivity. From the practical standpoint of analysis, improvements in
the productivity of water tend to be distributed through the nation's
capital stock in a fashion that is highly influenced by age and location
of plants. Because it is such a basic feature of a factory, water engi-
neering does not tend to change, once that factory has been built and
-------
GUIDELINES AND REPORTS 3433
is operating. There is, then, good reason to believe that historical
[p. 55]
trends in reduction of water inputs per unit of product output largely
reflect the time stream of plant construction. The same firm can
include plants that utilize the water technology of 1871 and 1971—
and often the two plants produce the same product and may even be
located in the same factory complex.
Quite clearly, the variety of production conditions precludes the
development of any precise projection of waste treatment costs for
manufacturing, and the wide range of waste treatment possibilities
open to industrial management only makes the matter more difficult.
It should be recognized, however, that the cost of waste treatment is
usually not significant enough in itself to justify major plant redesign,
so the capitalization of industrial waste treatment will probably
continue for some years to reflect a sub-optimal allocation of resources
that derives from the existence of many factories that date from a
time before water utilization practices and waste treatment con-
straints exercised any influence on production costs.
In the absence of reliable decision rules to apply to the complex
trade-offs and variations in efficiency that will condition the final
cost for any given time period, the model employs the knowledge we
possess about the amount of manufacturers' wastes discharges and
the characteristics of the water-borne residuals of various manufac-
turing processes. Using this information, the model attempts to
determine with some accuracy the upper limits of such costs and
modifications likely to occur as a direct result of the imposition of
those costs.
The method of calculation was dependent on the treatment of all
process waste streams for each pollutant identified with the process
by the most effective (as opposed to most efficient) conventional
treatment method now available. And wherever options might be
discerned, the higher (or highest) cost solution to the problem was
assumed. Consonant with a procedural requirement that all wastes
be treated to the highest degree possible with conventional technology,
it was assumed that all waste constituents, except dissolved mineral
solids, would be removed, reduced, or emended. In effect, it was as-
sumed that floating and settleable materials be removed—with chemi-
cal assistance in many cases, that dissolved organics be stabilized,
that caustics and acids be neutralized, that potential pathogens be
subject to disinfection, that uneven waste streams be equalized, and
even—in some particularly difficult situations—that concentrated
waste streams be evaporated or incinerated.
Industrial categories reported in Water Use in Manufacturing, 1967
-------
3434 LEGAL COMPILATION—WATER
were regrouped into subgroups according to the kinds and concentra-
tions of waste products that were considered to be characteristic of
various industrial processes based on an extensive literature. The 320
four digit SIC groupings reported by the Bureau of Census emerged,
when reassembled, as 71 components, with a generalized waste treat-
ment configuration established for each (cf. Table 24). The decision
rules applied in determining the configuration were:
a. Standardized treatment procedures were to be applied in
[p. 56]
every case, and where modifications peculiar to a plant or any
industry were reported in the technical literature, the modifica-
tion was rendered in terms of a similar standard solution to the
engineering problem.
b. No treatment method, or sequence of treatment methods,
drawn from the technical literature was to be applied unless it
was associated with a reduction of 90 percent or more of the
pollutional aspects of wastewater that it was intended to remedy.
c. All treatment sequences and other system components were
to embody the highest cost standard methods; and when there
was uncertainty as to what portion of the waste stream was to
undergo a given treatment procedure, then the larger possible
component—up to the total waste stream—was to be assigned
that procedure.
[p.57]
-------
GUIDELINES AND REPORTS
3435
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-------
3436
LEGAL COMPILATION—WATER
ntinued
AL WASTE TREATMENT MODEL
Percent of process wastewater requiring treatment
TABLE 24.— cc
BASIC ELEMENTS OF THE INDUSTRI
Number of
Industrial classification establishments
Coda Name 10-19 MGY > 20 MGY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
: : : g :
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322-3
3241 Cement
325-326 Clay
327 Concrete and plaster
3281 Stone
329 Non-metallic minerals
32XX Miscellaneous — stone, clay, glass
3312 Blast furnaces and steel mills
331X Steel rolling and finishing
3321 Gray iron foundries
-------
GUIDELINES AND REPORTS
3437
:§::::::
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XX Other primary metals
34 Fabricated metals
SS
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35 Machinery
36 Electric machinery
3
37 Transportation equipment ..
en
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39 Miscellaneous manufacturing
jlanation of numbered columns:
Operating Year (Days)
High Waste Concentration Facto
Installation Multiple Factor
10 Aeration
8
umns 4 thru 15 — treatment process
Oil Separation
11 Biological SI
12 Chlorination
Equalization
Coagulation and Sedimentation
13 Evaporation
Neutralization
14 Incineration
15 Activated Si
Flotation
Sedimentation
-------
3438 LEGAL COMPILATION—WATER
IV
COST OF INDUSTRIAL WASTE TREATMENT
INTRODUCTION
The chapter presents the range of capitalization levels and annual
costs that have been calculated to coincide with levels of industrial
effluent treatment dictated by current interpretations of water quality
standards.
SUMMATION
Through manufacturers' investments to provide waste treatment
consistent with current effluent standards may be as high as $12.2
billion (August 1971 = 100), the most likely level of capitalization
is roughly $8.3 billion. Annual costs—operation, maintenance, debt
service, and replacement—associated with those levels of capitaliza-
tion are $2.4 billion and $1.6 billion, respectively. Depending on
policy flexibility and management skill, the costs are highly con-
trollable, so there are many opportunities to reduce the burden of
pollution abatement, both for the firm and for society at large. How-
ever, costs are very unevenly distributed, and obsolete factories will
bear a share of the total that is disproportionate to either their output
or employment. Cost minimizing strategies, then, are likely to
produce localized hardship.
[p.61]
MAXIMUM CAPITAL REQUIREMENTS
Capital facilities having a maximum replacement value of $12.2
billionJ would be required to provide American manufacturers with
the level of waste treatment consistent with current interpretations
of State and Federal water quality standards. Availability and
utilization of that capital would result in maximum annual costs of
$2.4 billion (cf. Table 25).
RELATIVE INFLATION, MEASURED BY SELECTED PRICE INDICES
GNP deflator
Year
1967
1968
1969
1970
1971
STP, Construction cost1
100.0
103.5
111.1
120.3
135.7
Structures2
100.0
105.1
113.8
122.7
137.4
Total'
100.0
104.0
108.9
114.7
120.4
All
Items
100.0
104.2
109.8
116.1
121.3
Consumer prices
Food
100.0
103.6
108.9
114.9
118.4
Services
100.0
105.2
112.5
121.3
128.4
' 1967 = 119.4.
J 1967 = 124.0.
» 1967 = 117.6.
1 Dollar values are reported In the text of this study In August 1971 dollars. Tabular data,
however, are In all cases presented In the terms in which they were calculated, that is,
-------
GUIDELINES AND REPORTS
3439
purchasing power at August 1967 for materials, labor, and equipment in the approximate
mix in which they occur in waste treatment plant construction and operation. It should
be noted that inflation in the costs of waste treatment plant construction—probably due in
large measure to the enormous increase in activity since 1966—has exceeded that in most
economic sectors in recent years. During the nineteen-fifties and early nineteen-sixties,
waste treatment plant and sewer construction costs rose at an average rate that was less
than that of prices generally, and well below that of all construction. Since 1967, such costs
—as measured by Sewage Treatment Plant Construction Cost Index—have increased at a
materially faster rate than prices generally. And in 1971, when the relative rate of inflation
for most items dropped below the experience of 1969 and 1970, the increase accelerated for
sewage treatment plant construction.
[p. 62]
TABLE 25.—MAXIMUM INDUSTRIAL WASTE TREATMENT REQUIREMENTS, 1968 CONDITIONS
Millions of 1967 Dollars
Annual cost
SIC
Industry
Capital required Replacement1
Interest1
Operation
20 Food and kindred products $ 997.5 49.9 76.8 57.6
201 Meat products 116.1 5.8 8.9 8.5
203 Canned and frozen foods 227.9 11.4 17.5 10.3
206 Sugar refining 294.2 14.7 22.7 19.9
208 Beverages 112.1 5.6 8.6 5.0
22 Textiles 251.4 12.6 19.4 11.4
24 Lumber and wood products 186.1 9.3 14.3 10.1
26 Paper and allied products 1,550.5 77.3 119.4 112.3
261 Woodpulp 653.8 32.7 50.3 34.3
262 Paper 711.5 35.6 54.8 42.6
263 Paperboard 321.5 16.1 24.8 21.7
28 Chemical and allied products 1,550.5 121.8 187.6 123.9
281 Industrial chemicals 1,252.4 62.6 96.4 93.6
282 Fibers, plastics, resins 144.1 7.2 11.1 8.1
29 Petroleum and coal 1,096.1 54.8 84.4 48.4
291 Petroleum refining 1,083.6 54.2 83.4 47.3
30 Rubber and plastic 96.0 4.8 7.4 6.1
31 Leather 86.8 4.3 6.7 4.3
32 Stone, clay, glass 182.3 9.1 14.0 21.3
33 Primary metals 1,620.5 81.0 124.8 147.3
331 Basic steel products 981.8 49.1 75.6 110.6
333 Primary non-ferrous metals ... 204.6 10.2 15.8 12.9
34 Fabricated metal products 1,124.14 6.2 9.6 12.6
35 Machinery 100.1 5.0 7.7 10.7
36 Electrical equipment 129.46 6.5 10.0 14.1
37 Transportation equipment 122.71 6.2 9.4 15.9
Manufacturing 8,965.7 448.3 690.4 600.3
1 20 year average life.
2 7.7% average rate, Moody's Industrials, January-August, 1971.
[p.63]
The amounts—which are based on the 1968 distribution and utiliza-
tion of productive capital—are gross figures. They include the
replacement value of waste treatment facilities already in place,
waste treatment services provided by public agencies, and no allow-
ances for relative efficiencies or in-plant modifications that may pro-
vide equivalent effects for less cost.
Capital requirements are distributed through the various manu-
facturing sectors in a manner that strongly reflects their water use
characteristics and has loose direct correlation with output values.
-------
3440 LEGAL COMPILATION—WATER
Chemicals manufacture, primary metals production, pulp and paper
production, petroleum refining, and food processing account, respec-
tively, for 27 percent, 18 percent, 17 percent, 12 percent, and 11 per-
cent of the indicated investment, and 29 percent, 32 percent, 15
percent, 9 percent, and 5 percent of reported water intake. Eighty-
five percent of the capital requirement associated with water pollution
abatement, then, comes from five manufacturing sectors that, in the
aggregate, provide little more than a third of values added by
manufactures.
The association of capital requirements with water use practices
has enormous implications for the dimensions of ultimate costs.
Higher treatment costs, other things being equal, are a direct conse-
quence of wasteful use of water. And water is wasted largely because
it has had many of the characteristics of a free good. Imposition of
a wastewater treatment requirement—or other cost-incurring con-
straint on water utilization—will, it has been demonstrated both in
theory and in practice, lead to production practices that are less
water-intensive, and thus have lower associated waste treatment
values.
In the eventual resolution of the industrial waste-handling situa-
tion, it is almost inconceivable that the maximum investments sum-
marized in Table 25 will occur under existing abatement
requirements. A significant segment of the total value calculated
must be attributed to the fact that a good portion of the investment
represented has not been made. When it is made, the process of
investment may be expected to lead to a pattern of water utilization
that eliminates a significant portion of the cost.
VARIATION OF CAPITAL REQUIREMENTS
Several modifications of the evaluation model were attempted in
order to arrive at a more realistic assessment of capital requirements,
one that took into account the modification of water utilization prac-
tices that accompanies installation of waste treatment as well as
hardware and construction costs. Without altering the relationships
among treatment process components, water use coefficients were
substituted for the observed ones—though all substitutions were made
by recourse to observed conditions—and investment and annual cost
calculations were produced to reflect the altered variables. Table
26 presents distribution of capital requirements in terms of alterna-
[p.64]
-------
GUIDELINES AND REPORTS 3441
TABLE 26.—VARIATION IN CAPITAL REQUIREMENTS UNDER ALTERNATIVE WATER
UTILIZATION REGIMENS, 1968 CONDITIONS
Capital requirements
Billions of Billions of
Level of industry efficiency 1967 dollars 1967 dollars
Actual 1968 distribution $8.97 $12.17
Least efficient (17th) regional component given characteristics
of directly superior (16th) 7.57 10.27
All efficiencies less than median given characteristics
of median component 5.96 8.09
All efficiencies less than most efficient third (6th) given
characteristics of sixth component 4.84 6.57
Most efficient component's characteristics used in all cases 3.12 4.23
[p.65]
tive water use regimens. The most likely investment level is thought
to be the one associated with median efficiency—certainly somewhere
in the range between "most efficient third" and modification of "the
least efficient region".
The levels of capitalization thought to define probable require-
ments were reached by calculating costs for each of 71 industrial
subgroups on the basis of water use characteristics of the industry
at unit water utilization rates no greater than those characteristic
of the median region among the census defined "Industrial Water
Use Regions", the sixth in relative efficiency among the seventeen
regions, and the sixteenth in relative efficiency. That is, water use
rates were utilized precisely as observed for nine regional/industrial
components in the one case; in the other cases for six and sixteen
regional segments of each industry, with the characteristics of the
ninth, the sixth and the sixteenth substituted for those regions in
which they are exceeded in reported practice.
The likelihood of achieving such enormous efficiencies—in aggre-
gate terms they amount to $2 to $5 billion worth of waste treatment
capital at little or no cost—is not as remote as it might appear on the
surface. The substitute variables imposed upon the matrix are not
expressed as levels of firm or factory efficiency, but as expressions
of existing regional distributions that include all of the parameters—
age of plant, processing technique, size of plant, raw material quality,
water availability—that affect unit water use in large subsets of a
total industry. Further, the range of conditions that is thought to
include the most probable set of investments is not extended to less
efficient industrial subsets on the basis of the values at the ends of the
chosen regional groupings. Costs imposed on the less hydraulically
efficient industry/region subsets did not come from a compression
of the distributions for the more efficient regions, so do not reflect
the more demanding use regimens of arid regions. The manufactur-
-------
3442 LEGAL COMPILATION—WATER
ing technologies that are implied, then, lie not only well within the
bounds of existing practice, but also within the bounds of practice
for areas where there are no significant resource constraints.
In short, the imposed conditions do not represent any theoretical or
arbitrary modifications of existing practice, but the extension of prac-
tices that are currently employed in substantial segments of each
industry. It is not an attempt to discern what would happen if in-
dustry made a maximum adjustment of its use of water to accommo-
date waste treatment, but an attempt to measure what does happen
when waste treatment or other cost-imposing constraints on water
use occur.
At the risk of redundancy, it should be stressed that the full range
of values presented in Table 26 refers to current practice and to an
equal degree of waste treatment effectiveness. The values simply
provide quantitative expression to the often repeated truism that
industry has a number of internal options in dealing with its waste
handling problem.
[p. 66]
POLICY IMPLICATIONS OF COST VARIABILITY
The breadth of the range of values contains some significant policy
implications. These should be taken into account in any resolution
of the waste handling problem:
1. Alternative approaches to waste reduction requirements can
produce similar efficiencies within a wide range of costs. Meas-
ures that stress one approach or another to industrial water
pollution abatement will inevitably be unsuited to some industry
segments, thus will tend to increase costs unnecessarily. Flexi-
bility in approach to the issue should reduce the burden of water
pollution abatement on the economy, freeing resources for other
uses.
2. Given the significance of flexibility, and accepting the gen-
eral rule (that underlies all domestic policy on the issue) that
management will not act to reduce its discharge of pollutants in
the absence of external pressures, it would appear that very
direct incentives that embody water quality goals without
specifying the means to reach them should provide an approach
to a least-cost solution of the waste treatment question. Suitably
scaled taxes on amount of waste discharge constituents or limits
on allowable pollutant concentrations in the effluent should, for
example, prove superior to regulatory specification of treatment
procedures.
3. Because the various unit water use values are calculated at
the mean for each regional segment of an industry, and because
-------
GUIDELINES AND REPORTS 3443
the very wasteful users of water in any industry/region compo-
nent strongly influence the mean, it is obvious that a relatively
few factories—the most inefficient plants in the least efficient
regions—account for a very considerable portion of the total cost
of water pollution control. A few hundred factories create the
almost $2 billion capital gap between the least efficient and next-
to-least efficient users. It may be assumed that those plants—
mainly engaged in the production of pulp and paper and organic
chemicals—are in many cases obsolescent in other respects than
their water engineering. That concentration of avoidable costs
in a few establishments suggests that factory replacement may in
more than a few instances be the most rational solution to waste
treatment requirements. The fact that waste treatment does not
represent a significant capital burden in the aggregate should
not be allowed to obscure the subordinate fact that a number of
plants may be scheduled for closure and replacement as a conse-
quence of the very uneven distribution of such costs.
ANNUAL COST COMPONENTS
The matter of initial capitalization of waste treatment works tends
to be over-stressed. Granted that installing up to $12 billion worth
of facilities represents a significant pressure on management's finan-
cial sources and overall capital planning, the first cost of facilities
[p. 67]
represents less than a fourth of the total cost of industrial waste
treatment. Once installed, facilities must be operated and main-
tained. Given the composition of the set of treatment requirements
evaluated here, operation and maintenance accounts for 35 percent
of the ultimate total cost. (In the less capital-intensive approach
to waste treatment that industry prefers in actual practice, operation
and maintenance charges currently amount to 55 percent of annual
costs.) Interest, at current rates, accounts for a large, if not the
largest, share of annual charges for waste treatment. Some 40 per-
cent of the annual costs of the modelled treatment system, and 27
percent of the annual costs of the system of works that industry
reported to be in operation in 1968, can be attributed to interest pay-
ments implicit in the value of the capital stock. And to make the
sequence of major and minor replacement expenditures required to
sustain the stock of physical capital, the firm faces a continuing capital
demand, one that is estimated to equal the initial cost within a 20 year
period, and to account for 25 percent of the annual costs of the
modelled system of waste treatment works.
-------
3444 LEGAL COMPILATION—WATER
ANNUAL CAPITAL CHARGES
To restrict our view of the costs of industrial waste treatment to
the price of installing the devices is to overlook between three-
quarters and four-fifths of the total cost and ultimate impact on
prices.
That evaluation, it should be noted, is an even more conservative
statement of conditions than most industrial spokesmen would accept.
Where this report assesses replacement requirements in terms of the
20 year average life that engineers design into facilities, and assesses
interest charges at the current rate for industrial bonds, industrial
management tends to view investments in terms of capital recovery
factors. These vary from industry to industry, and are influenced by
the tax laws, but in few cases is it likely that industry sources would
accept the moderate rates of capitalization utilized here as being
consistent with their financial management practices.
Recognizing that difference in concept, this study attempts to focus
on the practical realities of cost rather than the accounting and fi-
nancial management conventions that interpret reality within a
framework of time preferences, tax liability, and public relations
pressures. The emphasis here is on likely amount of annual cash
flow and not the vagaries of reported profits or anticipated rates of
return.
Expenditures for replacement are based on engineering estimates
of the mean expected useful life of facilities. The concept evaluated
assumes that five percent of the value of the total capital stock of
waste treatment works in any industry will, on average, be replaced
each year. The assessment is one of maintenance of the physical
stock of capital and consequent cash outlays, not on depreciation as
that term is used for tax and other reporting purposes. And while
[p.68]
any given rate of replacement may infer an unrealistic evenness to
the pattern of expectable outlays, the ultimate occurrence of such
costs is undeniable.
While there is almost no evidence available upon which to gauge
the rate at which replacement of industrial waste treatment works
actually takes place, the five percent figure assigned is considered
to be reasonable, in that it takes into account the rated operating life
of components and the demonstrated industrial preference for short-
term application of capital. (Short-term, that is, as compared to
public works.) The assumption that assigns the replacement func-
tion at a rate that is 25 percent more rapid than that for municipal
waste treatment plants is not, then, based on allowable depreciation
accounting, but on anticipations that take into account the nature of
-------
GUIDELINES AND REPORTS 3445
components, industrial behavior, and the greater quantity and more
corrosive nature of typical industrial wastes per gallon of water.
The interest rate that is assigned includes no selectivity or judge-
ment. The established market rate for industrial instruments is
accepted as the appropriate indicator of the cost of capital at any
point in time. Thus, the average monthly yield in the most recent
twelve month period, (i.e. 7.7 percent July, 1970 to August, 1971)
as reported by a standard financial service (Moodys) for industrial
bonds, has been applied consistently to evaluate interest charges.
OPERATING AND MAINTENANCE COSTS
Operating and maintenance charges are a function of capital con-
figurations. As assessed in the model, they deviate sharply from
estimates of existing operating costs as a percentage of capital values
(cf. Table 27).
Such significant differences cannot be attributed to a difference in
method. American industry does not report its operating outlays for
waste treatment, so both the value and operating costs had to be
calculated in essentially the same manner as were targeted goals.
Both values were synthesized from the same sets of coefficients. In
the case of existing capital, normal cost to size relationships were
applied to the various kinds of reported facilities on the basis of the
mean capacity for each industry. A number of explanations for the
variation in operating cost ratios are available, and these have po-
tential bearing on policy formulation.
1. Current operating ratios may reflect the fact that industrial
wastes, in the aggregate, are under-treated. As the degree of waste
treatment increases, the process becomes increasingly capital-
intensive. Normal economies of scale find expression as the waste
treatment process is intensified, but they are less pronounced—at
least in terms of the progression pre-treatment, primary treatment,
secondary treatment—with respect to capital than for labor costs,
[p. 69]
-------
3446
LEGAL COMPILATION—WATER
TABLE 27.—ANNUAL OPERATING AND MAINTENANCE COSTS AS A FUNCTION OF CAPITALIZATION
Estimated operating cost ratio, 1968
SIC Industry
20 Food and kindred
22 Textiles
26 Paper and allied products
28 Chemicals and allied products
29 Petroleum and coal
30 Rubber and plastics
31 Leather
32 Stone, clay, glass
33 Primary metals
34 Fabricated metal products
35 Machinery ,
36 Electrical equipment
Miscellaneous and unidentified
Mean, all manufacturing
Modelled requirements
0.058
045
077
057
079
060
056
050
116
092
091
096
098
12
073
Modelled
available capital
0.076
.078
.155
.122
.184
.214
.100
.100
.075
.162
.060
.054
.063
.063
.050
.147
[p. 70]
which account for roughly half of normal operating costs. Thus all
costs rise as degree of treatment increases, but capital costs rise more
sharply than operating charges.
2. Capital saving expedients that reduce total costs but increase
unit costs by forfeiting economies of scale are probably available in
far greater measure than the modelled evaluation indicates. More
stringent waste segregation and process water recycling (as opposed
to the cooling to process cycles assumed in the model) would permit
much smaller waste treatment plants, thus lower capital costs, with-
out a comparable reduction in operating costs.
3. Industry is known to favor waste treatment solutions that mini-
mize capital requirements. There are a number of treatment con-
figurations, and treatment-process combinations, that provide
equivalent waste control in any given situation. In approaching a
possible trade-off between capital and operationally intensive alterna-
tives, management has every reason to favor the one that promises
capital savings up to—and perhaps even beyond—the point of > 'ial
total cost:
a. Capital savings may be applied to other purposes; operating
economies must be accumulated over time to provide the same
utility. Available savings, then, are inherently more valuable
than potential ones, with the amount of the premium generally
considered to be expressed by the prevailing interest rate (though
the return on invested capital anticipated by any firm establishes
its particular level of preference). Over the last three to four
years—when a significant portion of total manufacturers' invest-
ment for waste treatment has taken place—interest rates have
-------
GUIDELINES AND REPORTS 3447
held at levels not generally seen in the U.S. since the eighteenth
century. Given the consequent penalty on capitalization and
expectations for more characteristic interest charges in the
future, management has a strong incentive to seek out treatment
solutions with low capital requirements—even at the expense of
otherwise avoidable operational penalties.
b. The composition of outputs shifts rapidly, and the nature
of processes somewhat less rapidly, in a number of industries.
Least-cost solutions that are tied too intimately to a particular
product or process carry with them a high degree of risk. Man-
agement may, in such circumstances, find it preferable to accept
operational cost disadvantages in order to insure flexibility. Land
intensive and operationally demanding treatment configurations
in many cases serve as insurance against sunk capital losses.
(The phenomenon is probably most evident in segments of the
chemicals industries, where batch processing persists in order to
reduce the impact of process change on risk factors, leading man-
agement to resist capital intensive continuous flow production
processes of inherently greater efficiency.) If the waste treat-
ment system is viewed as an extension of the total production
process, it is not surprising that the same risk-avoidance mech-
anisms should produce the same augmenting effects on operating
costs.
[p. 71]
c. Taxes on business are framed to make it more advantageous
to accept incremental operating costs, all other things being
equal. Materials and labor utilized in operations may be used
as an offset in the year of the expenditure, while capital must be
charged off over time.
There is, then, a wide possible variation in the composition of an-
nual costs. Not only hydraulic efficiency, but trade-offs between
capital and operational elements, between equipment and land within
the capital costs, and between the capital and operating component of
waste treatment practice will affect the resolution of costs.
One may make the simplifying assumption that trade-offs all take
place virtually at the point of intersection of marginal cost curves for
capital and other factors. If the assumption approximates reality,
then costs derived from the evaluation model may be trusted. Unfor-
tunately, there are no data with which to test the assumption. On
the other hand, it should be kept in mind that the logic of the model
is based upon determining the highest possible costs that are con-
sistent with current waste treatment standards. It is reasonable,
then, to assume that annual costs, at any given level of efficiency,
-------
3448 LEGAL COMPILATION—WATER
will be no greater than those presented here, regardless of the rela-
tive weight of operations, replacement, and interest charges. (In the
public sector, the bias to capital-intensive solutions created by exist-
ing cost-sharing procedures results in unnecessarily high annual
costs. Subsidy and other market-limiting arrangements could pro-
duce a similar effect in the case of industrial waste treatment. At
the present time, however, the cost-ceiling thesis seems generally
accurate.)
The product of the evaluation procedure, as reported in Table 28,
is the determination that complete adherence by manufacturers to
the waste treatment requirements of existing water quality standards
would have amounted to something between $1.2 and $1.7 billion of
value added by manufactures in 1968, or between $1.6 and $2.4
billion in 1971 prices. (Values added by manufactures in 1968
amounted to $260 billion—including the value of waste treatment
provided in that year.)
[p.72]
-------
GUIDELINES AND REPORTS
3449
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-------
3450 LEGAL COMPILATION—WATER
V
CURRENT LEVEL OF INDUSTRIAL WASTE TREATMENT COSTS
INTRODUCTION
The chapter evaluates treatment currently provided to industrial
wastes by industry-supplied and public waste treatment plants.
SUMMATION
Though there are significant problems of interpretation, it would
seem that in 1968 manufacturers were operating $2.4 billion worth of
waste treatment works, and that another $1.5 billion worth of public
waste treatment capacity was taken up by manufacturers' wastes.
[p. 75]
EVALUATION CONDITIONS
It is not possible to gauge beyond the level of gross approximation
the degree to which manufacturers as a group currently meet their
waste treatment requirements. To compound the difficulties of as-
sessment presented by the various water use, recycling, and process
modification options open to management, there are complications
presented by use of public waste treatment plants, and the fact that
data are reported on industrial investment in a fashion that will not
permit consistent calculations.
In general, it would appear that problems of evaluation tend to
result in an understatement of the current level of waste treatment,
in that waste segregation, internal process adjustments, and use of
public facilities are only slightly—if at all—assessable. To counter-
balance these forces for under-evaluation is the fact that the only
investment data available are those from industry sources, and in the
reporting of such data a certain degree of self-serving is almost ines-
capable. Additionally, there is serious question as to the quality of
the capital that is available. Spokesmen for industry admit that at
least some of the adjustments to regulation that have been made in
the past were in the nature of a minimal response. A portion of the
available capital is said to be incompatible with today's more strin-
gent requirements, and so of limited utility. Even if such claims tend
to be advanced to support request for relief from regulation in the
form of subsidies or time extensions, they cannot be dismissed out of
hand.
INDUSTRY-SUPPLIED TREATMENT
Recognizing those difficulties, it is possible to at least partially
evaluate the current replacement value of the waste treatment works
that industry reported to be in operation in 1968, using the same gen-
-------
GUIDELINES AND REPORTS
3451
eralized cost-to-size coefficients utilized to scale treatment require-
ments. The procedure provides a value of $2.42 billion for the 6820
treatment components operated by 3521 establishments treating
wastewater, as these are cataloged by the Census Bureau (cf. Table
29). The total value of supplied works may be somewhat higher than
TABLE 29.—CURRENT REPLACEMENT VALUE AND ANNUAL COSTS ASSOCIATED WITH
REPORTED INDUSTRIAL WASTE TREATMENT, 1968
Millions of
1967 dollars
Annual costs
SIC
20
24
28
29
30
31
33
34
35
36
37
Industry
Food and kindred products
Lumber and wood products
Chemical and allied products ..
Rubber and plastics
Leather
Machinery
Electrical equipment
Transportation equipment .
Manufacturing
Replacement
value
193.8
48.8
9.7
529 5
343 2
342.1
3.0
17.0
200
216 3
6.7
14.8
23 8
17.4
1,7870
Operation
14.8
3.8
1.5
64.5
63.1
73.2
.3
1.7
1.5
35.0
.4
.8
1.5
1.1
263.2
Interest
14.9
3.8
.7
40.8
26.4
26.3
.2
1.3
1.5
16.7
.5
1.1
1.8
1.3
137.3
Replacement
9.7
2.4
.5
26.5
17.1
17.1
.2
.9
1.0
10.8
.3
.7
1.2
.9
72.2
Total
39.4
10.0
2.7
131.8
106.6
116.6
.7
3.9
4.0
62.5
1.2
2.6
4.5
3.3
472.77
[p.77]
the calculations suggest, due to the fact that 5881 treatment operations
were identified only as "other" than one of the standard treatment
procedures (i.e. primary and secondary settling, coagulation, flota-
tion, pH adjustment, aeration, various biological stabilization meth-
ods, sand filtration, and chlorination). Judgement and experience
suggest, however, that the bulk of the "other" treatments performed
consists of screening, flow equalization, and similar rudimentary pre-
treatment practices whose costs are calculated as integral components
of the defined methods. Total understatement of costs to be attrib-
uted to unreported kinds of treatment is probably not significant.
[p. 76]
The notable thing about the currently available stock of treatment
works is, perhaps, its configuration. The reported plants do not gen-
erally conform to the high cost set of procedures used in the evalua-
tion model. It has been indicated at several points in this report that
there are possible trade-offs between capital and operating costs in
the conduct of the waste treatment activity, and that the optimum
mix is to be found not at the level of the industry, but at the factory.
Given such trade-offs, it is probably reasonable to assess the degree
-------
3452
LEGAL COMPILATION—WATER
to which any industry fulfills its waste treatment requirements by
level of annual costs as well as according to capital availability (cf.
Table 30). In those terms, it would appear that American manufac-
TABLE 30.—PERCENTAGE OF REQUIRED WASTE TREATMENT SUPPLIED BY INDUSTRY, 1968
SIC
20
22
24
26
28
29
30
31
32
33
34
35
Ifi
37
Industry
Textiles
Paper and allied products
Percent of median
Available
capital
21.2
20.8
84
42.8
395
41.8
3.6
19.6
12.8
19.8
67
18.3
21.8
requirement
Annual
costs
23.5
249
135
54.1
58 7
82.5
4.5
25 5
108
24 7
5 5
142
17.2
17.3
39.4
[p. 79]
turers in 1968 supplied between 30 and 40 percent of the waste
treatment required of them, with enormous variation in degree of
compliance to be found between one industry and another.
PUBLICLY-SUPPLIED TREATMENT
Both the total deviation from compliance with treatment require-
ments and the inter-industry variation in degree of compliance shrink
when use of publicly supplied waste treatment capacity is taken into
account. Eight of the fifteen (two-digit SIC) manufacturing indus-
tries discharge a greater volume of wastewater to public sewers—and
so, presumably, to public waste treatment plants—than they treat
(cf. Table 31). There is a measure of double-counting, in that much
-------
GUIDELINES AND REPORTS
TABLE 31.—VOLUME OF MANUFACTURERS WASTES, SEWERED AND TREATED
PRIOR TO DISCHARGE BREAK, 1968
3453
Billion gallons of discharge
SIC
20
22
24
26
28
29
30
31
32
33
34
35
36
37
Industry
Food and kindred products
Text! les
Paper and allied products
Petroleum and coal
Primary metals
Machinery
Electrical equipment
Transportation equipment
Treated
discharge
184.7
53.7
18.7
915.3
674.2
917.7
7.3
9.5
36.3
1,430.9
9.0
. . . 24.5
. . . 27.5
22.5
12.7
4,353.2
Sewered
discharge
237.5
50.6
2.5
72.4
181.1
7.5
22.4
10.2
20.4
143.3
38.6
44.5
74.4
77.2
12.8
1,021.6
Prcent
Sewered
of
treated
128
94
13
8
27
1
335
107
56
10
429
182
270
343
101
23
Of total
sewered
discharge
23.2
5.0
.2
7.1
17.7
.7
2.2
1.0
2.0
14.0
3.8
4.3
7.3
7.6
3.6
100.0
[p. 80]
of the reported treatment occurs prior to sewering. Unfortunately,
the 1967 edition of Water Use in Manufacturing, unlike earlier edi-
tions, fails to provide data to assess the extent of the circumstance.
To the degree that this use of public facilities provides an effective
supplement to the capital supplied by industry itself, it must be
considered to reduce the deficiency in industrial waste treatment.
The extent of that supplement must be gauged from very gross and
aggregate waste flow data. Thus the best that can be provided is an
order of magnitude kind of estimate, one that places the value of
public waste treatment capital supplied to industry at $0.9 to $2.2
billion. The range is determined not by differences in conditions but
by point of reference, and whether one attempts to judge the value of
the public service from the standpoint of its value to the industry
that receives it, or from that of the local government that provides it.
Evaluation of Equivalent Service: If one assumes that the value of
treatment of a gallon of wastewater is precisely the same in all cases,
without regard to who supplies the treatment, then the relationship
between reported volume of industrially treated wastes, sewered
wastes, and value of waste treatment provided by each industry will
provide an evaluation of publicly supplied industrial waste treatment.
Table 32 provides such an assessment under the column headed
-------
3454 LEGAL COMPILATION—WATER
TABLE 32.—VALUE AND PERCENTAGE OF INDUSTRIAL WASTE TREATMENT REQUIREMENTS
SUPPLIED PUBLICLY IN 1968
Basis of estimate
Equivalent service Utilized capacity
Percent Percent
SIC Industry $ millions of requirements $ millions of requirements
20
22
24
26
28
29
30
31
32
33
34
35
36
37
Food and kindred products . . .
Textiles
Lumber and wood products . . .
Paper and allied products
Chemical and allied products . .
Petroleum and coal
Rubber and plastics
Leather
Stone, clay and glass
Primary metals
Fabricated metals products . . .
Machinery
Electrical equipment
Transportation equipment
Manufacturing
...249.0
... 45.0
... 1.3
... 41.8
... 92.0
... 2.7
... 9.2
... 18.2
... 11.2
... 21.6
... 40.3
... 26.9
... 64.4
... 59.7
684.5
27.2
19.2
1.1
3.4
1.1
.3
11.1
21.0
7.2
1.9
40.4
33.2
56.6
74.8
11.5
381.6
82.2
3.3
116.8
291.1
11.5
36.2
16.4
32.9
230.3
62.5
70.7
120.1
125.0
1,644.8
40.7
35.0
2.9
9.4
33.5
1.1
43.6
19.0
21.0
21.6
62.6
67.5
116.0
157.0
27.6
[p.81]
"Equivalent Service". Each of the values in the column was calculated
according to the formula:
[p. 78]
Gs
(—) C
Gt
where: Gs = gallons of wastewater discharged by the industry to
public sewers in 1968, as reported in Water Use in
Manufacturing, 1968;
Gt = gallons of wastewater treated prior to discharge by
the industry in 1968;
C = current replacement value of waste treatment facili-
ties provided by the industry in 1968, as calculated
by the evaluation model and summarized in Table 29.
The procedure almost certainly results in an understatement of
values received, in that the average degree of waste reduction accom-
plished by municipal waste treatment plants is considerably higher,
thus incorporating more capital values, than the average degree of
treatment provided by industry itself, if we are to judge on the basis
of reported waste treatment procedures available to municipalities
and to factories.
Evaluation of Utilized Capacity: If one assumes that the value of
waste treatment service provided to industries by local governments
is proportional to the amount of their capacity taken up by industrial
wastes, then the relationship between total sewage flow, total capac-
ity, nonindustrial sewage flow, and value of municipal waste treat-
-------
GUIDELINES AND REPORTS
3455
ment plants will provide an evaluation of the publicly supplied waste
treatment capacity devoted to industrial wastes. Table 32 provides
such an assessment under the column headed "utilized capacity".
Each of the values in the column was calculated according to the
formula:
X
T0 - 100P
H
X
100
p
where: T = total municipal waste treatment capacity in 1968, as
reported in the Municipal Waste Inventory and sum-
marized in Table 25, Cost Effectiveness and Clean
Water (26.4 X 106 G/D);
Tv = utilized waste treatment capacity, excluding overload-
ing (20.8 X 10s G/D);
T0 = net overloading of waste treatment plants (2.6 X 10"
G/D);
[p. 82]
= rule of thumb per-capita sewage discharge;
= population served by waste treatment (137 X 106 per-
sons) ;
C = current replacement value of municipal waste treat-
ment plants in 1968 as reported in Table 12, Economics
of Clean Water ($4,934.4 X 106, 1967 = 100);
B! = sewered discharge for a given industry, as reported in
Water Use in Manufacturing, 1968;
S — total sewered discharge of manufacturers.
While the procedure probably gives a better evaluation than does
the assessment of equivalent service, there is unquestionably some
overstatement to be attributed to inadequate accounting for non-fac-
tory discharges in excess of 100 gallons per-capita per day, capitaliza-
tion in excess of what industry itself would provide for a similar
solution (an evaluation of share of annual charges rather than capital
shares might obviate the weakness), and the necessity on the part
of site-bound plants to discharge uncontaminated waters to sewers
where they exercise a demand on available capacity without receiving
any effective treatment service.
STRIKING A BALANCE
Clearly, there are enormous uncertainties remaining after the
various evaluation procedures have been conducted. Manufacturers'
waste treatment requirements in 1968 occupied a range between $4
billion and $12.2 billion. Industry itself supplied between $2.4 billion
and $3.1 billion (based on percentage of annual costs) of that amount,
-------
3456 LEGAL COMPILATION—WATER
and public sources provided an additional $0.9 to $2.2 billion toward
the satisfaction of the requirement. At one extreme, it could be
stated that the total capital demand was over-supplied; at the other,
that only $3.3 billion, or less than a third, had been supplied.
Where the data provide such divergence, interpretation, and judge-
ment become necessary. It would appear that (though no single set
of conditions can be described as accurate) the most valid estimate
of the situation is one that assesses requirements at the median level
of efficiency, evaluates industry-supplied treatment on the basis of
capital available, and weighs the public sector contribution some-
where between the points provided by capital utilization and
equivalent service.
Table 33 hazards such a summation. While the detail is open to
serious question, even at the very high level of aggregation employed,
the order of magnitude of the components would seem to be highly
reasonable: requirements, $8.3 billion; available capital supply, $4.0
billion; unmet demand, $4.3 billion.
[p. 83]
-------
GUIDELINES AND REPORTS
3457
•s
g
.2
Maxi
requi
Median
requirem
i
§
8
E
|
S
4
i
i
I
i
3
(i
Smooinrocn
OJ *H m »» O
•H" ci i-T
liiillilili!
^
I
-------
3458 LEGAL COMPILATION—WATER
VI
WASTE TREATMENT COSTS THROUGH 1976
INTRODUCTION
The chapter assesses manufacturers' waste treatment investments
since 1968, projects investments and annual costs consistent with a
policy of full compliance with effluent standards by 1976, and relates
those costs to annual cash flow and prices of manufactured goods.
SUMMATION
On the basis of industry-supplied data, manufacturers' investments
in the period 1969-1971 roughly doubled the value of industrial waste
treatment supplied in 1968. Expressed investment intentions and
investments reported for the last four years are generally consistent
with—though slightly below—the values thought to be necessary to
achieve full effluent treatment compliance by 1976. In total, manufac-
turers must anticipate a probable cash flow of $20 billion (1971 =
100) over the years 1968-1976, in connection with compliance to
effluent standards. While incremental annual costs will probably
amount to only about 0.2 percent of aggregate values added by manu-
facturers, up to 4 percent of total capital spending will be required to
comply with standards, and as much as 1 percent of values added in
some industries (pulp and paper, steel) will be provided by waste
treatment. If additional costs are passed forward to consumers, with
full maintenance of margins, prices of manufactured goods may
increase a little more than 0.1 percent.
[p. 85]
THE SITUATION SINCE 1968
Although absence of industrial waste data precludes any coherent
association of the conditions evaluated in the previous chapter with
events of the last three years, it is possible to make some assessment
of trends in terms of capital accumulation.
Since 1968, McGraw Hill & Co. has included a survey of pollution
control expenditures in its first quarter survey of capital spending
intentions. That survey is the only consistent source of information
on manufacturers' waste treatment outlays. And though it is pre-
sented in aggregate terms that make direct correlation with inter-
pretations derived from Bureau of Census data difficult, it does
contain a high measure of authority, and adds considerably to our
understanding of evolving conditions.
Taken at face value, the survey indicates that manufacturers' in-
vestments for waste treatment have been rising at an almost 20 per-
cent annual rate, after adjustment for inflation, and that reported
-------
GUIDELINES AND REPORTS 3459
investment since 1968 is sufficient to have roughly doubled the avail-
able capital stock (cf. Table 34).
There are obvious problems in interpreting the data. On the
quantitative side, the user runs up against a set of reporting conven-
tions that lists standard industrial classifications by major business of
the firm rather than the factory. The vertically integrated firm and
the conglomerate make any comparison with the situation summary
presented earlier (Table 33) very tenuous. There is not even any
assurance that the indicated investments relate to the manufacturing
sector; the degree of integration in many predominantly manu-
facturing firms extends to the conduct of transportation, agriculture,
mining. And for the extractive industries it is probably safe to as-
sume that environmental controls in the extraction process (e.g. oil
drilling—or even exploration) are as great, or greater, a source of
investment demand as are treatment requirements at the factory.
Certainly the data reported by the petroleum industry to McGraw
Hill & Co. and the American Petroleum Institute's excellent study,
1967 Domestic Refinery Effluent Profile, are consistent with an as-
signment of major cost at points other than the refinery.
Nor can these dollar amounts be related to specific physical facil-
ities. To what extent they reflect production shifts and process
rationalizations that contribute to waste reduction but are in them-
selves necessary or profitable simply cannot be determined. (Though
[p. 86]
-------
3460
LEGAL COMPILATION—WATER
8
•e
d
"
II
ii
00 CM
I I
O CM
1 I
I I
CM «H en «H
CO CM CM
II I I
8SR
I I I
a s s s
855
I I I
co » oo to oo
r*rxi-ip)*-4<
o> o oo OfH
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-------
GUIDELINES AND REPORTS 3461
the Conference Board Survey mentioned earlier leads to the in-
ference that roughly 30 percent of the investment is for such pur-
poses.) Nor can the extent to which they include the write-off of
properties that are being taken out of production—one of the most
convenient means of bringing an obsolescent factory into compliance
at a time when a quarter of productive plant and equipment is idle.
The point is not that the reported values published by McGraw Hill
& Co. are suspect. There is no reason to infer any lack of credibility.
Rather, it should be understood that these data are not consistent
with those used elsewhere in this report—they are from a different
source, apply to different uses, evaluate separate aspects of the
situation.
What is significant about them, in the context of this report, is their
magnitude and their trend. They suggest that most segments of
manufacturing are investing aggressively for water pollution abate-
ment, and that regulatory incentives as presently structured are
securing a healthy response. Attainment of current discharge stand-
ards by 1976 is not likely to occur at the mean level and existing
distribution of industrial investments since 1968—but if the trend of
increase is sustained, and the inter-industry pattern of outlays is
modified, the experience of the last three years may be construed as
favorable.
AN INVESTMENT SCHEDULE
While the water pollution abatement schedule to be met by any
industry or any firm represents a diverse mix of compliance order
dates, negotiated understandings, and internal decisions, there is an
administratively expressed target of full national compliance by 1976.
Given more than 14,000 significant manufacturing users of waters and
nine years time, there is a nearly infinite number of investment
possibilities that are consistent with the target.
The most likely schedule must be assumed to be one that eliminates
deficiencies at a fairly even rate, while the processes of growth and
replacement assert their effects quite naturally as functions of the
capital structure and the rate of economic activity.
Such a schedule, assuming the probable set of costs associated with
median hydraulic efficiency and a rate and distribution of output
growth for the period 1968-76 similar to that of 1959-68, dictates the
investment of $11.2 billion between 1968 and 1976 for treatment of
manufacturers' wastes (cf. Table 35).
There is no implication of optimality in the schedule advanced.
(And no judgement as to the source of investment, some of which
will certainly come from the public sector as a result of industrial
-------
3462 LEGAL COMPILATION—WATER
discharge to sewers.) It is simply proposed as the most likely re-
sponse to regulation in the absence of any formal schedule.
[p. 88]
-------
GiriDELINXS AND REPORTS
3463
A
a s a 3 s s s S a s § ffi is s S
v* T* V* <-T tO
s
*+ r-« C4 ^H N
i
^
t
k"~ P S '&
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*!
t ™ p
E '•
i; .
_ Sr^r^Sr^'~' i-t*Hr"*rxiri
8 I
2 S«SiwaiBK---;3--«-g5 g
^ i ; ; ! i I i ; i ; I ; ; i i? e
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g u g ; ; ; ; ; u ; ; „
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I! s"§ s i: -
01 _tt) O> b. •— — Q) V
-------
3464 LEGAL COMPILATION—WATER
There is no question that the indicated schedule will be difficult to
achieve. Manufacturers are responding to waste treatment require-
ments at the same time that the public sector is increasing its cap-
italization of waste treatment works. Total sewerage starts had not
reached a billion dollars as late as 1967; but in 1971, manufacturers
and municipalities together initiated about $3.0 billion of sewerage
and waste treatment contracts. As a consequence of such growth,
extreme inflation and lengthening construction schedules have
marked this particular component of the construction industry.
Whether it can continue to expand sufficiently to meet the schedule,
and what price the economy will pay in terms of inflation and quality
defects, are probably the critical questions with respect to the waste
treatment target.
Unfortunately, there has been little recognition of this really dif-
ficult functional problem. Policy formulation in both the public and
private sectors has been concerned principally with questions of
demand—how much treatment is needed? how much will it cost?
and who will pay? Subordinate issues of employment displacement
and regulatory mechanics have also been engaged. But in spite of
increasing evidence in the form of delayed deliveries, lengthening
construction times, and soaring construction costs, the ability of the
sewerage construction industry to supply a ballooning demand has
never been investigated, and scarcely questioned. There is reason to
believe, however, that the supply of suitable construction services will
prove far more critical to meeting waste discharge standards by 1976
than will financial commitment.
It should be noted that secular expansion of the level of investment
is necessary, even with a constant increment abatement strategy.
Growth and replacement demands account for over half of the in-
dicated capital requirement to 1976, and their level is in large measure
determined by the dimensions of the capital base. The schedule il-
lustrated in Table 35 may be slightly over-ambitious in that it em-
bodies rates of output growth that applied in one of the most
expansionary periods in our history. A slower rate of economic
growth would, of course, permit attainment of the target with a lower
rate of increase than the 8.9 percent per year dictated by the projec-
tion. But internal growth of the system—that is, installation of the
treatment capital associated with 1968 output levels—is a more sig-
nificant influence on the indicated annual level of investment that the
external imposition of treatment requirements that arises out of
projected production growth.
If we can judge from manufacturers' investments reported by
McGraw Hill & Co., the scheduling procedures actually being used by
industrial management must adhere fairly closely to the constant
-------
GUIDELINES AND REPORTS 3465
increment strategy embodied in the projection. Reported invest-
ments since 1968 have advanced at a much faster rate (19 percent a
year, exclusive of inflation) than the illustrated schedule, but their
approximate dimensions, though somewhat lower, are much the
same. This expansion of water pollution abatement investment has
been in contrast to total plant and equipment expenditures by man-
[p.90]
ufacturers, which has adopted a slightly downward slope over the
last four years when adjusted for price level changes. In con-
sequence, the proportion of total manufacturers' reported investments
devoted to waste treatment works has risen from 1.5 percent in 1968,
to 2.0 percent in 1969, 2.5 percent in 1970, and an estimated 3.1 per-
cent in 1971.
Given a resumption of the rate of capital accumulation that oc-
curred in the period 1959-68, just under 3 percent of manufacturers'
investment must continue to go to waste treatment through 1976 if
the target is to be met. But maintenance of a flat pattern of non-
inventory investment through 1976 would dictate that an increasingly
large share of total investment would be required for the purpose—up
to 4 percent, based upon the indicated amount of expenditures for
plant and equipment in 1971.
MANUFACTURERS' INVESTMENT INTENTIONS
Not only do reported investments of manufacturers over the last
four years indicate a pattern of behavior that is generally consistent
with attainment of current waste treatment goals, but also the infor-
mation we possess with respect to their longer range intentions is not
inconsistent with the same purposes.
Again, McGraw Hill & Co. is the source of our information. It has
reported "the total cost of bringing industries' (sic) existing facilities
up to present pollution control standards as of January 1, 1971," as
industrial management has assessed that cost. Unfortunately for the
purposes of this report, there is no available distinction between ex-
penditures for air pollution control, water pollution control, and
other forms of environmental protection. We are forced to draw
inferences from prior experience. There are the additional difficul-
ties of categorization presented by multi-establishment, multi-
industry firms. And, unlike the schedule against which these
intentions must be compared, there is no statement of time as-
sociated with reporttc! dollar values. Nonetheless, the information is
useful, and moderately reassuring.
Limiting our consideration to the manufacturing sector, we find
that industry in the aggregate is operating on the assumption that an
-------
3466
LEGAL COMPILATION—WATER
investment of $12.36 billion is required to meet environmental stand-
ards (cf. Table 36). Of that, roughly half—on the basis of the recent
past—may, perhaps, be alloted to water pollution control projects.
[P.91]
TABLE 36.—MANUFACTURERS' ASSESSMENT OF INVESTMENTS REQUIRED TO COMPLY WITH
POLLUTION CONTROL REQUIREMENTS, JANUARY 1971
[As reported by McGraw Hill & Co.]
SIC
Tl
•>•>
in
•>6
?8
?9
in
11
1?
11
14
is
Ifi
17
Industry
Food and kindred products . .
Chemical and allied products
Rubber and plastics
Leather
Stone clay, and glass
Primary metals
Fabricated metal products
Machinery
Electrical equipment
Transportation equipment . ...
Manufacturing
Millions of
1970 dollars
400
110
N.A.
1,840
1,000
2,120
300
N.A.
160
4260
190
690
210
440
12,360
Percent to water
pollution, 1970-71
(percent)
57
34
N A
59
52
49
42
N.A.
40
59
50
32
51
37
48
[p. 92]
There are some distressing inter-industrial divergences from the
values produced by the evaluation model, and there are some huge
definitional questions. But when the projected investment schedule
and the industrial expressions are considered in their most aggregated
form, in same year dollars with appropriate situational adjustments,
they are very close:
Million
Industry intentions (48 percent of total
in 1967 dollars) $4,372
Projected capital requirements $8,110
Less public capital available, 1968 (1,132)
Less reported investment, 1969-71 (2,130)
Net capital requirements $4,848
The relationship is comforting in the aggregate and on first inspec-
tion, if we assume that public treatment of industrial wastes stays
fairly constant—but we do not know enough about the values sup-
plied by industry to feel entirely at ease. There is, of course, the
inter-industry distribution of intentions as a prime cause of aggrava-
tion. But other matters also need to be defined.
1. There is considerable question as to whether the portion of in-
dustry's pollution abatement investment that is available for water
-------
GUIDELINES AND REPORTS 3467
pollution control will stay constant. Both air and water pollution
control expenditures have been rising for a decade, but the relative
share to water (where the bulk of the money has gone in the past)
has been shrinking. In the early nineteen-sixties, surveys by the
National Industrial Conference Board found 60 percent of man-
ufacturers' environmental protection investments devoted to water.
In the last half of the sixties, water's share had dropped to 52 percent.
And in the last two years, McGraw Hill's data show water pollution
abatement supplying less than half of environmental capital expen-
ditures by industry. Air pollution regulation has become far more
stringent, and the general impression is that industrial deficiency in
that area is greater. Hence, it seems likely that outlays for water
pollution control will continue to decline in a relative sense.
2. Because the values are reported in their least useful form, an ag-
gregated lump, we have little insight into their referents. We do not
know if they are for treatment facilities, for reworking processes,
for fuel substitutions, for plant abandonment, or any of a host of
possible alternatives. Nor do we know if they include investments
in 1971 and prior years, or how many years into the future they may
include.
[p. 93]
3. To what extent the estimates account for anticipated inflation
determines to some extent how adequately they will cover the even-
tual bill. The assumption used in balancing the estimates against in-
dicated requirements was that they represented 1970 constant dollars.
There is no hint in the report of the possible validity of that
assumption.
The combined weight of these considerations must leave the analyst
with some reservations as to whether U.S. manufacturing adequately
recognizes the dimensions of the investment it must make for water
pollution control over the next five to six years. While the indicated
intentions are, on the surface, generally consistent with evaluated re-
quirements—particularly in a context that includes the availability
of public facilities and lower cost treatment configurations—there are
too many undefined possibilities for shortfall to provide a high
measure of satisfaction.
CASH FLOW IMPLICATIONS
To meet the 1976 compliance target will cost American manufac-
turers between $10 billion and $25 billion between 1968 and 1976.
The ultimate amount of direct expenditure will depend principally
on the compliance strategy that the preponderance of management
adopts. Maximum application of water conserving production pro-
-------
3468 LEGAL COMPILATION—WATER
cess, with an attendant increase in disposition of residuals in dry
form, could eliminate more than half of the cost of waste treatment.
However, the reduction in the one kind of cost could entail dis-
proportionate increases in other costs, or the application of signif-
icantly greater amounts of capital than would be consistent with other
investment demands. Persistence of high interest rates would be ex-
pected to inhibit realization of a low liquid waste strategy, too, in
that such an approach to waste production would probably require
very significant recapitalization of existing production facilities.
A high cost strategy would seem as unlikely as one devoted to min-
imum waste treatment costs. In essence, the highest set of costs
associated with industrial waste treatment is predicated on the as-
sumption that industry would meet its waste treatment requirements
by simply adding necessary treatment facilities to production con-
ditions in existence in 1968, making no effort to adjust production
processes to those treatment facilities or to take indicated water con-
servation measures to reduce costs.
The probable path to achievement of discharge requirements ap-
pears to be at some intermediate route between the two extremes; and
the gross magnitude of the manufacturer supplied capital require-
ments assessment tends to corroborate that judgement. Without
significantly recapitalizing existing factories, manufacturers may be
expected to make obvious adjustments in water utilization practices
to accommodate waste treatment, to
[p. 94]
close those marginally profitable factories for which adequate waste
treatment would impose either a significant incremental investment
or serious technical problem, and otherwise to accommodate to dis-
charge limits by providing waste treatment. Over the longer run,
new plants may be expected to incorporate cost-reducing water
utilization procedures that result in a slightly higher capital to out-
put ratio for the plant as a whole, but a distinctly lower unit cost of
waste treatment.
It is that scenario which is felt to be most adequately characterized
by the projection of conditions to 1976 that was presented in terms of
investment in Table 35.
When that set of conditions is extended to cover interest and op-
erating charges, it suggests the probable expenditure of more than
$20 billion by manufacturers for waste treatment between 1968 and
1976 (cf. Table 37). Of that amount, more than half—almost $11 bil-
lion—will be required for capital investment to eliminate existing de-
ficiencies, to provide for increased output, and to maintain the capital
stock through the replacement process.
-------
GUIDELINES AND REPORTS 3469
The heavy demand for capital is consistent with the significant
shortage of waste treatment among manufacturers. However, a part
of that capital is being, and will be, supplied through public sources.
It might be assumed, then, that actual capital outlays of manufac-
turers over the period will be somewhat less than is indicated, with
operating charges being much greater as a result of payment of user
charges to public authorities.
On balance, the use of public facilities could marginally reduce
short-term cash flow requirements, in that capital contributions would
be engaged through the amortization schedules built into user
charges, and thus largely deferred to later years. In addition to
relief from cash flow pressures, use of public facilities suggests op-
portunity to utilize the more advantageous interest rates provided by
tax free bonds, to profit from the longer average life (25 years, rather
than 20) of the more heavily capitalized plants found in the public
sector, and to enjoy the operational cost savings also afforded by
higher capital inputs per unit of capacity. (These advantages apply
in addition to possible scale economies, the subsidy features provided
through State and Federal capital inputs, or the additional subsidies
quite often advanced by municipal government in the form of dis-
criminatory user charges or payment for sewerage services from
general taxation.)
In spite of those apparent advantages to be obtained by making use
of public facilities, only slight reduction of cash requirements is
thought likely to eventuate from that source by 1976. The reasons
are to be found in technical and institutional aspects of industrial
waste treatment.
[P. 95]
-------
3470
LEGAL COMPILATION—WATER
g
I
Q
(S Csl C-4 «-»
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-------
GUIDELINES AND REPORTS 3471
On the technical side, water use and waste treatment requirements
are heavily concentrated in a few industries. Of these, both the scale
of operations and the nature of wastes in only one, food processing, is
generally amenable to conventional sewage treatment. Much of the
chemicals industries, and most pulp and paper, petroleum refining,
and primary metals industries represent difficult—in some cases in-
superable—problems in the context of sewage treatment. Probably,
less than half of industrial wastes (though this includes the wastes of
the vast preponderance of all factories) could be treated by sewage
treatment organizations if circumstances were otherwise generally
favorable. A number of institutional factors, however, are so clearly
unfavorable that it does not now seem probable that the percentage
of industrial wastes that is publicly treated will increase much beyond
the current 7-8 percent.
1. The same loss of operational flexibility that motivates manu-
facturers to avoid heavy capital commitments for waste treatment
(even at the expense of higher total costs) causes them to avoid too
intimate an association with municipal treatment when liquid waste
disposal is a significant feature of factory operations. Limitations
on the volume and kinds of wastes that may be discharged to sewers
may present a real or potential constraint on operations, or may
imply pretreatment costs significant enough to override the advan-
tages of the arrangement. Additionally, it is becoming increasingly
common for municipalities to regularize their relationships with dis-
charging factories by long-term contracts that, in protecting the
municipality's revenue source, tie the factory to a fixed schedule of
payments.
2. Municipal waste treatment works represent only a fraction of the
total cost of sewerage, in that the treatment plants are tied to elab-
orate collection and transmission systems that account for a major
share of capital values, and a substantial portion of annual costs.
Economies of scale are slight—and may be negative—with respect to
collection costs. Yet municipal sewerage systems have in recent
years demonstrated a tendency to increase in size and reach. This
tendency has carried with it substantial acceleration of replacement
charges, as existing plants are abandoned through tie-ins with larger
systems. Conforming to the general trend toward more capital in-
tensive municipal waste treatment, the amount of capacity provided
per unit of demand has also been rising. Under these circumstances,
the manufacturer who connects to a public system does so at the risk
of becoming a contributor to revenue demands associated with heavy
fixed charges and increasing redundancy.
3. Waste treatment requirements have for some years been evolv-
ing in the direction of greater stringency and greater specificity. The
-------
3472
LEGAL COMPILATION—WATER
principal attraction of the municipal sewerage system to the man-
ufacturer has been the breadth of its application. Elimination of
specific contaminants can often be done more easily and more cheaply
within the
[P. 97]
TABLE 38.—INCREMENTAL WASTE TREATMENT COSTS RELATED TO VALUES ADDED BY
MANUFACTURERS, 1968
[Millions of 1967 dollars]
1968 conditions
SIC
20
22
24
26
28
29
30
31
32
33
34
35
36
37
Industry
Food and kindred products
Textiles
Lumber and wood products
Paper and allied products
Chemical and allied products . .
Petroleum and coal
Rubber and plastics
Leather
Stone, clay and glass
Primary metals
Fabricated metal products ,,...,
Machinery
Electrical equipment
Transportation equipment
Manufacturing
Industry
supplied
39.4
10.0
2.7
131.8
106.6
116.6
7
3.9
4.0
62.5
1.2
2.6
4.5
3.3
... 472.7
Sewer
charges '
46.0
9.3
.4
11.6
28.0
1.0
3.3
2.5
3.2
18.4
7.5
7.1
13.5
13.5
165.3
Total
85.4
19.3
3.1
143.4
134.6
117.6
4.0
6.4
7.2
80.9
8.7
9.7
18.0
16.8
638.0
Increase
for full
compliance
82.1
20.9
16.9
100.4
47.0
23.9
11.5
8.9
30.0
172.2
25.7
8.6
8.4
2.3
514.8
Incremental
value
added
(percent)
0.3
.2
.3
1.0
.2
.1
.2
.3
.3
.8
.1
.03
.03
.01
.2
1 Calculated from value of capital supplied publicly, Table 33, on basis of mean ratio of sewerage
operating costs to treatment plant value at 5.1 percent, 3 percent replacement rate, and interest charge
of 6.5 percent.
[p. 98]
production process than by waste treatment. Moreover, some
of the pollutants that are to be reduced in sewage treatment
do not occur in the wastes of all manufacturers (e.g., pathogenic or-
ganisms and excess phosphorus). Thus to be tied to a municipal
system implies for the plant manager the possibility of paying—and
at the margin—for treatment of wastes that he might more cheaply
eliminate himself, or which he does not discharge.
These institutional factors should not be expected to eliminate pub-
lic treatment of industrial wastes, but they should slow materially, if
not reverse, the trend toward cooperative waste treatment that has
marked the last decade. Site constraints and processing patterns that
do not make heavy use of water will probably continue to direct the
wastes of most factories into metropolitan sewerage systems. But
among the manufacturers who make the largest use of water, co-
operative solutions are becoming less and less attractive. Capital
shortage and location-induced absence of options are probably the
principal remaining incentives for the large industrial user of water to
abandon operational control of waste treatment, at this time exceed-
-------
GUIDELINES AND REPORTS 3473
ing both subsidy advantages and the relief from regulatory pressure
which had been prime motivating forces in the past.
Given that set of conditions, it is probable that the bulk of the cash
requirements associated with industrial waste treatment will be met
by industry out of internally generated cash flow or by recourse to
financial markets.
The ability of manufacturers to generate the indicated cash flow
will probably best be related to total values added by manufacturing.
Waste treatment is, after all, nothing more than an additional man-
ufacturing process that confers some incremental utility to purchased
materials. It is true that the utility does not flow directly to the user
of the product. (Except, perhaps, to the extent that he derives a
psychic benefit from the enjoyment of non-polluting characteristics of
his consumption pattern.) But the same is true of many of the char-
acteristics of value added. The external character of the particular
utility component is in no way different from taxes, advertising, work-
ing conditions and wage differentials, or many other components of
the value added by the manufacturing process to a particular
commodity.
It is clear that a process whose capitalization will require no more
than 3 to 4 percent of manufacturers' investments over the next five
years will constitute a very small incremental cost, or value added,
when the full range of resources that goes into the manufacturing
process is taken into account. In the aggregate, the difference be-
tween value of waste treatment provided in 1968 and that estimated
to be necessary at the probable level of hydraulic efficiency amounts
to a 0.2 percent incremental cost (cf. Table 38). (Under the max-
imum cost of treatment evaluation set, incremental annual costs
amount to 0.4 percent of values added in 1968.)
[p.99]
More significant than the aggregate level relationship, however, is
the incidence of added costs among industries. Depending on the
significance of water as a raw material and the degree of required
treatment already available, the increase in relative costs occupies
three orders of magnitude, ranging from .01 percent of values added
for transportation equipment up to full percentage point for pulp and
paper.
PRICE LEVEL IMPACTS
It would scarcely seem that cost increases of the dimensions in-
dicated would threaten any industry—not even the paper or primary
metals producers who will bear such a significant share of the total
cost. But it seems even less likely that management would be sat-
-------
3474
LEGAL COMPILATION—WATER
isfied to absorb such costs. If absorbed, the incremental costs in
1968 would have reduced the $53.3 billion (1967 = 100) pre-tax profits
of manufacturers by 0.9 percent, and would have probably imposed a
reduction of several percent on low-margined steel, paper, and food
processors.
Price increases to cover the additional values conferred are, then,
likely. And it is almost equally likely that such increases will be
framed in dimensions that are consistent with maintenances of mar-
gins. While no technique short of a complex input-output analysis is
available to trace the total impact on prices through the transaction
chain—and the bulk of the impact is introduced with first stage pro-
cessors very early in the chain, thus subject to a series of markups
before its effect is exhausted in the ultimate retail sale—gross mark-
ups can be calculated quite easily, and these are sufficient to sustain
order-of-magnitude judgments about impact on the prices of man-
ufactured goods (cf. Table 39).
Giving full expression to calculated markups, and providing not
only for recovery of costs but maintenance of margins, such calcula-
tions disclose that the costs of incremental waste treatment could have
been passed on to consumers in 1968 for little more than a 0.1 percent
aggregate increase in the prices of manufactured products. (Man-
ufacturers' sales, in 1967 dollars, are estimated by the Department
of Commerce to have been $607 billion in 1968.)
[p. 100]
TABLE 39.—INCREASES IN THE PRICES OF MANUFACTURED GOODS TO BE ATTRIBUTED TO
WASTE TREATMENT COMPLIANCE, 1968 CONDITIONS
[Millions of 1967 dollars]
SIC
'(1
•>•>
9/1
?fi
•>R
'1
in
11
i?
n
14
Vi
1R
17
Industry
Food and kindred products
Paper and allied products
Chemical and allied products
Rubber and plastic
Leather
Stone, clay and glass
Primary metals
Fabricated metal products
Machinery
Electrical equipment
Incremental
values
added
82.1
20.9
16.9
100.4
47.0
23.9
11.5
8.9
30.0
172.2
25.7
8.6
8.4
2.3
514 8
Indicated
markup '
.191
172
.183
.238
.396
144
.253
.202
.312
.213
.234
.226
.221
.197
Price
effect
97.8
24.5
20.0
124.3
65.6
27 3
14.4
10.7
39.4
208.9
31.7
10.5
10.3
2.8
. 688.2
1 Values added, less payrolls, divided by value of shipments.
[p. 101]
-------
GUIDELINES AND REPORTS 3475
APPENDIX: THE INDUSTRIAL WASTE TREATMENT MODEL
MODEL COMPONENTS AND LOGIC
The data and interpretations of this report are based largely upon a modelled
restructuring of Water Use in Manufacturing. This portion of the Census of Manu-
factures, 1967 provides a data catalog on the water use characteristics of 9402 manu-
facturing establishments that reported the intake of 20 million gallons or more of
water in 1967, and responded to a detailed questionnaire on their water utilization
for the year 1968.
There are significant problems in making use of those data. Every effort is made
by the Bureau of Census to avoid the possibility of disclosing information about
any respondent, thus the data are aggregated to a degree that makes it impossible
to determine directly any but the grossest distributional characteristics of the
population presented. Further, the information tends to reflect an emphasis on
water as an industrial resource rather than an environmental contaminant. The
items reported are in few cases directly useful to the study of pollution control.
They must be manipulated within a format of assumptions to yield useful answers
for that purpose.
1. The first premise of the model is that the 9402 establishments that were re-
ported upon in Water Use in Manufacturing are too small a number to adequately
reflect manufacturers' costs. The Census of Manufacturers, 1967 does not provide
any indication of total manufacturers' use of water. However, Water Use in Manu-
facturing, 1963 did present such data. (Among other things, it reported a total of
10,580 establishments using 20 million gallons or more of water, of which only
8925 responded to detailed questionnaires, suggesting that the 1967 report may also
include a less than complete population of plants using 20 million gallons a year).
The sample of 9402 establishments was, then, expanded on the basis of the 1963
census to include over 14,000 establishments, that being the greater part of those
reported to have an intake of 10 million gallons or more in 1964. (Ten million
gallons, assuming a normal five day work week, amounts to a discharge of less than
40,000 gallons per day, or about as much as the sewage from a town of 600 persons
—-well below the threshold at which sewering is necessary under any but the most
unfortunate soil conditions.)
2. Having determined that the model should be expanded to include those manu-
facturing plants that use approximately 10 million gallons or more of water a year,
the modellers accepted the premise that waste characteristics have a significant
relationship to waste treatment costs. Industrial categories reported in Water Use
in Manufacturing, 1967 were then regrouped into subgroups according to the kinds
and concentrations of waste products that were considered to be
[p.103]
characteristic of various industrial processes on the basis of an extensive literature
search. The 320 four-digit SIC groupings reported by the Bureau of Census
emerged, when reassembled, as 71 components, with a generalized waste treatment
configuration established for each.1 The decision rules applied in determining the
configuration were:
a. Standardized treatment procedures were to be applied in every case, and
where modifications peculiar to a plant or any industry were reported in the tech-
nical literature, the modification was rendered in terms of a similar standard solu-
tion to the engineering problem.
(The effect of the rule is to increase calculated costs, in that modifications re-
ported generally relate to a means to reduce costs at an equal or greater treatment
efficiency through adaptation to specific conditions.)
-------
3476 LEGAL COMPILATION—WATER
(The decision rule was breached for two industry components. In the pulp and
paper industry, SIC 26, sulfite waste liquors do not seem adaptable to any of the
standard waste treatment procedures. In their case, evaporation and burning
prior to treatment of condensates was assigned as an element of the treatment
series. In the case of primary non-ferrous metals, SIC 333, the "red mud" wasted
in aluminum reduction did not appear to be amenable to any of the standardized
waste treatment methods, so evaporation of the liquid component of the slurry
was assigned as an element of the treatment series.)
b. No treatment method, or sequence of treatment methods, drawn from the
technical literature was to be applied unless it was associated with a reduction of
90 percent or more of the pollutional aspects of wastewater that it was intended
to remedy.
c. All treatment sequences and other system components were to embody the
highest cost standard methods; and when there was uncertainty as to what portion
of the waste stream was to undergo a given treatment procedure, then the larger
possible component—up to the total waste stream—was to be assigned to that
procedure.
3. Having established a study population—establishments with an intake of 10
million gallons or more of water, distributed through waste and product grouped
industrial categories—it was necessary to define the population in terms of size
distribution and locational characteristics. The census data do not include such
information, so they were disaggregated on the premise that the largest water-
using establishments in each of the 320 SIC categories are identical with the largest
users of labor in each category.
1 Thanks are due to Messrs. Ralph Scott, John Fairall, James Horn, Leon Myers, and Kirk
Willard who took time from extremely busy schedules to review the technical aspects of the
model and who contributed enormously to such merits as it may have.
[p. 104]
Since employment data is as protected by Federal sources as water use data,
Dun & Bradstreet files were used to establish distributional characteristics. From
the firm's computerized catalog of manufacturers, establishments were drawn
from each of the relevant SIC categories on the basis of employment, until a sample
population equal to the number of establishments reported to use 10 million gal-
lons or more in 1964 was created. These, with listed employment, are the building
block of the model.
4. With location and size distributions of the model components approximated
on the basis of the employment surrogate, employment data were translated into
hydraulic terms with the use of annual water intake per employee factors derived
from Water Use in Manufacturing, 1967. Unfortunately, Census data are not
sufficiently detailed to conduct an analysis of water use per employee by location
at more than the two digit SIC level of detail, and all available studies of industrial
water use indicate that location is equally—if not more—important a determinant
of water use as industrial type. To accommodate locational factors, a multiplier
was applied to the intake per employee factor, representing the ratio of intake per
employee in each of 17 water use regions (designated by the Bureau of Census) to
national water use per employee at the 2 digit SIC level. Wasteflow for each of
14,449 modeled establishments was, then, a construct of the formula:
Qa = E . Qi . Qr
Where: Qa = annual wasteflow
E = establishment employment, reported by Dun & Bradstreet
Qi — water discharge per employee, nationally for each of 320 four digit
industry categories
-------
GUIDELINES AND REPORTS 3477
Qr = ratio of regional to national water use per employee in 15 major
(2-digit) industry categories
Because wasteflows on an annual basis are of slight significance to design of
abatement facilities, annual discharges were further modified by establishing a
general divisor for each industry, based on an assessment of average number of
working days in the operating year. (Q = —^ Where d = estimated days in
d
working year.)
5. Segregation of wasteflows was accommodated at two levels. Census data are
reported for purpose of intake—cooling, process, sanitary, boiler feed, and other—
and for gross water used, including recirculation, rather than for discharge after
type of use. In 1968, for example, less than 28 percent of manufacturers' gross water
[p. 105]
intake was for process use and 66 percent was for cooling, thus potentially uncon-
taminated except by heat. Yet it is known that some recycling involves diversion
of used cooling waters to process streams, and some cooling involves direct contact
with products in process—as in ferrous metallurgy. The modelers were, then,
faced with a situation that can be defined only in the very general sense that
wastewater requiring treatment is something greater than process water intake,
and something less than total discharge.
For the purposes of the model, then, wastewater requiring treatment was defined
to be:
Qd = (Qpy) + 30 E
Where Qd = design flow for treatment system
U = total water use, including recycling
I = total intake
Qp = process intake
E = employment (i.e. 30 gallons per employee per day for sanitary
purpose)
The consequence of the procedure is to establish each factory's treatable dis-
charge in terms that stipulate that recycling of process water is equivalent in de-
gree to total recycle for the industry, with all process recycling accomplished by
bringing cooling water into the process stream. Adhering to assumption 2.c, the
procedure probably overstates considerably the amount of water requiring treat-
ment. (And, in fact, it was necessary in calculation to set constraints that limited
treatable discharge for any component to the amount of its total discharge.)
The values for daily wasteflow requiring treatment were then multiplied by
factors intended to give effect to (a) proportion of treatable wastewater requiring
a given method of treatment, (b) costs based on flow to cost relationships for con-
-------
3478 LEGAL COMPILATION—WATER
struction and operation of the given normal waste strength2 and, (c) a factor
intended to provide an
'Strengths were gauged in terms of concentration multiples (e.g. BODs 400 MG/L = 1),
and the multiple became a simple multiplier of flow to be treated (e.g. BODs 400-800 MG/L =
2). Economies of scale were, however, taken into account at a level slightly more con-
servative than the six-tenths power rule, so:
If Multiplier is:
Treatable Where flow 0.6
flow is would be
1 1 1
2 1.6 1.5
3 2.2 1.9
4 2.8 2.3
[p. 106]
approximation of non-recurring installation cost imposed by land purchase, re-
piping, and production losses ranging from 0.2 to 0.35 times construction cost,
depending on the complexity of the hydraulic engineering characteristic of an
industry. The sums of individual factory component are able according to SIC
grouping (one to four digit), location (county, State, water use region, nation),
or waste treatment process. Substitution of alternative flow, treatment, and
cost variables allows assessment of impact of policy or technological changes at
any level from a single factory to all manufacturing.
Table 24, Chapter III, Part I, presents the elements of the basic industry matrix
utilized in the model. Table A presents the cost-to-flow equations and examples
of costs associated with selected flow values.
Water Use in Manufacturing, 1967 also provided the information upon which
current capitalization estimates were based. The document reports number of
plants and volume of flow in a variety of treatment categories for industrial sectors.
On the basis of previously established operating rates and the same set of cost
functions used to determine requirements, existing facilities were evaluated in
terms of average daily flows through facilities of specified types.
It should be noted that—quite apart from distortions involved in assessments
at the mean—the procedure significantly understates the degree of required capital
that is currently available in many industries. In addition to facilities operated by
plants using less than 20 million gallons, wastes discharged to public sewers and
treated by public sewage treatment facilities are not accountsd for; and in a num-
ber of cases, governmental bodies, through the normal sswage handling systems,
accepted a major part of an industry's discharge. Nor can wastes discharged to
land (septic tanks, irrigation, deep-well disposal) be accounted for in financial
terms. In either case, the Bureau of Census simply does not provide sufficient
information to permit an evaluation.3
3 A possible offset to this understatement has been suggested by a number of industrial
sources who have stated quite freely that much of the treatment capital currently available is
under-designed and has been under-maintained. Its operational utility may be considerably
less than its current replacement value would suggest.
[p. 107]
-------
GUIDELINES AND REPORTS
3479
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-------
3480 LEGAL COMPILATION—WATER
MODEL CHARACTERISTICS
The characteristics of the evaluation model can best be appreciated by a com-
parison of its aggregated structure with that of the establishments covered in
Water Use in Manufacturing, 1967.
The basic distinction between the evaluation model and its Bureau of Census
source is the expansion to include establishments with an intake of 10 to 20 million
gallons a year. The total number of establishments covered is increased by this
device by more than 50 percent (cf. Table 21, Chapter III, Part I). But in the case
of food processing, wood products, and leather, an approximate doubling occurs.
These industries tend to be broadly distributed and characterized by moderately-
sized plants rather than a few dominant factories—food processing in particular,
which accounts for 25 percent of the Census-reported so that a truly significant
portion of their pollution associated features is concealed if only larger plants are
considered.
A second distinction between the two data structures is critical to the assessment
of waste treatment requirements. The manner in which an industry uses water is
at least as important to a consideration of its pollutional characteristics as is the
amount of water it uses; and the distribution of pollutional potential—as measured
by calculated treatable discharge—varies significantly from the distribution oi
total discharge. Pulp and paper production, third in gross water use, becomes the
largest source of treatable wastewater, due to the heavy portion of the industry's
intake for processing. Conversely, petroleum refining slips behind food processing
as a source 6f treatable wastewater, not so much as a result of the expansion of the
food industry's evaluated discharge as because of refineries' relatively heavy use
of water for cooling rather than processing. The leather industry—mainly its tan-
ning component—stands out as the one whose relative significance is most affected
by the modeling procedure. Heavy use of process water combined with a large
relative number of units with an intake of 10 to 20 million gallons a year make the
industry's share of waste treatment demand five times as great as its reported share
of total water demand.
The aggregate impact of these distributional features is not great. Though more
than half again as many factories are covered by the evaluation model as by the
report of the Bureau of Census, employment in industries covered is only increased
by 18 percent, and water use by an even lesser percentage (cf. Table 22, Chapter
III, Part I). However, the logic of the recirculation device employed in the model,
plus the broadening of the population covered, provides a treatable discharge value
that not only exceeds reported process intake for plants using 20 million gallons by
a gross factor of almost 2.4 to 1, but also exceeds total reported intake for the larger
users alone in seven of the fourteen (two digit SIC) industries. It is clear that
[p. 109]
factories account for the bulk of manufacturers' use of water and for discharge
of pollutants. Water use technology and size distribution of a number of industries
for which water is not so significant a resource tend to conceal a somewhat larger
pollution potential than might be thought.
(The principal weakness of employment as a water use determinant can be noted
in Table 23, Chapter III, Part II. Employment, and thus calculated discharge, in
transportation equipment [SIC 37] is significantly less for the evaluation model
than for reported users of 20 million gallons or more. Examination of components
derived from Dun & Bradstreet reports leads to the inference that aircraft factories
consigned to the transportation equipment industry by the Bureau of Census may
have been reported by Dun & Bradstreet in the ordinance category. The under-
statement has little influence on aggregate values for manufacturing presented in
-------
GUIDELINES AND REPORTS 3481
this report. The user should be aware, however, that in the case of transportation
equipment, total costs are probably under-represented throughout, and by 17 per-
cent or more, if relative employment is a guide.)
The modelling procedure also affects the interregional distribution of dis-
charges, and so of costs. Not surprisingly, the Colorado, Great Basin, and
California regions experience a significant increase in relative dimension when cal-
culated treatable discharge is compared to reported process intake. In those arid
areas, resource constraints act to hold an atypical proportion of manufacturers
below an intake of 20 million gallons a year, and also to promote recycling. In
two of the more humid and less industrialized regions—Southeast and Pacific
Northwest—a substantial increase in treatable discharge, as opposed to reported
total intake, traces to the presence of a larger number of moderate-sized food
processors and a lesser number of wood products factories that would not be
included in an evaluation limited to plants with an intake of 20 million gallons or
more. These five regions, together with the Western Gulf where the high degree
of recycling characteristic of the petroleum-based industries inflates calculated
treatable discharge, all experience a significant expansion of indicated waste treat-
ment costs as a result of the procedures employed (cf. Table 22, Chapter HI, Part II).
[p.110]
TABLE B.—EVALUATION OF INDUSTRIAL WASTE DISPOSAL PRACTICES, 1968
$l,000's in place (1967=100)
SIC
20X
201
202
203
204
2046
205 + 7
206
2063
208
209
20
22X
221
222
223
226
22
24
26X
261
262
263
264
265
266
26
28X
2812
2813
2815
2816
2818
2819
Capital
2,247.4
40,490.0
2,358.0
57,800.0
2,691.7
2,202.4
17,857.0
54,270.0
4,914.0
8,997.0
193,827.5
9,633.9
10,851.0
9,051.0
9,590.0
9,635.0
48,760.9
9,652.2
2,958.0
64,390.0
271,072.0
180,824.0
5,979.0
4,247.0
529,470.0
3,092.7
13,950.0
247.0
37,882.8
6,848.7
105,361.0
36,803.0
Annual O&M
150.9
3,344.8
96.6
4,200.0
192.0
137.7
1,492.5
4,229.0
462.8
443.9
14,750.2
582.7
768.0
625.6
771.1
590.9
3,338.3
704.2
370.0
20,510.0
48,873.0
31,003.8
618.8
654.0
102,029.6
256.3
2,247.0
9.5
3,370.2
397.7
11,540.1
2,794.0
O&M ratio
6.7
8.3
4.1
7.3
7.1
6.3
8.4
7.8
9.4
4.9
7.6
6.0
7.1
6.9
8.0
6.1
6.8
7.3
12.5
31.9
18.0
17.1
10.3
15.4
19.3
8.3
16.1
3.8
8.9
5.8
11.0
7.6
Percent
discharge to
sewers and
to ground
X
70.1
62.1
47.6
40.2
27.1
37.1
42.6
26.0
55.7
39.2
47.7
60.5
25.6
41.3
26.2
33.5
39.1
9.2
....
1.1
4.4
6.1
29.8
48.9
14.4
4.6
....
13.5
4.4
7.5
0.4
2.8
20.8
-------
3482 LEGAL COMPILATION—WATER
TABLE B.—EVALUATION OF INDUSTRIAL WASTE DISPOSAL PRACTICES, 1968, continued
SIC
282
283
284
285
286
287
289
28
29X
29(1)
30
31X
3111
32XX
321
324
325
327
329
32
33X
3310
3312
332X
3321
3331
3332 and 3
3334
33
34
35
36
37
39
$l,000's
Capital
103,220.0
8,427.2
490.8
259.0
2,782.0
10,232.0
13,628.9
343,225.1
342,078.5
2,979.0
16,972.0
1,807.3
6,191.0
2,120.0
3,170.0
6,759.7
20,048.0
13,878.0
33,384.0
156,635.0
1,379.0
4,074.0
1,790.0
5,202.3
216,342.3
93,614.2
14,779.6
23,849.0
17,358.0
885.0
in place (1967 = 100)
Annual O&M
11,293.0
463.7
28.3
8.7
148.1
1,034.0
838.2
34,428.8
73,217.5
287.3
1,704.0
141.7
355.6
145.3
160.5
762.1
1,565.2
1,318.1
2,621.2
32,384.0
66.8
320.8
70.8
265.1
37,046.8
6,151.1
765.2
1,527.0
1,097.6
44.5
O&M Ratio
10.9
4.4
5.8
3.4
5.3
10.1
6.2
10.0
21.4
9.6
10.0
7.8
5.7
6.9
5.1
11.3
7.8
9.5
7.9
20.7
4.8
7.9
4.0
50.9
17.1
6.6
5.2
6.4
6.3
5.0
Percent
discharge to
sewers and
to ground
3.2
18.7
20.1
71.0
4.2
2.1
7.3
6.9
2.6
19.7
69.6
(326) 55.0
(322) 35.0
6.6
6.4
60.0
9.3
25.9
15.1
2.8
2.5
40.4
43.0
37.4
9.8
5.2
4.2
64.7
25.7
65.8
28.3
43.8
[p.Ill]
PLANNED CONSTRUCTION OF MUNICIPAL WASTE TREATMENT FACILITIES
INTRODUCTION
The purpose of this part of the report is to:
—Present results of the 1971 survey of planned construction ac-
tivities for the period FY 1972 through FY 1976;
—Present an estimate of planned construction activity derived by
the facilities evaluation model;
—Compare the 1970 and the 1971 surveys;
—Compare the model and the survey approaches;
—Consider how the construction industry capacity might bear on
the interpretation of the two estimates for 1971;
—Summarize other findings of the 1971 survey with regard to fed-
eral/State requirements, type of facilities, user charges, and em-
-------
GUIDELINES AND REPORTS 3483
ployee requirements;
—And, finally summarize the program accomplishments in the
municipal treatment sector.
[p. 113]
SURVEY OF PLANNED CONSTRUCTION FOR MUNICIPAL WASTE
TREATMENT FACILITIES
The 1971 survey was conducted to update EPA estimates of the
scope and cost of construction of municipal waste treatment facilities,
planned through FY 1976, which communities intend to install to meet
current water quality standards implementation schedules or other
current standards or enforcement requirements.
The survey was directed to 2294 municipalities whose population
was greater than 10,000 persons or whose facilities were serving more
than 10,000 persons. The response rate was excellent with 95.5 per-
cent of the survey questionnaires returned (cf. Table 1). The survey
details and instructions are included in Volume II of this report.
Survey Findings
Summaries and analysis of the various elements of data obtained
through the survey from the 2300 cities contacted are presented
below.
The estimated total cost of constructing planned waste treatment
facilities for the five-year period FY 1972 through FY 1976 for mu-
nicipalities of or serving 10,000 or more persons is just over $14.0
billion. This estimate is based on 1971 construction costs of treat-
ment plants, outfalls, interceptors, and pumping stations. When the
construction activity for communities less than 10,000 is included,
$18.1 billion in projects is planned over the period FY 1972 through
FY 1976. These intentions for FY 1972 through FY 1976 are as
follows:
Billion
Fiscal year dollars
1972 5.28
1973-1974 .... 9.28
1975-1976 . . 3.52
Total . 18.08
Table 2 presents a summary of the survey portion of the $18.1 bil-
lion estimate. The State-by-State summary of the FY 1972 through
FY 1976 intentions shown above is presented in Table 3.
The survey provides an assessment of intended State activities. In
recording recognized improvements, individual communities tend to
be optimistic in the amount of construction activity that will take
place so that the collective expectations of local communities may be
greater than the ability of the construction sector to supply these
-------
3484
LEGAL COMPILATION—WATER
needed facilities. In later years the figures could be less accurate
because many communities do not yet have detailed plans and
specifications for these facilities.
[p. 114]
TABLE 1.—SUMMARY OF SURVEY RESPONSES
Number of
municipalities
contacted
Number of
responses
Number of
responses
Percent indicating
response needs
Totals 2,294 2,191 95.5 1,435
Region I 174 174 100.0 82
Connecticut 48 48 100.0 20
Maine 17 17 100.0 11
Massachusetts 85 85 100.0 38
New Hampshire 7 7 100.0 7
Rhode Island 13 13 100.0 6
Vermont 4 4 loo.O o
Region II 204 187 91.6 119
New Jersey 103 93 90.2 53
New York 100 93 93.0 65
Puerto Rico 1 1 100.0 1
Virgin Islands — — — —
Region III 302 288 95.3 190
Delaware 2 2 100.0 2
Maryland 21 21 100.0 18
Pennsylvania 215 201 93.4 120
Virginia 44 44 100.0 33
West Virginia 19 19 100.0 16
Dist. of Columbia 1 1 100.0 1
Region IV 323 317 98.1 247
Alabama 39 39 100.0 26
Florida 85 85 100.0 71
Georgia 41 41 100.0 27
Kentucky 30 25 83.3 19
Mississippi 28 28 100.0 23
North Carolina 41 41 100.0 29
South Carolina 29 29 100.0 24
Tennessee 30 29 96.6 28
Region V 579 579 100.0 321
Illinois 144 144 100.0 68
Indiana 57 57 100.0 42
Michigan 135 135 100.0 59
Minnesota 45 45 100.0 15
Ohio 153 153 100.0 106
Wisconsin 45 45 100.0 31
Region VI 239 214 89.5 174
Arkansas 23 21 91.3 19
Louisiana 32 28 87.5 23
New Mexico 15 14 93.3 13
Oklahoma 29 28 96.5 25
Texas 140 123 87.8 94
Region VII 105 84 80.0 57
Iowa 25 19 76.0 14
Kansas 41 29 70.7 19
Missouri 27 24 88.8 15
Nebraska 12 12 100.0 9
Region VIII 80 80 100.0 50
Colorado 27 27 100.0 17
Montana 10 10 100.0 8
North Dakota 9 9 100.0 8
South Dakota 8 8 100.0 6
Utah 21 21 100.0 10
Wyoming 5 5 100.0 1
-------
GUIDELINES AND REPORTS
3485
TABLE 1.—SUMMARY OF SURVEY RESPONSES, continued
Number of
municipalities
contacted
Number of
responses
Number of
responses
Percent indicating
response needs
Region IX 193
Arizona 4
California 174
Hawaii 8
Nevada 6
American Samoa —
Tr. Terr, of Pac. Islds —
Wake Island 1
Region X 95
Alaska 2
Idaho 11
Oregon 34
Washington 48
175
4
156
8
6
1
93
2
11
34
46
90.6
100.0
89.6
100.0
100.0
100.0
97.8
100.0
100.0
100.0
95.8
126
4
107
8
6
1
69
2
10
26
31
[p. 115]
-------
3486 LEGAL COMPILATION—WATER
TABLE 2.—ESTIMATED COST OF CONSTRUCTION OF PLANNED MUNICIPAL WASTE TREATMENT
FACILITIES FOR MUNICIPALITIES WITH OR SERVING POPULATIONS OF 10,000 OR MORE, FOR
PERIOD FY 1972-1976, BASED ON SURVEY COMPLETED IN DECEMBER 1971.
Totals 14,014.5
Alabama 68.1
Alaska 12.3
Arizona 14.0
Arkansas 49.8
California 1,743.2
Colorado 62.3
Connecticut 148.9
Delaware 48.9
Dist. of Columbia 108.7
Florida 556.8
Georgia 106.5
Hawaii 60.7
Idaho 23.4
Illinois 1,113.0
Indiana 476.7
Iowa 173.0
Kansas 44.9
Kentucky 115.6
Louisiana 89.8
Maine 62.3
Maryland 668.3
Massachusetts 495.6
Michigan 1,166.1
Minnesota 260.4
Mississippi 31.7
Missouri 255.2
Montana 22.2
Nebraska 88.4
Nevada 40.9
New Hampshire 89.7
New Jersey 1,249.6
New Mexico 18-5
New York 1,272.8
North Carolina 101.9
North Dakota 4.1
Ohio 909.6
Oklahoma 86.3
Oregon 120.0
Pennsylvania 516.7
Rhode Island 36.2
South Carolina 98.1
South Dakota 6-6
Tennessee 158.9
Texas 389.8
Utah 26-0
Vermont °
Virginia 308.9
Washington 153.4
West Virginia 34.0
Wisconsin 176-5
Wyoming 9
Guam 3-°
Puerto Rico 145-3
Virgin Islands °
[p.116]
-------
GUIDELINES AND REPORTS
3487
TABLE 3—SURVEY RESULTS OF ESTIMATED CONSTRUCTION COST OF SEWAGE TREATMENT FACILITIES
PLANNED FOR THE PERIOD FY 1972-1976
[Millions of 1971 Dollars]
Totals
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Dist. of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Guam
Puerto Rico
Virgin Islands
FY-1972
5,278.2
33.5
4.1
10.7
12.5
280.4
23 3
96.2
7.8
62.7
313.0
36.3
15.0
15.7
336.7
161.3
16.8
19.8
46.8
68.5
25.4
201.5
206.5
331.8
142.3
32.5
9.2
13.7
1.8
4
21.3
461.9
17.8
1,047.1
36.6
1.4
277.2
14.4
41.5
187.2
9.9
31.2
9.3
120.6
127.5
14.5
5.3
100.0
38.1
38.2
135.1
1.5
2.2
4.2
8.0
FY-1973-
6,080.0
9.6
26.4
8.9
27.7
930.9
14.4
95.1
8.8
40.9
125.7
89.6
28.5
8.6
332.5
207.2
78.8
28.8
35.0
40.6
100.5
204.0
190.8
523.2
112.1
17.4
160.0
2.7
28.7
30.7
36.9
554.4
12.8
422.4
66.5
3.7
250.3
24.2
72.3
343.3
35.6
29.5
1.7
31.0
165.5
3.5
13.5
243.3
67.8
32.5
97.2
2.4
10.5
48.6
2.5
FY-1974'
3,198.2
9.5
2.3
—
11.3
218.4
8.4
53.5
79.0
—
89.4
15.8
4.6
7.4
240.8
121.7
72.7
5.9
14.3
28.2
15.0
214.6
149.9
307.3
41.5
7.4
71.9
7.8
23.5
10.8
62.8
105.6
.1
140.8
31.3
1.7
313.3
28.5
9.9
259.0
25.7
33.3
2.8
17.4
110.3
2.5
13.5
81.1
23.8
2.1
21.3
—
—
76.0
2.5
FY-1975
2,236.5
7.9
7.5
6.2
10.0
369.0
30.0
—
2.5
—
106.3
—
24.1
.3
382.9
22.1
21.8
3.2
39.5
17.7
35.4
15.7
80.0
100.4
30.8
14.5
38.1
—
24.1
1.3
58.5
299.6
—
102.0
18.2
—
62.7
8.1
13.0
105.8
—
18.8
3.3
11.9
34.4
1.4
6.3
11.0
52.6
23.0
6.6
—
4.1
.8
3.1
FY-1976
1,289.3
5.1
—
1.4
—
340.8
6.1
—
5.6
—
17.0
12.6
—
.4
38.7
27.6
7.2
11.6
27.1
.1
25.0
36.6
—
130.0
12.9
18.2
27.4
3.0
15.7
—
10.5
6.3
—
167.2
1.1
.3
156.8
39.8
12.6
1.2
—
17.8
.9
7.8
11.5
5.5
3.7
61.5
5.8
—
3.9
—
.7
.5
3.8
Total
18,082.2
65.6
40.3
27.2
61.5
2,139.5
82.2
244.8
103.7
103.6
651.4
154.3
72.2
32.4
1,331.6
539.9
197.3
69.3
162.7
155.1
201.3
672.4
627.2
1,392.7
339.6
90.0
306.6
27.2
93.8
43.2
190.0
1,427.8
30.7
1,879.5
153.7
7.1
1,060.3
115.0
149.3
896.5
71.2
130.6
18.0
188.7
449.2
27.4
42.3
496.9
188.1
95.8
264.1
3.9
17.5
130.1
19.9
1 Separate costs for FY 1973 and FY 1974 estimated from FY 1972/1974 total.
[P- H7]
-------
3488 LEGAL COMPILATION—WATER
PLANNED INVESTMENT AS DERIVED FROM THE MUNICIPAL WASTE
TREATMENT FACILITIES EVALUATION MODEL
INTRODUCTION
This section reports the results of the Waste Treatment Facilities
Evaluation model as applied to the current (1971) Municipal Waste
Inventory. The model calculates the value of recognized improve-
ment needs (backlog) and the replacement value of capital in place.
This part briefly states how the model is constructed. A full ex-
planation can be found in The Economics of Clean Water, Volume I,
1970.
The results of the model are then used in an investment scheduling
procedure which calculates the level of investment required to obtain
the level of treatment of public wastes that have been determined by
the States to match in general water quality objectives. Finally, the
various elements of the investment requirements are also compared
to the results obtained in 1969 when a similar model evaluated capital
values and investment needs for 1968.
[p.118]
WASTE TREATMENT FACILITIES EVALUATION MODEL
This model is a mathematical simulation of investment in public
waste handling systems. The model facilitates the calculation of the
value of recognized improvements needed in the treatment or opera-
tion of waste treatment systems as stated in the Municipal Waste
Inventory. It is designed to answer questions regarding the current
amount of recognized waste treatment needs or backlog.
The model correlates a series of equations that define size (as per
capita design flow) to cost (in constant 1957-59 dollars) relationships
for basic waste-handling procedures and equipment. Such cost
functions are found in papers by Robert MichelJ and Robert Smith.2
The model scans the Municipal Waste Inventory for any needs re-
corded. All community and/or municipal waste facilities are entered
into the inventory where either (a) an operational facility, with or
without additional abatement needs, is in place; or (b) the need for a
facility has been identified where none now exists. (Excluded are
unsewered communities and dwellings.)
The model calculates the average cost of installing or constructing
the particular facilities—sized according to a normal statistical dis-
tribution of capacity to indicated load for existing plants in the same
State. The costs are stated in terms of constant dollars. (Sewer and
Sewage Treatment Plant Construction Cost Indices, supplied by EPA,
may be applied to modify price levels.) This procedure supplies the
-------
GUIDELINES AND REPORTS 3489
value of recognized improvements needed in waste treatment or op-
eration of waste treatment systems.
The second part of this modeling technique is a calculation of the
current replacement value of facilities in place. The current replace-
ment value was calculated on the basis of costs experienced in build-
ing facilities with similar design flow and removal efficiencies.
Table 4 presents these two values calculated for each State and
compares the figures with a similar calculation done in 1969. The
figures are in September 1969 dollars and June 1971 dollars. The
figures for 1969 inflated to June 1971 prices by the Sewage Treat-
ment Cost Index are also indicated.
The differences in existing facilities nationally between the years
1968 and 1971 are presented in Table 5 and are reflected in the two
figures for the value of capital in place ($12,392.0 and $18,875.0 mil-
lion in current dollars and $9,421.7 and $11,636.5 million in constant
1957-59 dollars).
1 Construction Cost of Municipal Wasteivater Plants (1967-19691, September, 1969.
2 Cost oi Conventional and Advanced Treatment of Wastewaters, 1968.
[p. 119]
-------
3490
LEGAL COMPILATION—WATER
TABLE 4.—EVALUATION OF CAPITAL IN PLACE AND OF DEFINED NEEDS
Value of works in place ($000,000)
Value of needed works
1968
1971
1968
1971
Alabama 191.8 224.1 122.8 77.3
Alaska 1.5 5.0 8.3 22.0
Arizona 62.9 99.9 20.4 31.0
Arkansas 147.7 183.7 44.6 17.0
California 1,061.4 2,060.7 377.2 530.3
Colorado 228.9 428.9 43.2 58.6
Connecticut 128.8 181.3 73.4 2.7
Delaware 34.5 19.0 3.5 3.5
Dist. of Columbia 46.4 525.1 28.2 4.0
Florida 431.1 456.3 48.4 238.8
Georgia 281.8 303.9 123.8 201.4
Hawaii 23.2 26.1 25.9 25.0
Idaho 80.0 159.4 33.5 14.5
Illinois 686.1 921.3 194.9 78.5
Indiana 431.9 999.9 139.2 151.4
Iowa 285.9 305.5 44.3 34.4
Kansas 254.6 318.3 82.5 64.7
Kentucky 193.9 267.2 16.3 28.1
Louisiana 193.3 166.6 79.2 41.3
Maine 24.7 26.6 91.8 30.2
Maryland 121.9 478.2 28.3 57.8
Massachusetts 141.0 195.4 209.2 50.6
Michigan 348.2 626.5 135.7 371.5
Minnesota 283.2 415.9 54.4 155.8
Mississippi 151.7 149.9 50.0 44.6
Missouri 316.0 335.0 148.8 87.5
Montana 75.5 76.4 22.6 18.6
Nebraska 171.1 194.3 38.2 15.2
Nevada 40.8 76.4 17.0 5.1
New Hampshire 22.5 23.7 61.5 10.8
New Jersey 420.1 379.7 162.0 54.3
New Mexico 98.8 119.9 10.2 24.4
New York 801.0 1,015.2 276.0 578.6
North Carolina 342.7 401.7 101.7 73.5
North Dakota 77.8 76.4 6.6 14.8
Ohio 668.9 1,205.2 229.9 296.2
Oklahoma 236.9 332.1 31.7 33.5
Oregon 171.7 328.9 64.2 36.2
Pennsylvania 585.4 789.5 362.3 231.3
Rhode Island 52.6 82.8 22.9 9.8
South Carolina 156.1 161.7 66.9 59.4
South Dakota 81.0 72.9 13.8 .4
Tennessee 232.5 328.6 71.8 79.6
Texas 882.0 1,440.7 161.5 459.2
Utah 120.8 191.5 28.0 41.5
Vermont 28.7 32.3 40.8 13.0
Virginia 229.4 309.6 65.6 147.7
Washington 197.6 448.4 90.1 98.7
West Virginia 102.0 157.2 74.9 31.5
Wisconsin 350.9 628.2 124.5 187.5
Wyoming 52.7 53.2 8.8 4.4
Guam 0. 0. 0. 0.
Puerto Rico 47.1 68.5 32.6 132.8
Virgin Islands 0. 0. 3.7 0.
Total 12,392 0 18,874.5 4,417.5 5,080.5
Total 15,316.5' 18,874.5 5,460.0' 5,080.5
1 1971 Dollars.
[p. 120]
-------
GUIDELINES AND REPORTS 3491
TABLE 5.—PATTERN OF EXISTING FACILITIES
Number of plants Percent of
per treatment level total plants
1968 1971 1969 1971
Primary
Intermediate
Secondary
Tertiary
Total
2,384
75
9 951
10
12 420
2 119
g
10,154
100
12 381
19 1
.6
80.2
1
100 0
17 0
.2
82.2
8
100 0
Construction cost Current dollars
per mgd of capacity 1969 lgn
Primary 380,700 476,471
Intermediate 380,700 682,033
Secondary 654,480 748,740
Tertiary 1,308,960 925,713
[p.121]
ELEMENTS OF THE INVESTMENT REQUIREMENT
Table 6 summarizes the computed value associated with the various
categories of investment needs, as these were listed in the (1971)
Municipal Waste Inventory and assessed by the evaluation model.
The various categories are:
New plants: preliminary treatment, primary, secondary, tertiary,
and lagoons.
Upgrading: same as for new plants while treatment level is the one
achieved, i.e., treatment level changes.
Other improvements: modification of existing treatment; addition
of nutrient removal processes; addition of color, odor, or taste removal
processes; deep ocean outfalls.
The largest categories of investment needs are for upgrading the
level of existing treatment and enlargement of an existing plant.
Together they constitute $3443.73 million of the total backlog value
and about 3100 individual projects.
A comparison of these figures with those obtained in 1969 (cf. Table
6) shows that there has been a shift away from a need for new plants.
Whereas in 1969, 40.2 percent of the backlog value was found in
costs of building new plants and 54.3 percent for upgrading or en-
larging existing facilities, the recent calculations for 1971 show only
5.1 percent for new plants and an increase to 67.7 percent for upgrad-
ing or enlargement. The other three categories have also increased
as a percentage of the total.
The actual number of different recognized improvement needs in
the categories of Table 6 has decreased while the number of systems
expressing those needs has increased from 13,849 in 1968 to 15,012 in
1971. This information is presented in Table 7 along with com-
-------
3492
LEGAL COMPILATION—WATER
parisons of population served by those communities having needs
over time.
ALTERNATIVE INVESTMENT SCHEDULES
For the immediate future the evaluation model can determine the
level of investment required nationally to obtain the level of public
waste treatment which is needed to meet general water quality
objectives.
The approximate rate at which investment requirements are ac-
cumulating and the amount of the current accumulation of need are
known. Thus,
[p. 122]
a projection procedure is utilized to find the annual rate of invest-
ment that will sustain existing physical capital, meet expansion
requirements, minimize price increases, and eliminate the accumula-
tion of investment requirements that currently exists (backlog).
TABLE 6.—COMPUTED VALUES FOR VARIOUS CATEGORIES OF NEEDS OVER TIME
[millions of current dollars]
Need
Total
1969
1,775.00
1,332.62
1,067.50
27.68
198 28
16.01
4417.55
Percent of
total
40.2
30.2
24.1
.6
4.5
.3
100.0
1971
257.66
1,745.67
1,698.06
467.37
396.48
515.80
5 081,04
Percent of
total
5.1
34.3
33.4
9.2
7.8
10.1
100.0
[p.123]
-------
GUIDELINES AND REPORTS
3493
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-------
3494 LEGAL COMPILATION—WATER
The procedure used takes into account both the existing capital
stock and the following variables which constitute elements of the in-
vestment activity—i.e., growth, recapitalization, and the backlog
of accumulated demands. The procedure also assumes a constant
rate of inflation in construction costs and a constant rate of growth.
Recapitalization, capital in place, and backlog are derivatives of
investment. Recapitalization is calculated as 2.9 percent of capital
in place in any year. Growth needs are calculated to amount in any
year to 3.3 percent of capital in place. To the extent that the invest-
ment covered growth requirements, the value is transferred to capital
in place. Values exceeding available investment are added to the
backlog of unmet needs. The backlog itself is reduced by any amount
that available investments exceed recapitalization and growth el-
ements, or increased as prior demands on a hypothesized investment
exceed the amount of available investment.
INVESTMENT SCHEDULES
Using the figures for value of backlog as $5081 million and for value
of capital in place as $18,875 million obtained from the evaluation
model, this procedure indicates that a $2870.9 million annual outlay
is required to reduce accumulated needs within a five-year period in
which inflation compounds at 7.5 percent annually.
The 1970 rate of inflation in the construction sector was 15 percent;
however, administration efforts to control inflation should bring the
rate of price increases in this sector nearer to the historical rate for
1968-1971, which is approximately 7.5 percent and would give the
following investment schedule:
FIVE-YEAR BACKLOG ELIMINATION SCHEDULE AT 7.5 PERCENT INFLATION
Year
1971
1972
1973
1974
1975.
1976.
Total investment,
"Backlog"
Growth
Recapitalization .
"Backlog" at
year end
5 081 0
3871.2
2,740.9
1 706 1
784 9
0
1972-1976
Growth
691.7
768.1
8530
947.2
1,051.8
Recapitalization
588.4
682 2
777.6
874.6
14 354.5
6,147.0
4,311.8
3,895.7
Investment
2,8709
2,870.9
2,870 9
2,870.9
2,870.9
[p. 125]
Thus the investment scheduling procedure shows that if this in-
flation is held down, the total amount of the investment required to
eliminate accumulated needs within the next five years would be
$14.3 billion. The breakdown by State is shown in Table 8.
[p. 126]
-------
GUIDELINES AND REPORTS 3495
TABLE 8.—MODEL INVESTMENT SCHEDULE INVESTMENT NEEDED TO REDUCE BACKLOG BY 2976
[Millions of 1971 dollars]
Totals $14,354.5
Alabama 201.0
Alaska 28.7
Arizona 86.1
Arkansas 100.5
California 1,550.3
Colorado 258.4
Connecticut 718
Delaware 14.4
District of Columbia 215.3
Florida 502 4
Georgia 387.6
Hawaii 43.1
Idaho 86.1
Illinois 488.1
Indiana 617.2
Iowa 172.3
Kansas 215.3
Kentucky 143.5
Louisiana 129.2
Maine 43.1
Maryland 272.7
Massachusetts 143.5
Michigan 760.8
Minnesota 373.2
Mississippi 114.8
Missouri 258.4
Montana 57.4
Nebraska 100.5
Nevada 43.1
New Hampshire 28.7
New Jersey 229.7
New Mexico 86.1
New York 1,004.8
North Carolina 258.4
North Dakota 57.4
Ohio 890.0
Oklahoma 186.6
Oregon 186.6
Pennsylvania 631.6
Rhode Island 43.1
South Carolina 143.5
South Dakota 28.7
Tennessee 244.0
Texas 1,205.8
Utah 129.2
Vermont 28.7
Virginia 330.1
Washington 315.8
West Virginia 114.8
Wisconsin 502.4
Wyoming 28.7
Guam
Puerto Rico 201.0
Virgin Islands
[p.127]
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3496 LEGAL COMPILATION—WATER
COMPARISON OP THE 1970 AND THE 1971 ESTIMATES OF PLANNED
CONSTRUCTION ACTIVITY
COMPARISON OF SURVEYS
The 1970's survey projected an estimate of $12.6 billion for planned
construction activity (cf. Table 9) in the municipal waste treatment
area. The period covered in the 1970 survey was from December,
1970 through June, 1974, a total of 43 months. Four hundred and
fifty municipalities were chosen on the basis of having projects of $5
million or more. The remaining communities were covered by re-
viewing State program plants.
The 1971 survey results project an estimate of $18.1 billion. The
difference between the $12.6 billion estimate in 1970 and the $18.1
billion estimate in 1971 comes from various sources. Some of the
more pertinent are:
1. The time period in the most recent survey is longer, FY 1972
through FY 1976 or a total of 60 months versus 43 months in the
earlier summary.
2. The 15 percent inflation rate in the cost of construction in the
period between the two surveys.
3. The planned projects were formulated by municipalities to meet
water quality standards, which in certain situations may have become
more stringent.
4. The increasing availability of up-to-date engineering estimates
for projects previously assessed in their rudimentary planning stages.
For example, a project which went under construction in New York
City earlier in 1971 was estimated by the designers to cost about
$100 million. The lowest bid received on the project was about $229
million. Experiences such as these have prompted many communities
to update their cost estimates.
5. More comprehensive assessing and reporting; 2300 communities
in 1971 as opposed to 450 in 1970.
6. Acceleration of construction schedules. The State of California
has advised its communities that the State's Clean Water Grant Pro-
gram is for a five-year period only. All required pollution control
facilities are to be initiated prior to the termination of the program
or they will not receive State assistance. This required the San
Francisco Bay Area, for example, to condense its thirty-year program
into five.
7. The necessity of municipalities meeting water quality standards
and related implementation plans within the next five years. The
enforcement of these requirements is undoubtedly a factor in the
shaping of imminent needs and their associated costs.
[p. 128]
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GUIDELINES AND REPORTS 3497
TABLE 9.—ESTIMATED COST OF CONSTRUCTION OF MUNICIPAL SEWAGE TREATMENT WORKS
FOR THE PERIOD DECEMBER 1970 THROUGH JUNE 1974
[$ Million]
Totals $12,565.2
Alabama 27.0
Alaska 28.1
Arizona 51.0
Arkansas 42.0
California 737.5
Colorado 47.4
Connecticut 229.5
Delaware 62.0
District of Columbia 347.2
Florida 444.2
Georgia 74.0
Hawaii 50.8
Idaho 14.5
Illinois 1,043.6
Indiana 174.8
Iowa 111.9
Kansas 52.7
Kentucky 117.0
Louisiana 132.7
Maine 157.4
Maryand 349.7
Massachusetts 422.6
Michigan 788.8
Minnesota 295.2
Mississippi 34.1
Missouri 268.2
Montana 31.4
Nebraska 49.0
Nevada 47.2
New Hampshire 137.8
New Jersey 1,308.7
New Mexico 19.6
New York 1,721.0
North Carolina 125.3
North Dakota 8.4
Ohio 733.5
Oklahoma 69.8
Oregon 78.6
Pennsylvania 616.4
Rhode Island 37.7
South Carolina 57.6
South Dakota 13.5
Tennessee 88.9
Texas 398.7
Utah 22.6
Vermont 38.0
Virginia 280.1
Washington 216.3
West Virginia 51.4
Wisconsin 190.8
Wyoming 1.7
Guam 9.7
Puerto Rico 93.0
Virgin Islands 14.6
[p-129]
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3498 LEGAL COMPILATION—WATER
8. The rise in the number of tertiary treatment facilities required
to meet water quality standards,
In the past ten years the surveys which were done to assess "needs"
have no consistent definition of their objective 3 so that a historical
comparison of such "needs" estimates is impossible. A comparison
of estimates that take total investment into account are even more
disparate. In the past three years the "needs" estimate has risen from
$10.2 billion to $18.1 billion. Adding the latest survey estimate and
the amount of projects funded ($6.3 billion) in the period between the
two surveys gives $24.4 or a 139 percent increase in these three years
(cf. Table 10).
COMPARISON OF THE MODEL WITH SURVEY RESULTS
The evaluation model results in an estimate of $14.3 billion needed
to be invested during the period FY 1972-1976 in order to overcome
deficiencies in present facilities and to keep pace with growth, capital
replacement, and inflation. On the other hand, the survey result of
$18.1 billion is an aggregation of State and local estimates of their
construction activity during this same period. The basic differences
between the model approach and the survey approach will be dis-
cussed. This will be followed by an ex post evaluation of model
projections, which compares model projections with actual invest-
ment activity. Finally, the projections of the model and the survey
will be evaluated in light of potential construction activity during the
FY 1972-1976 period.
DIFFERENCE BETWEEN MODEL AND SURVEY APPROACHES
There are several basic methodological differences between the
survey and the model:
1. The model uses statistically derived cost function to calculate
the cost of planned construction activity, whereas the survey
3 In 1962 the Conference of State Sanitary Engineers report said $2 billion was needed to
"eliminate the backlog of unmet waste treatment 'needs' ". In 1966, the JEC State and
Local Public Facility Needs and Financing report, also from State Conference, stated $2.6
billion in "needs". In 1969, the FWQA survey of State governments produced $10.02 billion.
In 1970, an EPA survey of State governments and communities indicated a total investment
need of $12.6 billion. In 1971, the same EPA survey reported for communities of served
population of 10,000 or more $14.0 billion or, including all communities, the total "needs"
reach $18 1 billion. Again in 1970, the American League of Cities survey reported over $30
billion in "needs", although the municipalities in this case did not use consistent reporting
requirements and some included costs of facilities other than for waste treatment needs.
[p.130]
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GUIDELINES AND REPORTS
3499
TABLE 10.—CHANGES IN STATE SEWAGE TREATMENT INVESTMENT NEEDS EXPRESSED, 1969-1971
($ MILLIONS)
Needs Projects funded Needs
expressed Jan. 1, 1969 to expressed
1969 Oct. 31, 1971 Nov. 1971
Gross change Percent change
in reeds over 1969
Totals 10,217.1 6,329.4 18,083.0 +14,195.3 +138.9
Alabama 35.0 67.9 65.7 +98.6 +281.7
Alaska 12.0 14.8 40.3 +43.1 +359.2
Arizona 86.0 11.1 27.2 —47.7 —55.5
Arkansas 33.0 18.7 61.5 +47.2 +143.0
California 651.8 309.4 2,139.5 +1,797.1 +275.7
Colorado 133.0 49.2 82.2 -1.6 -1.2
Connecticut 280.5 232.6 244.8 +196.9 +70.2
Delaware 28.0 32.1 103.7 +107.8 +385.0
District of Columbia 355.0 78.6 103.6 172.8 -48.6
Florida 200.0 180.3 651.4 +651.4 +315.9
Georgia 150.0 199.4 154.3 +203.7 +135.8
Hawaii 14.4 11.8 72.2 +69.6 +483.3
Idaho .5 10.6 77.4 +42.5 +8,500.0
Illinois 437.2 261.9 1,331.5 +1,156.2 +264.5
Indiana 152.6 87.9 538.8 +470.1 +308.1
Iowa 33.3 53.3 197.3 +217.3 +652.6
Kansas 61.0 60.8 69.3 +69.1 +113.3
Kentucky 62.6 98.5 162.8 +198.7 +317.4
Louisiana 140.0 ^1.2 155.0 + 76.2 +54.4
Maine 140.9 47.2 201.3 +107.6 +76.4
Maryland 236.9 163.4 672.4 +598.9 +252.8
Massachusetts 438.0 94.3 627.2 +283.5 +64.7
Michigan 253.7 465.4 , 1,392.6 +1,604.3 +632.4
Minnesota 136.3 99.7 339.6 + 303.0 +222.3
Mississippi 40.0 41.0 90.0 +91.0 +227.5
Missouri 390.0 80.4 306.5 -3.1 _.8
Montana 13.5 14.9 27.3 +28.7 +212.6
Nebraska 62.0 28.8 93.9 +60.7 +97.9
Nevada 28.6 19.9 43.1 +34.4 +120.3
New Hampshire 138.0 46.4 190.0 +98.4 +71.3
New Jersey 880.0 208.8 1,427.9 + 756.7 +85.3
New Mexico 9.9 14.4 30.8 +38.3 +35.3
New York 1,900.1 1,512.7 1,879.6 +1,492.2 +78.5
North Carolina 69.3 110.9 153.7 +195.3 +281.8
North Dakota 22.0 4.5 7.1 —10.4 —47.3
Ohio 432.5 347.3 1,060.4 +975.2 +225.5
Oklahoma 65.3 74.6 115.0 +124.3 +190.4
Oregon 135.0 64.2 149.2 +78.4 +58.1
Pennsylvania 432.0 237.6 896.5 +702.1 +162.5
Rhode Island 51.5 11.0 71.2 +30.7 +59.6
South Carolina 75.0 49.1 130.6 +104.7 +139.6
South Dakota 27.0 3.0 18.1 —5.9 —21.9
Tennessee 105.5 89.9 188.7 +173.1 +164.1
Texas 525.0 200.1 449.3 +124.4 +23.7
Utah 11.7 5.2 27.4 +20.9 +178.6
Vermont 70.0 15.4 42.3 —12.3 —17.6
Virginia 151.0 107.8 497.4 +454.2 +300.8
Washington 160.0 101.0 188.1 +129.1 +80.7
West Virginia 44.3 10.8 95.8 +62.3 +140.6
Wisconsin 243.7 160.7 264.1 +181.1 +74.3
Wyoming 12.0 1.8 3.9 —6.3 —52.5
Guam 6.2 6.1 17.5 +17.4 +280.6
Puerto Rico 28.9 52.7 130.1 +153.9 +532.5
Virgin Islands 15.4 9.7 19.9 +14.2 +92.2
[p.131]
-------
3500 LEGAL COMPILATION—WATER
relies on individual communities' knowledge of the cost of planned
facilities. In some communities well-documented and calculated cost
information exist; however, this is not universally true.
2. The model uses statistically estimated growth and replacement
factors, which determine the construction required to maintain the
nation's capital stock of treatment plants and to provide treatment
for additional population and industrial wastes. The growth pro-
jections obtained by the survey for an individual community are
likely to be overly optimistic when compared to the growth of all
communities. The replacement rate (depreciation) is difficult to
assess for an individual community because of the lumpiness involved
in replacement expenditures.
3. The model also includes a specific inflation factor which adjusts
for price increases in construction activities. As noted in the survey
discussion, State and local intentions are expressed in 1971 dollars.
A primary purpose of the survey is to give an indication of each
local government's construction plans in the municipal waste treat-
ment sector. The survey reflects the summation of local activities
which, when viewed in the aggregate, presents an estimate of desired
construction activity which may or may not commence during the
period FY 1972-1976, e.g. compressing of the twenty-year California
program into five years. The purpose of the model is slightly dif-
ferent in that it provides an estimate of the investment activity be-
tween 1972 and 1976 that local governments will be required to
undertake in order to maintain their current growth and replace-
ment needs and make progress toward constructing those facilities
required to meet water quality standards.
HISTORICAL EVALUATION OF MODEL RESULTS
One way to assess the model results is to compare these results with
actual past conditions in the municipal waste treatment facilities sec-
tor of economy.
The demand model based on physical capital and structured to re-
flect the dynamics of investment provided good post hoc agreement
with actual conditions. The "needs" in 1969 were estimated at
$3,201 million in constant dollars (1957-59 = 100). Assuming a
growth rate of 3.3 percent in each year since then:
Growth
($ millions)
1969 416.5
1970 430.4
1971 . . . . 444.5
[p.132]
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GUIDELINES AND REPORTS 3501
and a replacement rate of existing plants of 3 percent:
Replacement
($ millions)
1969 . .. . 282.7
1970 . . . 292.0
1971 . ... 307.0
and subtracting those contracts awarded in each year:
Contracts
($ millions)
1969 . 622.0
1970 . ..... 766.2
1971 . . . 876.0
a "needs" reduction of $91.1 million and a projected 1971 "needs" of
$3,110 million is obtained. This figure compares favorably with the
value $3,132.2 million computed with the model. Also capital in
place in 1968 was $9421.7 million (1957-59 dollars). This value is
reduced by 3 percent annual replacement and increased by the value
of contract awards in each subsequent year, which
Replacement
($ millions) Investment
1969 282.7 622.0
1970 292.0 766.2
1971 307.0 876.0
projects a 1971 capital in place value of $10,804.2 million, as compared
to a computed value of $11,636.5 million.
In sum, this post hoc projection indicates divergence from "needs"
within 1 percent and from capital in place within 8 percent, as com-
pared to a greater than 130 variation percent for the survey.
CONSTRUCTION SUPPLY CAPABILITY
The question of the ability of the construction industry for munic-
cipal waste water facilities to construct the planned investment ac-
tivity must be considered in projecting the level of activity in this
sector. The survey projected $5.28 billion of grant awards on FY
1972 and $18.1 for the five-year period FY 1972-1976, while the
model on the other hand projected a need of $14.3 billion with an
acreage of $2.8 billion contracted annually. Futhermore, there exists
a backlog of $3.4 billion in grants that have been obligated but are not
yet under construction (cf. Table 11), which must be included in an
assessment of construction activity.
[p.133]
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3502
LEGAL COMPILATION—WATER
TABLE 11.—VALUE OF PROJECTS PENDING CONSTRUCTION AND UNDER CONSTRUCTION
AS OF OCTOBER 31, 1971
[$ Millions]
Pending
Construction
Under
Construction
Totals 3,400.3
Alabama 74.5
Alaska 10.9
Arizona 5.5
Arkansas 14.6
California 117.1
Colorado 32.7
Connecticut 34.0
Delaware 24.7
District of Columbia 77.8
Florida 50.9
Georgia 94.6
Hawaii 12.4
Idaho 13.1
Illinois 137.7
Indiana 60.4
Iowa 35.7
Kansas 46.8
Kentucky 45.1
Louisiana 58.9
Maine 25.3
Maryland 114.8
Massachusetts 29.6
Michigan 328.5
Minnesota 71.0
Mississippi 46.1
Missouri 40.7
Montana 14.1
Nebraska 19.5
Nevada 12.9
New Hampshire 12.5
New Jersey 79.9
New Mexico 10.8
New York 640.9
North Carolina 72.9
North Dakota 3.5
Ohio 178.2
Oklahoma 61.7
Oregon 9.6
Pennsylvania 145.3
Rhode Island 2.5
South Carolina 28.4
South Dakota 1.6
Tennessee 26.8
Texas 140.7
Utah 2.5
Vermont 8.7
Virginia 73.1
Washington 64.7
West Virginia 28.5
Wisconsin 121.1
Wyoming .9
Guam 6.1
Puerto Rico 29.7
Virgin Islands .2
4626.9
36.2
17.1
12.3
19.1
229.0
19.3
258.1
16.7
24.4
137.3
157.6
8.3
1.5
163.3
32.0
20.6
13.8
80.7
32.8
34.6
148.8
100.8
178.1
40.0
17.3
108.8
2.3
15.9
7.0
45.4
155.8
5.3
1408.3
50.4
1.3
206.1
32.0
54.5
220.1
23.8
64.6
2.2
80.3
94.8
5.3
10.5
75.7
48.8
4.0
49.6
.9
1.5
39.3
12.8
[p. 134]
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GUIDELINES AND REPORTS 3503
To place the projections of planned activity into perspective, the
recent trends in construction activity, i.e. the lag in starts and com-
pletions, the ability of this sector of the construction industry to ex-
pand, and the inflation experienced in this sector will be discussed.
LAGS
Under present conditions it takes over five years, on the average, to
complete a sewage project. The time lag between when a project is
planned at the State or local level, when a federal grant is obligated,
and when construction begins is widening. In 1957, when federal
financial assistance for sewage construction was initiated, 55 percent
of the value of new starts had been put in place in the same year.
But with each increase in aggregate construction activity, the back-
log of works under construction and works for which funds have been
granted by construction has not yet started has increased.
EXPANSION OF CONSTRUCTION ACTIVITY
Another limiting force for the supply capability is the phased ex-
pansion of the wastewater facilities construction sector. This con-
struction sector, like many economic sectors, contains numerous in-
stitutional constraints which may inhibit the ability to expand to meet
the indicated demand. The recent trends in the expansion of con-
struction activity in the municipal wastewater sector are shown in
Table 12, where the six-year growth rate in construction activity is
slightly over 28 percent in current dollars or 22 percent in con-
stant dollars. The trend in recent years has been one of increasing
activity; nevertheless to reduce the backlog and to keep pace with
the planned construction activity indicated by the survey would
require an unprecedented increase in construction activity.
If the historical trend in new construction activity in this sector
maintains this 28 percent growth pattern (cf. Table 12), then Table
13 shows the projected activity in the next five years to be $18.9
billion. However, if the inflation rate is held down and the trend is
more nearly like the years 1965 to 1970, then the rate of growth in
construction activity would be 25 percent and projected starts would
amount to $17.4 billion.
The survey results state that $18.1 billion in 1971 dollars is planned
in construction activity in the next five years. Add to this the value
of projects pending construction of $3.4 billion, and the survey esti-
mates that total new starts in construction will be $21.5 billion
through 1976. Table 13 of growth figures indicates that such activity
is highly unlikely. Also the survey states that $5.28 billion is plan-
-------
3504 LEGAL COMPILATION—WATER
ned for 1972 and $9.28 billion for 1973 to 1974. To accommodate this
level of activity the
[p.135]
TABLE 12.—FEDERALLY ASSISTED STARTS IN CONSTRUCTION OF MUNICIPAL WASTE
TREATMENT FACILITIES
Year
1965
1966
1967
1968
1969
1970
1971
Total
Millions
365.0
489.6
397.0
671.0
936.9
1,360.7
2 1,700.0
5,950.2
Percent
Gross
34 1
— 18 9
69 0
39.6
45.2
24.9
increase, year to year
Inflation '
3.9
2.9
28
7.3
7.8
15.0
Net
302
— 21.8
66 2
32.3
37.4
9.9
' Source: Sewer and Sewage Treatment Plant Construction Index, Environmental Protection
Agency.
2 Twelve-month estimate.
[p.136]
TABLE 13.—PROJECTED FEDERALLY-ASSISTED STARTS IN CONSTRUCTION OF
MUNICIPAL WASTE TREATMENT FACILITIES
[$ Millions]
Year
1971 . ...
1972 . . . .
1973 . . .
1974
1975
1976
Total for- 1972-1976
28 percent growth
1,7000
2,1760
2 788.0
3,468.0
4,607.0
5,848 0
18 887 0
25 percent growth
1,700.0
2 125.0
2 652.0
3,315.0
4,148.0
5,185.0
17 425.0
[p.137]
construction industry would be required to nearly double annually
or the build-up in work obligated but not under construction would
continue.
On the other hand, the evaluation model estimate of $14.3 billion
plus the $3.4 billion in pending projects adds up to $17.7 billion of
planned construction activity for the next five years. This estimate
assumed 7.5 percent inflation during that period and compares fav-
orably with the historical trend assuming a 25 percent growth rate.
Thus the evaluation model is seen to be a more accurate indicator
of investment needed in the municipal waste treatment area because
it corresponds to both what has happened in the past and what might
reasonably be expected to occur in the future. However, the weak-
nesses of demand modeling should be noted. It fails to reflect some
components of demand which are not known precisely enough to dis-
tinguish qualitative shifts readily. Such shifts are the ratio of plant
costs to ancillary costs; depreciation rates for interceptors, outfalls,
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GUIDELINES AND REPORTS 3505
pumping stations; and the loss of sunk capital through accelerated
replacement and inadaptability of existing plants to higher degrees of
treatment. Also, the composition of the backlog requirements, if not
fully reported in the Municipal Waste Inventory, would also bias
the backlog calculation.
CONCLUSION
An assessment of needs should estimate the investment intentions
of municipalities. In so doing, a precise account of planned con-
struction activity should be taken so as to exclude expectation of such
activities which have a low probability of actually being initiated.
Such an assessment involves a tally of communities' demands, i.e.
activities or projects required to meet environmental regulations and
standards. A study of the supply, i.e., of what the industry is capable
of constructing, is also involved. Both demand and supply con-
siderations must be included to obtain a reliable projection of the
necessary monies for investment in this sector. The preceding an-
alysis demonstrates that the results of the model seems to accommo-
date both of these interacting forces of supply and demand, thus the
figure of $14.5 billion is likely to represent planned construction ac-
tivity during the FY 1972-1976 period. Next year a complete an-
alysis of both supply and demand phenomena will be presented.
[p.138]
ADDITIONAL SURVEY RESULTS FOR COMMUNITIES GREATER THAN 10,000
RELATION OF CONSTRUCTION TO REGULATORY REQUIREMENTS
The responding municipalities were requested to indicate the rea-
son for planning the construction reported. Table 14 shows, in sum-
mary form, the cost of constructing required facilities and the
associated requirements to be fulfilled. It should be noted that ap-
proximately 83 percent of the costs are (nearly) equally distributed
among three requirements, because of (a) locally developed plans,
(b) State-approved implementation schedules, and (c) federally-
approved water quality standards implementation plans.
Approximately $220 million in construction is to be initiated be-
cause of more stringent federally-approved water quality standards,
and over $2.1 billion in construction is required because of enforce-
ment procedures and/or State and federal court orders.
DESCRIPTION OF FACILITIES
Table 15 summarizes the survey results of needed facilities for the
five-year period, by description and type. The details are discussed
below.
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3506 LEGAL COMPILATION—WATER
1. New vs. Modified Works.—Summaries of the responses on the
type of construction planned indicated that approximately 58 percent
of the expected expenditures are for the construction of new facilities
and 42 percent for modifications and improvements. As shown in
Table 15, most of the modifications are for the purpose of increasing
plant capacities and treatment levels.
2. Plants vs. Ancillary Works.—Approximately 53 percent (or $7.4
billion) of the cost of needed facilities is for the construction of new
or improved plants and 41 percent (or $5.7 billion) is for ancillary
works, such as pumping stations, interceptors, and outfall sewers.
The remaining 6 percent is for projects involving individual plant el-
ements (e.g., sludge processing and disposal operations and disinfec-
tion) and nutrient removal facilities. Of the approximately $5.7
billion to be used in the construction of ancillary works, about $3.7
billion is for interceptor sewers.
3. Level of Treatment.—An examination of the costs associated
with the various levels of treatment indicates that of the estimated
$7.4 billion for the construction of new and improved plant facilities,
approximately 5.5 percent (or $405 million) is for primary treatment
[p.139]
TABLE 14.—ESTIMATED COST OF CONSTRUCTION IN ACCORDANCE WITH REGULATORY REQUIREMENTS >.'
Estimated cost of facilities
to be constructed
Requirements ($ billion) Percent
Locally developed plan 3 3.721 27.0
State approved implementation schedule 3.883 28.2
Federal approved water quality standards implementation plan 3.799 27.6
FY 1971 more stringent federally approved WQS 221 1.6
Federal enforcement procedures or actions 1.251 9.1
State court order 781 5.7
Federal court order 104 .8
Total 13.760
Facilities on which no requirement data submitted 254
14.014
1 Based on survey of needs of municipalities with population of 10,000 or more for period FY-72-76.
2 Excludes combined sewer overflow control facilities.
3 With few exceptions, most of the projects identified with this requirement are being planned or
developed in conformance with anticipated Federal and State Standards.
[p.140]
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GUIDELINES AND REPORTS
TABLE 15.—COST SUMMARY OF NEEDED FACILITIES BY DESCRIPTION AND TYPE '
[$ Million]
3507
Description
Primary . .
Intermediate ..
Secondary
Tertiary
Nutrient removal
Plant elements .
Ancillary works.
Totals . . .
New
facility
108 0
4.8
1,512.0
665.1
270.6
281.2
5,208.0
8,049.7
Modification '
35.5
2.3
231.2
10.8
1.6
126.3
58.0
465.7
T]
Increase
in capacity
253 3
22.6
731.0
118.3
2.4
69.9
331.0
1,528.5
IPS
Increase in
treatment level
1.0
52.3
876.9
620.6
17.4
31.0
15.2
1,614.4
Increase in
treatment level
and capacity
9 0
14.1
1,297.5
846.1
33.4
67.6
880
2,355.7
Total
406 8
96.1
4,648.6
2,260.9
325.4
576.0
5,700.2
14,014.0
1 For period FY-1972-76.
! No increase in capacity or treatment.
[p. 141]
facilities; 1.3 percent (or $96 million) for the intermediate levels of
treatment; 62.7 percent (or $4.647 billion) for secondary; and 30.5
percent (or $2.26 billion) for tertiary treatment facilities. Table 14
shows a State-by-State breakdown of needs for tertiary treatment
facilities. It was found that 35 percent of the cost of tertiary needs
are reported in the States of Illinois (22 percent) and Maryland (13
percent). California, Florida, Michigan, New York, Ohio, and Vir-
ginia each reported needs of over $100 million.
4. Nutrient Removal—Phosphate and Nitrate.—The estimated cost
of facilities to be added to existing or proposed plants for nutrient
removal is $325 million. Of this $148 million is for phosphates and
$177 million is for nitrates. Seventy-five percent of the phosphate
removal costs and 45 percent of the nitrate removal costs are pro-
jected for municipalities located in the Great Lakes Region. A State-
by-State breakdown of needs is presented in Table 16.
5. Industrial Waste.—Responding municipalities were requested to
give the percentage of the effluent which, based on flow, can be at-
tributed to industrial waste. Based on the number of need items, 46
percent showed no industrial waste component; for 43 percent of the
needs, the percentage of industrial wastes (based on flows) ranged
from one to 30 percent; the remaining 11 percent were in the 31 per-
cent to 100 percent range. The summary result of applying the ob-
tained percentages to the cost of projects involved indicates that
approximately $2.17 billion of the $14.0 billion in construction pro-
posed for municipalities serving 10,000 or more persons during the
next five-year period is for the purpose of alleviating pollution from
industrial sources.
6. Operation of Proposed Facilities.—Expected facility operation
dates and associated costs for the reporting municipalities are sum-
marized in Table 17. In addition to these, as of November 1, 1971,
-------
3508 LEGAL COMPILATION—WATER
there were $4.6 billion worth of federally-assisted projects under
construction and another $3.4 billion in the preconstruction stages on
which grant commitments had been made.
USER CHARGES
Table 18 summarizes the responses to the inquiry regarding the
method upon which the user charge is based and the year the present
usage rate was established. Fifty-four percent of the municipalities
indicated "hydraulic volume" as the basis for charging and 17 percent
"both volume and quality". Nearly 29 percent indicated the use of
methods other than those identified in the survey.
[p.142]
TABLE 16.—ESTIMATED COST OF TERTIARY TREATMENT, NITRATE AND PHOSPHATE REMOVAL
FACILITIES PLANNED FOR CONSTRUCTION DURING FY-1972-1976, BY MUNICIPALITIES WITH
OR SERVING POPULATIONS OF 10,000 OR MORE
[$ million]
Tertiary Nitrate Phosphate
treatment removal removal
Totals 2,260.24 176.79 148.35
Alabama
Alaska
Arizona
Arkansas 14.80
California 113.46
Colorado 3.70
Connecticut 8.20
Delaware
District of Columbia 31.68 77.01
Florida 157.35 .50 .50
Georgia 37.86
Hawaii
Idaho
Illinois 497.59 54.77 57.25
Indiana 85.81 3.06 14.02
Iowa 14.65
Kansas 7.02
Kentucky 11.17 .36
Louisiana
Maine
Maryland 292.66 55
Massachusetts 47.70
Michigan 112.24 7.15 22.18
Minnesota 11.64 3.14
Mississippi
Missouri 2.83
Montana
Nebraska 7.40
Nevada
New Hampshire 6.50
New Jersey 86.89
New Mexico 11.85
New York 108.66 7.78 28.24
North Carolina 45.12 1.62
North Dakota
Ohio 184.05 3.66 10.20
Oklahoma 37.31
Oregon 5.27
-------
GUIDELINES AND REPORTS 3509
TABLE 16.—ESTIMATED COST OF TERTIARY TREATMENT, NITRATE AN PHOSPHATE REMOVAL
FACILITIES PUNNED FOR CONSTRUCTION DURING FY-1972-1976, BY MUNICIPALITIES WITH
OR SERVING POPULATIONS OF 10,000 OR MORE, continued
[$ million]
Tertiary Nitrate Phosphate
treatment removal removal
Pennsylvania 62.45 12.00 4.86
Rhode Island
South Carolina
South Dakota
Tennessee 5.38
Texas 89.56
Utah 15.00
Vermont
Virginia 124.20 1.55
Washington .70
West Virginia
Wisconsin 16.54 10.50 4.24
Wyoming
Guam
Puerto Rico 3.00
Virgin Islands
[p.143]
TABLE 17—EXPECTED YEAR OF OPERATION OF PROJECTS TO BE INITIATED IN FISCAL YEARS 1972-76 IN
MUNICIPALITIES WITH OR SERVING POPULATIONS OF 10,000 OR MORE
Estimated cost
Year of of facilities
facility operation: ($ millions)
FY-1972 120
FY-1973 1,235
FY-1974 2,932
FY-1975 3,026
FY-1976 3,292
FY-1977 2,152
FY-1978 + 1,257
Total 14,014
[p. 144]
TABLE 18.—NUMBER OF MUNICIPALITIES,' HAVING CONSTRUCTION NEEDS IN THE FY 72-76 PERIOD, WITH
USER CHARGES, AND THE METHOD UPON WHICH CHARGE BASED AND YEAR RATE ESTABLISHED
Year rate established
Prior to 1941
1941-1950
1951-1960
1961-1965
1966-1970
1971
No years indicated
Total
Hydraulic
volume
6
17
148
121
407
150
30
879
Quantity
of BOD
0
0
0
1
2
0
0
3
Basis of usi
Quantity
of solids
0
0
0
0
0
0
0
0
5 charge
Both BOD
and solids
0
0
1
1
3
3
0
8
Both volume
and quality
0
3
23
40
118
78
14
276
Other
9
13
56
70
162
83
73
466
1 With or serving populations of 10,000 or more.
[p.145]
ADDITIONAL EMPLOYEE REQUIREMENTS
Approximately 12,700 additional employees are reported to be
needed in the municipalities surveyed, as a result of the construction
-------
3510 LEGAL COMPILATION—WATER
to be initiated through FY 1976. Of these, 16 percent are for profes-
sional positions, 65 percent for operations and maintenance needs,
and the remaining 19 percent are required to fill administrative sup-
port-type jobs. About 5,700 or 45 percent of the employees will be
needed in FY 1975 and FY 1976. This information is summarized
in Table 19. It is of interest to note that in the March 1972 EPA
Manpower Report to Congress the number of additional employees
needed through FY 1976 was estimated at 13,900. This was based
on information from a different set of sources.
PROGRAM ACCOMPLISHMENTS IN MUNICIPAL WASTE TREATMENT
FACILITIES
In evaluating the progress being made in the nation's water pol-
lution abatement effort it is important to report trends and current
levels in waste production and treatment. The report presents ac-
complishment data for the years 1968-1972. The emphasis of this re-
port will be upon the municipal sector since this is the area in which
the greatest amount of federal activity has been concentrated over
the past years.
The data for 1968-1970 was obtained from the General Discharge
File maintained by the Office of Water Programs. The records for
1971 and 1972 are based partially on data from the file and projections
based on a trend analysis of existing data. The results of this an-
alysis are included in Table 20. The table presents accomplishments
in terms of population sewered and increases in wastes treated. The
table also indicates the level of treatment and the decrease in popula-
tion receiving primary treatment. The percentage of population re-
ceiving treatment has not significantly increased.
The discussion of program accomplishments will be more exten-
sively analyzed in the next year's cost study. The extent to which
the projected expenditures through 1976 will effect these accomplish-
ment measures will be analyzed and presented along with action ac-
complishments for the period.
[p.146]
-------
GUIDELINES AND REPORTS
TABLE 19.—ESTIMATED NUMBER OF EMPLOYEES NEEDED TO MAN FACILITIES,'
PROPOSED FOR CONSTRUCTION DURING FY 72-76, AND FISCAL YEAR FACILITIES
EXPECTED TO BE OPERATIONAL
3511
Categories of employment
Fiscal year
1972
1973 .
1974
1975 . . .
1976 . ...
1977
1978
1979
1980 +
Totals
Professional
51
350
494
. . 461
354
. . 189
75
.... 33
10
..2,017
. . 15.9
Operation and
maintenance
139
1,207
3,323
1,972
1,343
666
371
191
38
8,250
65.1
Other
36
401
687
535
348
225
130
34
13
2,409
19.0
Totals
226
1,958
3,504
2,968
2,045
1,080
576
258
61
12,676
100.0
Percent
1.8
15.5
27.6
23.4
16.1
8.5
4.6
2.0
.5
100.0
1 For municipalities with or serving populations of 10,000 or more.
[p. 147]
TABLE 20.—PROGRAM ACCOMPLISHMENTS
1968 1969
1970
1971'
1972'
Sewered population (millions, persons)
Waste strength gross wastes treated by municipal
plants (milhon/pounds/year BOD's)
Level of treatment (percent):
Sewered population untreated
Sewered population primary
Sewered population secondary
Sewered population advanced
. 140
.14,137
7
31
62
, <1
144
14,773
7
30
63
<1
148
15,438
6
28
66
<1
152
16,133
6
25
68
<1
156
16,859
5
24
70
<2
1 Based upon Historical Growth Trends 1962-1970.
[p.148]
ENVIRONMENTAL AND ECONOMIC BENEFITS AND COSTS
RELATED TO VARIOUS WATER POLLUTION ABATEMENT STRATEGIES a
Attention to the marginal benefits and costs of various treatment
levels is necessary to insure that the water pollution goals sought are
defensible in terms of their net benefit to society. The subsequent
analysis of the marginal costs and benefits to attention levels of treat-
ment suggests:
—Because costs accelerate rapidly as higher levels of treatment are
achieved, the total cost of meeting very high levels of treatment
approaching zero discharge could be many times those required
to meet current water quality standards.
—The improvement in beneficial uses of waters from such expendi-
tures are likely to be modest compared to the costs. All the
pollution parameters of concern have not yet been converted to
water quality standards so that any current estimates are likely
to be low.
-------
3512 LEGAL COMPILATION—WATER
—A number of adverse environmental impacts would occur such as
higher energy consumption and solid waste problems.
—Large resources devoted to achieving small increases in water
quality benefits have the effect of withdrawing resources from
other environmental efforts or other national priorities.
ABATEMENT COSTS
Rising Marginal Costs
Although control techniques and costs vary greatly by source, there
are basic operational and technical factors which result in similar
control costs curves for most sources. These control costs increase
rapidly as higher levels of control are achieved.
The principle levels of municipal waste treatment are usually
described as:
—secondary treatment which removes 85-90 percent of oxygen-
demanding wastes (BOD) and suspended solids by physical and
biological treatment methods;
—chemicals addition to secondary removes 90-95 percent of BOD
and suspended solids along with 80-90 percent of phosphates;
1 Summary of "Environmental and Economic Benefits and Costs Related to Various Water
Pollution Abatement Strategies", paper prepared by EPA and CEQ.
[p. 149]
—tertiary treatment2 which removes 95-99 percent of BOD, sus-
pended solids and other pollutants, ranging in cost and treatment
levels from two-stage line clarifications, activated carbon absorp-
tion, to reverse osmosis; and
—zero discharge which removes all pollutants and may be accom-
plished by complete distillation or wastewater recycling.
Industrial treatment levels are often described similarly, although
the types of wastes and abatement levels can be quite different.
Also, abatement from industrial wastes and abatement levels can be
quite different. Furthermore, abatement from industrial wastes can
in part be accomplished by production process changes and improved
internal management, as well as, end-of-the-line treatment.
Rising Incremental Costs
Figure 1 is illustrative of cost curves for both municipal and indus-
trial water pollution control. Because industry has more alternatives
which can be used to achieve pollutant reduction, the curve is not
completely accurate. It is probable that in most industries, the costs
of abatement would be less at the lower levels of reduction because
process changes and better waste management be employed. But at
higher levels of control, additional waste treatment will be required
-------
GUIDELINES AND REPORTS 3513
as represented by the cost curve shown (cf. Figure 1). In other
words, the difference between control costs at high levels over those
at lower levels will be greater than that shown in Figure 1.
These rapidly accelerating costs are illustrated in Table 1. As the
table indicates, the cost of reducing the last increments of pollutants
are much greater than lower levels of treatment. For example, a
10 percent increase in treatment—from 85 to 95 percent—would raise
investment costs by 50 percent; while another 3 percent increase
would raise costs by the same amount.
Total Costs
Table 2 illustrates the capital, operating, and annualized costs that
would be incurred during 1971-1981 to achieve levels of effluent
reductions for municipalities.
Table 3 illustrates the capital, operating, and annualizing costs that
would be incurred during 1971-1981 to achieve various levels of efflu-
ent reductions for industry.
2 In some cases, land disposal of liquid effluents may also be used. This method is ap-
proximately equivalent to tertiary treatment. EPA has several studies currently being con-
ducted in this area and is cooperating in a pilot project in Muskegon County, Michigan.
Though not applicable throughout the nation, in appropriate areas the costs would seem to be
nearly equivalent to the alternative treatment methods.
[p. 150]
-------
3514
LEGAL COMPILATION—WATER
FIGURE 1
TOTAL CONTROL COSTS AS A FUNCTION OF EFFLUENT CONTROL LEVELS
Index of
Control Costs
(in $)
100
50
40
30
20
Percent
Reduction
100
99
98
95
85
Source: Interior 1965 Saline Water Conversion Study
Young and Pisano: "Nonlinear Programming Applied to Regional
Water Resource Planning".
FWPCA: Cost of Clean Water, 1968, Volume I.
FWQA: Cost of Clean Water, 1970, Volume IV.
[p.151]
TABLE 1.—INDEX OF POLLUTION CONTROL INVESTMENT COSTS RELATED TO LEVEL OF ABATEMENT
Level of removal
(percent)
100
99
98
95
85
Increased percent
of removal
1
1
3
10
—
Cost Index
500
250
200
150
100
Cost per increased
percent of removal
250
50
17
5
— •
[p.152]
-------
GUIDELINES AND REPORTS 3515
TABLE 2.—MUNICIPAL COSTS
[Dollars in billions]
Level of removal
(percent)
100 (zero discharge)
High levels of chemical and
physical treatment:
80 at 95 to 99
20 at 100
95 to 99
85 to 90 (roughly current program)
Capital
investment
expenditures'.2
. . . 59 5
29 0
21.3
... 10.6
Operating
costs
82.3
43.4
33.6
16.2
Total
expenditures
141 8
72.4
549
26.8
Annualized
costs in 1981 3
10 6
7.0
42
2.0
1 Assumes investment put in place by 1981.
2 Includes only treatment costs. Interceptors and other facilities related to treatment and eligible
for federal grants would raise each of the figures in this column by $12.0 billion.
3 Depreciation over 25-year life, interest at 6.0 percent, and operating costs in 1981.
[p.153]
TABLE 3.—INDUSTRIAL COSTS
[Dollars in billions]
Level of removal
(percent)
100 (zero discharge)
High levels of chemical and
physical treatment:
80 at 95 99 3
20 at 100
95 to 99
85 to 90 (roughly current program)
Capital
investment
expenditures'
35 0
182
14.0
... 7.0
Operating
costs
139.7
66.7
49.9
27.0
Total
expenditures
174.7
84.9
63.9
34.0
Annualized
costs in 1981 2
10.5
5.4
4.2
2.1
1 Assumes investment put in place by 1981.
2 Depreciation for 2 years, interest at 8.0 percent, and operating costs in 1981.
3 Interpretation of goals in Senate Public Works Committee report.
[p.154]
It should be noted that the ratio of operating costs to capital costs
is roughly four to one for industrial waste treatment while it is about
one to one-and-a-half for municipal treatment. In both cases, this
illustrates the heavy commitment to operating as well as capital costs
that result from higher levels of abatement.
Table 4 summarizes the total costs to society of achieving the
various levels of pollutant reduction.
BENEFITS ACHIEVED AT VARIOUS LEVELS OF ABATEMENT
The ultimate goal of any pollution control program is to achieve
certain environmental quality objectives. These goals have tradi-
tionally been set forth in standards of quality that deal with prevent-
ing adverse effects or achieving certain beneficial uses. For example,
higher water quality provides such beneficial uses as water supply,
recreation, and fish and wildlife. The least costly method meeting
these objectives is to tailor effluent reductions to meet those ambient
objectives. To the extent the effluent reductions are more stringent
than those which are required, excessive costs are incurred need-
-------
3516 LEGAL COMPILATION—WATER
lessly. This is particularly true at high control levels where control
costs escalate very rapidly.
In order to assess the level of improvements in ambient conditions,
it is necessary to understand the general relationship between am-
bient improvements, their associated benefits, and the costs to achieve
them. A study of cost and benefits in the Delaware Estuary per-
formed by the Federal Water Pollution Control Administration
illustrates the relationship of benefits to costs.
Index of Index of
Dissolved costs of recreational
oxygen (mg/1)* control benefits
6.5 575 128
5.5 320 115
5.0 150 105
4.0 100 100
* Approximate values, although this factor and others varied by area within the estuary.
These data are presented to indicate the rapidly increasing mar-
ginal costs at higher levels of abatement and the lesser increases in
benefits at such levels of control. The costs for the highest levels of
dissolved oxygen assume control between secondary and tertiary
treatment. Full tertiary treatment, i.e. a form of best available tech-
nology, would escalate the cost greatly with very little increase in
benefits. A total no-discharge requirement would push the costs
still higher.
The Delaware study is now nearly a decade old. EPA recognizes
the paucity of information concerning economic measures of benefits
[p. 155]
TABLE 4.—TOTAL NATIONAL COSTS'
[Dollars in billions]
Ten-year
Level of removal capital
(percent) expenditures'
100
80 at 95 to 99
20 at 100
95 to 99
85 to 90 (roughly current program) .
. . 94.5
,.472
. . 35.3
. . 17.6
20-25 year
operating
costs
220.0
110.1
83.5
43.2
Total
expenditures
316.5
157.3
118.8
60.8
Annualized costs
in 1981
21.1
12.4
8.4
4.1
' Excludes $12.0 billion costs for intercepting sewers.
[p.156]
and is making a concerted effort to refine costs and develop method-
ologies for quantifying benefits. Currently EPA is participating in an
effort by the Water Resource Council to develop guidelines for
cost-benefit analyses.
The effect of imposing large costs to achieve small increases in
-------
GUIDELINES AND REPORTS 3517
water quality benefits will have the effect of withdrawing resources
from other environmental efforts or other national priorities. For
example, it will be necessary to devote large sums of money to control
air pollution, strip mining, oil spills and to achieve other environ-
mental goals. Also large resources will be necessary to meet other
high priority national goals. The extent to which inordinately high
amounts of money are devoted to small improvements in water
quality will cause other national priorities to suffer.
[p.157]
4.2 SELECTED REPORTS
4.2a Federal Laws Affecting Rivers and Harbors Works, A Lecture
Given by Judge G. W. Koonce, O.C.E. Before the Company
Officers Class, the Engineering School, Ft. Humphreys, Va.,
April 23, 1926
FEDERAL LAWS AFFECTING RIVER & HARBOR WORKS
A lecture given by,
JUDGE G. W. KOONCE, O.C.E.
Before the Company Officers Class
THE ENGINEER SCHOOL
FORT HUMPHREYS, VIRGINIA
April 23, 1926.
I count myself most happy, Gentlemen, to have the privilege of
addressing so many of the representatives of that branch of the public
service with which I have been identified for practically the entire
period of my adult life. On the llth of November next, I shall have
completed practically 40 years of continuous service in the Engineer
Department; and it has been my good fortune to have known, person-
ally, and officially, all the heads of that Department from Duane to
Taylor, and to have enjoyed intimate acquaintance and association
with many other distinguished officers of the Corps of Engineers,
whose zealous and unfailing devotion to public duty and whose
notable achievements in the conduct of important and useful public
works are deserving of the lasting appreciation of the Nation. During
these 40 years I have been charged with duties in connection with
navigable waterways; and chiefly, with the consideration of questions
involving the study, interpretation, and application of laws relating
to their improvement and protection.
-------
3518 LEGAL COMPILATION—WATER
It is accepted doctrine that both public and private rights attach
to navigable waterways, and in this country such waterways are
affected by both a National and a State interest. In any discussion
of Federal laws enacted for the conservation of the National interest,
it would seem appropriate to trace the history of this doctrine, which
begins with the common law of England. Originally, by the common
law, the King was vested with absolute title and dominion over all
tide waters and the land under them within the Kingdom of England,
and a subject could acquire a right in either land or water only by
grant from the King. By magma charta, that famous charter of lib-
erties wrung from King John at Runnimede, the people at large se-
cured the recognition of two important rights in tide waters, namely,
those of navigation and fishery; and this had the effect, substantially,
of converting the King's title and dominion over such waters and
the soils under
[p. 3]
them into a trust for these public purposes. Recognition was
also secured by the people of a right of navigation, above the
ebb and flow of the tide, in all rivers which were capable of such
use, or in other words, were navigable in fact. Thereafter, title to the
land and water in the space between high water mark on each side
of a river was vested in the King merely as a prerogative right inci-
dent to the power of government, and was held by him in trust for
the public easement, or rights of navigation and fishery, the power
to regulate and control which was vested in Parliament as represent-
ing the people. Upon the settlement of the American Colonies these
rights passed to the grantees in royal charters in trust for the com-
munities established. When, as a result of the Revolution, the orig-
inal thirteen States established their independence they automatically
became vested with all the sovereign rights and powers of the gov-
ernment of Great Britain and with the title and the dominion of the
navigable waterways and the lands under them within their respec-
tive borders. This exclusive control over navigable waters, their
shores and beds, resided in the several States up to the ratification of
the Constitution of the United States. Prior to ratification the States
also possessed the power to regulate commerce between themselves
and with foreign Nations, but by such ratification they transferred
this portion of their sovereign power to the United States.
Many causes induced the original thirteen states to change from
a loose confederation, as it existed during and immediately subse-
quent to the revolution, into a firmer and more perfect union, but
there was none perhaps so potent as the generally recognized neces-
sity for better central governmental regulation and control of in-
-------
GUIDELINES AND REPORTS 3519
terstate trade and traffic. This seems to have inspired the incipient
measures, the first concerted movement which resulted in the adop-
tion of the present Constitution of the United States. At the city
of Annapolis in the month of September, 1786, a meeting of com-
missioners appointed by some of the principal States was held, "to
take into consideration the trade and commerce of the United States;
to consider how far a uniform system in their commercial inter-
course and regulations might be necessary to their common interest
and permanent harmony; and to report to the several States such
an act relative to this great object as, when unanimously ratified
by them, would enable the United States in Congress assembled
effectually to provide for the same." This meeting which was
attended by many able men including James Madison and Alexander
Hamilton, without attempting any definite action, adopted an address
to the States recommending a future convention with enlarged powers
for formulating a constitution. As
[p. 4]
one of the reasons for this recommendation the commissioners say
that "in the course of their reflections on the subject, they have been
induced to think that the power of regulating trade is of such
comprehensive extent, and will enter so far into the general system
of the Federal Government, that to give it efficacy, and to obviate
questions and doubts concerning its precise nature and limits, may
require a correspondent adjustment of other parts of the Federal
system." Out of this recommendation came the Constitution of the
United States, and thus the great original and moving object of its
establishment was to confer on the General Government the power
to regulate commerce.
Congress shall have power to regulate commerce with foreign
nations, among the several States, and with Indian tribes, is the
language of the Constitution, and by this provision there was trans-
ferred from the States to the Federal Government the control of
all the navigable waters of the country for the purposes of navi-
gation. All other rights and interests in waterways which the States
originally possessed were, however, reserved to them. The several
States still have proprietorship and sovereignty over the beds and
shores of the streams, and water courses within their borders, and
within certain limitations the power to regulate the manner and ex-
tent of their use. The property rights of a riparian owner in these
areas, as between himself and the State, or between himself and
other persons, are subject to State authority, and may be such as the
legislature may prescribe. It must be said, however, that all State
and private rights in the subject are more speculative than substantial,
-------
3520 LEGAL COMPILATION—WATER
for while the National Government acquired by the Constitution
no property in the shores and beds of watercourses, nor in the waters
flowing therein, it did acquire an easement for the benefit of com-
merce and navigation. This easement is dominant and controlling,
and the rights of the State, as well as of the riparian proprietors, to
the use and enjoyment of the body of a navigable stream and the soil
thereunder in any manner whatever, are subordinate thereto. As
expressed by the Supreme Court, whether the title to the submerged
lands of navigable waterways is in the State or in the owners of the
adjacent upland, it was acquired subject to the rights which the public
have in the navigation of such waterways; and whatever the nature
of the interest of a riparian owner in the submerged lands may be,
his title is a qualified one, a barren technical title, not at his absolute
disposal, but to be held at all times subordinate to such use of the
lands as may be consistent with or demanded by the public right of
navigation. As Congress is vested with supreme authority to assert
and to conserve the public right of navigation, it
[p. 5]
is clearly within the power of Congress to determine to what extent
and in what way the States and private owners may exercise their
property rights both in the soil and in the water, and this is tanta-
mount nearly to absolute Federal ownership. Hence such rights are
at best shadowy, of uncertain value, and incapable of definite
measurements. They exist undoubtedly, but it would take more
than a prophet to foretell what Congress may do regarding them,
and no good lawyer would venture an opinion as to their value.
We venerate our Constitution, Gentlemen, as a perfect product
of human wisdom perfectly expressed, and so far as it goes in es-
tablishing a frame of government, and providing for tenure of office
or distribution of duties, it may be cited as an instrument of precise
import. But so far as it leaves anything for interpretation and con-
struction, anything for argument, implication, or inference, it seems
always to have been "a charter wide withal as the wind," and one
as to whose meaning the weather-cock of the hour as well as the
wisest of our statesmen and jurists have held and still hold conflict-
ing theories. The power to regulate commerce is probably the
largest and most comprehensive of the powers conferred on Congress
by the Constitution, and many disputable questions have arisen as
to the extent and scope of its application. Its application has been
constantly extended by legislative and judicial construction, until
in these latter days it has been made to cover almost everything
from the manufacture of tomato sauce to the suppression of itinerant
sexual immorality. That it conferred upon Congress by implication
-------
GUIDELINES AND REPORTS 3521
authority to regulate navigable waterways has never been ques-
tioned, as such waterways have been in all ages the natural media for
commercial intercourse. It was a maxim even of the common law,
that the public easement of navigation bears a perfect resemblance
to public highways. It is a singular fact, however, that in the early
days of the Government, it was seriously doubted that the power to
regulate, comprehended the right to improve, or in other words, that
the improvement of rivers and harbors was a subject of national
concern and of constitutional appropriation. In the first Congress
an act was passed providing for the future support and maintenance
at Federal expense, of lighthouses, buoys, beacons, and public piers,
for rendering the navigation of bays, harbors, and ports easy and
safe, and thereafter, appropriations were made from time to time
for the construction and placing of these instrumentalities. But
actual improvement was left to the States, and the strict construc-
tionists of that day continued, for a long period, to draw distinctions
between the erection of lighthouses and beacons and the improvement
[p. 6]
of harbors, between the marking of obstructions and removing them.
The absurdity of this discrimination became apparent in the course
of time, and the principle came to be recognized that it was as logical
for the National Government to remove a rock, or a ledge of rocks,
from the pathway of vessels as it was to build a lighthouse by which
they may descry such rocks and sail safely and easily around them.
The first distinct act of Congress for improving navigation was that
of May 24, 1824, entitled an act to improve the navigation of the
Ohio and Mississippi Rivers. An appropriation of $75,000 was pro-
vided for removing sand bars from the Ohio, and planters, sawyers,
and snags from the Mississippi. It is interesting to note that after
the lapse of 100 years, the improvement of these two rivers is still
being actively prosecuted, and that such improvement still includes
the operation of snagboats and dredgeboats.
About this time the luminous decision of Chief Justice Marshall
in the case of Gibbons vs. Ogden was announced, and this decision
scattered into thin air all the curious, not to say absurd, distinctions
and differences that had been set up during the preceding 35 years of
the Government's existence. It established clearly and indubitably
the exclusive power of Congress with respect to the interstate water-
ways of the country, and the principles declared have been reaffirmed
in an unbroken line of judicial decisions, and have been the basis of
all subsequent legislative action regarding them. These principles
are, perhaps, most concisely yet comprehensively expressed in the
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3522 LEGAL COMPILATION—WATER
opinion rendered by Mr. Justice Swayne in the case of Oilman vs.
Philadelphia, 3. Wallace, 724:
"Commerce includes navigation. The power to regulate com-
merce comprehends the control for that purpose, and to the ex-
tent necessary, of all the navigable waters of the United States
which are accessible from a State other than those in which they
lie. For this purpose they are the public property of the nation,
and subject to all the requisite legislation by Congress. This
necessarily includes the power to keep them open and free from
any obstruction to their navigation, interposed by the States or
otherwise; to remove such obstructions when they exist; and to
provide, by such sanctions as they may deem proper, against the
occurrence of the evil and for the punishment of offenders. For
these purposes Congress possesses all powers which existed in the
States before the adoption of the National Constitution, and
which have always existed in the Parliament in England. It is
for Congress to determine when its full power shall be brought
[p. 7]
into activity, and as to the regulations and sanctions which shall
be provided."
The sound reasoning and unanswerable conclusions of the court
in the case of-Gibbons vs. Ogden made a profound and convincing
impression upon public thought, and thereafter it was generally
recognized that the lifting of a snag, the removal of a sand bar, or
the building of a breakwater, is a national work, with a national
character and a national consequence, and a proper subject of
national appropriation. It marks the birth of a permanent Federal
policy of river and harbor improvement, a policy limited in scope
at first, but which has grown and broadened from year to year with
the advance of population and the increasing needs of commercial
transportation, until today the projects of navigation improvement
range from the bays and broad armed ports where "rich navies ride"
to the small streams, creeks, and inlets over which the products of
the farm are carried in flatboats and rafts. It is, perhaps, unnecessary
to say that the Corps of Engineers have been associated with every
feature of these improvements. The making of surveys, the develop-
ment of plans, and the actual prosecution of the work, have been
intrusted to the officers of that Corps from the early days, and our
commodious harbors, enlarged channels, artificial canals and slack-
water systems are enduring evidences of their energy, training, and
skill. The utilization of their services in the conduct and direction
of these important civil works has proven most wise and in respect to
both the value and economy of accomplishment has resulted in
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GUIDELINES AND REPORTS 3523
marked advantage to the Government. It is safe to say, that no better
system could have been devised in the beginning, or is conceivable
today.
While a broad and systematic policy of river and harbor improve-
ment was early adopted and pursued uninterruptedly in the succeed-
ing years, it seems not to have occurred to the legislative mind that
protection of waterways from trespass and obstruction was as vital
and important as improvement. It was well understood of course
that the power of Congress to regulate and improve navigable waters
included the power to keep them open and free from obstructions
to their navigation, to remove such obstructions as exist and provide
against their recurrence; and that it was for Congress to determine
when its full power would be brought into activity. Nevertheless,
it is a historic fact that for nearly a century this power which clearly
existed in Congress lay dormant and unexercised. In the meantime,
while the Government was expending hundreds of millions of dollars
to increase the facilities of navigation, interested parties, including
States,
[P. 8]
corporations and individuals, were placing obstructions and
impediments of all kinds in and across the improved waterways.
The necessity for Federal legislation to protect these waterways from
impairment and ultimate destruction eventually became urgent.
Prior to 1890, the efforts along this line were sporadic, fragmentary,
and directed chiefly to the suppression of some obnoxious local prac-
tice, or the curing of some special evil. The first general legislation
assuring Federal jurisdiction and authority over the protection of
navigable waters was enacted in the river and harbor act of Sep-
tember 19, 1890. The proceedings in connection with the origin and
ultimate form of this legislation are somewhat peculiar. The Engi-
neer Department had prepared and submitted to Congress a bill
covering the entire subject, which was passed by the Senate early
in the session, favorably reported by the House Committee, and
placed on the House Calendar without further action. It was offered
in the Senate as an amendment to the river and harbor bill then
pending, but there was much objection to it on the part of Railroad
and other interests, and it was excluded on a point of order that it
involved general legislation on an appropriation bill which was in
violation of an existing rule. When the river and harbor bill was
passed and went to conference, the conferees took the Engineer
Department bill and with many changes in phraseology and arrange-
ment inserted it as an Amendment to the former bill. As finally
enacted the law was crude, ambiguous, and difficult to interpret, and
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3524 LEGAL COMPILATION—WATER
its administration was in many respects unsatisfactory and ineffectual.
To use the language of Attorney General Olney the entire law was
infelicitously, not to say clumsily, drawn. Experience soon showed
the inadequacy of the law, and the department felt that piece-meal
amendment was not desirable, but that its complete revision and
enlargement should be secured at the first opportunity. Recital of
how this was accomplished involves some personal allusion to my-
self for which I hope I may be pardoned.
In 1896 when the Committee on Rivers and Harbors had com-
pleted the rough draft of its bill I was designated by my chief,
Colonel Mackenzie, at the request of the Chairman to go over the
bill with the Committee and assist in getting it into final shape for
introduction. All afternoon and evening we were engaged in blue-
pencilling the measures, completing our labors about 2 o'clock in the
morning. As everyone appeared to be in a genial mood, superinduced
by the consciousness of work well done, it occurred to me that this
was a propitious time for the first step toward securing a modification
of our imperfect law. I suggested to the Chairman that the bill
needed just one more provision to make it
[p. 9]
perfect, and thereupon prepared and presented for his consideration
a provision directing the Secretary of War:
To cause to be prepared a compilation of all general laws that
had been enacted from time to time by Congress for the maintenance,
protection, and preservation of the navigable waters of the United
States, and to submit the same to Congress with such recommenda-
tion as to revision, emendation, or enlargement of the said laws as in
his judgment would be most advantageous to the public interest.
This was accepted by the Committee and was made section 2 of
the act of June 3, 1896. Immediately after the passage of the act I
took up the, to me, very agreeable task contemplated by this section.
All the previous laws were carefully compiled and studied, and a
complete bill was drafted covering all phases of the subject, and
embodying such changes and additions as the experience of the
department, through a long period of administration, showed to be
essential for the effective conservation of the interests of navigation.
This bill consisting of 13 sections was submitted to a number of the
ablest and most experienced of our engineer officers for consideration
and suggestive criticism, and was approved by them. It was trans-
mitted to Congress by the Secretary of War February 10, 1897, and
was printed as House Executive Document No. 293, of that session.
It was hoped that the bill would be given early consideration and
enacted as an independent measure from any appropriation bill, but
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GUIDELINES AND REPORTS 3525
it slumbered unnoticed for nearly three years, and when we had
about concluded it would never receive any attention whatever, it
was taken up and passed in the most unexpected manner. On a day
when the river and harbor bill of 1899, which had already been passed
by the House, was nearing final action in the Senate, Colonel
Mackenzie received a short note from Senator Frye, then Chairman
of the Senate Commerce Committee, suggesting that if the depart-
ment had any special matter it desired included in the pending bill,
it be sent to him at once. Without a moment's delay we cut the
printed bill from a copy of the House Document, eliminated the en-
acting clause, changed the section numbers, and dispatched it to
Senator Frye with a special memorandum of explanation. He im-
mediately presented it in the Senate as a Committee amendment—
it was incorporated in the bill and accepted by Congress without the
change of a word and practically without debate or discussion. Thus,
Gentlemen, was born sections 9 to 20 of the river and harbor act of
March 3, 1899, whose collective provisions have ever since con-
stituted the Federal statute for the protection of navigable waters.
It was intended to be, and is, an assertion of police power to protect
from physical injury
[p. 10]
those highways of commerce in which the Federal Government
has dominion and propriety, and within its comprehensive provi-
sions are embraced all forms and varieties of physical ob-
structions. An examination and study of the law will impress
anyone with the organic and far reaching character of the
jurisdiction asserted, and with its evident value both as a preventive
and remedial measure. In approaching a discussion of some of the
provisions of the law of 1899 applicable only to the navigable waters
of the United States, it may be pertinent to inquire what are the
navigable waters of the United States, to which they apply. It may
be stated as a general as well as an exact proposition that all waters
which are in fact navigable, and which are accessible from a State
other than that in which they lie, are subject to the dominion and
regulation of the National Government. This embraces without
question, the harbors, bays, and other bodies of water flowed by the
tide, as likewise the Great Lakes and important rivers extending
throughout the country. Many of our rivers, however, are of un-
certain and variable navigability, and hence all streams denominated
rivers are not necessarily to be classed as navigable waters of the
United States. As defined by the courts:
A river is navigable in law when it is navigable in fact, and it
is navigable in fact when it affords, in its ordinary condition, a
-------
3526 LEGAL COMPILATION—WATER
channel for useful commerce of substantial and permanent charac-
ter conducted in the customary modes of trade and travel on water.
A navigability that is merely theoretical or potential, or one that
is temporary, uncertain, precarious and unprofitable, is not sufficient;
but to be navigable in fact a watercourse must have practical useful-
ness to the public as a highway for the transportation of the products
of the country—for the safe and convenient passage and repassage of
boats employed in such transportation. A river navigable in fact, as
thus defined, is a navigable water of the United States, within the
meaning of the acts of Congress, when it forms by itself, or by uniting
with other waters, a continuous highway over which commerce is
or may be carried on with the several States or with foreign countries.
All rivers and watercourses which meet the conditions set forth in
this definition come within the protective scope of the law.
Section 9 of the act applies to that class of structures such as bridges
and dams which extend entirely across a waterway, and which if
built without proper regulation and control may completely block
navigation. In this section navigable waters are separated into two
classes:
First—Intrastate: A stream which lies wholly within the borders
of a single State, but which, by uniting with other waters,
[p.11]
forms a highway for commerce between that State and another. As
to streams in this class it is provided that the designated structures
may be built thereover under authority of State law on condition
that the location and plans receive the approval of the Chief of
Engineers and the Secretary of War.
Second—Interstate: A stream which divides, or extends into, two
or more States, and which of itself forms a highway for commerce
between the States. For such constructions across streams of this
class, the special authorization of Congress, as well as approval of
the plans by the same Federal agencies, is required.
This classification while arbitrary is in a measure logical, being
based on the relative commercial importance of on intrastate and an
interstate stream. The former is usually small with a limited com-
merce, and it can be bridged or dammed by authority of the State in
which it lies without the consent of any other State; the latter, being
larger and commercially more important, is of greater National con-
cern, and besides the erection of bridges or dams across such a stream
under State authority would often require the concurrent action of
two States. Hence, it seemed reasonable for Congress to concede to
State legislatures a measure of authority with respect to the former
class of streams, while retaining its own exclusive power over the
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GUIDELINES AND REPORTS 3527
latter. The essential thing, however, and that which absolutely in-
sures the navigable integrity of both intrastate and interstate streams,
is the requirement that before any structure is commenced or built
over either, the plans must have received the approval of the Chief
of Engineers and the Secretary of War. Both the letter and spirit of
this law have been observed by the public generally; all structures
embraced within its provisions, erected since its enactment, have
been built in accordance with plans which, in the judgment of the
department, afford reasonable facilities for navigation, and it may
be truly said that no unreasonably obstructive bridges have been
erected since its enactment.
Section 10 relates to the construction of works in the nature of
wharves, piers, jetties, and the like, which project into, rather than
cross, the bodies of water in which they are located; and also to
making excavations or fills, or changes of any kind in the condition
or capacity of navigable waterways. The first clause of the section
positively prohibits the creation of any obstruction to the navigable
capacity of any of the waters of the United States unless affirmatively
authorized by Congress. This is a provision of very broad applica-
tion, and its applicability is not limited to streams actually navigable.
As the Supreme Court has pointed out in United States vs. Rio Grande
Irrigation Co., 174 U.S. 690,
[p. 12]
it is not a prohibition of any obstruction to the navigation, but
any obstruction to the navigable capacity, and anything wherever
or however done which tends to destroy navigable capacity,
is within the terms of the prohibition. It can, therefore, be
invoked to prevent the doing of things on unnavigable streams,
the effect of which would impair the navigable capacity of a navigable
stream. The second clause provides that it shall not be lawful to build
any of the structures or do any of the work specified therein, unless
the same has been previously recommended by the Chief of Engineers
and authorized by the Secretary of War. In one of the early cases
it became necessary for the department to consider the question
whether the second clause of this section so qualifies the prohibitory
provision of the first clause as to confer on the Secretary of War
power to authorize obstructions to navigable capacity. In other
words, notwithstanding the positive prohibition in the first clause,
can the second clause be construed as a declaration by Congress that
any work, however destructive it may be to navigable capacity, may
be done provided it is recommended by the Chief of Engineers and
authorized by the Secretary of War. On this question the Chief of
Engineers maintained:
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3528 LEGAL COMPILATION—WATER
That the essence of the whole section is contained in the first
clause, the obvious purpose of which is to prevent the execution of
any work or the doing of any act that will obstruct, injure, or destroy
the navigable capacity of any navigable water unless expressedly
authorized by Congress:—that the succeeding clause making it un-
lawful to build any structure, or to modify the condition or capacity
of a navigable water, without the prior recommendation of the Chief
of Engineers and authorization of the Secretary of War, was intended
to insure the accomplishment of the aforesaid purpose, and not to
empower them to authorize obstructive works:—that the effect of this
latter clause is to necessitate the submission of every project of the
kind to the Chief of Engineers and the Secretary of War, and to
commit to them the duty of investigating and determining whether
or not the project will obstruct or injure navigability:—that if these
officers find as a fact that a projected work will not amount to an
obstruction to navigable capacity they may authorize it, but if they
find that it will be such an obstruction the affirmative action of
Congress must be sought and obtained. This interpretation of the
statute subsequently received judicial support, as you may see by
referring to the case of Hubbard vs. Fort, 188 Fed. 987, in which
the court, referring to section 10, says:
"The creation of any obstruction not affirmatively authorized
by Congress to the navigable capacity of any waters in respect of
[p. 13]
which the United States has jurisdiction is prohibited; and then
declares that the building of certain structures and the perform-
ing of certain work with reference to navigable waters are for-
bidden without authority of the Secretary of War: Held that
the word "affirmatively" was used to distinguish the two kinds
of authority referred to, and that the section should be con-
strued to require that the initial authorization to create an ob-
struction must rest on affirmative Congressional authority and
not on a mere permit of the Secretary of War.
*******
The word "authorized" was used in this section in the sense
of approve of and formally sanction, and does not confer on
the Secretary of War authority to grant original authorization
for the construction of any work constituting an obstruction of
the navigable waters of the United States.
*******
The permission of the Secretary of War must be based on a
finding and declaration that the proposed work will not obstruct
or impair navigability."
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GUIDELINES AND REPORTS 3529
The administration of this section has imposed an enormous amount
of work on the Department and has given rise to many vexatious
problems, as my good friend Major Downing is fully aware. It
touches more people, affects more interests, and covers more in-
dividual activities than any other portion of the statute. It has
occasioned much litigation, not only in the way of prosecutions for
frequent violations, but for the settlement of disputed questions as
to its scope and purpose. It was early established that the legislation
did not wholly destroy the power of a State over the construction
of docks and wharves and other events within its limits, but that its
effect was merely to make the erection of such structures depend
upon the concurrent or joint assent of both the Federal and State
governments. The permits issued by the Secretary of War under
this law, as the agent of the Federal Government, are not complete
and exclusive authority to do the things authorized, but merely ex-
pressions of Federal consent, and the parties to whom they are issued
must before proceeding under such authority, also obtain the
assent of the State acting through its constituted agencies. These
principles are well illustrated in the cases of Cummings vs. Chicago,
188 U.S. 410, and Montgomery vs. Portland, 190 U.S. 89. The most
notable and important case involving the enforcement of the law
from the department standpoint is that of the Sanitary District vs.
United States, which after long and inexcusable delay covering a
period of about 17 years reached final decision by the Supreme Court
—about
[p. 14]
a year ago. A study of this decision and the accompanying
comprehensive briefs, as reported in 266 U.S. 405, will be very in-
structive. The harbor line law set forth in section 11 is closely kin
to section 10, as the establishment of a harbor line may be considered
as of the nature of a general permit for the work and structures
embraced in that section. It relieves those interested from applying
to the department in each instance for authority to erect structures.
The establishment of such a line, however, like the granting of a
permit, does not give anyone a vested right in its permanent con-
tinuance, but it may be changed from time to time as the Secretary
of War may deem necessary to meet the needs of commerce, even
though the change may injuriously affect or destroy structures erected
by virtue of the original establishment of the line. The decisions of
the Supreme Court in the cases of Philadelphia Company vs. Stim-
son, 223 U.S. 605, and Greenleaf Lumber Co. vs. Garrison, 237 U.S.
251, leave no room for doubt on this point. One of the most effective
features of section 10, and which tends to induce observance of its
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3530 LEGAL COMPILATION—WATER
requirements, is that in case of a violation it is unnecessary to prove
that the act committed has resulted in the impairment of navigation.
As the law previously stood, the construction of a wharf, or other
trespass on the waterway, without governmental authority, was not
unlawful unless navigation was obstructed or impaired thereby, and
the burden of proving this to the satisfaction of a jury rested on the
Government whenever a prosecution for violation of the law was at-
tempted. Under section 10, as well as section 13 relating to the dis-
charge of deposit of refuse matter in navigable waters, the commission
of any of the acts forbidden, not their results, constitute the offense,
and the commission subjects the offending party to the prescribed
penalty, regardless of whether or not there is any actual injury to
navigation. As a matter of fact, however, the Department does not
as a rule prosecute where the violation is trivial and results in no
material public injury, the practice being to observe the old maxim
de minimis non curat lex. It may be further remarked that in acting
upon applications under these laws, it is the practice of the Depart-
ment to restrict consideration in respect to any structure that it is
proposed to establish in navigable waters to the possible interference
with navigation which is likely to ensue. The controlling considera-
tion upon which the Department decides to approve or disapprove
any given structure is its effect upon the navigable capacity of the
waterway in which it is sought to be located. Questions relating
[p.15]
to other interests than those having to do with the navigation of the
waters or their use in interstate commerce, do not determine the
Department's action.
Section 18 is probably the most important and, as a remedial
measure, the most effective and valuable of all the provisions of the
statute. During the long period while the power to protect naviga-
tion was allowed by Congress to lie dormant railroad and highway
bridges without number had been built across the navigable rivers,
some under State authorization, some under the authority of Con-
gress, some without any authority at all, and practically all without
any governmental supervision or regulation as to location or plan.
As a consequence they were usually located and built with reference
to the accommodation of land traffic and without any regard for the
commercial use or needs of the waterway. Congress at last recog-
nized the necessity for the removal of the obstructive features of
these bridges, and in the river and harbor act of 1888, vested the
Secretary of War with the power to require the owners of obstructive
bridges, at their own expense and by their own efforts, to make such
changes as were deemed necessary to provide for reasonably free
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GUIDELINES AND REPORTS 3531
and unobstructed navigation. This legislation was slightly amended
in the act of 1890, and was finally amended and reenacted into the
present law. The early law was broad and comprehensive, and the
basic principles identical with those of the existing law, but few
practical results were accomplished under it. One of the first at-
tempts to enforce it resulted in failure as the lower court held the law
unconstitutional and, being a penal statute, no appeal could be taken
to the Supreme Court to establish its constitutionality. The result
was that only those obeyed the law who were willing to do so. Having
these things in mind when I came to revise the law, I added the
following proviso which will be found at the end of section 18:
"Provided that in any case arising under the provisions of
this section an appeal or writ of error may be taken from the
district courts or from the existing circuit courts direct to the
Supreme Court either by the United States or by the defendants."
It was contended that section 18 was unconstitutional on two
grounds:
1. That conferring on the Secretary of War authority to determine
when a bridge is an obstruction to the free navigation of a river, is in
violation of the Constitution as delegating legislative and judicial
powers to the head of an Executive Department.
2. That the law made no provision for compensating the bridge
owner for the expense of making the alterations or changes that
[p. 16]
might be required, and that this was a taking of private property
for public use in contravention of the Fifth Amendment of the
Constitution.
It is proper to say that this view was shared by many distinguished
lawyers. Officials of the Department of Justice with whom I had
occasion to confer, repeatedly expressed the opinion that the law
would be held invalid, and that radical changes in it would be neces-
sary. Numerous suggestions as to proper amendments were made,
but I held to the position that there was only one tribunal that could
definitely decide a law of Congress to be unconstitutional, and that
was the Supreme Court of the United States; that this was a valid
law; and that it ought to be allowed to remain intact until that Court
had an opportunity to pass on it. In the Union Bridge Company case,
which was the first to reach the Supreme Court, the constitutionality
of the law was sustained in a sweeping decision. The reasoning and
conclusions of the court in that case effectually disposed of the objec-
tions raised, and firmly established the power of Congress to require
the alteration of bridges in the manner prescribed in this law, Union
Bridge Co. vs. United States, 204 U.S. 364.
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3532 LEGAL COMPILATION—WATER
I have tried to trace for you, Gentlemen, the history of river and
harbor legislation,—to indicate the successive steps leading up to
the enactment of our law for the protection of navigable waters; and
to outline the basic principles on which they rest. It must be con-
fessed that the law is not free from imperfections, but if I were called
on to rewrite it today, while I should make many changes in its
phraseology, I can conceive of none I would make in its scope or
purpose. It is gratifying to know that it has been in force for 27
years, and in all that time there has been no amendment or suggestion
of amendment. It has been contested in the courts and the constitu-
tionality of many of its provisions has been questioned, but so far it
has withstood all assaults. It is sometimes violated, but what law is
not—we learn from the public press that there are occasional infrac-
tions of even that respected and popular law, the Volstead act.
The administration of these laws will sooner or later devolve on
you gentlemen, but as the most important principles have been
settled by judicial and departmental construction you will not meet
with so many difficult and vexing problems as have your predecessors.
.17]
PYTE P'F|r
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U.S. Environmental Protection Agency
Region V, Library ^ *"
230 South Dearborn Street ,-'
Chicago, Illinois 60604
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