THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
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UJ
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5SSZ
Supplement II
Volume II
Water
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
Supplement II
Volume II
Water
.
3EZ
UJ
O
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FOREWORD
America's journey to environmental awareness has been a
relatively recent one. Not so many years ago Americans were
still living under the illusion that a land as vast as ours was
blessed with indestructible natural resources and beauty.
We continued the exploitation of those resources and scattered
unplanned communities across huge areas of open space. Large
amounts of fuel were needed for the autos that took us to work
from distant suburbs, and the air became laden with their dense
emissions. Pesticides were used indiscriminantly by persons un-
aware of their effects on the food chain of plants and animals.
Our rivers became contaminated with waste from homes and
industries. Our landscape was marred by litter.
As the environmentalist movement gained impetus, attention
was focused on these matters. Rachael Carson's book, Silent
Spring, in 1962 awakened Americans to the hazards of pesticides.
The oil spills of the Torrey Canyon in 1967 and at Santa Barbara,
California in 1969 dramatized another environmental hazard. The
first Earth Day on April 20, 1970, a coordinated program of
teach-ins across the nation, helped to focus Congressional attention
on the strength of the environmental movement.
Congress responded by approving the President's Reorganiza-
tion Plan No. 3 which expanded the federal commitment to
environmental concerns and consolidated 15 Federal organiza-
tions under the Environmental Protection Agency.
At the same time, Congress began enacting far-reaching legis-
lation to provide EPA with specific authority for controlling
pollution. These measures included the Clean Air Amendments in
1970, and the Federal Water Pollution Control Act Amendments,
Federal Environmental Pesticide Control Act, the Noise Control
Act, and the Marine Protection, Research and Sanctuaries Act, all
in 1972. Congress also passed the Resource Recovery Act in 1970
and extended the Solid Waste Disposal Act in 1973.
As the Agency began taking action under these laws, Americans
gradually realized that very real changes were required in our
accustomed ways of doing business. We realized that our effort
frequently conflicted with powerful and legitimate interests in
both the public and private sectors. Our administrative, judicial
and political processes now have the task of resolving these
conflicts. They must do so by weighing all the interests which
are affected in a sensitive and informed manner. Quick access
to the legal dimensions of these problems is essential if conflicts
are to be efficiently and fairly resolved.
The work of the present day environmentalist is less glamorous
than that of four or five years ago, but it is essential if we are
iii
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iv FOREWORD
to face the continuing challenge of protecting our fragile and
perishable natural resources—and ultimately ourselves—from de-
struction. I hope you will find this manual helpful as we strive
to create a society where we can live and work in harmony
with the natural world surrounding us.
Russell E. Train
Administrator
U.S. Environmental Protection Agency
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PREFACE
Reorganization Plan No. 3 of 1970 transferred 15 governmen-
tal units with their functions and legal authority to create the
U.S. Environmental Protection Agency. Since only the major
laws were cited in the Plan, it was decided that a compilation of
EPA legal authority be researched and published.
The publication has the primary function of providing a work-
ing document for the Agency itself. Secondarily, it will serve as
a research tool for the public.
It is the hope of EPA that this set will assist in the awesome
task of developing a better environment.
LANE R. WARD, J.D.
Office of Executive Secretariat
Office of Administrator
U.S. Environmental Protection Agency
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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 use of per-
sonnel 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 reference 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 93rd
Congress were extracted from the "unofficial" daily version and
are subject to subsequent modification.
EPA Legal Compilation consists of the Statutes with their
legislative history, Executive Orders, Regulations, Guidelines and
Reports. To facilitate the usefulness of this composite, the Legal
Compilation is divided into the seven following chapters:
A. General E. Pesticides
B. Air F. Radiation
C. Water G. Noise
D. Solid Waste
SUPPLEMENT II
This edition, labelled "Supplement II," contains the additions
to and alterations of EPA legal authority not included in the
original set or Supplement I of the EPA Legal Compilation.
Therefore, this edition updates the Compilation through the 93rd
Congress, First Session.
SUBCHAPTERS
Statutes and Legislative History
For convenience, the Statutes are listed throughout the Compi-
lation by a one-point system, i.e., 1.1, 1.2, 1.3, etc., and Legislative
History begins wherever a letter follows the one-point system.
Thus, any l.la, l.lb, 1.2a, etc., denotes the public laws com-
vii
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viii INSTRUCTIONS
prising the 1.1, 1.2 statute. Each public law is followed by its
legislative history. The legislative history in each case consists
of the House Report, Senate Report, Conference Report (where
applicable), the Congressional 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, De-
cember 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, 38321-37322,
37631-37633, 37884-37888;
(c) Dec. 22: Senate agrees to conference re-
port, p. 40718;*
(d) Dec. 22: House debates and agrees to
conference report, pp. 40820, 40900.
This example not only demonstrates the pattern followed for
legislative history, but indicates the procedure where only one
section of a public law appears. You will note that the Congres-
sional 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 perti-
nent 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 that
section 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
throughout the Statute section of the Compilation. In four Stat-
utes, a parallel table to the Statutes at Large is provided for
your convenience.
EXECUTIVE ORDERS
The Executive Orders are listed by a two-point system (2.1, 2.2,
etc.).
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, published guidelines of EPA, selected reports other than
EPA's and interdepartmental agreements of note.
UPDATING
Periodically, a supplement will be sent to the interagency dis-
tribution and made available through the U.S. Government Print-
ing Office in order to provide a current and accurate working set
of EPA Legal Compilation.
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CONTENTS
Volume I
WATER
Page
1. Statutes and Legislative History i
1.2 The Federal Water Pollution Control Act, as amended, 33
U.S.C. §1251 et seq. (1973) .- 3
1.2q Federal Water Pollution Control Act Amendments, De-
cember 28, 1973, P.L. 93-207, 87 Stat. 906 139
(1) Senate Committee on Public Works, S. REP. No. 93-
269, 93rd Cong., 1st Sess. (1973) _. 141
(2) House Committee on Public Works, H.R. REP. No.
93-680, 93rd Cong., 1st Sess. (1973) 149
(3) Congressional Record, Vol. 119 (1973) : 158
(a) June 28: Considered and passed Senate, p.
S12371 158
(b) Dec. 3: Considered and passed House, amended,
pp. H10517-H10520 __. 159
(c) Dec. 14: Senate agreed to House amendments,
pp. S22973-S22974 . _ __. .. 166
1.2r Federal Water Pollution Control Amendments, January
2, 1974, P.L. 93-243, 87 Stat. 1069 170
(1) Senate Committee on Public Works, S. REP. No.
93-630, 93rd Cong., 1st Sess. (1973) 172
(2) House Committee on Public Works, H.R. REP. No.
93-735, 93rd Cong., 1st Sess. (1973) - _ __ - - 192
(3) Congressional Record, Vol. 119 (1973) :
(a) Dec. 14: Considered and passed Senate, pp.
S22970-S22973 200
(b) Dec. 18: Considered and passed House, amended,
in lieu of H.R. 11928, pp. H11628-H11633 .... 208
(c) Dec. 21: Senate agreed to House amendments
with amendments. House concurred in Senate
amendments, pp. S23819-S23821, H11946-
H11947 .. 222
1.3 Pollution of the Sea by Oil, as amended, 33 U.S.C. § 1001, et
seq. (1973) . ___ . . __.._. 228
[Referred to in 33 U.S.C. § 1321 (b)]
1.3c Oil Pollution Act Amendments of 1973, October 4, 1973,
P.L. 93-119, 87 Stat. 424 .. 239
(1) House Committee on Merchant Marine and Fisheries,
H.R. REP. No. 93-137, 93rd Cong., 1st Sess. (1973) 246
(2) Senate Committee on Commerce, S. REP. No. 93-405,
93rd Cong., 1st Sess. (1973) . . __ 269
xi
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xii CONTENTS
Page
(3) Congressional Record, Vol. 119 (1973): 287
(a) May 8: Considered and passed House, pp. H3419-
H3425 287
(b) Sept. 24: Considered and passed Senate, p.
S17350 300
1.19 The Water Resource Planning Act, as amended, 42 U.S.C. §
1962 et seq. (1973) 300
[Referred to in 33 U.S.C. §1289]
1.19d Water Resources Planning Act Continuing Appropria-
tion Authorization, July 1, 1973, P.L. 93-55, 87 Stat. 140- _ 309
(1) Senate Committee on Interior and Insular Affairs,
S. REP No. 93-174, 93rd Cong., 1st Sess. (1973) __ -310
(2) House Committee on Interior and Insular Affairs,
H.R. REP. No. 93-266, 93rd Cong., 1st Sess.
(1973) 315
(3) Congressional Record, Vol. 119 (1973): ___ 320
(a) May 30: Considered and passed Senate, pp.
S9859-S9860* 320
(b) June 19: Considered and passed House,
amended, in lieu of H.R. 6338, pp. H4957-
H4959
(c) June 21: Senate concurred in House amend-
ments, pp. S11645-S11646* 327
1.34 Marine Protection, Research and Sanctuaries Act, 33 U.S.C.
§1401 et seq. (1972) 327
2. Executive Orders 345
2.15 E.G. 11707, Change in Boundaries of New England River Ba-
sins Commission, March 14, 1973, 38 Fed. Reg. 6877 347
2.16 E.G. 11735, Assignment of Functions under Section 311 of the
Federal Water Pollution Control Act, as amended, August 7,
1973, 38 Fed. Reg. 21243 347
2.17 E.G. 11737, Enlargement of the Upper Mississippi River Ba-
sin Commission, September 11, 1973, 38 Fed. Reg. 24883 351
2.18 E.G. 11738, Providing for Administration of the Clean Air
Act and the Federal Water Pollution Control Act with Re-
spect to Federal Contracts, Grants, or Loans, September 13,
1973, 38 Fed. Reg. 25161 353
2.19 E.G. 11742, Delegating to the Secretary of State Certain
Functions with Respect to the Negotiation of International
Agreements Relating to the Enhancement of the Environment,
October 25, 1973, 38 Fed. Reg. 29457 356
2.20 E.G. 11747, Delegating Certain Authority of the President
under the Water Resources Planning Act, as amended, No-
vember 9, 1973, 38 Fed. Reg. 30993 356
3. Regulations 361
3.1 Certification of Facilities, Environmental Protection Agency,
40 C.F.R. §§20.1-20.10 (1971) 361
3.2 State and Local Assistance. Environmental Protection Agency,
40 C.F.R. §§35.150-35.240, 35.400-35.420, 35-551-35.955
(1973) .-- - 361
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CONTENTS xiii
Page
3.3 Research and Demonstration Grants, Environmental Protection
Agency, 40 C.P.R. §§40.100-40.165 (1973) 364
3.4 Training Grants and Manpower Forecasting, Environmental
Protection Agency, 40 C.F.R. §§ 45.100-45.155 (1973) 364
3.5 Fellowships, Environmental Protection Agency, 40 C.F.R.
§§46.100-46.165 (1973) 364
3.6 Public Participation in Water Pollution Control Environmen-
tal Protection Agency, 40 C.F.R. §§105.1-105.9 (1973) 364
3.7 Criteria for State, Local and Regional Oil Removal Contin-
gency Plans, Environmental Protection Agency, 40 C.F.R.
§§109.1-109.6 (1971) 364
3.8 Discharge of Oil, Environmental Protection Agency, 40 C.F.R.
§§110.1-110.9 (1971) 364
3.9 Oil Pollution Prevention, Nontransportation-Related Onshore
and Offshore Facilities, Environmental Protection Agency, 40
C.F.R. §§112.1-112.7 (1973) 365
3.10 Water Quality Standards, Environmental Protection Agency,
Title 40 C.F.R. §§120.1-120.10 (1972) 365
3.11 Oil Storage Facilities, Environmental Protection Agency, 40
C.F.R. §§113.1-113.6 (1973) 365
3.12 State Certification of Activities Requiring a Federal License
or Permit 365
3.13 State Program Element Necessary for Participation in the
National Pollution Discharge Emission System, Environmental
Protection Agency, 40 C.F.R. §§124.1-124.94 (1973) 366
3.14 National Pollutant Discharge Elimination System, Environ-
mental Protection Agency, 40 C.F.R. §§125.1-125.44 (1973) 367
3.15 Areawide Waste Treatment Management Planning Areas and
Responsible Planning Agencies, Environmental Protection
Agency, 40 C.F.R. §§126.1-126.40 (1973) 368
3.16 Pretreatment Standards, Environmental Protection Agency,
40 C.F.R. §§128.100-128.140 (1973) 368
3.17 State Continuing Planning Process, Environmental Protection
Agency, 40 C.F.R. §§130.1-130.61 (1973) 368
3.18 Secondary Treatment Information, Environmental Protection
Agency, 40 C.F.R. §§ 133.100-133.104 (1973) 369
3.19 Guidelines Establishing Test Procedures for the Analysis of
Pollutants, Environmental Protection Agency, 40 C.F.R. §§
136.1-136.5 (1973) 370
3.20 Marine Sanitation Device Standards, Environmental Protection
Agency, 40 C.F.R. §§ 140.1-140.5 (1972) 370
3.21 Ocean Dumping—General, Environmental Protection Agency,
40 C.F.R. §§220.1-220.4 (1973) 370
3.22 Ocean Dumping—Application, Environmental Protection Agen-
cy, 40 C.F.R. §§221.1-221.5 (1973) 370
3.23 Ocean Dumping—Actions for Application, Environmental Pro-
tection Agency, 40 C.F.R. §§ 221.-222.10 (1973) 370
3.24 Ocean Dumping—Content of Permit, Environmental Protection
Agency, 40 C.F.R. §§223.1-223.2 (1973) 370
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xiv CONTENTS
Page
3.25 Ocean Dumping—Records, Environmental Protection Agency,
40 C.F.R. §§224.1-224.2 (1973) 370
3.26 Ocean Dumping—Corps of Engineers Permits, Environmental
Protection Agency, 40 C.F.R. §§ 225.1-225.3 (1973) 371
3.27 Ocean Dumping—Enforcement, Environmental Protection
Agency, 40 C.F.R. §§226.1-226.4 (1973) 371
3.28 Ocean Dumping—Criteria, Environmental Protection Agency,
40 C.F.R. §§227.1-227.80 (1973) 371
3.29 Control of Pollution By Oil and Hazardous Substances, Dis-
charge Removal, Department of Transportation, 33 C.F.R. §
153.01-153.319 (1971) 371
3.30 Oil Pollution Clean-Up, Federal Maritime Commission, 46
C.F.R. §§542.1-542.9 (1972) 372
3.31 Delegation of Command to the Coast Guard, Department of
Transportation, 49 C.F.R. §1.46 (1970) 372
4. Guidelines and Reports 373
4.1 EPA Annual Report on National Requirements and Costs of
Water Pollution Control, as required by U.S.C. §1157(a), as
amended (1970)
4.1c Economics of Clean Water, 1973, Environmental Protec-
tion Agency, December 1973 375
VOLUME II
4.2 Selected Reports:
4.2e Stream Channelization: What Federal Financed Drag-
lines and Bulldozers do to Our Nation's Streams, House
Committee on Government Operations, H.R. REP. No.
93-530, 93rd Cong.. 1st Sess. (1973) 543
4.7 Report to Congress on Water Pollution Control Manpower
Development and Training as required by 33 U.S.C. § 1254 . -
4.7b Report to Congress on Water Pollution Control Manpow-
er Development and Training Activities, Environmental
Protection Agency, December 1973 720'
4.8 Interagency Agreements -
4.8a Memorandum of Understanding Between the Environ-
mental Protection Agency and the Department of Trans-
portation, 36 Fed. Reg. 240280 (1971)
4.8b Memorandum of Understanding Providing for Coopera-
tion in the Investigation of Violations of the Refuse Act
Between the Administrator of the Environmental Protec-
tion Agency and the Secretary of the Army, 36 Fed.
Reg. 3074 (1971)
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CONTENTS xv
Page
4.8c Joint Agreement for Interagency Coordination in Plan-
ning and Development Between the Assistant Secretary
of Housing and Urban Development and the Administra-
tor of the Environmental Protection Agency, June 7,
1972
4.8d Memorandum of Understanding Between the Environmen-
tal Protection Agency and the Department of Transpor-
tation Related and Nontransportation Related Facilities
as Used in Executive Order 11548 778
4.9 Report to Congress on Implementing Objectives of the
FWPCA, as required by 33 U.S.C. §1375
4.9a "Clean Water," report to Congress by the Environmental
Protection Agency, May 1973 782
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WATER—GUIDELINES AND REPORTS 543
4.2e STREAM CHANNELIZATION: WHAT FEDERALLY PI-
NANCED DRAGLINES AND BULLDOZERS DO TO OUR
NATION'S STREAMS, HOUSE COMMITTEE ON GOV-
ERNMENT OPERATIONS
H.R. REP. No. 93-530, 93rd Cong., 1st Sess. (1973).
STREAM CHANNELIZATION: WHAT FEDERALLY FI-
NANCED DRAGLINES AND BULLDOZERS DO TO OUR
NATION'S STREAMS
SEPTEMBER 27,1973.—Committed to the Committee of the Whole House on the
State of the Union, and ordered to be printed
Mr. HOLIFIELD, from the Committee on Government Operations,
submitted the following
FIFTH REPORT
TOGETHER WITH
ADDITIONAL VIEWS
BASED ON A STUDY BY THE CONSERVATION AND NATURAL
RESOURCES SUBCOMMITTEE
On September 20, 1973, the Committee on Government Opera-
tions approved and adopted a report entitled "Stream Channel-
ization: What Federally Financed Draglines and Bulldozers Do
to Our Nation's Streams." The chairman was directed to transmit
a copy to the Speaker of the House.
The Committee on Government Operations has for many years
examined into the Federal agencies' policies as they relate to
water resources development, and public access, recreation, and
fish and wildlife developments at reservoirs which the agencies
construct or financially aid.1
The Committee's Conservation and Natural Resources Subcom-
mittee held extensive hearings on May 3 and 4, June 3, 4, 9, 10,
and 14, 1971, and March 20 and 22, 1973, concerning the Federal
Government's stream channelization programs, to determine
1 For example, the Committee's 1967 investigation and hearings on the reservoir policies
and practices of the Corps of Engineers and the Bureau of Reclamation resulted in House
Report 1185, 85th Congress (Aug. 16, 19B7), entitled "Army-Interior Reservoir Land Acqui-
sition Policy." The recommendations in that report resulted in substantial protection and en-
hancement of fish and wildlife values, and increased public access and recreation opportunities
at those reservoirs. The Committee's 1971 hearings and House Report 92-586 (Oct. 21, 1971),
entitled "Public Access to Reservoirs to Meet Growing Recreation Demands," made recom-
mendations resulting in increased public access to reservoirs constructed by or with the
financial aid of the Federal Government.
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544 LEGAL COMPILATION—SUPPLEMENT n
whether Federal agencies are responsibly, economically, and effi-
ciently complying with applicable law, including the Fish and
Wildlife Coordination Act (16 U.S. Code 661, et seq.), the Fed-
eral Water Pollution Control Act (33 U.S. Code, 1972 Supp. II,
1151, et seq.), and the National Environmental Policy Act of
1969 (42 U.S. Code 4321, et seq.), and whether these agencies
are adequately assessing the adverse environmental effects of
channelization.2
At the Subcommittee hearings, testimony was presented by rep-
resentatives of Federal, State, and local governments, scientists,
conservationists, soil conservation district representatives, and
others.
INTRODUCTION
For the last three-and-a-half centuries Americans have busily
settled, developed and cultivated the continent's flood plains.
The rich alluvial soils, surpassed only by those of the tallgrass
prairie, were there. The flowing streams were also there, with
their promise of easy commerce, communications, water supplies,
and waste disposal. Drawn by these advantages, our forebears of-
ten built to the river's edge. In this, they were more bold than
prudent. Building their homes, factories, farms, and public build-
ings in the midst of the flood plain, rather than further back on
slightly higher ground, virtually invited the natural consequences
of the inevitable floods. They stubbornly refused to recognize a
flood plain for what it is. From that history came two parallel
trends—the accelerating pace of stream "improvements" to con-
trol floods, and the even swifter growth of flood damages, such
as the great storm "Agnes" caused in June 1972 in the eastern
United States.
Typically, each new dam, levee or channelization lures persons
further onto the flood plain, secure in the faith that floods won't
come rampaging through as often as before. And they don't. But
man has never built the dam, levee, or artificial channel that
can hold back the heaviest rainwaters, and when they finally
breach their concrete or earthen barriers the devastation of the
oversettled flood plain is great.
And so, with an ecological indifference our own generation is
paying for, earlier Americans devised an engineering approach
to the problems of living with floods, flood plains and wetlands.
They relied on flood control dams, stream dredgings and drain-
age ditches. In Delaware, Maryland, and other middle-Atlantic
States, extensive drainage networks were dug by slaves. Later,
5 The hearings are printed in four volumes entitled "Stream Channelization" (92nd Con-
gress, parts 1-4), and 2 volumes similarly entitled (93d Cong., parts B and 6).
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WATER—GUIDELINES AND REPORTS 545
in the last decades of the 19th century, drainage district were
established and thousands of miles of trenches gouged to dry up
wetlands. By 1960 over 130 million acres of land had been drained
in the United States, mostly by open ditches.3 These early ditches
and others like them across the country were poorly engineered,
poorly maintained, and—even worse—poorly designed in rela-
tion to their larger watersheds. They "solved" the flood problem
by dumping it downstream.
In earlier years, when our population was smaller and had not
yet spread so widely over the land, the proliferation of these
drainage networks did not reveal their harmful potential. But
within the past decade or so, there developed a much more sys-
tematic and devastating flood control technology, using large bull-
dozers and draglines to consummate "channelization" or "stream
improvement."
The practice of channelizing rivers and streams consists of
deepening, widening, straightening, clearing, or lining their ex-
isting channels. Channelization is not itself a water program ob-
jective. Rather, it is an engineering measure by the use of which
various objectives, or combinations of objectives, may be
achieved. These objectives include:
Drainage—the reclamation of wetlands by lowering the
level of the water table;
Flood control—through lowering flood stages by increas-
ing the capacity of stream channels;
Navigation—by increasing the natural depth of some of
the larger rivers; and
Erosion control—by the substitution of artificial channels
for gullies or other eroding natural channels.4
Seven years ago a Federal task force of Federal flood control
policy noted that despite a Federal investment of over $7 billion
in flood control projects since 1936, the Nation's annual flood
damage bill has averaged roughly $1 billion annually.5 Some floods
have been catastrophic. For example, in June 1972, the flood
which devastated Rapid City, South Dakota, killed over 200 people
and caused damages exceeding $1 billion, and Hurricane Agnes,
in the eastern United States, killed at least 132 people and caused
damage exceeding $1.6 billion. The Council on Environmental
Quality estimates that flood losses "now amount to a national
» First National Water Assessment, Water Resources Council, 1968.
4 National Water Commission, "Water Policies for the Future," June 1973, p. 32.
5 The report, entitled "A Unified National Program for Managing Flood Losses," was
issued on August 10, 1966, and was printed as House Document 89-466.
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546 LEGAL COMPILATION—SUPPLEMENT n
average of almost $2 billion annually." (Fourth Annual Report,
p. 313, Sept. 1973.)
The principal programs through which the Federal Govern-
ment seeks to provide flood protection and relief are: the flood
control programs of the Corps of Engineers (hereinafter referred
to as the "Corps") which have been authorized by Congress
under a series of laws enacted since 1936 called the "Flood Con-
trol Acts"; the small watershed program of the Soil Conservation
Service (hereinafter referred to as the "SCS"); and the pro-
grams of the Tennessee Valley Authority and the Bureau of Rec-
lamation.
There are a number of measures that can be utilized by these
agencies to protect people and property from ravaging floods.
However, the principal measure used by these agencies is the
construction of engineering works or water resource projects
such as reservoirs, levees, bypasses, and channelization of streams.
A common thread running through the Subcommittee's hear-
ings, correspondence, and subsequent studies was not that chan-
nelization, per se, was evil, but rather that inadequate considera-
tion was being given to the adverse environmental effects of
channelization. Indeed, there is considerable evidence that little
was known about these effects and, even more disturbing, little
was done to ascertain them.
The effects include the draining of wetlands, destruction of
hardwood forests, obliteration of oxbows and meanders, lowered
water tables, elimination of habitat needed by fish and wildlife,
increased erosion and sedimentation, and poor water quality.
These effects generally resulted in changing the diversity and
productivity of the biota of the waterway, the wetlands and
the flood plain.
Thus, the Subcommittee's 1971 hearings clearly disclosed that
channelization constitutes major environmental surgery and that
the tradeoffs between its costs and benefits vary greatly with the
physical setting. While some channelizing cleans out badly ag-
graded streams or manmade ditches which have little scenic,
wildlife, or recreational value, many channelization projects are
a traumatic assault against freeflowing water bodies whose na-
tural resources are often irreplaceable.
At the 1971 hearings, the Corps' witness, Major General F. P.
Koisch, Director of Civil Works, did not defend channelization
per se, but explained that water resource projects, including
channelization projects, have traditionally been conceived, evalu-
ated, designed, and constructed "under sound economic prin-
ciples, and the benefits expected from the project must be more
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WATER—GUIDELINES AND REPORTS 547
than the costs." (Such benefit/cost analyses often fail to give
sufficient credence to intangibles such as wildlife and scenic val-
ues.) He observed, however, "that the American society is moving
from a position in which economic development and production
are of primary concern, to one in which the quality of life must
be considered as well as the material needs." " The Committee
concurs in this observation, but the 1971 hearings revealed that
the Corps and the SCS had not yet developed adequate procedures
and policies to implement it.
SCS's Administrator, Kenneth E. Grant, offered a vigorous de-
fense of channelization and, while recognizing some adverse ef-
fects, left the Committee with the impression that the SCS
considers them to have a limited impact on our environment.' He
said: 7
* * * Channels are used in combination with
floodwater-retarding structures and multiple-purpose
reservoirs when the topography is suitable. They are
included as the last increment in plan formulation.
Their use is limited to that required to provide an ac-
ceptable level of protection to the adjacent flood plain,
recognizing that some short duration inundation can
be tolerated on agricultural, forest, and open land.
Channel improvement for flood prevention is used
without complementary floodwater-retarding structures
in coastal plains, river deltas, and similar areas where
topography or other watershed characteristics are
not favorable for detention storage.
The need for channel modification is dependent upon
the capability of the channel in its present condition to
satisfy requirements of the use or uses man wants it to
serve. The extent of channel improvement in a water-
shed is determined by the intensity of development and
the planned use of the adjacent flood plain and the mag-
nitude and frequency of flooding expected after other
feasible measures have been installed.
The decision to provide a specific level of protection is
based on existing investments in the flood plain, its pro-
ductivity in comparison to available alternative land, and
the type of farm enterprise. If the flood plain is in resi-
dential or urban development or is used to produce
high-value crops such as vegetables, the level of flood
• Hearings, part 2, p. 554.
' Hearings, part 2, p. 530.
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548 LEGAL COMPILATION—SUPPLEMENT n
protection is based on the degree of existing develop-
ment and investment, availability of alternative develop-
ment sites for future growth, and impact of lack of
development on the community.
He also noted that the SCS is "taking positive and immediate
steps to alleviate adverse impacts as much as practicable."
Many other witnesses, however, pointed to the long range ad-
verse effects of channelization as showing the need for a mora-
torium on its use and a study to discover new ways to prevent
or reduce its harm to plants and animals. They noted, for ex-
ample, that:
Drainage of wetlands profoundly affects plants and animals,
not only in areas which support species not found elsewhere,
but also by eliminating or reducing both the number and diver-
sity of the species using the wetlands.
Cutting of trees along streambanks eliminates shading and
thus exposes streams to the hot sun, with resulting harm to
plantlife and heat sensitive aquatic species.
Cutting of bottom land hardwoods, which provide habitat for
many birds and animals, eliminates this increasingly scarce habi-
tat and also may increase the nutrients and sediment concentra-
tions in waterways.
Cutoff of oxbows and meanders alters the streambed, destroys
diversity of current patterns, increases rate of flow, and removes
feeding and breeding grounds for aquatic life.
The National Water Commission's June 1973 report to the
President and Congress, entitled "Water Policies for the Future,"
summarized the consequences of channelization as follows (pp.
32, 34-36):8
It is not channelization in itself that has led to the
widespread opposition to the use of this measure but
rather its environmental consequences and the down-
stream effects. Actually, diversion, terrace outlet, and
other channels provided as erosion control measures are
rarely criticized, as they reduce erosion and, where
necessary, are protected by vegetal or artificial linings.
When channelization is undertaken for the purpose of
draining wetlands or reducing the frequency of flooding
of wooded, brush-covered, or pastured flood plain lands,
undeveloped lands are frequently converted to inten-
sively cultivated croplands. This results in the loss of
8 The seven member Commission was established by Public Law 90-515, approved Septem-
ber 26, 1968, to review and report on present and anticipated national water resource
problems. Its report was printed by the Government Printing Office.
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WATER—GUIDELINES AND REPORTS 549
both valuable habitat for fish and wildlife and the esthe-
tic values of a natural area.
Another consequence is the acceleration of erosion
that results from many channelization projects. Exces-
sive erosion is caused by failure to make proper provi-
sions in the planning of such projects for bank protec-
tion and other measures required to stabilize the new
channels. The usual reason for omitting these important
ancillary measures is to reduce the cost of the channeli-
zation project. Since the necessity for reducing costs is
most imperative for those projects undertaken to bring
new lands into production (because the resulting in-
crease in farm income must exceed project costs) it is
normally channelization undertaken to drain wetlands
or to decrease the frequency of flood overflow that gives
rise to the most serious erosion problems. Had the ero-
sion and sedimentation damages been added to the cost
of such projects some of them would have failed to meet
the test of economic justification.
Another consequence of channelization is the replace-
ment of meandering natural streams by systems of
straight ditches forming a severe and unattractive geo-
metrical pattern. The esthetic value [sic] of the chan-
nelized flood plains are further decreased by the removal
of trees and other vegetation, by the unsightly appear-
ance of the raw ditch banks, by the muddy torrents
that occur during storms, and, in some places, by the
failure of the perennial flow that existed under natural
conditions. Even in urban areas the installation of ar-
tificial channels for flood protection not infrequently
meets with criticism because such channels, although
more hydraulically efficient, are less pleasing to the eye
than the natural channels they replace. In most cases,
without expensive maintenance, the new channel will
return to its original meandering course.
A further undesirable consequence of channel recti-
fication in headwater valleys is an increase in the fre-
quency and magnitude of downstream floods. This comes
about because of the reduction of flood .stages in the
channelized reach, for any reduction in stage in up-
stream reaches decreases the temporary storage of flood
waters in those reaches and thus increases peak flows in
downstream reaches.
This leads also to lowering of ground water levels,
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550 LEGAL COMPILATION—SUPPLEMENT n
by reducing the time available for infiltration of rain
water which is speeded downstream by the artificially
improved channels.
*****
Fertile lands can be made available for crop produc-
tion by drainage improvement and by reducing the fre-
quency of flood overflow through channelization, and in
the long run the resulting enhancement in the efficiency
of the Nation's agricultural plant may be a desirable
consequence. Quite naturally, the owners of wetlands
and of rural flood plain lands subject to frequent flood-
ing are desirous of increasing their incomes by utilizing
these lands for crop production, and it is nearly always
increased farm income that makes possible the favorable
ratio of benefits to costs that is necessary to obtain
Federal assistance in planning and carrying out chan-
nelization projects. In urban areas subject to damage
and possible loss of life by floods there is an even more
powerful incentive for seeking Federal assistance in in-
creasing the capacity of stream channels. In some areas,
drainage projects are desired in order to eliminate mos-
quitoes and other hazards to public health. The accrual
of these and other beneficial effects to landowners and
to nearby communities has created interest groups that
oppose the efforts of the environmental interests to stop
channelization activities.
*****
The evidence placed before the Commission makes it
impossible to avoid the conclusion that in many cases
insufficient weight has been given to the detrimental
consequences of channelization, and particularly to
losses not readily expressible in monetary terms. There
appears to be a tendency fully to evaluate all benefits
that would result from channelization projects, but to
underestimate, or even to ignore, some operation and
maintenance expenses and damages resulting from low-
ering of ground water tables, destruction of fish and
wildlife habitat, increasing downstream sedimentation
and flood damage and loss of esthetic values. The work
accomplished during the past few years by the Water
Resources Council in its development of principles, stand-
ards, and procedures for the evaluation of water proj-
ects has made it abundantly clear that in the past such
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WATER—GUIDELINES AND REPORTS 551
evaluations have generally failed to consider all of the
consequences of carrying out such projects. It has also
made it clear that there are many detrimental effects
that must be added to the cost of such projects if a
valid benefit to cost comparison is to be made. (Foot-
notes omitted.)
At the Subcommittee's 1971 hearings, the Assistant Secretary
of the Interior for Fish, Wildlife and Parks, Mr. Nathaniel P.
Reed, cited many of these effects and then severely criticized
channelization. He said:9
Stream channelization projects usually entail chang-
ing the physical shape of the streambed and bank, regu-
lating natural streamflow patterns, and impounding or
modifying the flood plain. If the emphasis on these
practices continues, the ultimate result will be the de-
struction or serious degradation of valuable and irre-
placeable natural resources, including stream fisheries
and wildlife in many bottom lands and water courses.
Stream channel alteration under the banner of chan-
nel "improvement" for navigation, flood reduction, and
agricultural drainage is undoubtedly one of the more,
if not the most, destructive water development or man-
agement practices from the point of renewable nat-
ural resources. These alterations are carried out in vary-
ing degrees, with a corresponding variation in damages
to stream ecology.
* # * * *
Channelization or other stream alteration practices
destroy the balance of space and associated life-
supporting elements. The effects of stream alterations
on fish and wildlife is somewhat analogous to the im-
pact of hurricane Camille on the human population
along the Gulf Coast. After the hurricane—or after
stream alterations—the space still remains; however,
the elements within the space which support vigorous
and thriving populations are no longer immediately
available or arranged in a fashion so as to be usable.
Fortunately, man has the capability and desire to re-
build his environment following such a disaster. Fish
and wildlife lack this rebuilding potential; therefore,
the organisms must evacuate the damaged or destroyed
habitat or perish.
» Hearings, part 2, 394-395.
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552 LEGAL COMPILATION—SUPPLEMENT n
The 1971 hearings showed that, in utilizing this engineering
tool, the Federal agencies were often failing to give adequate
consideration to the environmental problems resulting from chan-
nelization. They began to recognize this failure and, in 1971,
initiated some corrective measures. But many of these were in-
adequate and some were controversial. In addition, various events
occurred after the 1971 hearings which have had a profound
impact on the problem. The principal developments were:
(a) August 1971: The Soil Conservation Service com-
pleted its in-house review of its watersheds projects
involving stream channel work, pursuant to its Water-
sheds Memorandum 108 of February 1971.10
(b) November 1971: A coalition of environmental
groups initiated litigation against the SCS to prevent
channelization of 66 miles of Chicod Creek in North
Carolina, and on March 15, 1972, the U.S. District
Court for the Eastern District of North Carolina en-
joined SCS from further work on this project until an
environmental impact statement is filed. (National Re-
sources Defense Council, Inc., v. Grant, Civil No. 754,
341 F. Supp. 356, 3 ERG 1883.)
(c) January 18,1972: The Interior Department issued
its "Policy and Guidelines for the Planning and Review
of Stream Channel Alteration Projects".11
(d) March 31, 1972: A. D. Little, Inc., pursuant to a
contract from the Council on Environmental Quality,
completed a study on the effects of channelization and
issued a draft report which was roundly criticized by
CEQ, by numerous citizen organizations, and by Sub-
committee Chairman Reuss and Ranking Minority Mem-
ber Vander Jagt.
(e) April 6, 1972: The SCS revised its criteria for
preparing environmental impact statements on small
watershed projects, pursuant to section 102 (2) (C) of
the National Environmental Policy Act. However, the
SCS indicated that such statements would not be re-
quired for projects scheduled for installation with fiscal
year 1973 funds which SCS, in its Memorandum 108
review, placed in "Group 1" (projects with "minor or no
known adverse" environmental effect, on which work
could proceed).
10 Hearings, part 4, p. 2703.
11 Hearings, part 6, p. 3279.
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WATER—GUIDELINES AND REPORTS 553
(f) April 28,1972: The Bureau of Sport Fisheries and
and Wildlife substantially criticized the SCS's review,
findings, and conclusions set forth in the SCS report of
its Watersheds Memorandum 108 review.12
(g) November 27, 1972: The General Accounting
Office issued a report (B-170186) criticizing the ade-
quacy of environmental impact statements prepared
for channelization and other projects.
(h) December 14, 1972: The U.S. Court of Appeals
for the Eighth Circuit decided, in connection with the
Cache River-Bayou DeView channelization project, that
the Corps' final impact statement of December 1970 was
inadequate and required that the Corps submit a "re-
vised" statement. (Environmental Defense Fund v.
Froehlke, 473 F.2d 346, 4 ERG 1829 (Dec. 14, 1972).)
(i) December 23, 1972: The U.S. District Court for
the Western District of Tennessee ordered the Corps to
prepare a revised environmental impact statement for
its channelization project on the Obion and Forked Deer
Rivers in Tennessee. (Akers v. Resor,—F.Supp.—,Civ.
No. C-70-349, 4 ERG 1966.)
(j) December 26, 1972: The Agriculture Department
terminated the Water Bank Act program, despite the
fact that the environmental impact statement filed by
the Department on May 1, 1972, on initiating the pro-
gram, had concluded that it will help "reduce the loss of
wetlands," "result in preserving habitat" for wildlife,
"reduce water runoff, and maintain or build water table
levels."
(k) February 5,1973: The U.S. District for the Eastern
District of North Carolina enjoined further work on the
SCS Chi cod Creek project because its environmental im-
pact statement failed to comply with the National En-
vironmental Policy Act. (National Resources Defense
Council V. Grant, 355, F. Supp. 280, 5 ERC 1001.)
(1) February 12,1973: Subcommittee Chairman Reuss
urged that Secretary of Agriculture Earl L. Butz re-
scind the termination of the Water Bank program for
failure to file an impact statement when the program
was terminated. He cited a ruling of the U.S. Court of
Appeals for the Tenth Circuit that an environmental im-
pact statement must be filed when a major program
12 Hearings, part 6, pp. 3238-3269.
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554 LEGAL COMPILATION—SUPPLEMENT n
affecting the environment is terminated. (National He-
lium Corp. v. Morton, 455 F.2d 650, CA 10, 1971, 3 ERG
1129.)
(m) February 14, 1973: The Environmental Protec-
tion Agency issued a significant policy statement on wet-
lands protection.13
(n) March 31, 1973: A. D. Little, Inc., submitted its
final report to the CEQ.
(o) May 10, 1973: The Corps of Engineers after
nearly 18 months in gestation published its proposed
wetlands policy for work in navigable waterways. (38
F.R. 12217.)
(p) Public awareness of the serious environmental
problems created by channelization significantly in-
creased as newspapers and periodicals throughout the
country reported on the rising storm of public opposition
to channelization projects.14
13 Hearings, part 5, p. 2981. The statement was subsequently published in the Federal
Register of May 2, 1973 (38 F.R. 10834),
14 The following editorial which appeared on January 8, 1972, in the Mooresville, North
Carolina, Tribune, is illustrative of this "opposition":
WE PLEAD AN ATTACK OF NOSTALGIA
There is 'mounting evidence that ive were wrong about Ecos and its opposition
to the U.S. Soil Conservation Service's channelization practices. Flat wrong.
There is, to start, the well-put letter from Bill Adair in response to our editorial
early in May in which we declared we were not joining Ecos in its fight against
SCS. We went on to say that our experience in lowland drainage policies of the
Soil Conservation Service led us to believe the agency was performing a valuable
service.
We have, too, a folder containing a world of material collected by Dick Lowder.
The point is made repeatedly in the collected writings that turning natural streams
into man-made ditches does more bad than good.
We accept these findings. We stand corrected. From the standpoint of the con-
cerned science teacher, given the view of the fisheries biologist employed by a
power company, accepting the gospel according to all converts to the Environ-
mentalist faith, we have no grounds on which to base our support of SCS
channelization.
By way of excuse, we must say we were suffering semantical confusion. We felt
a nostalgic tugging in references by Ecos to Chicod Creek in Beaufort County. We
remember the stagnant ponds, the drowned crops and the hopelessly inadequate
field ditches of our youth there. We remember the agricultural godsend of dredg-
ing that changed bogs into productive farmland—before the days of soil banks.
We recall the liberated look of the dawn-to-dark, hand-to-mouth farmers when the
draglines arrived.
The Army's Corps of Engineers and the other Government agencies involved in
these drainage programs were hailed as conquering heroes.
Honored likewise in their beginnings were coal-burning locomotives and internal-
combustion engines. Billowing smokestacks of factories became magnets for chil-
dren of those liberated swamp farmers.
Now we have had too much of too many good things. Just as the used-up and
decaying inner-city is belching people into the suburbs and beyond, the agricultural
order of priorities has reversed. The aim now is to conserve, not convert the
natural purposes of the land.
The order changeth. We find this altogether fitting. Channelization in 1972 is
bad; dredging in 1952 was good. (Italic supplied.)
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WATER—GUIDELINES AND REPORTS 555
On March 20 and 22, 1973, the Subcommittee resumed its
channelization hearings.15 The hearings reviewed the corrective
actions adopted by these agencies and sought to determine what
further improvements in the administration of flood control and
related programs were needed to increase the Federal agencies'
efficiency and economy and, most importantly, to find ways to
prevent, or at least minimize, the adverse environmental effects
of channelization.
This report, which is based on the 1971 and 1973 hearings,
discusses many of the developments concerning channelization,
and attempts to evaluate their effects. It points out several areas
where revisions are necessary in statutes and administrative
procedures and practices to insure that Federal and federally
financed water resource programs involving channelization are
carried out economically and efficiently and are environmen-
tally sound. For example, the report describes the failure of the
Soil Conservation Service to provide adequate procedures for
public participation at an early stage of project planning, despite
several provisions in Executive orders calling for such procedures.
It criticizes the Bureau of Outdoor Recreation for failing to
carry out its statutory duties, and the Bureau of Sport Fisheries
and Wildlife for its frequent vacillation—first vigorously oppos-
ing, then endorsing, a proposed project, and later, as the winds
of public pressure shifted, again opposing it.
The report does not condemn channelization or conclude that it
is always bad. Rather, it shows that the tool of channelization
has been overused, with inadequate consideration—and some-
times none at all—given to the adverse environmental effects
it produces. The Director of the channelization study recently
completed by Arthur D. Little, Inc. (hereinafter referred to as
"ADL"), stressed this latter point when he testified that: "En-
gineering solutions strongly reflected local economic motivations
and without adequate environmental analysis." 16
ADL's subcontractor, the Philadelphia Academy of Natural
Sciences, emphasized, at the Subcommittee's hearings, the conflict
between channelization and the environment in the following
statement:17
Channelization of natural streams and the produc-
tivity of fish and wetland wildlife ecosystems are
unequivocally antithetical. Channelization severely de-
grades the functional and structural properties of nat-
18 Footnote 2, supra.
18 Hearings, part 6, p. 3432.
17 Hearings, part 6, p. 3437.
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556 LEGAL COMPILATION—SUPPLEMENT n
ural stream and riverine communities by destroying
habitat, species diversity, stability, and the produc-
tion capacity of the systems. Channelization accelerates
and makes possible the drainage, conversion and loss
of wetland wildlife habitats and the bottomland hard-
wood forest ecosystems. Channel maintenance, when
practiced, arrests recovery of stream and wetland eco-
systems. Lack of channel maintenance permits a pro-
gressive recovery, but never approaching natural stream
productivity or usefulness as an aquatic-wildlife re-
source.
Channelization accelerates stream sedimentation, nu-
trient transport and eutrophication processes. The effect
of rechannelization of old drainage or flood control
channels is to offset recovery and presents opportunity
for additional drainage of wetlands. The magnitude of
biotic losses due to rechannelization works does not ap-
proach levels observed by channelization of natural
streams because of the slow in-stream recovery proc-
esses. Urban channelization projects rarely are disrup-
tive to natural wildlife communities, but may contribute
to degradation of downstream fish and wildlife re-
sources by increasing the peak transport of low quality
urban drainage. Observed mitigation efforts, as applied
under existing knowledge and enthusiasm, compensates
little, if any, to offset or attenuate the direct losses
accrued by channelization.
The fears raised by many concerned citizens about the adverse
effects of channelization are not imagined or exaggerated. They
reflect the real and extensive environmental damage which re-
sults from many channelization projects. Unless the Federal
agencies act promptly to deal with the problem—by adopting
alternatives to channelization, abandoning the channelization
features of a project, or substantially minimizing the adverse
affects of channelization—those water resource programs will
continue to face major citizen opposition and the benefits of these
projects to the Nation will be impaired.
CONCLUSIONS
Stream channelization, which consists of deepening, widening,
straightening, clearing or lining the existing channels of rivers
and streams, is an engineering technique used to control floods,
drain wetlands, improve navigation or control erosion. Thousands
of miles of the Nation's streams have already been channelized
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WATER—GUIDELINES AND REPORTS 557
and many more thousands of miles of channelization are now
being constructed or planned.
Some channelization accomplishes good and useful purposes
and should be continued. However, other channelization projects
either directly or indirectly have adversely affected the environ-
ment—ruining fish and wildlife habitat, destroying hardwood
forests, damaging scenic and esthetic natural values, lowering
water tables, increasing erosion upstream and sedimenta-
tion and flooding downstream, impairing water quality, encour-
aging construction on flood plains and thereby increasing both
damages from large floods and demands for more flood protection
works, enabling nearby landowners to construct lateral ditches
to drain even more wetlands, etc.
The principal Federal agencies engaged in sponsoring chan-
nelization are the Corps of Engineers, which constructs dams,
levees, bypasses, etc., under the Flood Control Acts, and the Soil
Conservation Service, which finances channelization projects
principally in connection with small watershed projects under
the Watershed Protection and Flood Prevention Act of 1954. These
agencies have in many instances not given adequate considera-
tion to the adverse environmental effects of the channelization
projects which they have supported. The rapid increase in stream
channelization in recent years has aroused much public criticism
against the failure of these agencies to consider and prevent
environmental harms from such work.
Both the Corps and the SCS have often failed to afford ade-
quate opportunity for full public participation in the develop-
ment of channelization projects. Although SCS requires at least
two public meetings to discuss project proposals, the meetings
are held by the project sponsors, not SCS, and no verbatim record
is taken for later review by Federal officials and the public.
Public notice of the meetings has, at times, been inadequate.
Furthermore, SCS has failed to comply with Executive orders
issued in 1954 and in 1961, which direct the Secretary of Agricul-
ture to hold public hearings in connection with the small water-
sheds program, as well as the 1970 Executive order which
implements the National Environmental Policy Act of 1969. How-
ever, the Corps of Engineers, commendably, issued regulations in
January 1973 concerning the holding of recorded public hearings
on its civil works program.
Most of SCS's basic guidelines, instructions, memoranda, and
other documents which are regulatory in nature or set forth
general policy and interpretations for carrying out its small
watersheds program have never been published in the Federal
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558 LEGAL COMPILATION—SUPPLEMENT n
Register, despite the requirements of the Administrative Proce-
dure Act. Similarly, many of the Corps' principal regulations
governing civil works projects have not been published in the
Federal Register. By failing to publish these regulations and
documents, both agencies have hampered public scrutiny of
their regulations and policies.
Several large corporations have benefited, or will benefit, from
the construction of channelization projects. But these and other
beneficiaries often are not identified in the public documents of
the Federal agencies doing or financing the channelization work.
Until recently, the SCS collected data from the public on
questionnaire forms which were not approved by the Office of
Management and Budget as required under the Federal Reports
Act. SCS procedures for collecting flood damage data are still
ill-defined and result in withholding data from the public in viola-
tion of the Freedom of Information Act. Furthermore, the Office
of Management and Budget, in approving some SCS questionnaire
forms, has allowed SCS to declare some of the data confidential
without requiring SCS to show that confidentiality is necessary
to carry out the agency's programs and is authorized by law.
The Bureau of Outdoor Recreation has broad statutory au-
thority and duties to review SCS projects in order to conserve
and enhance public outdoor recreational opportunities. It has,
however, failed to carry out its statutory obligation.
The guidelines issued by the Bureau of Sport Fisheries and
Wildlife in January 1972 for the planning and review of chan-
nelization projects warned that continuation of channelization
will result in serious degradation of valuable and irreplaceable
natural resources throughout the Nation. However, the recom-
mendations made by Federal and State fish and wildlife agencies
have often been ignored by water resource agencies. Moreover,
the Bureau of Sport Fisheries and Wildlife has been unable to
exercise its potential influence on channelization projects because
of its limited statutory authority and inadequate funding. For
example, the Fish and Wildlife Coordination Act requires that
the Corps and the Bureau of Reclamation "consult" with the
BSF&W, but the Act does not apply to the SCS or TVA. Fur-
thermore, the BSF&W has sometimes been hampered by the
failure of its parent agency, the Interior Department, to support
recommendations for dropping channelization projects or modify-
ing them to prevent, rather than merely limit, loss of, or damages
to, wildlife.
The Environmental Protection Agency maintains that chan-
nelization is a major factor in causing the deterioration of water
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WATER—GUIDELINES AND REPORTS 559
quality by increasing sedimentation, eutrophication and the ac-
cumulation of pollutants such as pesticides. However, the Soil
Conservation Service has given little heed to EPA's water quality
recommendations. The SCS has generally not adopted either rec-
ommendations on water quality, or recommendations on fish and
wildlife, unless both the SCS and the local sponsors of watershed
projects agree to accept them.
The Federal Water Pollution Control Act of 1972 required that
a Presidential order be issued in mid-April 1973 to establish
procedures requiring Federal agencies such as SCS to effectuate
the purposes of the Act in connection with federally financed
projects. The order was not issued until September 10, 1973.
Furthermore, although both this Committee and an EPA task
force had recommended that the Executive order be made ap-
plicable to small watershed projects, the order, which EPA and
OMB prepared, will apparently not apply to such projects.
The SCS in 1971 reviewed its pending and new watershed
plans involving channelization to determine what changes in
workplan or engineering design are needed to further national
environmental policies. However, there has been severe public
criticism that such review was done without opportunity for par-
ticipation by the public, and that SCS has refused to accept
recommendations for deferral of projects for further study. Fur-
thermore, SCS has not fully complied with the requirements of
the National Environmental Policy Act of 1969 that environ-
mental impact statements be prepared for major Federal actions
significantly affecting the human environment.
In June 1971, the Council on Environmental Quality contracted
with Arthur D. Little, Inc., to conduct an evaluation of the
environmental and physical effects of stream channelization, to be
completed by October 1971. After several modifications extending
the scope of the study and time for completion, as well as tripling
the contract price to $195,000, the company's channelization re-
port was completed in March 1973. However, at the request of the
Council on Environmental Quality, the report contained no rec-
ommendations aimed at preventing or minimizing the adverse
effects of channelization.
The Fish and Wildlife Coordination Act provides statutory
authority for the concept of mitigation of fish and wildlife losses,
i.e., measures to compensate for the loss of and damage to fish
and wildlife caused by water resource projects. However, the Corps
often has not begun acquisition of mitigation lands concurrently
with project construction. Furthermore, the Corps has rejected
the view, which is followed by the Bureau of Reclamation, that
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560 LEGAL COMPILATION—SUPPLEMENT n
the Fish and Wildlife Coordination Act authorizes acquisition
of mitigation lands at projects authorized prior to August 1958,
such as the Cache River in Arkansas, as well as after that date,
and has insisted that a specific statute authorizing the acquisi-
tion is necessary. The Corps' dilly-dallying in acquiring mitiga-
tion lands has generally resulted in increased costs to the Govern-
ment for the mitigation land or, worse, the clearing and draining
of the lands by private interests which destroy their value for
mitigation purposes.
The Starkweather small watershed project in North Dakota, if
and when completed, will drain thousands of acres of wetlands.
The Bureau of Sport Fisheries and Wildlife at first opposed the
project because of its potential destruction of wetlands, then
entered into a compromise with the Soil Conservation Service and
the local sponsors in order to obtain the approval of the then
Governor of North Dakota for the fee acquisition of several
thousand acres of wetlands outside the Starkweather area. Later,
the Interior Department admitted that the compromise was con-
trary to the public interest and repudiated it.
It is clear that much improvement is needed in the operations
of the Federal agencies discussed in this report. Adoption of the
Committee's recommendations will aid in achieving such improve-
ment.
PRINCIPAL RECOMMENDATIONS
(A) The Soil Conservation Service should comply with Executive
Orders 10584 of December 1954 and 10913 of January 1961
and promptly adopt new regulations designed to promote
public participation in the formulation of its projects.
Such regulations should include provisions that recorded
public hearings be held, after adequate notice, by SCS
on all SCS-financed small watershed projects, whenever
there appears to be sufficient public interest, and that, in
case of doubt, hearings will be held. (Page 34.)
(B) In accordance with the provisions of the Administrative Pro-
cedure Act concerning rulemaking and public information,
the Soil Conservation Service should promptly publish in
the Federal Register (a) all documents which are in fact
regulations, although not so designated by the SCS, and
(6) all other statements of general policy and interpreta-
tions of general applicability. (Page 35.)
(C) The Soil Conservation Service, the Corps of Engineers, and
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WATEK—GUIDELINES AND REPORTS 561
the Bureau of Reclamation should promptly adopt a policy
of fully identifying all known project beneficiaries in per-
tinent project documents which are made available to the
public, including environmental impact statements. (Page
38.)
(D) The Soil Conservation Service should promptly include on
its questionnaire forms concerning irrigation, drainage, and
flood damages a statement which specifies, with respect to
commercial and financial data supplied by a respondent,
that the respondent shall indicate whether he desires the
data to be kept confidential and exempt from disclosure
under the Freedom of Information Act (5 U.S.C. 522(b)
(4)), and that if he consents to public release thereof he
shall indicate his consent in writing. (Page 41.)
(E) The Bureau of Outdoor Recreation should begin immediately
to review SCS small watershed projects (a) to ascertain
their probable effects on recreational and esthetic values,
and (6) to advise SCS whether, or the conditions under
which, SCS should approve such projects. (Page 45.)
(F) The appropriate committee of the House of Representatives
should consider amending the Fish and Wildlife Coordi-
nation Act to (a) extend it to all water resource projects
constructed or financed by a Federal agency; (6) insure
that Federal and State fish and wildlife agencies are noti-
fied at an early stage in project development; (c) require
that Federal water resource agencies set forth their rea-
sons for not including in the nroject any fish and wildlife
mitigation and enhancement features recommended by
Federal or State fish and wildlife agencies; and (rf) re-
quire that estimates of fish and wildlife losses not be
evaluated solely in monetary terms. (Page 64.)
(G) Executive Order 11738 should be revised to include a specific
requirement that the SCS obtain from the appropriate
State water pollution control agency, or from EPA, in
appropriate cases, a certification that the proposed project
will, as a minimum, maintain the chemical, physical, and
biological integrity of the affected water. (Page 72.)
(H) The Soil Conservation Service should promptly establish a
committee composed of representatives from other Federal
agencies, the States, and the public to perform the func"
tions proposed by the SCS Watersheds Memorandum 108
of February 1971 and publish its findings. (Page 83.)
(I) The Soil Conservation Service should promptly abandon
Watersheds Memoranda 12 and 121 and adopt a policy of
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562 LEGAL COMPILATION—SUPPLEMENT n
full compliance with the requirements of section 102(2) (C)
of the National Environmental Policy Act of 1969.
(Page 95.)
(J) The Council on Environmental Quality should promptly
develop and, after providing public opportunity for com-
ment thereon, recommend that the President promulgate,
comprehensive guidelines for Federal agencies in plan-
ning and carrying out projects involving channelization.
These guidelines should require the agencies to show
affirmatively that the proposed channelization is in accord
with the public interest and that adequate measures to
prevent or mitigate environmental damage or destruction
are effectively provided for before work on the project is
initiated. (Page 108.)
(K) The appropriate committee of the House of Representatives
should consider clarifying section 3(c) of the Fish and
Wildlife Coordination Act to insure that water resource
development agencies can acquire in a timely fashion
mitigation lands and interests therein without further
authorization by Congress, but subject to obtaining an
appropriation for such acquisition. (Page 120.)
(L) The appropriate committee of the House of Representatives
should give consideration to repealing the veto provisions
of section 3 of Public Law 87-838, as amended (16 U.S.C.
715k-5) or amending them to allow the Governor or the
appropriate State agency 30 days to disapprove acquisition
of any particular tract of land recommended by the
Bureau of Sport Fisheries and Wildlife. (Page 124.)
TEXT OF REPORT
I. THE PRINCIPAL FEDERAL AGENCIES WHICH ALTER
AND MODIFY AMERICA'S WATERWAYS FOR FLOOD
CONTROL AND DRAINAGE PURPOSES ARE THE CORPS
OF ENGINEERS AND THE SOIL CONSERVATION SER-
VICE 18
A. THE CORPS OF ENGINEERS
Of all the Federal agencies authorized to engage in channeliza-
tion, the Corps of Engineers has the oldest mandate to modify
the natural behavior of America's rivers and streams. It began
18 The Bureau of Reclamation and the Tennessee Valley Authority also are authorized
to build water resource projects for flood control and other purposes and have, in the
past, utilized channelization to achieve these purposes.
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WATER—GUIDELINES AND REPORTS 563
work on navigation improvements in 1824. In 1850, Congress au-
thorized a survey of the Mississippi River to include investigations
to develop the most practical plan for assuring flood control in the
Mississippi River Valley.
The Corps' present channelization authority derives chiefly from
the Flood Control Act of 1936 (49 Stat. 1570). It was the first
of a series of laws known collectively as the "Flood Control Acts."
The 1936 law established for the first time a national flood control
policy. A key part of this policy was the statutory directive
that "the Federal Government should improve or participate" in
improving our waterways, "including watersheds * * *, for flood
control purposes if the benefits to whomsoever they may accrue
are in excess of the estimated costs, and if the lives and social
security of people are otherwise adversely affected." The Flood
Control Act of 1944 (58 Stat. 887) modified the earlier law by
redefining flood control to include "major drainage." The Corps'
former Director of Civil Works, Major General F. P. Koisch,
testified at the Committee's June 1971 hearings 19 that, like "flood
control in rural areas, major drainage works modify hydrologic
and ecological systems for economic gains."
Channelization is one of the tools used by the Corps in im-
plementing this national flood control policy.
The planning, design, authorization and construction of Corps
projects often stretch over long periods of time. Some projects
which were authorized in the 1950's or '60's or even earlier have
never been funded or only recently reached the construction
stage. Many of them include channelization features. Some are
even ancient. For example, in 1881, the Congress authorized the
Corps to widen, deepen and straighten Neabsco Creek in Virginia,
and appropriated $5,000 for this purpose. The project remained
quite dormant for over 80 years, until 1964, when it was re-
activated at the urging of a few persons who would be its princi-
pal beneficiaries. One factor which tends to bring these old proj-
ects out of limbo is that the Corps follows the practice of comput-
ing the project benefit-cost ratio with the interest rate which was
in effect when the Congress first apropriated funds for the proj-
ect.20 Many of the old projects would not produce a 1:1 benefit-cost
ratio if the current higher interest rate were used.
B. THE SOIL CONSERVATION SERVICE
The principal builder of channelization projects in the South-
18 Hearings, part 2, p. 554.
M Hearings, part 2, p. 682.
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564 LEGAL COMPILATION—SUPPLEMENT n
eastern and Midwestern United States is the Soil Conservation
Service (SCS). This agency was established as the Soil Erosion
Service within the Interior Department in 1933 and was trans-
ferred to the Department of Agriculture in 1935,21 after the worst
duststorm in the Nation's history. The "Dust Bowl'" States had
generated a great billowing brown cloud that rolled eastward
from the Great Plains to the Atlantic Coast in May 1934, scouring
the croplands in its path. It was largely a manmade disaster.
Foolish and greedy cropping and grazing practices had destroyed
the cover that rooted the rich topsoil of the plains; windstorms
confiscated the exposed humus grain by grain; and the big blow
of 1934 nearly finished the job.
The young SCS won the Nation's admiration in the 1930's and
1940's. Working through local soil and water conservation districts
(now over 3,000 in number, with more than 3.2 million members),22
the SCS tried to "hold the raindrop where it falls" in land properly
tilled, cropped or returned to forests and grass. It weaned thou-
sands of farmers from the superficially profitable, but eventually
ruinous, agriculture they had been accustomed to follow. Through
technical aid, demonstration plots, and cost-sharing, the SCS—
to its great credit—promoted the use of cover crops, terraces,
contour farming, crop rotation, fish ponds, reforestation, tile
drainage, grassed waterways and other land-saving measures.
These reforms not only restored the agriculture of the plains, they
also enriched the habitats of many wildlife species and reduced
the silting of upland streams. At no time since have the priorities
of farmers and environmentalists been so congenially matched.
The Act of April 27, 1935, established the SCS to carry out the
"policy of Congress to provide permanently for the control and
prevention of soil erosion and thereby to preserve natural re-
sources, control floods, prevent impairment of reservoirs and main-
tain the navigability of rivers and harbors, protect public health,
public lands and to relieve unemployment." (Public Law 74-46,
as amended (16 U.S.C. 590 a-f) ). It authorized the Secretary of
Agriculture (1) to conduct surveys and investigations; (2) to
carry out "preventive measures, including, but not limited to,
engineering operations, methods of cultivation, the growing of
vegetation, and changes in use of land"; (3) to "furnish financial
or other aid to any agency, governmental or otherwise, or any
person, subject to such conditions as he may deem necessary, for
the purposes of" the Act, and (4) to acquire lands "whenever
necessary for the purposes" of the Act. Although this statutory
21 Act of April 27, 1935 (16 U.S.C. 590a-f).
22 Hearings, part 3, p. 1367.
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WATER—GUIDELINES AND REPORTS 565
language appears broad enough to enable SCS to provide aid
for dredging and modification of steams, SCS does not generally
rely on this statute for such purpose at present.
Title III of the Bankhead-Jones Farm Tenant Act of July 22,
1937, as amended (7 U.S.C. 1010), authorized and directed the
Secretary:
* * * to develop a program of land conservation and
land utilization, in order thereby to correct maladjust-
ments in land use, and thus assist in controlling soil
erosion, reforestation, preserving natural resources, pro-
tecting fish and wildlife, developing and protecting
recreational facilities, mitigating floods, preventing im-
pairment of dams and reservoirs, conserving surface and
subsurface moisture, protecting the watersheds of navi-
gable streams, and protecting the public lands, health,
safety, and welfare, but not to build industrial parks or
establish private industrial or commercial enterprises.
Through fiscal year 1969, SCS had provided technical and finan-
cial assistance under this law to local public organizations for
698 miles of dredging, modification, and channelization of rivers
and streams.
The Act of April 27, 1935 (16 U.S.C. 590g(a) ), requires
SCS, among other things, to preserve and improve soil fertility,
promote the economic use and conservation of land, and protect
rivers and harbors against the results of soil erosion in aid of
flood control and navigation.
Section 13 of the Flood Control Act of 1944 (Public Law 78-
534) authorizes the Secretary of Agriculture to prosecute works
of improvement for runoff and waterflow retardation and soil
prevention in 11 watersheds.23 Through fiscal year 1969, SCS
had provided technical and financial assistance under these laws
for work on 876 miles of streams.
The Act of August 7, 1956, as amended in 1969,24 authorizes
SCS "* * * to enter into contracts * * * with owners and
operators of land in the Great Plains area * * * to assist
farm, ranch, or other landowners or operators to make, in orderly
progression over a period of years, changes in their cropping sys-
tems or land uses which the needed to conserve, develop, protect,
23 The 11 watersheds are: Los Angeles River Basin; Santa Ynez River Watershed; Trinity
River Basin (Tex.); Little Tallahatchie River Watershed; Yazoo River Watershed; Coosa
River Watershed (above Rome, Georgia); Little Sioux River Watershed; Potomac River
Watershed; Buffalo Creek Watershed (N.Y.); Colorado River Watershed (Tex.); and Washita
River Watershed.
"Public Law 84-1021, as amended Nov. 18, 1969, by Public Law 91-118, 83 Stat. 194; 16
U.S.C. 590p.
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566 LEGAL COMPILATION—SUPPLEMENT n
and utilize the soil and water resources of their farms, ranches,
and other lands and to install the soil and water conservation
measures and carry out the practices needed under such changed
systems and uses." Through fiscal year 1970, SCS had provided
technical and financial assistance under this law to land users
in the Great Plains area for dredging, modification, and chan-
nelization on 600 miles of rivers and streams.
But most of the assistance now provided by SCS to local spon-
sors is carried out under the 1954 Watershed Protection and Flood
Prevention Act, popularly referred to as "Public Law 566" of
the 83rd Congress (16 U.S.C. 1001, et seq.). Section 1 of the Act
states:
Erosion, floodwater, and sediment damages in the wa-
ter sheds of the rivers and streams of the United States,
causing loss of life and damage to property, constitute
a menace to the national welfare, and it is the sense
of Congress that the Federal Government should co-
operate with States and their political subdivisions, soil
or water conservation districts, flood prevention or con-
trol districts, and other local public agencies for the pur-
pose of preventing such damages and of furthering the
conservation, development, utilization, and disposal of
water and thereby of preserving and protecting the Na-
tion's land and water resources.
Applications for aid under this Act are first submitted by a
local sponsoring organization to the Governor, or to a State
agency designated by the Governor to act on applications. If the
application is "not disapproved within 45 days" by the Governor
or the State agency, the SCS "is authorized" to conduct necessary
"investigation and surveys"; prepare work plans; make cost alloca-
tions to various project purposes and determine "whether benefits
exceed costs"; "enter into agreements" to provide financial and
technical assistance; and obtain assistance from other Federal
agencies. 16 U.S.C. 1003.
Although the statute appears to indicate that the Governor's
or State agency's, silence on the application for 45 days is equiv-
alent to approval, the SCS's Watershed Protection Handbook
(WPH) specifies in section 101.012-a that the application "must"
be "submitted and approved" by the Governor or the designated
State Agency. However, according to SCS's September 1971 list-
ing of designated State agencies,26 in only one State—Missouri—
does the Governor act upon these applications. In about 12 States,
» Hearings, part 5, p. 2914.
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WATER—GUIDELINES AND REPORTS 567
the designated State agency is the State soil and water conserva-
tion committee. The witness for the Natural Resources Defense
Council, Mr, Thomas J. Barlow, testified that these committees
are almost wholly composed of representatives of argicultural
interests. He said:28
In North Carolina, the seven commission members are
all officers of local conservations districts. In Louisiana
the commission is composed of officers of local conserva-
tion districts, a professor of agriculture from Louisiana
State University, and the commissioner of the Depart-
ment of Agriculture. In Maryland all members are
representatives of the agricultural industry with the
exception of the State's Water Resources Administrator.
The pattern of almost total dominance of these com-
missions' memberships by representatives of conserva-
tion districts and the agricultural industry is duplicated
in every State.
In a July 13, 1973, letter to the Subcommittee, Administrator
Grant noted that these committees "also recommend the order
of priority for planning projects. * * *"
The 1954 Act permits applications for financial assistance
work in watersheds or subwatershed areas not exceeding 250,000
acreas, with no single structure which provides more than 12,500
acre-feet of floodwater detention capacity or more than 25,000
acre-feet of total capacity. If the estimated Federal contribu-
tion under the Act to construction costs would exceed $250,000,
or any single structure would provide more than 2,500 acre-
feet of total capacity, the work plan must be approved by the
appropriate committees of Congress.27 Other project plans may
be approved by the SCS without approval of a congressional com-
mittee.
The SCS has had a longstanding policy against providing Fed-
eral cost sharing under any of its programs for the primary
purpose of bringing new land into cultivation,28 or drainage to
26 Hearings, part 6, p. 3359.
" The Senate Agriculture and Forestry Committee and the House Agriculture Committee
approve plans with a single structure providing not more than 4,000 acre-feet of total capac-
ity. The Senate and House Public Works Committees approve plans with a single structure
providing more than 4,000 acre-feet of total capacity. (16 U.S.C. 1002.)
ssSee SCS's Watershed Protection Handbook (WPH) 101.012(n). The Corps, on the
other hand, has testified that it "has to date not withheld favorable recommendations on
projects simply because they might bring new lands into agricultural production." Indeed,
the National Water Commission estimates that Corps' works "already completed or now
under construction would allow 6.3 million acres of land not presently cultivated to be
added to the agricultural land base when it is cleared," and that an additional 29.6 million
acres are already "cleared and suitable for agriculture" (footnote 2, supra, p. 123). But
the Corps is "reviewing" the question. (Hearings, part 5, p. 2894.) On September 4, 1973,
the Subcommittee asked the Corps for a status report concerning that review.
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568 LEGAL COMPILATION—SUPPLEMENT n
facilitate major land use changes.29 Channelization for this pur-
pose is not permitted. However, this does not prevent the local
sponsors or landowners from installing such drainage and fully
financing the costs thereof. According to a discussion paper
recently prepared by the Agriculture Department's representa-
tive on an Interdepartmental Task Force for Cost Sharing—
established in July 1973 "to develop viable alternatives to the
National Water Commission * * * cost sharing objectives"—
landowners "usually are able and willing to bear all costs for
on-farm drainage measures." However, stream channelization
often facilitates the installation of such drainage facilities. Thus,
channelization enables the local sponsors or landowners to achieve
the same result despite the SCS policy and statutory prohibi-
tions against use of Federal funds for drainage of wetlands.
Typically, a P.L. 566 project begins when a local watershed
group (most often a water management, drainage, or soil and
water conservation district) submits a written request, through
the State, asking the SCS for help. If forthcoming, this help
will include an early feasibility study, cooperation in drafting
a watershed "work plan" and calculating a benefit-cost ratio,
the drafting of an environmental impact statement, Federal funds
(up to 100 percent for channelizations), and liaison with other
State and Federal agencies and Congress.30 To be eligible for
assistance, local sponsors must acquire necessary land and water
rights, and provide satisfactory evidence that they will operate
and maintain improvements. After the request is cleared by the
Governor or the designated State agency, the momentum of a
small watershed project is sustained exclusively by the SCS and
the local sponsors.
Mr. George R. Bagley, National Vice President of the National
Association of Conservation Districts, testified at the Committee's
29 Since fiscal year 1963 the annual Department of Agriculture Appropriation Act has
contained a proviso (commonly known as the "Reuss Amendment") to the paragraph
appropriating funds for the Department's Agricultural Conservation Program. That proviso
was first incorporated in the Agriculture Department Appropriation Act of Oct. 24, 1962
(P.L. 87-879, 76 Stat. 1210), as follows:
Provided further, That no portion of the funds for the 1963 program may be
utilized to provide financial or technical assistance for drainage on wetlands now
designated as Wetland Types 3(111), 4 (IV), and 5(V) in United States Depart-
ment of the Interior, Fish and Wildlife Service Circular 39, Wetlands of the
United States, 1956.
Section 106.041 of the SCS Watershed Protection Handbook states:
The Reuss Amendment applies only to the Agricultural Conservation Service
program, a program described in the Soil Conservation and Domestic Allotment
Act, 16 U.S.C. 590g-B90(o), B90p(a) and B90p(q). However, the SCS has taken
the position that it will not provide funds under the Small Watershed program
(P.L. B66, 83d Cong.—Watershed Protection and Flood Prevention Act) for drain-
age of wetland Types 3, 4, and B.
10 See SCS flow chart, hearings, part 2, p. 12B4.
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WATER—GUIDELINES AND REPORTS 569
June 1971 hearings that when Public Law 566 was being con-
sidered in Congress in 1954 "district leaders insisted that the
watershed program be a local program with Federal assistance."
He further testified:31
From the very beginning, NACD has supported and
worked for amendments to the original act to extend and
improve its usefulness and broaden its purposes. These
amendments approved, by the Congress have transformed
the program from one of primarily flood prevention to a
multiple-purpose program of mutch greater breadth, pro-
viding for development of water supplies for towns and
cities, industries, fish and wildlife enhancement, recrea-
tion, and agricultural use. (Italic supplied.)
The extent to which these projects are in fact "multi-purpose"
is clouded by two factors:
First, the SCS Watersheds Memorandum No. 86 of September
28, 1967 emphasizes that "the Soil Conservation Service will not
authorize for planning any watershed in which flood prevention
is not the primary project purpose and for which approval by
the Agriculture Committees of the Congress is required." The
memorandum further states that the primary purpose "will be
determined on the basis of relative costs rather than of benefit
accrual." Memorandum 86 was issued to comply with the letter
which the Chairman of the House Committee on Agriculture
sent on July 31, 1967 to then Speaker John W. McCormack. The
letter is quoted in Watersheds Memorandum No. 86. In approving
two projects that were "primarily" for irrigation purposes, the
committee said:
* * * the committee takes this occasion to make its
position perfectly clear on projects whose primary pur-
pose is not flood prevention.
As it has in the past, the committee will welcome
incidental benefits such as recreation, irrigation, and
municipal water supply which are consistent with good
soil and water management; however, such benefits must
be secondary to flood prevention.
The Watershed Protection and Flood Prevention Act
has been a flood prevention program and a highly suc-
cessful one. To try to expand it into other vast areas
such as irrigation which are better served by other pro-
grams, in the opinion of the committee, would only serve
to diminish its effectiveness.
sl Hearings, part 3, p. 1358.
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570 LEGAL COMPILATION—SUPPLEMENT n
The Committee respectfully urges the Department of
Agriculture to carefully consider this policy in order that
no further projects whose primary pupose is not flood
prevention will be submitted to the committee.
SCS's 1967 memorandum does not apply to plans or projects
approved by the House and Senate Public Works Committees or
by SCS without any congressional committee approval.
Second, the SCS, in section 101.011 of the Watersheds Pro-
tection Handbook (WPH), states that: "All watershed projects
should have multiple purposes." But the decision as to whether
it will or will not be a multiple purpose project is made, not by
the SCS, but by the local sponsors, who will often be partic-
ularly concerned about the cost of a multi-purpose project versus
a single purpose project. The handbook states:
// the local organization desires to proceed with
flood prevention improvements without planning justi-
fied irrigation, drainage, recreation, fish and wildlife, or
other water management facilities, the work plan may be
prepared on this basis. Likewise, justified measures for
flood prevention over and above those required to provide
an acceptable level of protection may be omitted, pro-
vided their omission does not increase or adversely affect
the cost of installation, operation, and maintenance of
irrigation, drainage, recreation, fish and wildlife, or other
water management facilities. If, however, local organiza-
tions seek assistance for works of improvement serving
single purposes, and which could more appropriately be
carried out under other Federal programs, they should
be advised of such programs, and encouraged to seek
assistance under them. (Italic supplied.)
The watershed projects approved by the SCS since July 1, 1960,
involve the channelization of some 16,400 miles of waterways
at a total Federal cost of about $360 million as of May 1, 1971.32
Of this total, about 4,200 miles had been channelized. More
than 1,000 miles of channelization projects have been approved
in Arkansas, Louisiana, and Texas alone. In Mississippi, the
total exceeds 3,100 miles. In addition, the SCS had numerous
applications for watershed projects involving many miles of chan-
nelization work pending as of May 1, 1971.33
32 Hearings, part 3, p. 1624.
33 For a listing in each State of all approved, and applications for, watershed projects
involving channelization, see hearings, part 3, app. 15, table A (p. 1625) and table B
(D. 1750).
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WATER—GUIDELINES AND REPORTS 571
In the fall of 1972 the SCS completed an inventory of all
channel modification work planned and carried out under its
various authorities. This inventory shows that the total number
of miles of channel work planned in projects approved for opera-
tions through March 31, 1972, had increased to 21,106 miles,
and that, of this amount, 7,729 miles have been constructed.
The SCS said that its inventory or classification revealed that
a little more than "3,200 miles of natural perennnial-flowing
streams, or about 15 percent of the total channel work planned,
would fall in the category of 'channelization'." The SCS em-
phasized that:34
More than two-thirds of all channel work, planned or
installed, is on channels having intermittent flow (ap-
proximately 7,100 miles) or that flow only during periods
of surface runoff (also about 7,100 miles).
Assistant Secretary of the Interior Nathaniel Reed criticized
the inference which the SCS seems to draw from this inventory,
namely, that environmentalists should not fret over channeliza-
tion because the SCS is merely re-working already channelized
waterways in most instances. Mr. Reed testified:36
I have been on an old channelized stream, sections
of which have totally recovered and which have re-
grown in a number of different States. The areas that
the SCS has inventoried contains some of those areas.
They contain other areas of natural drainage leading
into other areas, which they wish to modify. I cannot
say that it is 100 percent previously manmade. There
are a lot of natural areas involved in this, case-by-
case.
The witness for the Natural Resources Defense Council, Mr.
Thomas Barlow, also pointed out in his statement:36
* * * This SCS classification system has serious de-
fects:
(1) Ditching work on much of the stream mileage
classified as previously channeled was of such minor
consequence and was performed so long ago that the
streams have recovered their natural vitality. Most of
this channelization did not involve the heavy engi-
neering techniques now employed by the SCS.
(2) Many of the streams classified as intermittent or
34 Hearings, part 5, p. 2915.
35 Hearings, part 5, p. 2946.
36 Hearings, part 6, p. 3353-3354.
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572 LEGAL COMPILATION—SUPPLEMENT n
ephemeral are adjacent to wetlands and swamps and,
if channeled, would drain the nourishing waters from
these areas.
(3) The classification system does not touch on the
land use changes which channelization encourages and
which can impair imporlant natural resource areas.
(4) The classification system does not shed any light
on other natural resource categories directly affected
by channelization such as down stream water quality.
"Intermittent" and "ephemeral" streams can be a criti-
cal part of the overall watershed ecosystem.
(5) Finally, this SCS classification of streams sched-
uled for SCS channelization in States was made by
the SCS without consulting State natural resource agen-
cies.
II. WITH THE INCREASED USE OF CHANNELIZATION
AS A MEANS OF CONTROLLING FLOODS SINCE THE
LATE 1950'S, THERE HAS BEEN A CORRESPONDING
INCREASE OF PUBLIC CRITICISM AGAINST THIS EN-
GINEERING TOOL
The ecological consequences of channelization flow from its
massive restructuring of the streambed and adjacent banks for
flood control purposes.
Most waterways flow in a meandering, but definite, channel
with oxbows, vegetation and sloping banks. On one or both sides
of the channel lies the flood plain. Channelization generally in-
volves the reshaping of the waterway bed and its banks to pro-
vide a greater flow capacity than that of the natural channel.
Bulldozers, dragline buckets and dredge bits gouge the stream
deeper and straighter, lopping off its meanders, obliterating its
pools and riffles, and cutting its banks at a uniform and sharp
angle. Logs, brush and other types of debris are cleared away,
and the immediate flood plain on either side of the channel is
stripped of vegetation—often in a swath more than 200 feet wide.
Dredge spoil is sometimes heaped along the bank to make the
channel even deeper.
The channel bottom is usually cut to a uniform depth and
width, eliminating most ecological niches. Streamflow loses its
fast-slow character (ideal for oxygenation) and temporarily
evens out—though the long range result may be a channel that
trickles in dry weather and rampages during storms. Along great
stretches, the new channel runs ramrod-straight. Its banks look
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WATER—GUIDELINES AND REPORTS 573
cleanly shaved, deprived of their reeds, roots and overhanging
branches.97
To provide effective flood control through built-up, highly de-
veloped areas, such as urban or residential areas, channels must
have adequate capacity to carry within-bank the peak dis-
charges expected from the contributing areas for a predetermined
frequency, usually 100-year (1 percent chance). Overbank flows
are not to be tolerated.
To provide an acceptable level of flood protection to agricul-
tural areas, it is not necessary for channels to carry all flows
within banks. The functions of channels in these areas are three-
fold: (a) to reduce the frequency of over-bank flows, such as
from an average of 4 times per year to once every 2 or 3 years
depending on the value of the crops involved; (b) to reduce the
depth of inundation; and (c) to reduce the duration of inunda-
tion, such as from 5 days to 2 days.
The destructive effects of this radical reshaping of a water-
way are often manifold.
Many citizens and environmental organizations have become
more and more concerned about these effects, and more and
more critical of the increasing use of channelization by Federal
agencies in recent years. So important an issue has this practice
become that the National Audubon Society listed the "correction
of channelization policies" among its highest "action priori-
ties." 3S
Major General Maxwell E. Rich (ret.), Executive Vice Presi-
dent of the National Rifle Association, acknowledged that some
channelization projects have "enhanced environmental quality,"
but he emphasized: 39
Too often, however, these federally subsidized pro-
grams have subverted the wise and basic principles of
conservation and have, in the opinion of many compe-
tent biologists, done irreparable harm to soil and water
and wildlife resources.
# * * * *
Case histories of dredging, drainage and channeliza-
tion are legion and each such history has in common
37 For a picture of an improved channel that is straight and cleanly shaved, see SCS
Picture No. 6 of Cowpen Slough in Florida printed at p. 52 of the Senate Committee on
Public Works' hearings of July 27, 1971, entitled "The Effect of Channelization on the
Environment" (hereinafter referred to as "Sen. Hearings").
38 Hearings, part 1, p. 9.
59 Hearings part 1, p. 146.
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574 LEGAL COMPILATION—SUPPLEMENT n
with others the conversion of living streams to silted
ditches.
*****
Many of these federally sponsored projects lay claim
to providing additional man-days of recreation on the
water impoundments and reservoirs thus created. How-
ever, we hear no claims being made as to the quality
of this new recreation. Nor do we hear much about in-
creased siltation rates of water impoundments because
of channelization of upstream tributaries.
We suspect that frequently the deciding factor on
channelization, reclamation, and so-called flood control
projects is an economic one. The implication of in-
creased short-time prosperity brought about by the ex-
penditure of substantial sums of money by the Federal
Government for local construction overrides the long
range loss suffered from a degraded environment.
Mr. George R. Bagley, Vice President of the National Associa-
tion of Conservation Districts, acknowledged that many conser-
vation districts "recognize the problems inherent in the use of
channel modification for flood prevention in watershed proj-
ects." •">
Frustrated with the inadequacy of environmental evaluations
of channelization projects by Federal agencies, citizens increas-
ingly turned to the courts and sought and obtained injunctions
against continued work on several major projects.
On December 14, 1972, the U.S. Court of Appeals for the
Eighth Circuit ruled that the Corps of Engineers' environmental
impact statement of December 1970 concerning the Cache River-
Bayou DeView channelization project was "vague, too general
and too conclusionary." The Court said that Federal Courts "have
an obligation to review substantive agency decisions on the merits
to determine if they are in accord with NEPA." This review "is
a limited one for the purpose of determining whether the agency
reached its decision after a full, good faith consideration of en-
vironmental factors made" under NEPA standards and "whether
the actual balance of costs and benefits struck by the agency ac-
cording to these standards was arbitrary or clearly gave insuffi-
cient weight to environmental factors." The Court therefore re-
manded the case to the District Court to require the Corps to
submit a "revised" statement and to review the Corps' decision to
proceed with the project.41
« Hearings, part 5, p. 2972.
41 Environmental Defense Fund v. Frochlke, 4 ERC 1829, 473 P. 2d 346.
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WATER—GUIDELINES AND REPORTS 575
Another major case involved the Corps' channelization of
about 110 miles of the Obion River system and 106 miles of the
Forked Deer River system in Tennessee, a largely rural area.42
The suit was instituted in the U.S. District Court in Tennessee
after about 69 miles of stream had been channelized. The Corps'
General Koisch described this project as "a classical example of
the conflict in competing use of resources"—enhancing "the hu-
man environment" by providing "increased crop yields; reduced
flood inconveniences, health hazards, and dangers; and encourage-
ment of a generally higher standard of living"—but accelerating
"the clearing for agriculture" of about "84,000 acres * * * of
woodlands and prime wildlife habitat." General Koisch noted
that "when these concerns became apparent," the Corps restud-
ied the project and issued a mitigation report (i.e. a report on
measures to compensate for, but not replace, loss of and damage
to fish and wildlife resources), but it "was roundly criticized by
all sides."43
Mr. Harold Warvel, Assistant Director of the Tennessee Game
and Fish Commission, predicted that completion of the Obion-
Forked Deer "channel project will, in time, eliminate fish and
wildlife resources by drainage and woodland conversion." He
noted that extensive lateral drainage systems are "already" being
installed, and that although the original plans stated that wood-
lands subject to flooding "1 year or more in 3, would not be
cleared," they are being "cleared and the area devoted to agri-
culture." He said:44
Flood damages in 1948 were $55,000; in 1965
$757,000; and in 1970, $2 million. It would appear that
as land is cleared and devoted to high value cash crops
the periodic anticipated—and I underscore that word—
anticipated floods result in higher damages, thereby
justifying additional flood control.
Mr. Warvel noted that similar problems are found in the SCS's
small watershed program, as follows:45
Our problems associated with the small watershed
program under Public Law 566 are basically the same.
They involve channelization and subsequent drainage
and clearing of adjacent bottom land hard wood. While
the channeling destroys the fishery habitat, the loss of
wildlife habitat that occurs following drainage of areas
42 Akers v. Resor, 4 EEC 1966, — F. Supp. — (Dec. 23, 1972).
43 Hearings, part 2, p. 555.
44 Hearings, part 3, p. 1286.
45 Hearings, part 3, pp. 1286, 1287.
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576 LEGAL COMPILATION—SUPPLEMENT n
adjacent to the streams is important when considered
from an accumulative point of view. This is where we
get nibbled to pieces. Each project has a little, and it is
pretty hard to argue too much with the local people
that this wildlife habitat is really important when they
are dealing with flooding in some buildings that
shouldn't have been built in the flood plains in the first
place.
Although we have good working relations with the
Soil Conservation Service, we still end up with streams
channeled and lands drained and cleared. In the past,
planning under Public Law 566 has been carried out with
emphasis on engineering rather than consideration for
ecological principles or environmental values. Although
this is still the case, SCS engineers in Tennessee are
more aware of our interest and have tried to incorpor-
ate some mitigating measures where possible. Even so,
when mitigation measures are recommended there has
been no assurance that the watershed district would
decide to include these measures and to follow through
with implementation and maintenance.
The Federal District Court's decision enjoined further channel-
ization of the Obion-Forked Deer project because the Corps' en-
vironmental impact statement "has not complied" with the pro-
cedural requirements of NEPA in that it (a) lacked adequate
discussion of project alternatives such as flood plain planning
and zoning, flood plain insurance, upstream structures, or defer-
ring channelization work until "after" mitigation land is ac-
quired; (b) failed to reflect the views of the Agriculture Depart-
ment as to the effect of channelization on land use and the views
of the State Highway Department as to project maintenance
costs; and (c) "deals only peremptorily with the accepted im-
portance" of wetlands in the project area "to the Mississippi
flyway, to the production of water fowl, to the water quality in
these streams and to other unquantifiable values."
Still another major case in which citizen groups obtained an
injunction involved the SCS's Chicod Creek watershed project
channelizing 66 miles of streams in Pitt and Beaufort Counties
in North Carolina. The Court's opinion concerning the inadequa-
cies of the SCS's final environmental impact statement reads like
a litany about administrative incompetence, myopia, anti-
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WATER—GUIDELINES AND REPORTS 577
environmental bias and lack of candor. The SCS statement, the
Court said:46
1. "misrepresents the adverse environmental effects of
the project upon fish habitat" caused by "a massive
increase in sedimentation from the project";
2. "misrepresents the effect of the project upon fish
resources";
3. "ignores the effect of the project on potential eu-
trophication problems in the Tar-Pamlico estuary";
4. "fails to disclose the maintenance history of P.L.
566 projects";
5. "ignores the serious environmental consequencies of
the proposed use" of the kudzu vine along 23.5 miles
of new channels;
6. "misrepresents and fails to disclose" that "over
17% of the acreage to be benefited by the project is
held by the Weyerhaeuser Company, a large lumber
company";
7. fails to "contain an adequate discussion of the pos-
sible adverse effects of the project upon downstream
flooding";
8. fails to "disclose or discuss the cumulative effects
of the project"; and
9. fails to "fully disclose or adequately discuss alterna-
tives to the project".
The Chairman of the Council on Environmental Quality, Mr.
Russell E. Train, quite nicely summed up the impact of these
decisions and citizen concern at the Subcommittee's March 1973
hearings, while also emphasizing that not all channelization is
bad. He testified:"
Mr. FOUNTAIN. * * * Your statement in no way is de-
signed to leave the impression that all channelization is
bad, is it?
Mr. TRAIN. No, sir. * * * I think that our major con-
cern, particularly in the case of the Soil Conservation
Service, is simply that the analysis of environmental im-
pact is really quite fragmentary and does not really give
an adequate basis for public consideration of the project.
It is not that the projects necessarily are bad. Some are
bad, no question about it; and as the SCS itself has
stated, and probably will again, they have themselves,
*> Natural Resources Defense Council v. Grant, 5 ERG 1001, 3BB F. Supp. 280 (Feb. 5,
1973).
« Hearings, part 5, pp. 2878-2879.
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578 LEGAL COMPILATION—SUPPLEMENT n
abandoned a number of projects in part for environmen-
tal reasons over the years. But, I think, that as the court
in Chicod Creek watershed case pointed out very force-
fully, the environmental statement in that particular
case stated conclusions largely without any supporting
data, and ignored a number of other important consid-
erations such as eutrophication, which is admittedly an
important problem in that area of the country in the
coastal areas of North Carolina. And these are our con-
cerns.
III. THE SOIL CONSERVATION SERVICE AND THE CORPS
OF ENGINEERS HAVE NOT ALWAYS AFFORDED THE
PUBLIC ADEQUATE OPPORTUNITIES TO PARTICI-
PATE MEANINGFULLY IN THE DEVELOPMENT OF
MANY CHANNELIZATION PROJECTS
The Committee's hearings show that one of the principal rea-
sons why channelization has become anathema to so many citizens
and groups is that the entire process of promoting small water-
shed channelization projects—from the local request for Federal
assistance to the construction and maintenance of a cleared
streambed—takes place with little regard for the broad public
interest, particularly the nonagriculture-oriented interests such
as the wildlife or the environmental constituencies. Witness after
witness asserted that the voice of the public is often shut out
and, even when heard, is seldom heeded.
On the one hand, those supporting SCS's channelization work
portray the small watershed program as an example of grassroots
democracy. Thus, Mr. George R. Bagley, Vice President of the
National Association of Conservation Districts, said:48
It is truly a grassroots program—a plea from local
property owners, urban and rural alike, for planned
water management and protection from the ravages of
floods. Soil and water conservation districts are the
principal sponsors of each of the 1,000 watershed proj-
ects that have been approved to date * * *.
From the officers of the Board of Commissioners, Roads and
Revenues in Mitchell County, Ga., the Committee received this
statement:49
Basically, Soil Conservation Projects including chan-
nelization, irrigation, multi-purpose and flood retard-
ing structures, improvements of wildlife habitat and
48 Hearings, part 3, p. 1358.
48 Hearings, part 3, p. 1887.
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WATER — GUIDELINES AND REPORTS 579
other ecological and environmental projects are initiated
by the local people living in any given area based on
their ownership of the land, their knowledge of its as-
sets as well as its shortcomings, and furthermore these
people in most cases depend upon that land for their
livelihood. Also theirs is not generally a month's ac-
cumulation of facts and recorded needs but in most
cases years and years and generations of ownership.
(Italic in original.)
And, in testimony before the Committee in June, 1971, this
noteworthy comment by SCS Administrator Kenneth Grant: 50
* * * the small watershed program provides a proc-
ess for investigating, evaluating and discussing all of
the considerations. It provides a forum for all interest
groups within a watershed. It provides for careful re-
view by many government agencies at the local, State
and Federal level.
On the other hand, critics of the SCS's channelization program
note that channelization projects are often promoted by SCS em-
ployees, county agricultural agents and drainage district attor-
neys; that the "careful review" cited by Administrator Grant
is often meaningless; that often the project design has already
been frozen before disclosure to the public; and that environ-
mentally concerned voices are either not heard or heeded.
Mr. William B. Carter, Jr. attorney for the Pamlico-Tar Con-
servation Coalition of Washington, North Carolina, testified: 51
It usually appears from the corps or SCS project
plans that the channelization project is planned and
financed in response to urgent pleas from the "local
sponsor." Actually, the project is invariably "sold" to
the landowners who ultimately form the drainage dis-
trict. The requisite petition is circulated according to
the advice of Soil Conservation District officials, SCS
employees, county agricultural agents, and attorneys
who will represent the drainage district. The most com-
monly employed spiel is to the effect that "your good
friend up the branch, Farmer Brown, needs better
drainage, he has a drainage problem. If you sign this,
you can help him get it from the Government, free."
The local sponsoring organization consists almost always of
persons personally interested in the project, and the committee
M Hearings, part 2, p. 524.
51 Hearings, part 6, p. 3370.
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580 LEGAL COMPILATION—SUPPLEMENT 11
or agency which reviews the project application at the State
level is made up largely of farmers or representatives of soil
and water conservation districts.52
The Subcommittee has received information that, in many in-
stances, persons opposing channelization projects were harassed
or obstructed or frozen out at public hearings on the projects.
For example, Dr. Charles H. Wharton, Professor of Biology at
Georgia State University, in a June 16, 1969, letter to the late
Senator Richard B. Russell, described the following episode
concerning the now halted Alcovy River channelization project
in Georgia:
At the Monroe hearings at least half-a-dozen other
groups were there to register disapproval of the project.
Few were given time to speak. Among them were Jim
Adams, president, Georgia Sportsmen's Association;
Don Nichols, director, the Georgia Conservancy; Dean
Fields, Small Watershed Branch, U.S. Bureau of Sport
Fisheries and Wildlife. While speaking I personally was
rudely interrupted from the floor and asked by the
moderator not to finish my presentation. The time had
been taken up by the SCS and local sponsors. I charge
that this was no "public" meeting and that it was
improperly conducted. I had in my pockets copies of
letters from landowners who opposed the projects. Need-
less to say, there was no opportunity to enter these into
the record. Votes were taken only from the sponsors.
How could there be a negative vote? (Italic in original.)
Another instance occurred when several professors and gradu-
ate students at Louisiana State University testified in December
1972 at a Corps of Engineers hearing. They opposed an applica-
tion for a Corps permit to construct a levee in connection with
the SCS-sponsored Cameron Creole watershed project. The SCS
State Conservationist, Mr. J. B. Earle, quickly notified University
authorities. Since the University works on SCS-funded projects,
it is understandable, although denied by the SCS, why several
persons, including an LSU professor who testified at that hearing,
considered that this "was Mr. Earle's method to try to bring
02 The Soil Conservation Service advised the Committee on July 13, 1973, that: In Alabama
the 9-member State Soil and Water Committee is comprised of five persons from Soil and
Water Conservation Districts, two persons from the Auburn University Extension Service, a
State supervisor of vocational agriculture, and a banker; the 7 member Louisiana committee
includes B farmers, the Louisiana Commissioner of Agriculture and the Chancellor of LSU's
Center for Agriculture Science and Rural Development. The committees in Georgia and
North Carolina are all farmers, and in Mississippi all but two of the 11 member committee
are farmers. See also hearings, part 2, p. 1464.
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WATER—GUIDELINES AND REPORTS 581
pressure on LSU officials so that in the future LSU faculty mem-
bers might think twice before testifying- in the democratic proc-
ess." 53
The notion that channelization projects are the product of
"grassroots desires" is often a myth. For example, the Lake
Verret channelization project in southern Louisiana was pro-
posed by SCS despite the complaints of the Louisiana Conserva-
tion Council and the Mayor and Council of Morgan City, which
abuts Lake Verret and draws its water from Lake Palourde lower
in the watershed, that they were never consulted or given the
opportuntity to be heard about the project. The work plan had
already been sent to Congress for approval, when, on July 12,
1972, Morgan City Mayor C. R. Brownell sent a letter to the
Office of Management and Budget in which he expressed the City's
feeling about SCS's indifference to the city's needs. He said:
First of all, the impact on the two areas is com-
pletely opposite. That which is included in the Water-
• shed District should benefit tremendously, while that
part of the "natural watershed" (which was left out
of the district) would be even more adversely af-
fected * * *. While the main purpose of the watershed
is merely for drainage, the catchall, with all the dele-
terious effects, will be the low areas and lake, which
form a vast settling basin. * * *
Since we are a people * * * totally dependent upon
surface water for our existences, and since we have
seen all our water reservoirs obliterated by siltation
and sacrificed to the great national floodway program
(namely, the Mississippi and Atchafalaya Floodways)
we have only one last lake or reservoir to turn to, Lake
Palourde, which is in the * * * path of this Lake Ver-
ret drainage to the Gulf of Mexico. * * *
We are not asking for an improvement to our way of
life as our neighbors on the high ground to the north
of us are doing, but we are asking that you hear us
out and understand our story, a story of an appeal
for survival. We cannot survive without our water sup-
ply. * * *
At no time were we ever consulted in any of the
so-called studies "* * *." Since our backs are against
the wall, and we have continued to be ignored * * * we
must continue to be critical and defiant. * * * I am
53 Hearings, part 5, pp. 3144-3148.
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582 LEGAL COMPILATION—SUPPLEMENT n
sure if this represents the attitude of our Federal Gov-
ernment, we can only wonder what image it wishes to
present to its troubled people * * *.
After the project was approved by resolutions adopted by the
Agriculture Committees of Congress, the SCS held up the proj-
ect for a new environmental impact statement.
The current SCS instructions concerning public participation
are aimed primarily toward promoting the watershed and chan-
nelization programs rather than encouraging public participation
for the purpose of ascertaining the merits and defects of pro-
posed projects and considering alternatives. Thus, the SCS Wa-
tershed Protection Handbook has the following section entitled
"Watershed Information" (WPH, Sec. 101.30):
An effective, full-scale and continuing program of
public information is essential if local people are to use
the Watershed Protection and Flood Prevention Act to
solve their soil and water problems and to make full use
of opportunities for development of their watershed re-
sources.
Thoroughly planned and faithfully executed public in-
formation must be an operations tool in constant use if
projects developed under the law are intelligently con-
ceived and successfully carried to completion.
The Council on Environmental Quality advised the Subcommit-
tee that although SCS sponsors local meetings early in the plan-
ning process:
Public participation and broad community involve-
ment in the planning of water projects varies from
project to project and agency to agency. A continuing
effort by all agencies to improve the effectiveness of pub-
lic participation throughout the project planning proc-
ess is needed.54
In response, SCS stressed that Watersheds Memorandum 104,
issued to its field offices on May 1, 1970, "requires at least two
public meetings to discuss proposals and obtain public com-
ment". 55 However, such meetings are held primarily by the proj-
ect sponsors rather than SCS. There is no verbatim record taken
at these meetings for later review by Federal officials, the sponsors,
and the public. Only a summary is prepared for SCS officials
in Washington. Notification to the public about such meetings is
usually not adequate, as the Mayor of Morgan City observed.
Furthermore, as SCS Memorandum 104 emphasizes, SCS di-
64 Hearings, part 5, p. 2806.
55 Hearings, part 5, p. 2850.
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WATER—GUIDELINES AND REPORTS 583
rects the local sponsors of the project (who generally have a
financial interest in it) to "assume the necessary leadership" in
carrying out the "information program", and instructs the SCS
State Conservationist "to continue to assist" the local sponsors
"in promoting this program." (WPH, Sec. 101.302h.)
In contrast, there are Executive orders which envisage more
active public participation in hearings held by SCS itself. Execu-
tive Order 10584 (December 18, 1954), as amended by Execu-
tive Order 10913 (January 18, 1961), prescribed rules for the ad-
ministration of the program under Public Law 566. The order
provides, in Section 2(h), that the Secretary of Agriculture shall
hold "public hearings at suitable times and places when he
determines that such action will further the purposes of Public
Law 566." Furthermore, Executive Order 11514 (March 5, 1970),
which implements the National Environmental Policy Act of 1969,
requires all Federal agencies to develop "procedures to ensure
the fullest practicable provision of timely public information and
understanding of Federal plans and programs with environmen-
tal impact in order to obtain the views of interested parties."
These "procedures" must include, "whenever appropriate, provi-
sion for public hearings." (Sec. 2(b).)
The importance of adequate public hearings was emphasized
by Edward Lee Rogers, General Counsel of the Environmental
Defense Fund, in his testimony before the Subcommittee, as
follows:56
Procedures should be adopted which would assure
input by citizens, citizen groups, and relevant Federal
and State agencies in the early or survey stage of the
decisionmaking process leading up to the making of the
basic decision. The public notice or inquiry made by
the lead agency should indicate that certain interests
have recommended that certain problems ought to be
alleviated and/or certain benefits ought to be provided
and state at that time as specifically as possible what
those problems are.
The Committee notes that the Corps of Engineers, on January
19, 1973, promulgated a regulation (38 F.R. 1928) on public
meetings. The regulation "sets forth the policy, responsibility,
and guidance for holding formally organized, announced, and
recorded public meetings" in connection with the Corps' Civil
Works programs. The Committee commends the Corps on this
progressive step.
Hearings, part 6, p. 3337.
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584 LEGAL COMPILATION—SUPPLEMENT n
But the SCS has not adopted similar regulations.
The Committee therefore recommends as follows:
The Soil Conservation Service should comply with Executive
Orders 10584 of December 1954 and 10913 of January 1961 and
promptly adopt new regulations designed to promote public
participation in the formulation of its projects. Such regulations
should include provisions that recorded public hearings be held,
after adequate notice, by SCS on all SCS-financed small water-
shed projects, whenever there appears to be sufficient public
interest, and that, in case of doubt, hearings will be held.
Such public hearings will not impair the "grassroots" philos-
ophy of the program, but should insure better and more wide-
spread public participation.
Memorandum 104 and other guidelines, instructions, memor-
anda, and other documents setting forth general SCS policy or
interpretations of general applicability have never been published
in the Federal Eegister, even though the Administrative Pro-
cedure Act requires publication of such documents (5 U.S.C.
552(a)(l) (D) and (E)). Although most of these documents
are presumably available in loose-leaf binders in SCS offices and
elsewhere, they are not available in the Code of Federal Regula-
tions in the same manner as other Federal regulations, policy
statements, etc. In addition, the provisions of the SCS's Water-
sheds Handbook and many other basic documents issued by the
Administrator of the SCS—a significant portion of which are
certainly regulatory in nature—have never undergone the scru-
tiny of public comment in accordance with the proposed rule-
making procedures of the Administrative Procedure Act (5 U.S.C.
553). Indeed, the SCS's very short published regulation (7 CFR
600.3), issued pursuant to Public Law 566, sets forth the pro-
cedures for applying for financial assistance for small watershed
projects, but does not mention any involvement by environmental
agencies or the public in this process. It is quite misleading.
SCS Administrator Grant advised the Subcommittee on July
13, 1973, that the SCS had set September 15 "as a target date to
publish in the Federal Register all policy related to programs ad-
ministered" by SCS. The Committee commends SCS for setting
that "target date," but notes that SCS had not met that target.
The Committee therefore recommends as follows:
In accordance with the provisions of the Administrative Pro-
cedure Act concerning rulemaking and public information, the
Soil Conservation Service should promptly publish in the Federal
Register (a) all documents which are in fact regulations, although
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WATER—GUIDELINES AND REPORTS ' 585
not so designated by the SCS, and (b) all other statements of gen-
eral policy and interpretations of general applicability.
IV. THE BENEFICIARIES OF CHANNELIZATION PROJ-
ECTS ARE NOT ALWAYS IDENTIFIED BY RESPONSI-
BLE FEDERAL AGENCIES IN DOCUMENTS AVAILABLE
TO THE PUBLIC
Surprising as it may seem, it took a lawsuit to disclose that
Federal agencies, in describing channelization projects, their
attributes and shortcomings, generally do not reveal who will be
the beneficiaries of the project. In NRDC v. Grant, supra, the
district court found that the proposed environmental impact
statement for the Chicod Creek Watershed project in North Car-
olina failed to "disclose that over 17% of the acreage to be bene-
fited by the Project is held by the Weyerhaeuser Company, a
large lumber company."
The Chicod Creek situation is not unique. For example, the
March 31, 1973 report on channel modifications, prepared by
the Arthur D. Little Company for the Council on Environmental
Quality, made an appraisal of the economic benefits of SCS's
Crow Creek Watershed Project in Tennessee and Alabama. The
report noted that about 2,000 residents of Crow Creek Valley
may benefit from the project and then said (p. 39-19 of the
ADL report):
On the other hand, and curiously, one of the primary
beneficiaries of the flood control features of this proj-
ect is not identified in any of the record. This is the
Nashville, Chattanoog[a] and St. Louis Railroad [now
the L & N Railroad], whose main line and heavily used
trackage parallels the entire reach of the channel in
both States from north to south. * * * It is clear
that in many reaches of the stream the flood conveyance
works are within a few hundred feet of the railroad
right-of-way, yet the record is strangely silent on any
benefits associated with the railroad.
Subcommittee Chairman Reuss, after mentioning several other
examples of this SCS practice of non-disclosure policy, said:57
When we asked the SCS to explain why it doesn't
make public the identity of these large corporate bene-
ficiaries of Federal flood control funds, the SCS replied
that it has no "obligation" to do so. This seems to be a
" Hearings, part 5, pp. 2790-2791.
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586 LEGAL COMPILATION—SUPPLEMENT n
narrow view of the public interest. Unless there are
special reasons for not infringing on individual rights
of privacy, we think there is considerable public in-
terest in letting the taxpayers know where their funds
are being spent and who is being benefitted by the
Federal subsidy. SCS is certainly not precluded by
law from disclosing who the beneficiaries are, and it
has given us no reasons for not doing so.
When questioned about this at the Subcommittee's March 1973
hearings, the SCS witnesses, Messrs. Norman A. Berg, Richard
B. Parker, and William B. Davey, said, in a colloquy with
Congressman Paul N. McCloskey, Jr.:5S
Mr. McCLOSKEY. Well, when you determine your bene-
fits to the community do you not determine the benefits
to the land in the watershed ?
Mr. BERG. Yes.
Mr. McCLOSKEY. By increased valuation of that land?
Mr. BERG. Yes, sir; and the protection that is afforded
by the project.
Mr. McCLOSKEY. And you do that on a per acre basis
or on a per landholder basis ? * * *
Mr. PARKER. Primarily on a per acre basis, increased
production, reduced production costs, improved quality
of the crop, and so forth, are the major items considered.
This type of information we need to gather from the in-
dividual farmers to use in making the benefit evaluation.
It is the damage schedules that we are talking about from
which we get this privileged information from individual
farmers, as to what their damages are, what their crops
are, what their income is, what their crop yields are and
so forth.
We have said that we do not want to divulge that
type of information to the general public.
Mr. McCLOSKEY. Is there any reason to keep secret or
keep privileged the estimated increase in the value of a
man's land because of this project?
Mr. PARKER. No. I do not think that is kept secret.
Information concerning benefits on a per acre basis is
contained in the watershed work plan or in the support-
ing data files for the plan.
Mr. McCLOSKEY. Then why should you keep secret the
identification of the beneficiaries of this project?
58 Hearings, part 5. pp. 29S2-2933.
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WATER—GUIDELINES AND REPORTS 587
Mr. BERG. I do not think we do; it is not intentional. It
would certainly be available to anybody who wanted to
obtain that information in any particular project.
Mr. PARKER. We usually have landowner maps avail-
able.
Mr. McCLOSKEY. The testimony we have received in-
dicates that the Soil Conservation Service environmental
impact statements have been inadequate. I assume from
your testimony here this morning that you are cognizant
of that. Is that correct ?
Mr. BERG. We are doing all we can to make them better
each day and each week; yes.
Mr. McCLOSKEY. And why should the Soil Conserva-
tion Service be unwilling to identify the beneficiaries of
the project and the landowners involved ? * * *
Mr. DAVEY. We have not specifically identified benefic-
iaries in either the impact statement or the work plan.
We do include maps of the work plan which show
the total area benefited. Now, ordinarily, the sponsoring
organizations create a legal entity to carry out their
share of the costs and to assume operation and mainte-
nance. Ordinarily when one of these is created, it is by
judicial apparatus under State law in which at that
time there is published in the newspapers—under State
law—all of the benefited area, including the land de-
scriptions and land holdings. There are hearings held
and it is the sponsor's obligation to assess the taxes
which includes beneficiaries. So this is really all brought
out, but it is brought out primarily as part of their legal
entity. We have not included it in the Watershed work
plan, so there is no attempt to keep it secret. We just
never thought there was a real need since this other step
was involved. (Italic supplied.)
Even if all the beneficiaries of the channelization project were
listed in the "legal notices" published in local newspapers when
the sponsoring organization was established, they are not men-
tioned in any Federal document which is made available to the
public, including the work plan and accompanying map. Few
people read such "legal notices," and even those who do rarely
associate the names of the organizers with any proposed water-
shed channelization project.
CEQ Chairman Train testified that "the public and' the
Congress are entitled to know publicly who the beneficiaries
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588 LEGAL COMPILATION—SUPPLEMENT n
are. * * * I see no privilege against such disclosure. * * * And
when in doubt, I would always say full disclosure is the appro-
priate course." 59
It is not enough for the SCS or any other agency to describe
in general terms the area to be benefited by the project. The
public, which will bear a substantial share of the project costs,
should be able to ascertain who, in fact, are the beneficiaries
of the project. The public is entitled to know, for example,
that all or most of the beneficiaries are a few large corporations,
and to decide on the basis of all the facts whether the project is
meritorious.
Since SCS admits there is no reason to keep the identity of
the beneficiaries secret and insists that it has not sought to do
so, the Committee believes that SCS should require that the
proposed work plan include the identity of all known beneficiaries.
Identifying all beneficiaries of the larger projects of the Corps
and the Bureau of Reclamation may be a little more difficult, but
both agencies should certainly endeavor to identify all of the
major beneficiaries, and as many of the lesser ones as feasible,
in the project reports.
The Committee therefore recommends as follows:
The Soil Conservation Service, the Corps of Engineers, and the
Bureau of Reclamation should promptly adopt a policy of fully
identifying all known project beneficiaries in pertinent project
documents which are made available to the public, including
environmental impact statements.
V. SCS PROCEDURES FOR KEEPING SOME DATA ON
FLOOD DAMAGE CONFIDENTIAL ARE NOT WELL-
DEFINED AND RESULT IN WITHHOLDING DATA FROM
THE PUBLIC IN VIOLATION OF THE FREEDOM OF IN-
FORMATION ACT
The Chicod Creek case mentioned earlier in this report also
involved SCS's efforts to withhold from the public the basic data
which the SCS used in making its calculations of the costs
and benefits of the projects, including land use, crop yield and
flood damages. These data had been gathered by SCS by inter-
viewing people within the watershed and obtaining their responses
to questions on various questionnaire forms. The district court,
after an "in camera inspection," ordered SCS to provide the
data to the plaintiffs, but required deletion of the names, addresses,
and income data obtained on a confidential basis.
In the course of its examination of SCS procedures, the Sub-
committee found that SCS had been collecting information from
Hearings, part 5, p. 2873.
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WATER—GUIDELINES AND REPORTS 589
the public on questionnaire forms or schedules which had not
been approved by the Office of Management and Budget, although
such approval is required under the Federal Reports Act (42
U.S.C. 3501-3511).
SCS later revised its questionnaire forms and presented to
OMB for approval, as required under the Federal Reports Act,
the following six forms, all of which were approved by OMB
about May 1972:
OMB Form No. 40-R3809 (Flood Damage-Agriculture);
OMB Form No. 40-R3805 (Flood Damage-Residential
Projects);
OMB Form No. 40-R3808 (Flood Damage-Commercial-
Industrial);
OMB Form No. 40-R3806 (Flood Damage-Transportation-
Utilities) ;
OMB Form No. 40-R3807 (Irrigation Questionnaire) ;
and
OMB Form No. 40-R3804 (Drainage Questionnaire).
The Director of OMB advised the Subcommittee, in his letter
of August 8, 1973, that (a) SCS, in presenting the forms to
OMB for approval, had stated that "any basic data collected rel-
ative to financial losses will be kept confidential;" (b) since
two of the questionnaire forms (Drainage and Irrigation) con-
tained no questions concerning financial or commercial data,
OMB understood that SCS did not request, and OMB did not
approve, confidentiality for information collected on these two
forms; and (c) as to the other four questionnaire forms, con-
fidentiality would apply only as to the data therein "relative
to financial losses."
However, SCS Administrator Grant's Watersheds Memorandum
122 of October 31, 1972, transmitting and explaining the six
questionnaire forms to SCS field offices, advised them that all
the information on all six forms was to be treated as con-
fidential.
It is clear that the SCS Administrator's Memorandum of Octo-
ber 31, 1972, was not in conformity with the Freedom of In-
formation Act. That Act specifies (5 U.S.C. 552(c) ) that it
"does not authorize withholding of information or limit the
availability of records to the public, except as specifically stated
[therein]." Section 552(a)(3) provides that, in any court pro-
ceeding to compel disclosure of agency records, "the burden is on
the agency to sustain its action" of refusing to make the records
available to the public. Federal courts have ruled that, "taken
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590 LEGAL COMPILATION—SUPPLEMENT 11
together, sections 552(c) and 552 (a) (3) mean that [an agency]
must bear the burden of proving that the records it refused to
disclose are specifically included in one of the exemptions of
section 552 (b)," and that such exemptions must be construed
narrowly. Legal Aid Society of Alameda County v. Shultz, 349
F. Supp. 771 (N.D. Calif. 1972). Furthermore, the courts have
consistently stated that "an entire document is not exempt merely
because an isolated portion need not be disclosed. Thus, the agency
may not sweep a document under a general allegation of exemp-
tion, even if that general allegation is correct with regard to part
of the information." Vaughn v. Rosen,—F.2d (D.C. Cir., No.
73-1039, Aug. 20, 1973). "It is a violation of the [Freedom of
Information] Act to withhold documents on the ground that parts
are exempt and parts non-exempt. In that event, 'suitable dele-
tions' may be made." Legal Aid Society of Alameda County
v. Shultz, 349 F. Supp. 771, 777 (N.D. Calif. 1972).
The SCS Administrator was fully aware of how the Freedom
of Information Act affected the confidentiality of these question-
naires. In December 1971, SCS asked the General Counsel of the
Agriculture Department whether SCS may "hold confidential
economic flood damage and related data" collected from the
public. On February 10, 1972, Assistant General Counsel James
D. Keast wrote to the Administrator that "the economic data
collected from individuals in the formulation of the benefits to be
derived from a watershed project would fall within the intent
of" exemption (4) of the Freedom of Information Act (5 U.S.C.
552(b)(4) )—which covers "trade secrets and commercial or
financial information obtained from a person and privileged or
confidential"—and "therefore may be held as confidential."
He stated clearly that "the only [exemption] that may be
applicable * * * is the one on information given in confidence"
and carefully limited his opinion to "economic data collected
from individuals."
Yet in the face of this counsel, the SCS Administrator's memo-
random provides that all the information on all six forms shall
be treated as confidential. However, none of the matters covered
in the irrigation and drainage questionnaire relates to "com-
mercial or financial information." Furthermore, it is highly
questionable that all of the data asked for in the other forms
are covered by exemption (4). Surely, responses to questions such
as the following are not within that exemption:
What changes in land use have you made due to floods?
During what seasons are floods most common ?
How often do large floods occur ?
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WATER—GUIDELINES AND REPORTS 591
Depth of water in basement, on or above first floor, on
grounds or lawn, in garage, or in automobiles.
On July 17, 1973, Subcommittee Chairman Reuss and Ranking
Minority Member Vander Jagt wrote to the OMB Director
requesting OMB to review the propriety and legality of the SCS
forms. They also questioned the propriety of the SCS practice of
making oral pledges of confidentiality without notation thereof
on the form. In addition, they requested OMB not to approve an
agency's request for confidentiality on its questionnaire forms
unless the agency shows that such confidentiality is needed to
carry out effectively the agency's program and that it has au-
thority to hold the data obtained confidential. They noted that if
SCS holds confidential all the information on the six question-
naire forms, the public and OMB "are effectively foreclosed
from challenging the SCS calculations" concerning a project's
benefits.
The OMB Director responded on August 8 that he had asked
SCS to review its confidentiality procedures and practices to make
them consistent with its representations to OMB. He indicated
that SCS would not withhold from the public any information on
the Drainage and Irrigation questionnaires nor any information
from the other four questionnaires except those relating specifi-
cally to financial losses. However, OMB's response did not address
two of the Subcommittee's suggestions of July 17. The Sub-
committee therefore reiterated them in its letter of August 10,
1973, to OMB.
The first related to the fact that the six SCS forms, and pre-
sumably other SCS forms, do not contain any statement as to
confidentiality. The OMB letter to the Subcommittee noted that
(a) the responses to the questions are obtained by personal in-
terview, (b) the SCS has instructed its representatives to tell
the respondents the information would be kept confidential, and
(c) SCS says its representatives provide such notification to re-
spondents as a "standard operating procedure." Nevertheless, the
SCS has, according to OMB, apparently agreed to change its
instructions to assure that the interviewer "shall give assurances
of confidentiality." The Subcommittee's letter stated:
We believe that any assurances of confidentiality au-
thorized by your Office and given to respondents, ir-
respective of whether the answers to the questions on
the forms are written by the SCS interviewer or the
respondent, should be buttressed by specific notation on
the form, namely, that the responses to the particular
questions for which confidentiality is assured will be
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592 LEGAL COMPILATION—SUPPLEMENT n
treated as confidential unless the respondent indicates
otherwise.
There are two reasons for our position.
1. There are many respondents who are willing to
provide information to the Government without having
their answer kept confidential. There should be some
mechanism, either on the form or otherwise, to enable a
notation that the respondent does not insist on confident-
iality. Such information would then be available to the
public. The proposed SCS instruction, requiring that
the interviewer "shall" give assurances of confidentiality,
irrespective of the respondent's desire on the confident-
iality issue, precludes this possibility.
2. Assuming that an oral pledge by an interviewer is
legally adequate, it becomes difficult or impossible, at
a later time when members of the public ask for the
information, to document (i) whether the pledge of con-
fidentiality was in fact made, (ii) the scope of the
pledge, and (iii) the respondent's understanding of the
pledge.
Proper notation of confidentiality on the form would
also have prevented the inconsistency between SCS's
representations to your office and SCS's subsequent prac-
tice of treating as confidential all the questions on the
six forms mentioned in our letter. Consider, for example,
the court's dilemma in the Chicod Creek case which we
mentioned in our July 17 letter. In that case, the SCS
asserted confidentiality of questionnaire responses with
no distinction made between data within and data not
within exemption (4) of the Freedom of Information
Act. The court was forced to review the data in camera
before the non-exempted data could be released. A
citizen should not have to go to this length to obtain
nonconfidential data. A notation on the form specifying
which data is afforded confidentiality would help to avoid
this problem.
The Committee shares the Subcommittee's concern and there-
fore recommends as follows:
The Soil Conservation Service should promptly include on its
questionnaire forms concerning irrigation, drainage and flood
damages a statement which specifies, with respect to commercial
and financial data supplied by a respondent, that the respondent
shall indicate whether he desires the data to be kept confidential
and exempt from disclosure under the Freedom of Information
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WATER—GUIDELINES AND REPORTS 593
Act (5 U.S.C. 522(b)(4)), and that if he consents to public release
thereof he shall indicate his consent in writing.
The Subcommittee's second suggestion related to OMB's failure
to seriously address the confidentiality question when it approved
the SCS forms. The Subcommittee's letter said:
* * * it should be kept in mind that the Freedom of
Information Act created a new policy of disclosing, rather
than of withholding, information. As the President said
on signing the Act, that policy must "be served by a
constructive approach" by every official "to make infor-
mation available to the full extent consistent with in-
dividual privacy and with the national interest."
It should, therefore, be the duty of OMB and every
other agency of Government to strive to make dis-
closure the general rule and not the exception. OMB
should require full justification for every agency's re-
quest to reduce the public's opportunity to receive in-
formation in the Government's possession. OMB should
approve requests for confidentiality only where it is
shown that confidentiality is needed to carry out effec-
tively the agency's programs and otherwise meets the
requirements of the law.
OMB does not give pro forma approvals to all question-
naires. This was clearly brought out during our long ef-
forts to obtain approval by the former Budget
Bureau of a national industrial wastes inventory ques-
tionnaire. Your Office determines whether or not the
questionnaire should be approved, and in this process,
frequently requires that some questions be revised, de-
leted, etc. A pledge of confidentiality is just as import-
ant. OMB should not give pro forma approvals to an
agency's desire to hold the requested data confidential
merely because it asserts that such a pledge may make
it easier to obtain the data. The public interest in dis-
closure should be paramount and the burden should
be on the agency to prove that confidentiality is author-
ized and in the public interest. Since your Office must ap-
prove the questionnaire, you should insist that the
agency sustain this burden before you approve the form.
We believe that the recommendations we suggest are
more in accord with the basic policies of the law than
is the routine approval of every request for confidential-
ity, even though the type of information may be within
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594 LEGAL COMPILATION—SUPPLEMENT n
the confidentiality exception of 5 U.S.C. 552 (b) (4).
(Italic in original.)
The Committee agrees with the Subcommittee's suggestion.
This approach was followed by the Corps of Engineers in the
case of applications filed for permits under the Refuse Act of
1899 (33 U.S.C. 407) (see Corps' regulations of April 7, 1971,
38 F.R. 6564).
VI. THE BUREAU OF OUTDOOR RECREATION, BU-
REAU OF SPORT FISHERIES AND WILDLIFE, AND EN-
VIRONMENTAL PROTECTION AGENCY HAVE, UNTIL
RECENTLY, PERFORMED POORLY IN THEIR SCRU-
TINY OF CHANNELIZATION PROJECTS
Although public concern over the effects of channelization has
increased substantially during the past few years, at local, re-
gional, and national levels, the Federal agencies charged by Con-
gress to protect the environment have often failed to safeguard
the public interest against the poorly planned or environmen-
tally harmful channelization projects.
A. THE BUREAU OF OUTDOOR RECREATION DID NOT PERFORM ITS
STATUTORY ROLE WITH RESPECT TO SCS PROJECTS
In 1963, Congress enacted the Organic Act of the Interior De-
partment's Bureau of Outdoor Recreation (Public Law 88-29 of
May 28, 1963, 16 U.S.C. 460 1, et seq.), which declares that it is
"desirable" policy to insure present and future generations of
Americans "adequate outdoor recreation resources" and that all
governmental and private interests take "prompt and coordin-
ated action * * * to conserve, develop, and utilize such re-
sources for the benefit and enjoyment of the American people."
The Act further directs the BOR to "cooperate with and provide
technical assistance to Federal departments and agencies" and to
"promote coordination of Federal * * * activities generally re-
lating to outdoor recreation" (16 U.S.C. 460 1 (g) ). Yet, despite
this congressional recognition of the need for, and importance
of, recreation to the public, the BOR has completely failed to
carry out this statutory mandate in connection with small
watershed projects of the SCS.
At the Committee's 1971 hearings, the BOR witness, Mr. Wil-
liam Lawson, stated categorically that while the BOR "has au-
thority to do so," it "does not routinely review" SCS projects
because of a lack of "funds and manpower," and that since
1965 the BOR has not requested any funds for such review.
However, he stated that the BOR had initiated in January
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WATER—GUIDELINES AND REPORTS 595
1971 a "pilot study" in the southeastern United States to pro-
vide information for future BOR review of SCS projects.60
On September 2, 1971, the BOR's Regional Director in Atlanta,
Georgia, Mr. Roy K. Wood, reported to the BOR Director the
results of the pilot study. His report noted that SCS reservoir
projects in the southeast have enhanced public recreation, but
critized the SCS channelization program and its adverse effects
on recreational resources. He said:61
In other parts of the region, reservoir sites are often
located in forested headwaters some distance from the
beneficiaries of flood protection. In this situation, chan-
nelization is a more immediate and satisfactory solution
to the problem. Farm income in the South is, on the
average, below that in the rest of the Nation. This has
tended to foster the least expensive means of flood pro-
tection to achieve short-term goals. For these and other
reasons, channelization became a major feature of the
small watershed program in the Southeast. Its ef-
fects on the recreational resources and natural environ-
ment have reached disastrous proportions. Basic to the
success of the small watershed program in the South-
east, as in other parts of the Nation, is the skill with
which the Soil Conservation Service sells its program.
The work plans which were studied did not consider
the values inherent in natural free-flowing streams nor
the values of the lands and forests as recreation re-
sources associated with the streams. The benefit-cost
ratios upon which the work plans were justified do not,
in these four instances, represent a true evaluation of
cost and benefits. Costs of the projects did not include
benefits foregone through the destruction of streams and
stream-associated resources.
Procedures employed in preparing small watershed
work plans have fostered the steady destruction of
streams and associated lands vital to natural life sys-
tems and recreation values. Fragmented localism that
characterizes small watershed planning frustrates the
attainment of recreation goals and environmental ob-
jectives. Part of the reason for this situation stems from
the limited vision of sponsors when planning the recrea-
tion and environmental functions of the watershed plans.
Sponsors are not equipped, generally, to measure the lo-
«° Hearings, part 2, p. 488.
M Hearings, part 5, pp. 3273-3276.
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596 LEGAL COMPILATION—SUPPLEMENT n
cal, regional, or national importance of scenic areas or
recreation potentials. Another force causing this situa-
tion is the dependency of local people on economic pro-
ductivity of a watershed's resources for their living. Re-
source uses that best serve the long term broad public
interest must often confront powerful local short-term
economic interests. Sponsors are unwilling to yield
powers long vested in there [sic] to outside individ-
uals or agencies. A third factor which magnifies the prob-
lem of the small watershed program is the rapidly chang-
ing character of the region. Once it was true that if one
swamp were drained, one more stream channelized, it
mattered little since there were others. This is no longer
the case. Today we are dealing with the few remaining
unaltered streams and swamps. The time has long since
passed for single purpose local planning which is obli-
vious to the regional situation. The frontiers are gone
but the frontier mentality lingers on to the detriment
of our national heritage and the overall public welfare.
Channelization has produced a tumultuous clamor
among the knowledgeable and concerned public. This
outcry has as yet produced no discernible effect on the
current watershed work plan but has at least stirred the
Soil Conservation Service to react superficially.
* * * the Soil Conservation Service cannot accept the
fact that anything the Soil Conservation Service does
could be regarded as detrimental to the natural environ-
ment. Channelization is still considered stream improve-
ment.
When confronted with irrefutable evidence of environ-
mental degradation the responsibilities for the plan are
laid at the feet of the sponsor. Sponsors, on the other
hand, have not been conditioned to accept the more ex-
pensive measures nor a lesser degree of protection for
the sake of a greater public good.
He * * * *
The long term broad public interest must be repre-
sented in any plan formulated with respect to the na-
tural environment. We believe protecting the diminishing
natural recreation and scenic areas in the small water-
shed must be a priority concern of this Bureau. The de-
cisionmaking process, developed under Public Law 83-
566, places priority upon flood control and drainage. Re-
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WATER—GUIDELINES AND REPORTS 597
creation and associated values are not project purposes of
equal significance—a situation which appears to be a
matter of interpretation rather than a deficiency in the
act. (Italic supplied.)
Mr. Wood concluded that the SCS program "is of such pro-
portions and its impact on the recreation and associated values
of such serious consequence" that the BOR's "participation in
the program has become essential." He estimated that adding
5 professionals to the BOR staff and increasing the BOR bud-
get by $140,400 would allow the BOR to study "in detail" about
30 projects annually and another 10 percent "could be reviewed
more or less superficially" and comments provided. He urged
that the BOR and SCS enter into a memorandum of understand-
ing whereby the Bureau's role would be as a "public advocate"
of recreation needs.
On January 18, 1972, the BOR's Assistant Director for Fed-
eral Programs, Mr. R. L. Eastman, expressed his concurrence
with Mr. Wood's recommendations in a letter to the Bureau's
Director, G. Douglas Hofe, Jr. Mr. Eastman said:62
The results of the pilot study indicate that water-
shed projects have the potential for both enhancement
and degradation of recreation and related environmen-
tal values; that work plans did not adequately consider
values inherent in natural, free-flowing streams and as-
sociated lands, and that local interests are receiving
limited information on which to formulate watershed
plans for recreation and environmental functions.
Regional Director Wood recommends participation in
the small watershed program and that a memorandum
of understanding be developed between this Bureau and
the Soil Conservation Service to define their respective
roles.
We concur with this recommendation and note that
the other five regional directors have, based upon their
value judgments, also recommended Bureau involvement.
The BOR Director approved this recommendation on January
25,1972. But nothing has been done to implement it.
When Subcommittee Chairman Reuss asked the Interior De-
partment about implementing the recommendation, the Depart-
ment responded in March 1973 that BOR has not done so "because
funds and manpower have not become available" and that no
funds were included in the President's budget for fiscal year
Hearings, part 6, pp. 3275-3278.
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598 LEGAL COMPILATION—SUPPLEMENT n
1974, nor were any requested.63 The Department stressed "that
other areas among its responsibilities delegated by the Congress
and the Secretary have priority," but did not identify what
those "other areas" are.
The SCS informed the Subcommittee prior to the March 1973
hearings that it would be "glad to consider any memorandum of
understanding that might be proposed by the BOR," and would
"welcome full participation by BOR in the watershed project
planning process." 64
The BOR has procrastinated far too long in carrying out its
responsibilities. Surely, when a Bureau is as critical of a program
as BOR is of the SCS program, it has an obligation to work to
improve it and to ask Congress for adequate funds and personnel
to do the job. But it has not done so. Instead, BOR has been
content to sling rocks at the SCS, while remaining completely
aloof and providing no substantive aid to the SCS in mitigating
the deficiencies which the BOR criticizes.
The Committee therefore recommends as follows:
The Bureau of Outdoor Recreation should begin immediately
to review SCS small watershed projects (a) to ascertain their
probable effects on recreational and esthetic values, and (b) to
advise SCS whether, or the conditions under which, SCS should
approve such projects.
B. THE LIMITED STATUTORY AUTHORITY OF THE BUREAU OF SPORT
FISHERIES AND WILDLIFE HAS HAMPERED ITS EFFORTS TO PRO-
TECT WILDLIFE FROM DESTRUCTION BY CHANNELIZATION
Although it is the Nation's top wildlife agency, the BSF&W65
has been unable to exercise its potential influence on channeliza-
tion projects. In large part, the Bureau's failure stems from the
limited statutory bases on which the Bureau operates vis-a-vis
the Corps of Engineers, the Bureau of Reclamation, and the SCS.
The Fish and Wildlife Coordination Act (16 U.S.C. 661, et seq.)
is the basic statute authorizing the Bureau to comment on proj-
ects of the Corps of Engineers and the Bureau of Reclamation.
But that statute has been construed, both by the Agriculture
Department's Solicitor and by the Comptroller General,66 as not
63 Hearings, part 5, p. 2816.
64 Hearings, part 5, p. 2857.
65 The Interior Department's Fish and Wildlife Service, established by the Fish and Wildlife
Act of 1956 (16 U.S.C. 742b), consisted of the Bureau of Sport Fisheries and Wildlife and
the Bureau of Commercial Fisheries. Reorganization Plan No. 4 of 1970 (effective October 30,
1970, 35 F.R. 15624, 84 Stat. 1290) transferred the Bureau of Commercial Fisheries to the
Commerce Department's National Oceanic and Atmospheric Administration.
86 The Solicitor's opinion, dated April 15, 1970, is reprinted in Hearings, Part 5, p. 2942.
The Comptroller General's opinion was rendered in a letter of May 18, 1970, to Congressman
Ben B. Blackburn (B-169431).
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WATER—GUIDELINES AND REPORTS 599
being applicable to the SCS's small watershed projects. Instead,
the Bureau must look to section 12 of Public Law 83-566 for
its statutory basis to comment on SCS projects.
Section 9 of the Coordination Act (16 U.S.C. 666c) specifies
that the Act "shall not apply" to TVA. Thus, the Bureau has no
statutory basis for reviewing and commenting on TVA water
resource projects.
The Coordination Act was first enacted in 1934 for the pur-
pose of assuring that fish and wildlife conservation "receive equal
consideration and be coordinated" with other project purposes of
water resources development programs. In 1946, it was com-
pletely revised to broaden its scope. At that time, the House
Committee on Agriculture, in its report on the bill H.R. 6097,
which became the 1946 Act, said (H. Kept. No. 1944, 79th Cong.,
2nd Sess., April 17, 1946, p. 1):
The proposed bill would place in effect a much-
needed program and facilities for the effectual planning,
maintenance, and coordination of wildlife conservation,
management, and rehabilitation.
Experience under the 1946 Act showed, however, that the
Coordination Act needed further strengthening to achieve fully
its intended purpose. Thus, the House Government Operations
Committee, in its report entitled "Army-Interior Reservoir Land
Acquisition Policy" (H. Rept. 85-1185; Aug. 16, 1957) stated
(pp. 31,32):
The committee believes that the public interest in wise
conservation of our national fish and wildlife resources
requires * * * the strengthening of the Coordination
Act. The committee is gratified that a draft of amend-
ments to the Coordination Act prepared by the Interior
Department has been endorsed by all 48 States and
has already been introduced in the 85th Congress by
Congressman Henry S. Reuss of Wisconsin (H.R. 8747)
and Congressman Lee Metcalf of Montana (H.R. 8631).
These amendments would permit the Fish and Wildlife
Service to accept donations of land and funds; would
broaden its authority to consult with respect to proposed
as well as authorized projects and also those receiv-
ing Federal financial or technical assistance; would pro-
vide for the development and improvement of wildlife re-
sources, as well as mitigation of losses thereof; would
authorize acquisition of lands for such purposes by Fed-
eral construction agencies; and would make other im-
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600 LEGAL COMPILATION—SUPPLEMENT n
portant improvements in the Coordination Act. The
committee believes the basic objectives of these amend-
ments are in the public interest and recommends their
favorable consideration by the legislative committees of
Congress which will deal with them. (Italic added.)
The 1958 amendment to the Act did not include the phrase
requiring consultation on projects "receiving Federal financial
or technical assistance." But it enabled improved protection for
our Nation's fish and wildlife resources by strengthening the
consultation requirement in section 2(a), as follows:
* * * whenever the waters of any stream or other
body of water are proposed or authorized to be im-
pounded, diverted, the channel deepened, or the stream
or other body of water otherwise controlled or modi-
fied 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 Fed-
eral 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 wild-
life resources of the particular State wherein the im-
poundment, diversion, or other control facility is to be
constructed, with a view to the conservation of wild-
life 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. (Italic supplied.) 67
This "consultation" requirement was reviewed and analyzed in
this Committee's September 18, 1972, report entitled "Protecting
America's Estuaries: Puget Sound and the Straits of Georgia
and Juan de Fuca" (H. Rept. 92-1401, p. 19), in connection
with the Corps' permit program. The Committee noted that, un-
til recently, the Corps had followed a practice of transmitting to
the BSF&W notices of permit applications and other documents
for comment thereon. If the BSF&W failed to comment within a
specified time, the Corps proceeded to act on the application on
the assumption that the BSF&W had none to make. But in several
instances, the BSF&W did have substantial comments, but was
simply late in making them. The Committee's report emphasized
67 Section 304 of the President's proposed bill to establish a new Department of Energy
and Natural Resources provides that the "requirement" for such consultation with the U.S.
Fish and Wildlife Service would be "terminated" and the function transferred to the
Secretary of the new department (H. Doc. 93-119, June 29, 19,73, p. 12).
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WATER—GUIDELINES AND REPORTS 601
that to "comply with law, the Corps has an obligation to seek
the Service's formal comments on each permit application or de-
termine that the Service has none to make." This obligation also
extends to water resource projects constructed by the Corps and
the Bureau of Reclamation.
During its investigations of the BSF&W's efforts to be respon-
sive to requests for comments from the Corps and other agencies
under the Coordination Act, the Subcommittee learned that, in
many instances, for various reasons, including inadequate fund-
ing and personnel, the BSF&W and its sister agency, the Com-
merce Department's National Oceanic and Atmospheric Adminis-
tration, had provided comments and recommendations on only
some matters, or on none at all, which are subject to the "consul-
tation" requirements of the Act. Subcommittee Chairman Reuss
and Congressman John D. Dingell, who is Chairman of the Fish-
eries and Wildlife Conservation and the Environment Subcom-
mittee of the House Committee on Merchant Marine and Fish-
eries, in a jointly signed letter of June 6, 1973, to the Interior
and Commerce Departments, objected to this practice. They
noted that both agencies have an "obligation" under the Act "to
at least inform in writing" the consulting Federal agencies "and,
most importantly, the public" that either the project "will have
no significant effect on fish, shellfish and wildlife resources, or
that you lack the funds and manpower to comment thereon.
* * *" They stressed that the Federal consulting agencies can-
not meet their obligation under the law, if the BSF&W and
NOAA "fail to inform them in a timely fashion", or if they
"are silent" on the request.
The Committee concurs with their views and notes that on
July 24, 1973, Acting Secretary of Commerce John K. Tabor re-
plied that NOAA does "not intend to waive the right to receive
any permit application," and that on July 13, 1973, BSF&W
instructed its Regional Directors to report on "every permit ap-
plication." Both agencies have now agreed to state, whenever
they fail to make substantive comments on an application, that
lack of personnel, funds, or technical knowledge prevented their
doing so.
The "consultation" requirement is also subject to section 2(b)
of the Act, which requires that the "reports and recommenda-
tions" of the Secretary of the Interior shall be "based on surveys
and investigations conducted by the United States Fish and
Wildlife Service and the appropriate State fish and game agen-
cies" (16 U.S.C. 662 (b)). Thus, as we have noted in previous
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602 LEGAL COMPILATION—SUPPLEMENT n
reports,68 Congress intended that Federal agencies would obtain
the views of the Federal fish and wildlife agencies now in the
Interior and Commerce Departments in the form of written re-
ports based on the agencies' professional and technical responsi-
bilities and expertise, free from departmental policy and
political considerations. Such reports are, under the Freedom of
Information Act, available to the public.
Section 3 of the Act generally provides that whenever a proj-
ect is to be carried out by any Federal agency, adequate provi-
sion shall be made, consistent with the project's primary
purposes, for its use for the conservation, maintenance and man-
agement, and improvement of its wildlife resources and habitat.
Section 3 also provides that land and waters may be acquired
by Federal construction agencies for wildlife conservation and
development in connection with a project.
Pursuant to these "consultation" provisions of the Coordina-
tion Act, the Corps and the Bureau of Reclamation have "con-
sulted" with the fish and wildlife agencies and the latter have
studied and filed reports on many, but not all, of their water-
resource projects. Sometimes the results have protected wildlife
values or mitigated the damages resulting from the water proj-
ects. More often, however, the results have been spotty and in-
adequate.
But the "consultation" procedures and results have been even
more ineffective with regard to SCS projects. As far back as
1947, the Solicitor of the Department of Agriculture, in Opinion
No. 5353, concluded that the Coordination Act of 1934, as
amended in 1946, did not apply to drainage operations of the
SCS. The Solicitor said:69
Drainage operations of soil conservation districts are
not conducted by a department or agency of the United
States but are conducted by the districts themselves,
and are not performed under Federal permit. It is our
opinion, therefore, that these operations are not sub-
ject to the requirements of the act of August 14, 1946,
supra.
All activities of a soil conservation district are carried
out in the name of the district, which is not a Federal
agency but a local unit of government organized under
State law. The Soil Conservation Service cooperates
68 H. Kept. No. 91-1433, August 19, 1970, entitled "Protecting America's Estuaries: The
San Francisco Bay and Delta;" H. Kept. 92-1401, September 18, 1972, entitled "Protecting
America's Estuaries: Puget Sound and the Straits of Georgia and Juan de Fuca," p. 55.
" Hearings, part 5, p. 2945-2946.
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WATER—GUIDELINES AND REPORTS 603
with districts by extending technical advice, material,
equipment and other assistance, but the work of a dis-
trict is its own responsibility and undertaking. A dis-
trict's activities can in no sense be considered those of
a department or agency of the United States. Also,
districts do not operate under Federal permits. There-
fore, it is clear that the activities of soil conservation
districts do not come within the • purview of the
aforesaid act.
* * * * *
There is, of course, nothing to preclude a district from
requesting the assistance of the Fish and Wildlife Serv-
ice whenever it is deemed desirable, but we find nothing
in the provisions of the act which requires that the
Fish and Wildlife Service be consulted before the dis-
trict undertakes drainage operations.
In 1970 (see footnote 66) the Agriculture Department's Soli-
citor and the Comptroller General ruled that the 1958 amend-
ments to the Coordination Act did not change that conclusion as
to SCS projects. They pointed out that the final version of the
1958 amendments to the Coordination Act did not provide for
consultation with the Fish and Wildlife Service on projects "re-
ceiving Federal financial or technical assistance" as the Interior
Department and Congressman Reuss proposed in 1958. Instead,
the 1958 Act contained a section 3 which added a new section 12
to the Small Watershed Protection and Flood Prevention Act
dealing with this consultation problem. Thus, in the case of P.L,
566 programs, according to the Comptroller General's opinion,
"Congress has applied separate and different coordination re-
quirements * * * than to Federal construction agency water re-
source development projects or to non-Federal agency projects
constructed under Federal license or permit," and therefore
"* * * the provisions of Public Law 85-624 [the Coordination
Act amendments of 1958] * * * were not meant to, and do not,
apply to Public Law 83-566 Watershed projects."
Section 12 of the Watershed Protection and Flood Prevention
Act provides that when the SCS "approves the furnishing of as-
sistance" to a local sponsor to prepare a work plan, the SCS
must "notify" the Secretary of the Interior of that approval, to
ascertain whether the Secretary "desires" to make "surveys
and investigations and prepare a report with recommendations
concerning" fish and wildlife resources. Section 12 also provides
that Interior can "participate, under arrangements satisfactory"
to the SCS, "in the preparation of a plan for work of improve-
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604 LEGAL COMPILATION—SUPPLEMENT n
ment that is acceptable" to the local sponsors and SCS. The law
requires that SCS give "full consideration" to any of the Bureau's
recommendations "prior" to the time the local organization and
the SCS "have agreed" on a work plan. It also requires that the
plan "include such of the technically and economically feasible
works of improvement for wildlife purposes recommended" by
Interior as are acceptable to, and agreed to by, "the local spon-
sors" and the SCS. Interior's comments must accompany the
work plan submitted to Congress.
It is evident that there are significant differences between
these statutes. For example, under both laws, the BSF&W can
make studies, investigations and recommendations concerning
fish and wildlife resources. But, although the Corps and Bureau
of Reclamation have a statutory duty under the Coordination Act
to "consult" with the Federal and State fish and wildlife agencies,
the SCS has no similar statutory duty. SCS need only give notice
to the BSF&W that it has approved an application to prepare a
work plan, and give the BSF&W a reasonable time to respond.
Then the SCS can proceed without ever getting expert advice
from the BSF&W and the State agencies.
Another difference is that section 12 of P.L. 566, but not the
Coordination Act, states that works of improvement for wildlife
purposes recommended by the BSF&W shall be included in the
work plan if they are "technically and economically feasible"
and if they are "acceptable to," and "agreed to," by both the
SCS and local sponsors. Both Corps and Reclamation Bureau
projects also involve the interests of local groups, but the Coor-
dination Act contains no requirement that fish and wildlife con-
servation measures must be "acceptable" to those interests and
be "agreed to" by them. But acceptability and agreement are not
easily, if at all, obtained for fish and wildlife measures which are
costly to local sponsors and developers, or which reduce the bene-
fit/cost ratio of the project and thus possibly prevent its approval.
A third difference is the "participation" provision of section 12
of P.L. 566. The SCS stresses that this provision gives the
BSF&W an opportunity "to participate actively" and the "prep-
aration" of acceptable work plans, i.e., acceptable to the local
sponsors and the SCS. Administrator Grant noted that at the
Subcommittee's 1971 hearings, as follows:70
Section 12 of the Watershed Protection and Flood
Prevention Act (P.L. 83-566) provides for the Secre-
tary of the Interior to make surveys and investigations
™ Hearings, part 2, p. 632.
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WATER—GUIDELINES AND REPORTS 605
and make recommendations for the conservation and
development of wildlife resources within a watershed
project, and to participate in formulating the project
work plan. Executive Order 10584 of December 18,
1954, as supplemented by Executive Order 10913 of Jan-
uary 18, 1961, prescribes rules and regulations relat-
ing to the administration of P.L. 566 and sets forth
procedures for notification, coordination, and review
among the various federal agencies. Additional guide-
lines for close interagency coordination throughout the
entire planning process are contained in SCS policy
memorandums and handbooks. SCS policy is to give
fish and wildlife interest groups every opportunity to
partidate actively in these deliberations. Where this
participation is achieved, problems generally are re-
solved to the mutual satisfaction of all concerned.
To strengthen the above procedures, SCS recently
issued new guidelines to provide even closer coordina-
tion between SCS biologists and State and Federal fish
and game agency personnel. These include coordination
in all phases of planning from the initial investigation
to plan formulation (Watersheds Memorandum No. 101,
January 30, 1970). (Italic supplied.)
The emphasis that Watersheds Memorandum 101 places on
"participation" by fish and wildlife agencies in the "develop-
ment" of work plans is primarily to "assist sponsoring organiza-
tions in project formulation." But this emphasis was criticized
by the President of the Wildlife Management Institute, Dr. Ira
N. Gabrielson, in a letter of October 3, 1969, to SCS Administra-
tor Grant. Dr. Gabrielson said:
From study and review of many of the small water-
shed plans which have caused controversy since 1961,
we believe a major shortcoming of the program is in
failure to communicate with conservation interests until
after local watershed sponsors had become committed
and politically active in supporting a plan of develop-
ment containing features unacceptable to conservation-
ists. We realize that many efforts have been made by
you, your predecessor and your staff in attempting to
remedy this situation and achieve better coordina-
tion. These efforts mainly have been directed to im-
proving coordination by incorporating conservation in-
terest participation in the make-up of the-watershed
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606 LEGAL COMPILATION—SUPPLEMENT n
work planning party, after the watershed application
has been approved for planning. When the work plan-
ning group begins its studies, SCS has, in effect, al-
ready been committed to watershed development al-
though it is conceivable that on a limited number of
watersheds, conservation interests may vigorously op-
pose any developments whatsoever.
The Institute believes the Secretary should exercise
his legal right in disapproving projects or aspects of
projects where regional or national environmental re-
sources of consequence will be destroyed or impaired,
regardless of a favorable benefit-cost ratio. (Italic sup-
plied.)
Dr. Gabrielson therefore urged that BSF&W and State fish
and game agencies make a "statewide review" of project appli-
cations "before approval of individual applications for planning."
In his October 14, 1969, reply, Mr. Grant noted that it is SCS
policy to "inform" State fish and game agencies and the BSF&W
"of its intent to initiate surveys and field investigations to deter-
mine feasibility". This, of course, is not consultation.
Mr. Grant seemingly endorsed Dr. Gabrielson's statewide re-
view, but concluded that the "leadership" for such a review
should come, not from the SCS, but from the "State agency desig-
nated by the Governor to review and approve watershed applica-
tions and to recommend watershed priorities." However, it is
doubtful that there is much enthusiasm for such review by these
agencies.
A fourth difference is money. Section 2(e) of the Coordination
Act authorizes the Corps and the Bureau of Reclamation "to
transfer" to the BSF&W funds "to conduct all or part" of the
required "investigations" of Corps and Reclamation Bureau proj-
ects. The House Committee on Appropriations, in its report of
June 25, 1973 (H. Rept. 92-327, p. 19) on H.R. 8947—the Public
Works Appropriation bill providing funds for the Corps and the
Bureau of Reclamation for FY 1974—recommended $1,000,000
"for transfer to the Bureau of Sport Fisheries and Wildlife for
* * * essential studies during the coming year. * * *"
But section 12 of P.L. 566 provides no similar authority for
transfer of funds. Indeed, the statute quite clearly states that
the cost of any survey and investigation initiated by the BSF&W
must "be borne by the Secretary of the Interior out of funds ap-
propriated to his Department." But BSF&W funding for this
purpose has been sadly lacking. The Bureau's appropriations are
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WATER—GUIDELINES AND REPORTS 607
allocated for many other activities in addition to review of chan-
nelization projects. The money is spread thin, as Assistant Secre-
tary Reed noted in his 1971 testimony: 70"
The Bureau of Sport Fisheries and Wildlife has be-
come greatly overcommitted in recent years under its
river basin studies programs. The workload has been
increasing at a rapid rate, and the Bureau has not been
able to obtain the funds and manpower necessary to
keep pace.
In an effort to obtain more adequate funding for that
program, the Bureau developed a strong justifica-
tion early in 1970. This was adopted by the Depart-
ment of the Interior and issued in May of 1970. This
paper was subsequently referred to the Office of Man-
agement and Budget on a justification for a higher level
of funding.
The long-range funding goal is $11 million by fiscal
year 1976. These figures represent the level believed nec-
essary to permit the Bureau to carry out a fully adequate
river basin studies program.
Additional increases in funding must be accomplished
within the next 5 years if the agencies designing and
constructing stream channelization projects are to re-
ceive proper input from our agency.
But it appears that Mr. Reed's "goal" will not be achieved.
Only in fiscal year 1971 did the administration adopt the funding
level recommended by the Assistant Secretary. Indeed, the fund-
ing level recommended by the administration for F.Y. 1974 is
short of the Assistant Secretary's goal for that fiscal year by
$2.3 million. Furthermore, although funding has increased for
the BSF&W's river basin studies program, personnel ceilings
have not been commensurately increased.
These limitations in the law and in funds have to a consider-
able degree caused the BSF&W review of SCS projects to be
spotty and largely ineffective.
C. THE PROMISE OF THE COORDINATION ACT THAT WILDLIFE RE-
SOURCES BE TREATED EQUALLY IN WATER RESOURCE PROJECTS
HAS NOT BEEN FULFILLED AS TO THE CORPS PROJECTS
Congress, in enacting the Coordination Act, ordained that
"wildlife conservation shall receive equal consideration" with
"other features" of water resource programs. But this promise
'<"> Hearings, pt. 2, p. 412.
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608 LEGAL COMPILATION—SUPPLEMENT n
has not been fulfilled, largely because the views of the Federal
fish and wildlife agencies have often been disregarded.
One example of this problem is the Corps' West Tennessee
tributaries project which was authorized in 1948, some 10 years
prior to the enactment of the 1958 Coordination Act amendments.
According to the Corps, "it provides for the enlargement and
realignment"—a euphemism for channelization—"of 210 miles of
main stream and tributary channels on the Obion and Forked
Deer Rivers."71 Because the Tennessee Highway Department,
which was responsible for providing project right-of-way, had
difficulty in obtaining the necessary lands, actual construction
began in 1960, 12 years after authorization. About one-third of
the project is complete. As noted above, further work on the
project has been stopped by court order (EDF v. Fvroehlke,
supra).
In discussing this project, Major General F. P. Koisch, Director
of Civil Works Office of the Chief of Engineers, testified in
1971:n
The environmental issues of the project are a classical
example of the conflict in competing use of resources.
On the one side, the project will enhance the human
environment for inhabitants of the basin through in-
creased crop yields; reduced flood inconveniences, health
hazards and damages; and encouragement of a gener-
ally higher standard of living. We can anticipate a
higher tax base, and consequent improvement in the
quality of community service in schools, roads, sewer-
age systems, and water systems.
On the other hand, the project has accelerated the
clearing for agriculture of thousands of acres of wood-
lands and prime wildlife habitat. If carried to comple-
tion, the increased clearing could total about 84,000
acres.
Understandably, conservationists are greatly upset
over this. Last year when these concerns became ap-
parent, the district engineer was directed to restudy
this aspect of the project.
But, according to the BSF&W, these "concerns" were "ap-
parent," at least to BSF&W and the Tennessee Game and Fish
Commission, long before this lawsuit was initiated.
BSF&W's first report on this project was prepared in April
71 Hearings, part 2, p. 554.
ra Hearings, part 2, p. 555.
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WATER—GUIDELINES AND REPORTS 609
1947, prior to project authorization.73 Wildlife Biologist Charles
E. Crowther, of the Bureau's River Basin Studies Division at
Vicksburg, Mississippi, in his May 21, 1970, memorandum to the
Field Supervisor, commented on the Corps' response to this re-
port. He said.
As far as we know, the Corps has paid little, if any,
attention to this report. At least, subsequent Corps'
project design for drastic and complete channelization
of subject streams provide solely for flood control and
drainage needs, and contains no features or provisions
for fish and wildlife conservation or other water uses
or conservation.
The Bureau prepared a second report in December 1959, after
enactment of the 1958 Coordination Act amendments,74 but be-
fore initiation of construction. It recommended modification of
project design and structural features for water level manage-
ment for fish and wildlife purposes and the acquisition and ini-
tial development of fish and wildlife lands.
The Tennessee project is alined through two State wildlife
management areas (the Gooch and Tigret) purchased with the
aid of Federal funds. Soon after work began, the Bureau and
the Tennessee Game and Fish Commission conducted additional
studies and on March 19, 1962, the Bureau commented further
to the Corps. Yet despite all these studies and comments, the
Corps proceeded with construction of the project without any
significant provision for fish and wildlife conservation.
At the Subcommittee's 1973 hearings, Brig. General James L.
Kelly, the Corps' Deputy Director of Civil Works, stressed that
the Corps is not required by the Coordination Act to include in
its projects any recommended fish and wildlife measures. He tes-
tified: 75
In studying and evaluating alternative solutions to
problems with fish and wildlife implications the Corps
has long sought advice and recommendations from desig-
nated agencies and responsible interests. We have not,
however, always agreed with the recommendations made
to us. It is necessary to recall that the Fish and Wild-
life Coordination Act stipulates that the Corps recom-
73 The report is entitled "Preliminary Evaluation Report of Fish and Wildlife Resources
in Western Tennessee River Basins and Mississippi Backwater Areas, Obion and Hatchie
Rivers, Tennessee, Mississippi, and Kentucky."
74 The report is entitled "A Fish and Wildlife Conservation Plan for the Obion and Forked
Deer Rivers Project, Tennessee, A Unit of the Mississippi and Tributaries Review."
75 Hearings, part 5, p. 2894.
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610 LEGAL COMPILATION—SUPPLEMENT n
mend only those measures which its reporting officers
conclude are justifiable. (Italic supplied.)
Assistant Secretary of the Interior Reed insisted that proper
"input" into project design by "knowledgeable professionals
in the environmental field is essential," while readily agreeing
that the BSF&W's role under the Coordination Act was merely
"advisory." But he also criticized the Corps and other Federal
water resource development agencies for too often rejecting the
recommendations of these "professionals." He said:78
A large portion of the morale problem within my
Department is the result of rarely being listened to
when we offer relevant recommendations to other agen-
cies on this problem. It is discouraging for our biolo-
gists and field personnel to stand by helplessly and
watch the wetlands resources succumb to the dredge bit
or dragline bucket, with little or no regard for the
natural system.
* * * I must tell you, quite frankly, that it has been
the observation of the majority of our personnel that
those agencies engaged in stream channelization activ-
ities are still largely paying nothing more than lip
service to earnest environmental protection. We have
yet to detect any substantive departure from the prac-
tices of yesteryear by these agencies. •
The frustrating nature of this long and costly process by
which BSF&W continuously makes recommendations with little
or no tangible results in described by BSF&W Wildlife Biologist
Charles E. Crowther in his May 21, 1970, memorandum to the
Bureau's Vicksburg Field Supervisor concerning the Corps' Obion
and Forked Deer project. He said:
In the case of the authorized Obion and Forked Deer
project, as with other MR&T projects, the Corps to
date may have complied minimally with the letter of
the Fish and Wildlife Coordination Act. The Corps has
consulted with us, has read our reports and acknowl-
edged them, and has courteously coordinated and con-
sulted occasionally with us. The net result most often
has been disappointing, however, in that the action
recommended or taken by the Corps respecting fish and
wildlife has been negative. No significant concessions
were made in original project design toward minimiz-
ing the adverse impact of the project on fish and wild-
™ Hearings, part 2, p. 411-412.
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WATER—GUIDELINES AND REPORTS 611
life. The original project design or plan was never
modified in the interest of fish and wildlife. While pres-
ent review studies are in progress, construction of the
authorized project has not been deferred or delayed in
the interest of fish and wildlife conservation planning.
The treatment given fish and wildlife in project justi-
fication studies is inadequate and highly questionable.
Fish and wildlife needs have not been given equal treat-
ment to flood control and drainage development needs
in the existing project formulation. In fact, the project
has been designed and constructed exactly as would
have been the case had we and the Tennessee Game
and Fish Commission never reported on fish and wild-
life aspects or expressed an opinion. Consequent losses
of fish and wildlife resources have been drastic and have
exceeded our report projections. * * *
We can only conclude that the Fish and Wildlife Co-
ordination Act of 1958 has not been effective in its ap-
plication to the subject project in providing for fish
and wildlife conservation and development needs. We
think the Act could have and should have been more
effective. (Italic supplied.)
The refusal of the Corps and SCS to give greater weight—
indeed, to defer—to BSF&W expertise on fish and wildlife mat-
ters appears to be contrary to the new national policy expressed
in the National Environmental Policy Act of 1969. Thus, the
Federal district court in Sierra Club. v. Froehlke, F. Supp.
5 ERG 1033, 1072, (D., S.D. Tex., February 16, 1973),
noted that NEPA required the Corps to consult with agencies
with "special expertise" on environmental impacts and ruled
that "when a conflict arises between the Corps and an agency
which is making an evaluation in its particular field of expertise,
and when the Corps' evaluation is based upon factors of which
the reviewing agency may take cognizance, then NEPA obligates
the Corps in most instances to defer to that evaluation."
The BSF&W also contends that the Corps uses monetary esti-
mates of project losses to fish and wildlife as a limit on project
expenditures for mitigation measures despite the objections of
fish and wildlife agencies, and, most importantly, despite strong
legislative history in opposition to this practice. The Senate Com-
merce Committee, in its report (S. Rept. 85-1981; July 28,
1958) on the House-passed bill (H.R. 13138) that was finally
enacted as the 1958 amendments to the Coordination Act, said
(p. 4):
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612 LEGAL COMPILATION—SUPPLEMENT n
The legislation would provide that conservation meas-
ures for the prevention of losses to fish and wildlife
should be included "to the extent justifiable" in author-
ized 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.
Contrary to that clear congressional "understanding," the
Corps' regulations emphasize strictly monetary estimates. For ex-
ample, section 6 of Corps' regulation No. ER 1105-2-105 of De-
cember 15, 1972, specifies that, in evaluating project effects,
the Corps shall place "values on the significant adverse and
beneficial effects in monetary terms where applicable." 77 Another
Corps regulation states that the economic value of damages to
fish and wildlife resulting from water resource projects will be
included as a "cost in project formulation and justification, to
the extent that the damages are subject to evaluation in mone-
tary terms." 78 It provides that losses in recreation use through
reduced fishing and hunting opportunities must be evaluated by
procedures comparable to those used in evaluating benefits; that
losses in commercial products must be expressed in monetary
terms using the market values to the primary producer of the
product; and that nonmonetary damages, "including those im-
pacts affecting the eco-system and environmental quality," must
be described in "sufficient detail to support a judgment as to the
cost that would be justified to prevent or offset them." The regula-
tion then clinches the subject by stating that "compensatory
measures" will be included, "unless they are judged [by the
Corps] to be exorbitantly expensive."
The BSF&W, in a January 16, 1972, letter replying to a Gen-
eral Accounting Office inquiry, explained why it does not want to
place monetary values on fish and wildlife losses:
As a matter of policy, we have avoided placing a mone-
tary value on fish and wildlife losses. To do so would
provide the construction agencies with a convenient
77 The regulation is entitled "Guidelines for Assessment of Economic, Social, and Environ-
mental Effects of Civil Works Projects." It has not been published in the Federal Register.
78 No. ER 1120-2-401, August 14, 1970. The regulation is entitled "Investigation, Plan-
ning and Development of Water Resources Preservation and Enhancement of Fish and Wild-
life Resources." It has not been published in the Federal Register.
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WATER—GUIDELINES AND REPORTS 613
means to mathematically deduct losses from benefits in
adjusting the project b/c ratio in lieu of accomplishing
mitigation. We have based our recommendations on re-
placement of habitat in kind to the extent possible.
D. THE BUREAU OF SPORT FISHERIES AND WILDLIFE HAS SOME-
TIMES BEEN STYMIED BY ITS PARENT AGENCY, THE INTERIOR
DEPARTMENT, AND NEGOTIATED COMPROMISES THAT LATER
TURNED SOUR
The experiences of the BSF&W with the SCS under section 12
of the Watershed Protection and Flood Prevention Act have
been frustrating. But they have been compounded by the Bureau's
parent agency, the Interior Department.
For example, the Alcovy River watershed project in Georgia
began in November 1960, with the formation of the Alcovy River
Watershed Association and the filing of an application for assis-
tance with the Georgia State Soil and Water Conservation Com-
mittee. According to a Januray 31, 1972 summary report on
this project, in the summer of 1966 the State committee and the
SCS State Conservationist "jointly selected" this watershed for
planning, and preliminary study. The study "indicated that a
watershed project was feasible" and assistance for developing a
work plan "was formally authorized in July 1967."
On August 30, 1968, the State fish and wildlife agency and
the BSF&W objected to the SCS's "tentative" channelization
plan for the Alcovy watershed. Despite this, a work plan was
completed in October 1968 and a public hearing was held in
February 1969, at which time the Georgia Game and Fish Com-
mission opposed the channel measures and requested a meeting
with SCS to "resolve" their objections.
In an August 6, 1969, letter to then Secretary of Agriculture
Clifford M. Hardin, Assistant Secretary of the Interior James
R. Smith recommended "re-evaluation" of the project "to elimi-
nate that portion of planned stream channel alterations below
the downstream impoundments along those reaches in which na-
tural resources would be significantly damaged or destroyed." 79
On August 28, 1969, SCS Administrator Grant agreed to a
reevaluation to determine:
(1) Those areas which the Bureau of Sport Fisheries and
Wildlife and Georgia Game and Fish Commission believe
must be preserved.
(2) Necessary modifications of the project plans to ac-
complish such preservation.
™ Hearings, part 3, p. 1914.
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614 LEGAL COMPILATION—SUPPLEMENT n
(3) The effect of such modifications on the feasibility of
the plans particularly on the level of flood protection and
benefit-cost ratios.
(4) The acceptability of such modifications to concerned
interests, particularly the sponsoring local organizations.
This reevaluation was completed in August 1970, and on Au-
gust 25 the SCS transmitted to the BSP&W and the State "an-
other" draft of a proposed work plan which eliminated some
channelization. But the SCS State Conservationist, Mr. C. W.
Chapman, emphasized: 80
As you know, these proposed changes have not been
discussed with the sponsors. We cannot make changes in
the plan without their concurrence. For this reason, we
hope you will join us at the time we meet with the spon-
sors with the thought that our mutual recommendations
may be more fully explained and result in a more com-
prehensive plan for the Alcovy Watershed.
On December 31, 1970, the Georgia State Game and Fish
Commission said:81
Our original concern, of course, in this project was
the loss of fish and wildlife and environmental values.
Originally we requested that stream channelization be
eliminated in the sections of the streams below the down-
stream flood retarding structures. During the past year,
we have worked toward that point with your agency and
with personnel from Sport Fisheries and Wildlife and
have gradually reduced the downstream channelization
from 43.8 miles to 16.1 miles as listed in your present
proposal. We had hoped that the entire channelization
below these structures could have been eliminated; how-
ever, after the many sessions we have had with your
personnel, it is evident that this will not be done. There-
fore as the project is now proposed, there will be a net
loss of fish and wildlife values and we, therefore, can-
not endorse the project.
Interior's reply of February 2, 1971, was similar to that of
the State Commission. But Interior's spokesman, Clarence S.
Lorentzson, added a comment which is of considerable importance
to this entire controversy. He said:82
As you are undoubtedly aware, this Department has
become increasingly disturbed over the number of proj-
80 Hearings, part 3, p. 1915.
M Hearings, part 3, p. 1932.
" Hearings, part 3, p. 1936.
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WATER—GUIDELINES AND REPORTS 615
ects being planned and carried out which involve exten-
sive alteration of streams. If the emphasis on this practice
continues, the result will be the ultimate destruction
or serious degradation of irreplaceable and valuable
public resources, including fish and wildlife, associ-
ated with many bottom lands and rivers. Project pro-
posals for the Alcovy River basin characterize our
concern. The Alcovy proposals include a multimillion
dollar flood control program to "benefit" a relatively un-
developed wooded flood plain, with only 15 percent of the
area in agricultural production. Project information
available in our files of 75 Georgia watershed projects in
various stages of planning and/or installation reveals
that 97 percent of these projects include stream channel
alteration totaling over 2,000 miles. We support sound
water management practices; however, we believe that
the public interest is not served in instances where
strictly localized flood control benefits from stream chan-
nel alteration are achieved at the expense of exten-
sive damages to natural resources of broad public value.
After a meeting with Interior Secretary Morton on July 16,
1971, Agriculture Secretary Hardin agreed to a further study
and a second reevaluation of the project. But, in reaching this
agreement, both secretaries emphasized that this reevaluation
was to start with the "assumption" that there was a "valid"
need for the project.83 Thus, despite the concern expressed by
Mr. Lorentzson about the channelization planned for the Alcovy,
the Department refused to question the project itself. Guide-
lines for this "reevaluation" were completed in September 1971
and a study team was established.
When the Subcommittee questioned the two Federal agencies
about this restriction on the study, Interior replied vaguely that
this was the decision of the two secretaries.84 The SCS stated
bluntly that:85
Public Law 83-566, section 3, authorizes the Secre-
tary of Agriculture, if the Governor of the State or
his designated agency has not disapproved the applica-
tion of local people for assistance within 45 days of its
receipt, to assist the local people prepare a plan to al-
leviate their water and related land resource problems.
"Hearings, part 5, p. 2801.
84 Hearings, part 5, p. 2819.
85 Hearings, part 6, p. 2860.
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616 LEGAL COMPILATION—SUPPLEMENT n
The needs for such a plan had been determined and
a proposed plan had been developed. The questions
raised concerned environmental impact, and possible al-
ternatives to proposed works of improvement, not the
need for a plan. This question, therefore, was not one
for the study team to consider. The reevaluation re-
quested by the Secretary of the Interior was for the
purpose of eliminating that "portion of planned stream
channel alterations below the downstream impound-
ments along those reaches in which natural resources
would be significantly damaged or destroyed. (Italic
supplied.)
The study team prepared a summary report in January 1972
stating:8e
The scope of Interior's participation in this reevalua-
tion effort was concentrated primarily in the recreation,
fish and wildlife fields. Interior's efforts in the economic,
engineering and hydrology fields were limited to a rather
cursory review of existing data collected and developed
by SCS and routed through SCS procedures and method-
ology to reach the conclusions. In accordance with the
agreement between the two Secretaries in this reevalua-
tion, no attempts were made by Interior participants to
collect or reformulate basic data which would lead to a
total reevaluation of the economic and engineering as-
pects of the basic watershed project. (Italic supplied.)
As the study team noted, Interior's "efforts * * * in the eco-
nomic, engineering and hydrology fields" were indeed "rather
cursory." In his February 25, 1972, review of the hydrology and
sedimentation section of the proposed Alcovy project reevalua-
tion report, the District Chief of the Geological Survey, Mr.
John R. George, noted that the Interior Work Group "questioned"
economic values placed upon certain hydrology and sedimenta-
tion items. He said:
In one example, we were unable to determine how
- an annual flood damage reduction benefit of $22,410
(over 40 percent of the total annual damage reduction
benefits) was derived for reduction in road bank ero-
sion. The method of transformation of these data was
" The SCS reproduced only 75 copies of this January 1972 summary which were "dis-
tributed" to Interior, the State fish and game agency, and itself, but not made public.
Interior explained (hearings, part 5, p. 2819) that the SCS "requested" that these few
copies be "held within the respective agencies pending release of draft and final work
plans and environmental impact statements."
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WATER—GUIDELINES AND REPORTS 617
not privy to the hydrology and sedimentation work
group.
The Assistant Director of the State fish and game agency,
Mr. Jack A. Crockford, also noted several shortcomings in this
section of the report in an April 10, 1972, letter to Interior's
Deputy Under Secretary, Mr. Frank E. Clarke. The Interior Field
Team Leader, an employee of BSF&W, in a May 22, 1972,
memorandum, commented on this letter as follows:
In responding to Mr. Crockford, Deputy Under Secre-
tary Clarke stated in his letter of April 18, 1972, * * *
that the hydraulic and economic questions mentioned
were being reexamined in preparation of the final re-
port. Unfortunately, this was not quite the case. During
the early phase of this reevaluation effort the Secre-
tary's Office elected not to make an in-depth economic
analysis of the SCS proposal. In addition, the revising
or editing of the recommendations * * * of the summary
report, as per [former Interior Under Secretary] Pe-
cora's instructions, did not involve further analysis or
studies by the various work groups.
When this Subcommittee, in March 1973, asked the Agriculture
and Interior Departments about this second restriction on the
study, the SCS replied:87
The study team was instructed to utilize to the fullest
extent the data already collected and developed. The
USGS member of the team reviewed the hydrologic
data used in project evaluation and found it fully accept-
able. The Department of the Interior had one of its
top water resources economists review the economic
data and evaluations. His findings were: "In conclusion,
therefore, it is evident that the economic analysis of
the SCS watershed work plan for the Alcovy River
(watershed) has been undertaken in a satisfactory
manner within the economic evaluation system pre-
scribed by the President's letter of May 15, 1962, and
described in Senate Document No. 97, 87th Congress, 2d
session and further endorsed by the guidelines and di-
rectives of the Water Resources Council."
The engineering structural designs and cost estimates
were carefully reviewed by SCS engineers for adequacy.
The duplication in detail of all investigations and analy-
ses made by SCS was not considered to be needed.
s* Hearings, part 5. p. 2860.
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618 LEGAL COMPILATION—SUPPLEMENT n
The SCS has been unable to predict when the next version of
the Alcovy watershed work plan would be available for public
review and comment. One thing is quite evident. A great deal of
time and money has been spent by the Government to remodel
this project without questioning the basic assumptions for its
existence, namely, the need for it and its economic viability.
In reality, the "reevaluation" by Interior and Agriculture was
only partially done—because the need "had been determined and
a proposed plan had been developed."
The BSF&W has been hamstrung by the fact that, in many
instances, its superiors in the Interior Department have failed
to support efforts to seek more than project modifications which
limit, but do not eliminate, damage and destruction of wildlife
resources.
This may explain why in some instances, such as the Stark-
weather project in the Dakotas and the Cameron Creole proj-
ect in Louisiana, the BSF&W professionals have negotiated
half-a-loaf compromises, only to learn later that such com-
promises are of dubious value.
In some instances, however, such as the Wild Rice Creek proj-
ect in the Dakotas, the BSF&W simply failed to do its job
properly. Thus, BSF&W told the SCS on July 1, 1957, that its
reconnaissance review of the proposed project "Indicates that
fish and wildlife resources generally will be benefited" by the
"measures contemplated"; that there would be substantial pub-
lic fishing benefits; and that the project "would have no sub-
stantial effect" on a wildlife refuge.88 Later, in August 1965,
after the structural measures were virtually completed, the
BSF&W prepared a special report containing the notation "For
administrative use only; not for public release." That report
states that public fishing benefits have not resulted although some
fishing for one "landowner and his friends" was provided; that
the "lack of public access has hindered full use" of one struc-
ture ; and that the general conclusion of 1957 that fish and wildlife
would benefit from the project proved to be "greatly in error." 89
E. THE SCS HAS GENERALLY BEEN COOL TOWARD THE FISH AND
WILDLIFE AGENCIES' ROLE IN SCS PROJECTS
At hearings in July 1971 before the Senate Committee on
Public Works, Administrator Grant complained:90
There are no directives to require that a conservation
88 Hearing, part 4, p. 2693.
89 Hearings, part 4, pp. 2697-2598.
80 Hearings, Senate Committee on Public Works, p. Ill, footnote 37, supra.
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WATER—GUIDELINES AND REPORTS 619
district tailor its plan to meet the complaint of a State
or national fish and wildlife agency. The sponsors
have the right and the responsibility to decide what
measures are included in their projects. Our experience
has shown that in a predominance of cases neither the
State or the national wildlife agency has had enough
interest in the project to sit with the sponsors and
discuss the project objectives and the problems which
the sponsors face. In many instances, therefore, the com-
plaints of these agencies are made without any knowl-
edge of the project as a whole. Joint participation at the
plan formulation table is the only way these issues can be
resolved. Until the fish and wildlife agencies participate
at that level with documented facts about the values in
the project, the conservation districts will accept the
suggestions which are not contrary to their objectives
and which they can finance. Other suggestions they are
likely to reject. In case of disagreement the Soil Con-
servation Service determines the significance of the bio-
logical impacts in comparison to the project objec-
tives. If biological losses are significant and a reasonable
solution for reducing them is available, the SCS with-
holds assistance until the necessary measures to reduce
excess biological damages are included in the work
plan.
The BSF&W has a statutory obligation to give the Corps, the
Bureau of Reclamation, the SCS, and the public its best pos-
sible professional advice and recommendations. To the maximum
extent feasible, it should, of course, seek the views of the public,
including the local sponsors of the project. But it is not obligated,
as Administrator Grant suggested, "to sit with the sponsors"
and "discuss" the project objectives, under pain of having its
recommendations rejected. Such a burden, when multiplied by all
the projects the BSF&W must review, would make BSF&W's re-
views highly inefficient and quite impractical.
SCS's disdainful attitude toward the fish and wildlife
agencies' recommendations is also shown by the fact, as SCS
Administrator Grant acknowledged at this Committee's 1971
hearings, that the SCS had stopped only one project—the Alcovy
in Georgia—"as a result of a direct request" from the Interior
Department. Some, however, have been modified.91
Even more revealing has been SCS's response to BSF&W's
91 Hearings, part 2, pp. 547, 548.
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620 LEGAL COMPILATION—SUPPLEMENT n
guidelines, developed in January 1972, entitled "Policy and Guide-
lines For the Planning and Review of Stream Channel Alteration
Projects." 92
These guidelines note that many environmentally destructive
SCS and Corps projects are being planned and constructed, and
warn that if this "continues, the ultimate result will be the
serious degradation of these valuable and irreplaceable natural
resources throughout the Nation." The guidelines set forth
BSF&W's general policy concerning water resource projects and
state that BSF&W "cannot support or condone" projects "which
would damage environmental resources but have only localized,
mainly private benefits to a relatively few people."
When the Interior Department transmitted the guidelines to
the Agriculture Department in December 1972, the responses
by the Secretary of Agriculture and SCS were hostile and critical.
Secretary of Agriculture Butz said, in a January 11, 1973 letter,
that the BSF&W guidelines "(a) reflect an overly narrow view
of the situation, maximizing fish and wildlife values with in-
adequate recognition of human resource values and needs; (b)
reveal a lack of appreciation of the agricultural and rural develop-
ment missions of this Department; and (c) establish conditions
for Bureau approval or opposition over and above those con-
tained in the small watershed and farm program acts." SCS
Administrator Grant's letter of March 5, 1973, described the
BSF&W guidelines as "essentially negative" and "criteria for
opposing all channel work." 93
In his letter of March 5, 1973, SCS Administrator Grant
suggested that a "task force" of SCS and BSF&W specialists be
established to "explore the possibility" of either "modifying"
the guidelines or developing a channel planning and design man-
ual "we can both support." 94 However, the differences between
the SCS's attitudes and those of the Interior Department and en-
vironmental groups apparently remain sharply drawn.
Mr. Thomas Barlow of the Natural Resources Defense Coun-
cil, who testified at the Committee's 1973 hearings, wrote to the
Interior Department on April 5, 1973, criticizing Administrator
Grant's task force proposal, as follows:95
In short, perhaps at some future date a joint study
team to analyze the problem of channelization might be
82 These guidelines were published in the committee's hearings, part 5, p. 3279, but have
not yet been published in the Federal Register as required by B U.S.C. 552(a) (1) (D) and*
(E).
M Hearings, part 5, pp. 3282-3284.
M Hearings, part 5, p. 3282.
•• Hearings, part 6, p. 3288.
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WATER—GUIDELINES AND REPORTS 621
in order. However, it is evident that citizen pressure
has not yet brought the SCS to the point where it will
provide competent and comprehensive answers to many
of the serious questions raised by these ditching pro-
grams, much less meaningful remedies for the environ-
mental destruction which they cause. The SCS's failures
to respond to the impact statement provisions of NEPA
are clear evidence of their recalcitrance in this regard.
We feel that if and when such a study team were
to be assembled, it should include representatives from
other Federal and State agencies with responsibilities
for the environmental resources which these channeliza-
tion programs impact as well as representatives of the
concerned public. At this time, we feel very strongly
that the motives of the SCS in proposing this particular
approach study smack of salami tactics in that only
fish and wildlife problems would be assessed (and other
impacts presumably ignored) and, therefore, that the
SCS's designs are of a co-optive rather than a coopera-
tive nature. We, therefore, support a vigorous applica-
tion of your Department's channelization guidelines by
your field offices.
The task force has not yet been established and Assistant
Secretary of the Interior Reed informed the Committee that the
Department plans to keep the guidelines "in effect." 96
The Committee questions both the need for and the usefulness
of such a task force. The guidelines are useful. They are not as
negative as the SCS suggests. They are consistent with existing
statutory authorities, and, most importantly, they stress the need
for a case-by-case review of channelization projects. They do not
condemn all such projects, but simply require proof that the
project is environmentally sound.
The SCS's rejection of that point of view was pithily sum-
marized by an Interior Department official in Atlanta who told a
Wall Street Journal reporter: "The SCS frequently doesn't pay
any attention to what they're told either by us or by other
environmental groups. They listen, of course, because they're
bound to by law, but then they go right ahead with their pre-
vious plans." 97
It is obvious that the various limitations in statutory au-
thority and the differences in interpretation that have emerged
96 Hearings, part 5, p. 2947.
07 Senate hearings, supra, p. 4, footnote 37.
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622 LEGAL COMPILATION—SUPPLEMENT n
since 1958 will not be resolved by the agencies involved. Each
has its own position. Each appears to resist accommodation.
The Committee believes that only Congress can resolve these
problems through amendment of the Coordination Act.
The Committee therefore recommends as follows:
The appropriate committee of the House of Representatives
should consider amending the Fish and Wildlife Coordination
Act to (a) extend it to all water resource projects constructed or
financed by a Federal agency, (b) insure that Federal and State
fish and wildlife agencies are notified at an early stage in project
development, (c) require that Federal water resource agencies
set forth their reasons for not including in the project any fish
and wildlife mitigation and enhancement features recommended
by Federal or State fish and wildlife agencies, and (d) require
that estimates of fish and wildlife losses not be evaluated solely
in monetary terms.
VII. CHANNELIZATION MAY OFTEN ADVERSELY AFFECT
WATER QUALITY, BUT THE SCS HAS CONTENDED
HAT IT NEED NOT ACCEPT THE ENVIRONMEN-
TAL PROTECTION AGENCY'S WATER QUALITY RECOM-
MENDATIONS, UNLESS DIRECTED BY CONGRESS OR
THE PRESIDENT. THE FEDERAL WATER POLLUTION
CONTROL ACT OF 1972 SPECIFIED THAT A PRESI-
DENTIAL ORDER SHALL BE PROMULGATED BY MID-
APRIL 1973 REQUIRING FEDERAL AGENCIES, IN EX-
ERCISING CONTRACT, GRANT OR LOAN AUTHORITY,
TO EFFECTUATE THE PURPOSES OF THE ACT
At the Subcommittee's March 1973 hearings, Dr. Stanley M.
Greenfield, EPA's Assistant Administrator for Research and
Monitoring, testified that channelization is "a major factor in
causing the deterioration of water quality through its role in
increasing sedimentation, eutrophication, and the accumulation
of pollutants such as pesticides." BB He went on to say: "
* * * channelization increases the quantity of nutri-
ents and other pollutants in the water. Two phenomena
work in concert to achieve this: (1) additional runoff
caused by channelization allows these substances to enter
the water in greater amounts where they are often ab-
sorbed and transported downstream by fine grained sedi-
ment particles; and (2) channelization's often induced
88 Hearings, part B, p. 2901.
" Hearings, part 5, p. 2902.
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WATER—GUIDELINES AND REPORTS 623
secondary effect of bringing adjacent lands under agri-
cultural development provides greater quantities of nu-
trients and pesticides for eventual entry into the water-
way. In several channelization projects blue-green algae,
indicative of high-nutrient loading and eutrophica-
tion, have been found. It should be noted that this
secondary effect of bringing adjacent land under develop-
ment generally signals an end to the wetlands that are
nurtured by the stream.
The SCS, however, apparently disagrees with Dr. Greenfield's
view that channelization is a "major factor" adversely affecting
water quality. In response to the Committee's inquiry on this
matter, the SCS stated as follows: 10°
Channel improvement decreases eutrophication of sur-
face waters. Eutrophication problems are most evident
in ponded, slow-moving streams which enhance nutri-
ent uptake by algae and aquatic vegetation. Channel
improvement facilitates transport of dissolved nutrients
downstream and ultimately to the ocean where they are
needed to sustain various forms of marine life. Sediment
often carries absorbed phosphorus into streams. It should
be noted that nutrient rich topsoil and organic matter
carries more nutrients—particularly phosphorus than
subsoil. For this reason sediment from streambanks
poses less threat to increased eutrophication than that
from sheet erosion of more fertile surface soils within the
contributing watershed. Studies at the USDA Sedimenta-
tion Laboratory at Oxford, Miss., show that sediment
with low phosphorous content from Memphis soil, for
example, has the capacity to adsorb phosphorus from
nutrient rich water. * * * Channel improvement will
have little effect on pesticide content of channel flow as
sediment from channels and streambanks are not prime
carriers of pesticides.
Sedimentation, eutrophication, and pesticide problems
in surface waters are reduced through use of sound
land treatment measures within watersheds contributing
to streams. Channel improvements tend to further reduce
such problems.
When asked if he agreed with the SCS comments, Dr. Green-
field testified as follows:101
100 Hearings, part 5, p. 2852.
101 Hearings, part 5, p. 2948.
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624 LEGAL COMPILATION—SUPPLEMENT n
Dr. GREENFIELD. No. Once again, there may be cases
where this occurs. But, in general, I think what you
are doing is just moving the problem downstream be-
cause, obviously, what you have done in the channeliza-
tion is increased the velocity and increased the ability
of the stream to carry various substances. But, as
soon as the velocity decreases, as when the stream
enters a larger lake or what have you, then the stream
drops the substances at that point and you start to
increase sedimentation and siltation. You have just
transferred that whole nutrient enrichment problem,
along with sedimentation, downstream to where it set-
tles out.
The Committee leaves the technical debate to the water
quality experts, biologists, hydrologists, and engineers. Rather,
the Committee's concern is whether EPA's expertise and advice
are being sought and heeded by the SCS.
When EPA's Assistant Administrator for Field Coordination,
Donald M. Mosiman, testified at the subcommittee's June 1971
hearings, he stated that EPA did make recommendations on
"water quality management features to SCS for inclusion in
such projects for the protection and maintenance of water qual-
lity." However, he added:102
Mr. MOSIMAN. They have not accepted them in all
instances. It has depended upon the nature of the project
and the nature of the recommendations we made. Mr.
Erickson [of EPA] has advised me that we have had
some coordinated field studies as a result of projects
which had been proposed and which we had reviewed
and which ultimately had been constructed, and that in
many instances there were problems and the problems
could be directly traced to their not having taken into
full consideration some of the recommendations that we
had made to them in our review process.
SCS's aloofness seems to have easily discouraged EPA's follow-
up, as indicated by Mr. Mosiman's letter of June 23, 1971 to the
Committee, in which he stated that he could not provide details
"of noncompliance on specific recommendations made to SCS,"
primarily because "no monitoring system that would show com-
pliance or noncompliance with our recommendations has been
established." 103 The Subcommittee's March 1973 hearings showed
102 Hearings, part 2, p. 501.
103 Hearings, part 2, p. B01.
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WATER—GUIDELINES AND REPORTS 625
that EPA's monitoring capabilities have not improved,104 and
that SCS accepts EPA's recommendations only if "the sponsoring
organization agrees to the added provisions." SCS proceeds with
the project so long as "any remaining adverse [water quality]
effects are acceptable in view of the countervailing benefits." 105
Thus, the SCS believes that recommendations on water quality,
like recommendations on fish and wildlife, need be adopted only
where both the SCS and the local sponsors are in agreement that
they are technically and economically feasible.106
Our Nation is spending billions of dollars to halt the pollu-
tion of our waterways. Much of our efforts have been directed
at municipal and industrial dischargers, recreational vessels, and
Federal facilities, such as defense installations. Yet, quite in-
consistently, little has been done to insure that water resource
projects financed or constructed by the Government which may
potentially degrade our waters should include measures to prevent
such degradation.
The need to deal with the latter problem was recognized by
President Johnson in Executive Order 11288 of July 2, 1966
(3 CFR, 1966-1970 comp., 559). That order contained pro-
visions (a) authorizing agencies which make loans, grants or
contracts (as SCS does) to issue regulations to reduce and pre-
vent water pollution from its activities, and (b) requiring such
agencies to seek technical advice from the then Federal Water
Pollution Control Administration (which later was merged into
EPA). Thus, under the 1966 order, the SCS had the opportunity,
had it so desired, to develop and promulgate regulations to insure
that its projects would not increase the pollution of our water-
ways. But the SCS never promulgated such regulations. Al-
though SCS's Watersheds Memorandum 89 of July 10, 1968
directed that SCS personnel "engaged in watershed and river
basin planning should become generally familiar with the effects
of the various pollutants on water quality," Memorandum 89 did
not mention the 1966 directive to seek "technical advice" on water
quality from the FWPCA.
It is indeed, significantly symbolic that SCS, in August 1967,
designated one chapter in its Watershed Protection Handbook
for "Water Quality Management," but to this day the chapter is
bare and blank, and no instructional material has yet been
issued.
Executive Order 11288 was superseded on February 4, 1970, by
104 Hearings, part 5, p. 2347.
105 Hearings, part 5, p. 2871.
106 Hearings (Sen.), supra, footnote 37, p. 111.
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626 LEGAL COMPILATION—SUPPLEMENT n
Executive Order 11507 (3 CFR, 1966-1970 comp., 889). The 1970
order, like the 1966 order, directed "that the Federal Government
in the design, operation, and maintenance of its facilities shall
provide leadership" in protecting and enhancing water quality.
However, the 1970 order omitted the provision of the 1966 order
concerning prevention of pollution by agencies in the exercise of
their loan, grant and contract authority. According to EPA's
witness, Mr. Mosiman, EPA does not "carry out a review under
Executive Order 11507" of SCS projects, because the "SCS has
taken the position" that such projects are "locally initiated non-
Federal projects, rather than Federal water resources projects."
Hence, said Mr. Mosiman, "SCS does not feel that its projects
fall within the jurisdiction of section 7 of Executive Order 11507
and does not feel compelled to accept our comments and recom-
mendations under Executive Order 11507. We do review and
comment on SCS projects, however, and our comments are ac-
cepted in many cases." 107
According to Mr. Mosiman, Executive Order 11507 omitted
the provisions of the 1966 order concerning anti-pollution action
under loans, grants, and contracts "in favor of a broad study by
the executive branch of Federal procurement which would be
followed by the preparation of a separate Executive order." 108
In August 1970, the House Government Operations Committee
recommended that this omission be rectified by issuance of a new
Executive order on combating pollution in activities financed by
Federal loans, grants or contracts.109 Subsequently, in June 1971,
EPA issued a report which recommended the issuance of a new
Executive order covering these matters.110 But neither recommen-
dation has produced further action by the executive branch.
While awaiting the development of a new Executive order,
EPA hoped that an "adequate system for monitoring SCS proj-
ects" could be established. It suggested that "an initial step in
this direction" might be an interagency agreement "which would
provide for EPA advice and consultation on watershed projects,
assure acceptance of water quality recommendations and estab-
lish a continuing monitoring program to assure that water qual-
ity goals are being met." 11J However, SCS Administrator Grant
m Hearings, part 2, p. 504.
108 Hearings, part 2, p. 505.
"•H. Eept. 91-1433 of Aug. 19, 1970, entitled "Protecting America's Estuaries: The San
Francisco Bay and Delta," p. 56.
110 The report entitled "Task Force on Federal Facilities and Federal Procurement" dated
June 22, 1971, together with a related White House report of July 1970 entitled "Report of
Control of Environmental Abuses Associated with Federal Procurement Activities," are
printed in hearings, part 4, pp. 2265-2590.
111 Hearings, part 2, p. 604.
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WATER—GUIDELINES AND REPORTS 627
informed this Committee on August 20, 1971, that EPA "had not
contacted" the SCS about such an agreement, that he doubted
the "need for such an agreement," that a very "close and con-
genial relationship exists between" the SCS and EPA, and that
if conditions "should develop" which would make such an agree-
ment "desirable," the SCS "will welcome the opportunity to co-
operate with EPA in this manner."
At the Committee's 1973 hearings, EPA stated that it's "prin-
cipal involvement with channelization" of the SCS and other
agencies is through its review of environmental impact state-
ments.112 But such review is obviously quite unsatisfactory be-
cause, as noted later in this report, the SCS does not prepare
an environmental impact statement on many of its projects. Even
when SCS prepares an impact statement, which EPA reviews
under section 309 of the Clean Air Act (42 U.S.C. 1857h-7), to
determine whether the proposed project "is unsatisfactory from
the standpoint of public health or welfare or environmental qual-
ity," EPA can only comment, publish its comment, and refer the
matter to the Council on Environmental Quality. But there the
matter can die. CEQ has no authority to require the SCS to
halt the project or to accept EPA's recommendations. Its only
weapons are persuasion and public opinion. Indeed, EPA has been
timid about referring any matter to the CEQ under section
309 (b), and has not done so to date. Even though EPA declared,
on February 5, 1973, that SCS's Starkweather watershed project
in North Dakota is "unsatisfactory because of its potentially
harmful effect on the environment," EPA did not refer the project
to the CEQ.
Also, EPA's performance is commenting on environmental im-
pact statements is often quite inadequate. For example, in the
Chicod Creek case, the court in February 1973 criticized SCS's
final impact statement for ignoring the adverse effect of eutrophi-
cation on water quality. Yet EPA, in its May 17, 1972, comment
on the SCS draft statement, had not mentioned eutrophica-
tion and merely "questioned" an SCS comment that "down-
stream pollution will be reduced" by the project.
This gap in the battle against water pollution was addressed
in the comprehensive amendments to the Federal Water Pollution
Control Act which Congress enacted over the President's veto
on October 18, 1972 (Public Law 92-500). Section 508(c) di-
rects that the President "shall cause to be issued an order" within
180 days after October 18, 1972, "(1) requiring each Federal
m Hearings, part 5, p. 2846.
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628 LEGAL COMPILATION—SUPPLEMENT n
agency authorized to enter into contracts, and each Federal
agency which is empowered to extend Federal assistance by way
of grant, loan, or contract to effectuate the purpose and policy
of this Act in such contracting or assistance activities, and (2)
setting forth procedures, sanctions, penalties, and such other pro-
visions, as the President determines necessary to carry out such
requirement."
This subsection would enable SCS to develop and enforce water
quality requirements for SCS projects consonant with the Act,
and enable EPA to review and advise SCS on water quality
matters.
The required presidential order was not issued, however, within
the 180 days prescribed by law. Some 2 months later, the Sub-
committee learned that EPA was preparing a draft which, either
deliberately or in ignorance of this Committee's 1970 recommen-
dation, was apparently going to pass over the water quality prob-
lems associated with Federal assistance programs. As drafted,
the proposed presidential order provided no opportunity to man-
date that SCS develop and promulgate minimal water quality
requirements for its small watershed program, or for EPA and
State water quality agencies to review SCS projects and advise
the SCS concerning their effect on water quality. Therefore,
on July 6, 1973, Subcommittee Chairman Reuss wrote to the Di-
rector of the Office of Management and Budget, Mr. Roy L. Ash,
requesting that the proposed order be revised. He urged that it be
particularly framed to specify the principal criteria that SCS
and other grant, loan, and contract agencies should follow to
"effectuate" the purposes and policy of the Federal Water Pollu-
tion Control Act, and that OMB promptly approve it for Presi-
dential issuance.
Six weeks later, on August 22, OMB's Deputy Director, Mr.
Frederic V. Malek, replied that since the proposed order was
nearly ready for promulgation when OMB received the Sub-
committee's letter, OMB did not want to delay it "for explora-
tion of the issue raised" by Chairman Reuss. No assurances were
offered that the issue would be "explored" and the order revised
at a later date.
Subcommittee Chairman Reuss responded to Mr. Malek on
August 28, 1973, that the "issue" raised by the Subcommittee
on July 6 was not a new one and that both this Committee and
an EPA task force had studied the matter and concluded that Ex-
ecutive Order 11507 was deficient, because it did not apply to
the SCS program. The Chairman added:
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WATER—GUIDELINES AND REPORTS 629
Now, after our Subcommittee has raised an impor-
tant substantive issue concerning the scope of the order,
OMB is suddenly rushing to have it promulgated.
We think such haste now does a disservice to the
President and certainly to the public. * * * We request
that OMB and EPA take the time needed to revise
the draft order to comply with the statute.
On August 23, EPA's Acting Administrator, Mr. John R.
Quarles, Jr., advised the Subcommittee that the proposed order
would be issued in "approximately" 10 days. He also said that
section 508 (c) of the FWPCA does not apply to the SCS small
watershed program, and that it should not be "made applicable
to stream channelization."
In discussing whether section 508 (c) applies to the small
watershed program, Mr. Quarles said that EPA is "constrained"
by the "legislative history of Section 508," and that this history
"limits" the scope of the section "to facilities to be utilized
in Federal contracts, grants, and loans." He also mentioned
that this history is "consistent" with the comparable section
306(c) of the Clean Air Act. He then said: "I do not believe that
section 508 (c) * * * should be made applicable to stream chan-
nelizations."
But Mr. Quarles did not identify what "legislative history"
he relied on. When the Subcommittee staff inquired about this,
an EPA representative admitted that no such "legislative his-
tory" exists.
The statute itself is quite sweeping. It mandates issuance of
a presidential order "requiring each Federal agency which is
empowered to extend Federal assistance \to anyone] by way of
grant * * * to effectuate the purpose and policy" of the Act.
(Italic supplied.) These are not words which "limit" the scope
of the section, as Mr. Quarles suggests. Furthermore, there is
nothing in section 508(c) which directly or indirectly "limits the
scope" of the provision "to facilities to be utilized in Federal
contracts, grants, and loans."
Indeed, the very structure of section 508 is contrary to Mr.
Quarles' statement.
Subsection (a) of section 508, which is directed to Federal
agencies, not the President or EPA, prohibits such agencies
from awarding procurement contracts to anyone convicted un-
der section 309 (c) of the FWPC Act (which relates to violations
of several sections of the law) if the contract is to be performed
at a "facility" at which occurred the violation leading to the
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630 LEGAL COMPILATION—SUPPLEMENT n
conviction. The subsection is self-operating. No Executive order
is required to implement it.
But subsection (c) of the same section 508 is directed to the
President and is not self-operating. It provides that a Presiden-
tial order be issued "requiring" every Federal agency which
extends "assistance by way of grant, loan, or contract" to "effec-
tuate" the purposes and policies of Public Law 92-500. It spe-
cifies that the order shall set forth its own "sanctions, penalties
and such other provisions, as the President determines necessary
to carry out such requirement." Contrary to Mr. Quarles' con-
tention, the term "facility" is not used in this subsection. If
Congress had wanted to limit subsection (c) to "facilities," it
could have done so, just as it did in subsection (a). But it did
not so limit subsection (c). Instead, Congress wrote it so plainly
that no "legislative history" could transform its congressional
purpose into the narrow framework the statement suggests.
Similarly, the legislative history of the almost identical section
306(c) of the Clean Air Amendments of 1970 (Public Law 91-
604; 42 U.S.C. 1857h-4) indicates that Congress did not intend
that the terms and penalties of subsection (a), relating to
procurement contracts held by convicted persons for work at a
facility, shall govern or restrict the separate requirements of
subsection (c), which applies to grants, loans, and contracts ex-
tending "Federal assistance" to anyone. (See conference report
(H. Kept. 91-1783, pp. 56, 57) on H.R. 17255, which became the
Clean Air Amendments of 1970.)
In his August 28 letter to EPA, Subcommittee Chairman Reuss
once again urged that the proposed Executive order be revised.
He said:
We recognize that a revision of the draft order to
encompass this matter will entail some additional delay
in promulgating the order. But since it has been delayed
up to now, a further delay for a substantive matter
such as this is not only warranted, but essential, to in-
sure compliance with the law.
It has been suggested to us, as a matter of policy,
the Administration may not want to revise the order to
cover the channelization matter. We hope that this is
not the case, particularly after two EPA witnesses have
testified at our channelization hearings that the SCS
has not readily accepted EPA's advice and recommenda-
tions on water quality matters. We note that when faced
with this problem under the Refuse Act program, the
President issued an Executive order (No. 11574, Decem-
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WATER—GUIDELINES AND REPORTS 631
ber 23, 1970) requiring that the Corps of Engineers
accept EPA's "advice" on such matters. We think a
similar approach is desirable under section 508 (c) of
Public Law 92-500, and would be consistent with the
purpose of that law that EPA be the Government's
principal agency on water quality matters.
The OMB and EPA, however, apparently believed that expe-
diency is more important than substance, because on September
10, 1973, nearly six months after the 180 days prescribed by law,
President Nixon signed Executive Order 11738 (38 F.R. 25161).
The new order merely incorporates water pollution matters
with the air pollution matters previously covered by the super-
seded Executive Order 11602 of June 29, 1971 (36 F.R. 12475; 3
CFR 328). As the Subcommittee feared, the new order does not
appear to provide any means by which Federal agencies, such
as the SCS, will have to seek and heed EPA advice on water
quality matters. Indeed, the only section of the new Executive
order which has even a remote relationship to the water quality
aspects of SCS projects is the following:
SEC. 4. Procurement, Grant, and Loan Regulations. The
Federal Procurement Regulations, the Armed Services
Procurement Regulations, and, to the extent necessary,
any supplemental or comparable regulations issued by
any agency of the Executive Branch shall, following
consultation with the [EPA] Administrator, be amended
to require, as a condition of entering into, renewing,
or extending any contract for the procurement of goods,
materials, or services or extending any assistance by
way of grant, loan, or contract, inclusion of a provision
requiring compliance with the Air Act, the Water Act,
and standards issued pursuant thereto in the facilities
in which the contract is to be performed, or which
are involved in the activity or program to receive as-
sistance.
But this section, like the similar section in the 1971 order
(E.G. 11602), refers only to "facilities * * * which are in-
volved" in the grant or loan program. The 1971 order delegated
to the Administrator of EPA the authority to issue regulations
to carry out the purposes of the order. Pursuant to such delega-
tion, EPA proposed regulations (38 F.R. 16241) on June 21,
1973, implementing the 1971 order. (Those regulations will, of
course, have to be revised in light of the new Executive order.)
Section 15.3(1) of those regulations defines the term "facility"
to mean "a non-Federal building, plant, installation, structure,
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632 LEGAL COMPILATION—SUPPLEMENT n
mine, area, location, or site of operations to be utilized in the
performance of a contract, grant, or loan." If EPA uses this
same definition in connection with the new Presidential order,
only the words "area, location, or site of operation" could con-
ceivably apply to SCS projects. Given SCS's previous reluctance
to involve EPA in its projects, it is doubtful that SCS will con-
strue these words to apply to SCS projects.
Several aspects about this matter concern this Committee.
First, there is no justification for the failure by EPA and
OMB to prepare, and by the President to promulgate, the re-
quired Executive order within the time prescribed by Congress.
Neither EPA nor OMB has offered any explanation for this
failure and disregard for the law. The similar 180 days deadline
prescribed by Congress under section 306 (c) of the 1970 Clean
Air Act Amendments was complied with when Executive Order
11602 was issued on June 29, 1971, supra. Thus, it can hardly
be argued that the identical deadline under section 508 (c) was
too short, particularly since the final product is nearly a carbon
copy of Executive order 11602 with some minor revisions "to
incorporate the water provision." Surely, it did not require over
10 months to perform this simple task.
Second, EPA's narrow and erroneous interpretation of section
508 (c) undermines its public expressions of concern about the
water quality effects of channelization and its inability to deal
with the problem effectively under Executive Order 11507 of
February 4, 1970, supra. Section 508 (c) has provided an ade-
quate statutory basis for greater Federal effort on the water
quality aspects of stream channelization financed by the Federal
Government. But EPA frustrates the congressional purpose by
its interpretation and by its policy declaration that section 508(c)
should not "be made applicable to stream channelization."
The Committee therefore recommends as follows:
Executive Order 11738 should be revised to include a specific
requirement that SCS obtain from the appropriate State water
pollution control agency, or from EPA, in appropriate cases, a
certification that the proposed project will, as a minimum, main-
tain the chemical, physical, and biological integrity of the affected
waters.
The foregoing recommendation is analogous to the provisions
of section 401 of the Federal Water Pollution Control Act, which
require that every applicant for a Federal license or permit to
conduct any activity which may result in a discharge into navi-
gable waters must first obtain a certification from the State
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WATER—GUIDELINES AND REPORTS 633
water quality agency that the discharge will comply with the
effluent limitations and standards of performance prescribed un-
der sections 301, 302, 306 and 307 of the Act.
Alternatively, EPA could broaden the definition of the word
"facility" in its implementing regulations to encompass the SCS
program as the Congress intended, and provide that SCS obtain
the certification recommended above.
VIII. ALTHOUGH THE PUBLIC OUTCRY AGAINST CHAN-
NELIZATION HAS IMPELLED SCS AND ^THE CORPS TO
LISTEN TO AGENCIES AND GROUPS SEEKING PRO-
TECTION FOR WILDLIFE VALUES, CHANNELIZATION
AGENCIES FREQUENTLY DISREGARD THEIR REC-
OMMENDATIONS
The public outcry against channelization and the heretofore
veiled maneuvers of local watershed developers has greatly es-
calated in the past three or four years. One positive value of this
increased public concern has been the development of a greater
willingness by the SCS and the Corps of Engineers to listen to
State fish and game agencies and environmental groups. They
have been invited to participate, as they seldom were before, in
the earliest stages of watershed work. Several State wildlife
leaders who testified at the Committee's hearings confirmed the
change. Mr. Charles D. Kelley, chief of the Game and Fish Di-
vision in the Alabama Department of Conservation, summed up
their consensus:113
* * * We found in Alabama that a great deal of
planning, a great deal of effort, starts with SCS; then
they go to the local sponsors and present this to the
sponsors; then the sponsors come back to SCS and say
this is what we want. A lot of minds are made up
and a lot of plans are completed before the public gets
too much involved—I mean the game and fish people
or the people outside the immediate area.
But I would say in all fairness to the situation in
Alabama that we are now getting in on it at the early
stage. We are making field trips, we are working with
them, the initial teams. I think this is very construc-
tive. I think had we done this 15 years ago we prob-
ably wouldn't be sitting here today.
SCS Administrator Grant deserves a large share of the credit
for recognizing the new public temper. His recent Watersheds
1 Hearings, part 3, p. 1373.
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634 LEGAL COMPILATION—SUPPLEMENT n
Memoranda, especially numbers 101 and 108, and his Environ-
ment Memorandum 1, have set the stage for a new era of candor
and cooperation with wildlife interests.
Environment Memorandum 1 is basically a series of guide-
lines for the enforcement of the National Environmental Policy
Act. It includes this statement:
As early as possible, and in all cases prior to decision
to take action, SCS, in consultation with other federal,
state and local agencies, is to assess in detail the poten-
tial environmental impact of the proposed action to in-
sure that adverse effects are avoided and that environ-
mental quality is restored or improved.
The Administrator's new declarations of policy will, hopefully,
encourage cooperation between the SCS and the State agencies.
However, neither the Federal nor the State fish and wildlife agen-
cies have any real assurance that their recommendations will be
adopted and carried out. This is indicated by the testimony of
Mr. Kelley, Dr. O. Earle Frye, Jr., director of the Florida Divi-
sion of Game and Fresh Water Fish; Mr. W. H. Turcotte, chief of
the Game and Fisheries Division in the Mississippi Game and
Fish Commission; and Mr. Wilbur Boldt, deputy commissioner
of the North Dakota Game and Fish Department:114
Mr. REUSS. What assurances do you have that your views
will prevail?
Mr. KELLEY. None.
* * * * *
Mr. FRYE. I think I would agree with Mr. Kelley. But I
would make one point—we have commented on practically
everything at one stage or another. Our real concern is
that our comments didn't receive a heck of a lot of con-
sideration.
Mr. REUSS. Were they rejected ?
Mr. FRYE. Well, no, not rejected. They just didn't do it.
* # * * #
Mr. REUSS. Would you [Mr. Turcotte] agree with Mr.
Frye that Memorandum 108 by no means assures that the
judgments of your fish and game department will in fact
be adopted by the Soil Conservation Service?
Mr. TURCOTTE. I do. * * *
111 Hearings, part 3, pp. 1374-1375.
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WATER—GUIDELINES AND REPORTS 635
Mr. BOLDT. I think what these three gentlemen have
said pretty much goes along with what has happened in
North Dakota. In the past—10 years ago or back beyond
that—we had very little opportunity to comment on
these watershed programs. However, more recently we
have had a biological watershed task force: People from
the State Game and Fish Department and Soil Conserva-
tion Service and Bureau of Sport Fisheries and Wildlife
who have reviewed and looked at these projects.
However, some of the recommendations that we have
made and some of the alarm that we have shown on these
watershed projects have not been considered too seriously
by the watershed planning party.
The Subcommittee found little evidence that the new SCS rap-
prochement with the State fish and game agencies had led to
substantial restraint or reduction in channelization. Scores of
streams are still being bulldozed. Scores of P.L. 566 projects have
been completed with no appreciably greater concern for fish,
wildlife or wetlands than the local sponsors have previously
shown. At the 1971 hearings, the witness for Friends of the
Earth, Mr. Brent Blackwelder, asserted:115
Lack of sincerity on the part of the SCS to comply
with criticisms of channelization is evident at many
points. The SCS has issued memorandums urging full
cooperation and coordination with State game and fish
commissions; yet the fact is that in many States chan-
nelization projects continue despite the strenuous pro-
tests of the game and fish commissions. The Georgia
Game and Fish Commission had to do an entire maga-
zine outlining the environmental disaster caused by
channelization because of SCS neglect of its recommen-
dations.
Mr. Billy Joe Cross, Executive Director of the Mississippi
Game and Fish Commission, confirmed Mr. Blackwelder's judg-
ment, when the Subcommittee asked whether his agency is al-
lowed to participate in SCS project planning:116
In reply to your question on the extent we participate
in the planning, we would have to say "None" until the
last couple of years. Some projects were not even sent
to us for review. In many others the local landowners
had been given such a "hard sell" by the SCS or corps
115 Hearings, part 1, p. 114.
1M Hearings, part 3, p. 1602.
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636 LEGAL COMPILATION—SUPPLEMENT n
personnel that by the time we saw the project there
was no way of convincing these people that it was not
the best thing that could happen to them.
Within the last year we have been consulted a little
more on projects, but with the limited funds and per-
sonnel we have we cannot compete with the planning
and development set forth by the Federal agencies.
They have local representatives selling their story con-
stantly while we have one or two men trying to cover
the entire State.
What emerges from these comments is that the State game
and fish agencies have been forced to remain in virtually an ad-
versary stance in their dealings with the SCS, even in the new
era of outward amity. The dialogue is increasing, but it is still
quite uncertain whether it will result in greater protection for
wildlife and environmental values.
In view of such uncertainty, many environmentalists have ex-
pressed to the Subcommittee their doubts that the Soil Conserva-
tion Service's belated bid for cooperation with the State wild-
life agencies is anything but a propaganda gambit, designed to
disarm critics while the same old channel-scouring goes on with
increasingly disastrous effects.
Similar comments have been made with regard to the Corps of
Engineers.
From Mr. Dean A. Murphy, Superintendent of Game Manage-
ment for the Missouri Department of Conservation:117
About three weeks ago we received our first inkling
that a St. Francis River Basin project had reached
the construction stage—following 1954 congressional
action—when a Memphis District Corps of Engineers
real estate agent phoned regarding their acquisition for
channelization purposes of 10 acres from our 269-acre
Bradyville wildlife area, a relatively small but import-
ant southeast Missouri waterfowl area. Our second clue
was when a southeast Missouri newspaper called to in-
quire of project effects. To date, we've seen no environ-
mental statements, no studies of alternative ways to ac-
complish the results or anything else.
From the California Department of Fish and Game:118
* * * Our Department has tried, with little success
117 Hearings, part 3, p. 1295.
1U Hearings, part 3, pp. 1407-1408.
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WATER—GUIDELINES AND REPORTS 637
to date, to preserve fish and wildlife resources during
construction of most Federal channelization projects.
From our past experience, we have concluded that the
preservation of our Nation's fish and wildlife resources
cannot be assured under the existing Federal system,
and that therefore laws and policies must be changed
The Corps has * * * made a token effort to miti-
gate the loss of wildlife habitat caused by levee repair
and stream channelization projects. These efforts have
been generally unsuccessful since the local maintenance
districts will not recognize fish, wildlife or esthetic
values in their maintenance program. A "bare earth"
policy results as the cheapest maintenance method.
* * * In at least one case, Battle Creek in Shasta
County, the recommendations of our Department and
the Bureau of Sport Fisheries and Wildlife were soli-
cited and then largely ignored by the Corps. Valuable
salmon and steelhead spawning gravels were lost.
From Mr. John W. McKean, director of the Oregon Game
Commission:119
The Corps has generally disregarded our concern and
continues to do this type of channelizing [with levees]
on smaller streams. Often during the first high
water these levees wash out and the gravel ends up in
the farmer's fields. This kind of channelization has
caused several streams to become even more unstable,
eroding areas where the natural cover has been re-
moved.
IX. IN RESPONSE TO ITS CRITICS, THE SOIL CONSER-
VATION SERVICE IN EARLY 1971 INITIATED ITS
"MEMORANDUM-108" REVIEW OF SEVERAL HUN-
DRED WATERSHED PROJECTS INVOLVING CHANNEL-
IZATION
The bureaucracies call it flood control or soil con-
servation. And then they turn one more wild river into
an ugly piece of machinery. It's time Americans recog-
nized the real threat to our waterways.120
This statement is typical of the concerns expressed in thou-
sands of articles and news stories throughout the Nation in the
119 Hearings, part 3, pp. 1527-1528.
120 James Nathan Miller and Robert Simmons, "Crisis on Our Rivers," reprinted from
Readers' Digest, December 1970, hearings, part 1, p. 40.
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638 LEGAL COMPILATION—SUPPLEMENT n
late sixties and early 1970's. Subcommittee Chairman Reuss
summed up their allegations at the May 1971 hearings as fol-
lows: 121
* * * We have received numerous complaints that
many projects have resulted in a wide variety of ad-
verse effects. Thus, it is said:
(a) Game and waterfowl habitat and trout streams
are destroyed.
(b) Channelization of natural streams often pollutes
downstream lakes and reservoirs. The racing water car-
ries nutrients, chemicals, silt, and other pollutants down-
stream and deposits them in slower moving waters to
the detriment of downstream communities.
(c) Channelization often drains swamps and thus
destroys their ability to act as "giant kidneys" which
remove from the water that passes through them the
silt, organic wastes, and toxic chemicals coming from
agricultural, industrial, and other sources.
(d) Stream channelization for flood control purposes
encourages farmers to use their own funds to construct
lateral ditches to drain their wetlands and potholes in
order to bring presently unused land into cultivation.
This results in largely nullifying the Reuss amend-
ment, which has been a part of the Agriculture Depart-
ment Appropriations Acts since 1962, and which
prohibits use of funds appropriated under the agricul-
tural conservation program to aid in draining these val-
uable wetlands known as types 3, 4, and 5.
(e) Channelization increases erosion upstream, and
flooding downstream.
(f) Although a single project may involve only a part
of one stream, the cumulative effect of hundreds of
projects destroys vast areas of wildlife habitat in the
south and nullifies the Federal investment in wetland
areas in the north.
(g) During wet seasons, channelization accelerates
release of water which otherwise might percolate into
the ground to recharge the underground water table for
use in dry seasons. Thus, there is less ground water
for streams during dry seasons. Holding water in a
watershed contributes to ground water recharge and
helps maintain water quality by keeping nutrients,
Hearings, part 1, pp. 3, 4.
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WATER—GUIDELINES AND REPORTS 639
chemicals and silt out of community streams and lakes.
(h) Channelization in flood plain areas encourages
further development of the flood plain and results both
in greatly increased damages when large floods occur,
against which channelization cannot protect, and in-
creased demand for construction of more flood protec-
tion works downstream. Thus, channelization tends to
be contrary to Executive Order 11296 of August 10,
1966, which directs all agencies to "provide leadership
in encouraging a broad and unified effort to prevent
uneconomic uses and development of the Nation's flood
plains * * *."
These were not the mutterings of a few "kooks" or "eco-
freaks"—as some proponents of unlimited earth modification
describe those who question the wisdom of building environ-
mentally detrimental or destructive projects. Rather, these were
the anguished cries of concerned and respected citizens and citi-
zen groups such as the American Forestry Association, National
Wildlife Federation, National Rifle Association, National Audubon
Society, Nature Conservancy, Izaak Walton League of America,
Friends of the Earth, National Resources Defense Council, Sierra
Club, university professors and students, heads of many State
fish and game agencies, and hundreds of equally patriotic environ-
mental groups throughout the country. They were calling for a
moratorium on the continued use of this often devastating en-
gineering tool of channelization that has been changing our Na-
tion's streams and wetlands.
To their great credit, both the Corps of Engineers and the
SCS heard the public's outcry and began to take responsive steps.
For example, on November 30, 1970, the Corps issued new and
promising environmental guidelines for its civil works program
to mitigate specific ecological and environmental impacts in the
planning and design of all its projects.122 On February 4, 1971,
the SCS issued Watersheds Memorandum No. 108, which re-
quired an SCS internal review of all pending and new water-
shed plans involving channelization.123 Neither document went
as far as these concerned citizens wanted, namely, to halt this
practice at least temporarily. But they were a beginning that
appeared promising.
As noted earlier, the bulk of this criticism has centered
around the SCS's channelization procedures. Thus, it is illumin-
122 Hearings, part 2, p. 560.
123 Hearings, part 1, p. 386.
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640
LEGAL COMPILATION—SUPPLEMENT n
ating to see just what Memorandum 108 was intended to do and
what it accomplished.
Memorandum 108 required each SCS State Conservationist to
"review" existing plans for stream channelization and "to de-
termine what changes in work plans or engineering design are
needed to further national policy and goals for the environment."
The objective of this review was to "classify" by the end of June
1971 the planned channel improvement of both natural and arti-
ficial channels in each State into one of the following groups:
Criteria
Group 1
Group 2
Group 3
(a) Effect on environment . Minor or no known ad- Some adverse effect -
verse effect.
(b) Conformance to enumer- Clearly conforms or can
ated guidelines.
(c) Economic Justification
be easily modified to
conform. Modifications
generally limited to
minor changes in de-
sign and construction
methods.
Benefit-cost ratio clearly
favorable, using cur-
rent estimated costs
and applicable interest
rate.
Some modifications are
needed and can be
made readily to con-
form to guidelines or
to reduce or eliminate
adverse effects. In ad-
dition to changes in
design and construc-
tion methods, changes
may include realine-
ment, greater stability,
and additional mitiga-
tion features.
Benefit-cost ratio near
unity but appears to
be favorable, using
current estimated
costs for the project
as modified and ap-
plicable interest rate.
Serious adverse effect.
Major modifications, pos-
sibly including refor-
mulation, and major
changes in purpose or
scope needed to re-
duce adverse effects
to an acceptable level.
Changes may include
reduction in amount of
channel improvement,
substitution of clear-
ing and snagging for
excavation, smaller
capacity where appro-
priate, and substan-
tially more mitigation
measures.
Benefit-cost ratio less
than unity for mea-
sures otherwise in
group 1 or 2. Re-
evaluation necessary
to reaffirm economic
Justification. For mea-
sures otherwise in
group 3, the benefit-
cost ratio should be
computed in the same
manner, using the
same criteria that are
applicable to new
plans.
Memorandum 108 specified that (a) channel improvements
placed in group 1 could be "implemented without further ac-
tion," (b) the work plans of those placed in the second group
must be supplemented or revised before they could proceed, and
(c) those placed in the third group would require further study.
The Memorandum directed that:124
As soon as you [the SCS State conservationist] have
completed the review, inform the State and Federal fish
and game agencies, preferably by personal discussions,
of the manner in which the review was carried out and
the resulting groupings. Make it clear that they will be
invited to assist in modifying projects in groups 2 and
124 Hearings, part 2, pp. 1267, 1271.
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WATER—GUIDELINES AND REPORTS 641
3. In addition, obtain their comments on or concurrence
in projects placed in group 1. If they express major dis-
agreement, you may wish to reconsider your initial de-
cision and place such projects in group 2 until further
studies are made.
Skepticism was rife when SCS Administrator Grant an-
nounced the Memorandum. Mr. Charles H. Callison, Executive
Vice President of the National Audubon Society, said at our
May 1971 hearings:125
* * * While calling for review of all watershed work
plans that include channel improvement—"channel im-
provement" is the SCS euphemism for channelization—
Memorandum No. 108, as we read it, proposes no real
change in policy. It says channel improvement is not to
be used where its primary purpose is to bring new land
into production. But it says nothing to prevent or dis-
courage channelization as a "secondary purpose" after
flood prevention or other purposes.
The memorandum seems to give the green light to
projects having a 1-to-l benefit-to-cost ratio. Why? For
whose benefit, we wonder? The dragline operator? If
Congress is going to fund make-work projects for the
benefit of the unemployed, cannot we find works of
greater social usefulness and less environmental destruc-
tiveness ?
Or is the project with the cost-to-benefit ratio "near
unity"—the phrase used in Memorandum No. 108—
really designed to benefit the Federal agency, whether
SCS, the corps, or the Bureau of Reclamation?
Mr. Chairman, we cannot afford to destroy the natu-
ral ecosystems of our rivers and thus progressively
to degrade the American environment just to support a
Government bureau.
Another witness, Mr. Louis S. Clapper of the National Wild-
life Federation, expressed "reservations" about the Memorandum,
noting that "the guidelines outlined in this Memorandum seem to
be predicated upon the assumption that channel improvement
is to be planned and carried out." He asked: "What about the
alternative of no channel improvement?" 126
Hearings, part 1, pp. 11-12.
Hearings, part 1, p. 63.
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642 LEGAL COMPILATION—SUPPLEMENT n
The concerns of these and other citizens proved well founded.
After the review phase of Memorandum 108 was completed,
Administrator Grant, on August 20, 1971, provided to the Sub-
committee a table showing the classifications of each project by
State.127 But dissatisfaction with the classifications and the pro-
cedures followed by the SCS State Conservationists in conduct-
ing this review has been rampant among conservation groups
and others. Much criticism was centered on the lack of public
participation in the review, although Memorandum 108 specified
that SCS State conservationists should "consider" carefully
"comments" of other agencies "and the public."
For example, in June 1971 a Birmingham, Alabama, citizen
wrote to the SCS State Conservationist in Auburn, Alabama,
and requested copies of the SCS 108 report on several projects
in Alabama. The June 23, 1971, reply of the SCS Acting State
Conservationist, Mr. W. B. Lingle, typifies SCS's attitude, at least
at the field office level, toward public participation in the review
of channelization projects. He said:128
Public participation in the studies being conducted
under watersheds memorandum 108 is being done
through Federal and State game and fish agencies. In
Alabama, representatives of the Alabama Department
of Conservation and the Decatur office of the Bureau of
Sport Fisheries and Wildlife have been fully involved
in making the required studies. In other words, the
Alabama Department of Conservation in this State
is acting in behalf of Alabama citizens and organiza-
tions in making the review. The report required in
watersheds memorandum 108 will be forwarded to our
national office in the very near future. The memoran-
dum does not specifically require, nor should it require,
that copies of these reports be made available to the
general public until reviewed and approved by the agen-
cies mentioned above and by the Administrator of the
Soil Conservation Service. These reports will be avail-
able at the Washington office of the Service.
The Alabama citizen, who had earlier complained that it was
"excessive" for SCS "to require a Birmingham citizen to travel
to Auburn to study public documents," was thus told to travel to
Washington, D.C. to study these "public documents."
m Hearings, part 4, pp. 2704-2713. A revised table provided to the Committee by the SCS
on Mar. 9, 1973, is available in Subcommittee files. The SCS said it was revised "to correct
clerical erro'rs found in the original table and to arrange the list alphabetically."
128 Hearings, part 5, p. 3271.
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WATER—GUIDELINES AND REPORTS 643
Others, such as the Executive Director of the Florida Audubon
Society, and representatives of the Natural Resources Defense
Council, complained that SCS was marking its 108 reviews "for
in-house use only."
Still another source of criticism was SCS's refusal to accept
recommendations for deferral of projects for further study. In a
July 26, 1973, letter to the Subcommittee, the BSF&W's Acting
Regional Director in Atlanta, Ga., cited two small watersheds
projects—the Lowland project in Pamlico County, N.C., and the
Horse Range Swamp project in Orangeburg County, S.C.—
where the Bureau recommended the projects be placed in Group
3. But, in each case, the SCS "did not accept" the Bureau's
"recommendation."
On September 2, 1971, Mr. Roy K. Wood, the Bureau of Out-
door Recreation's Southeastern Regional Director, wrote to the
Director of that Bureau, that the 108 memorandum "has been
ineffective, at least within the scope of our awareness of its ap-
plication, primarily because the Soil Conservation Service can-
not accept the fact that anything the Soil Conservation Service
does could be regarded as detrimental to the natural environ-
ment. Channelization is still considered stream improvement." 129
In January 1971, Assistant Secretary of the Interior Reed
testified that the BSF&W was participating in this review "to a
limited extent at field level."
He later provided to the Subcommittee a November 3, 1971,
BSF&W memorandum briefly summarizing the review up to that
time. It said: 13°
The River Basins staff of BSF&W has spent approxi-
mately 409 man-days assisting the Soil Conservation
Service in this review. The Bureau did not participate
in 13 of the 46 States in which project reviews were
made. These States are: Connecticut, Delaware, Flo-
rida, Hawaii, Illinois, Michigan, Montana, New Hamp-
shire, New Jersey, New York, Pennsylvania, West Vir-
ginia, and Puerto Rico (1 State, Region 1; 2 States,
Region 3; 2 States, Region 4; 7 States, Region 5; and
1 State, MRBS). The lack of participation can be at-
tributed to the following: no request from SCS, State
game and fish agencies provided the review, and short-
age of personnel.
Of the 436 projects on which Phase I classification
has been completed by the SCS, the Bureau disagreed
K» Hearings, part 6, p. 32,74.
130 Hearings, part 2, pp. 485, 486.
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644 LEGAL COMPILATION—SUPPLEMENT 11
with their rating on 71 and did not participate in 185.
In the States where the Bureau actively participated in
the review, the State Conservationists forwarded to
Washington 95 projects which were not discussed with
BSF&W. Sixty-one projects were forwarded from States
in which we did not participate in the review. There were
41 projects which were given a rating in the field but
have not been forwarded to Washington SCS Office.
It is apparent from the information obtained that the
review under Watersheds Memorandum—108 was not
uniform among all States. The consideration of BSF&W
and State game and fish agencies comments depended on
the attitude of the State Conservationist. In ten States
all agencies were able to reach agreement on the classifi-
cation, in 13 States projects were not reviewed by our
agency, and in the remaining 23 States there was dis-
agreement by the SCS in Bureau classification ranging
from a few projects in some States to total disregard
in others.
On April 29, 1972, several months after the Subcommittee re-
quested that the BSF&W review the SCS 108 findings, Assistant
Secretary Reed provided a second and more complete report sum-
marizing the BSF&W's participation in the SCS review. The re-
port notes that the SCS classified 238 of its projects wholly or
partially in Group 1, while the BSF&W concluded that only 148
projects deserved this classification. The report states that the
BSF&W "objected" to 82 projects totaling over 3,300 miles of
channelization. However, because the Bureau lacked time and
personnel to conduct a thorough review of these projects, it rec-
ommended a Group 2 or 3 classification where it had limited
knowledge about a project. The Bureau's report concluded that:131
The intensity and objectivity of the review by SCS
under WS Memo-108 varied markedly from State to
State. Generally, the variations reflect the viewpoints of
the State Conservationist, his appreciation of environ-
mental values, and the prevailing views and attitudes
within his State. The intensity of participation in the
review by BSF&W and the State fish and game agencies
also varied for the same or other reasons.
*****
The BSFW also found that many of its oral recom-
mendations to SCS field personnel for classification were
1 Hearings, part 5, pp. 3246, 3249.
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WATER—GUIDELINES AND REPORTS 645
not accepted and were not documented by BSFW for
the record.
In conclusion we draw the following summary finding:
Concerning the conduct of the Watersheds
Memorandum—108 review:
1. There were inconsistencies in the review as
between States and as between agencies in the ap-
plication of review criteria and
2. There are serious disagreements between BS-
FW and SCS as to the classification of individual
projects, particularly as to projects to be placed in
Group 1 on an environmental basis.
Another deficiency in the 108 review was that it was limited to
a review of the effects of channelization on fish and wildlife.
It did not, for example, include a review of other environmental
effects, such as water quality. Neither the Environmental Pro-
tection Agency nor the State water quality agencies was con-
sulted.
Despite these criticisms, the 108 review resulted in some modi-
fications of projects and, as noted by Mr. Thomas J. Barlow of
the Natural Resources Defense Council, gave the SCS offices an
appreciation of the "magnitude" of the existing public concerns
about the environmental hazards of these projects.132 It was not
a wasted exercise.
But it is not clear what the SCS is doing today with the 108
classifications. The 108 memorandum of February 1971 con-
templated the establishment within the SCS of a "watersheds
environmental quality committee" to—133
(1) Provide consultation and additional guidance for car-
rying out the view of all watershed work plans.
(2) Review the State reports and recommend appropriate
action to the Administrator.
(3) Review the need for and place of channel improve-
ment in the watershed program.
(4) Review and recommend appropriate changes in policy
and in planning and design criteria to insure the preserva-
tion and enhancement of environmental values in water-
shed projects.
In response to the Subcommittee's July 1971 inquiry about
SCS's delay in establishing the proposed watersheds environ-
1S2 Hearings, part 5, pp. 2851-2852;
133 Hearings, part 1, p. 358.
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646 LEGAL COMPILATION—SUPPLEMENT n
mental quality committee, Administrator Grant replied on Aug-
ust 20, 1971, that its establishment was "still under careful con-
sideration." But he noted that conditions have "changed signif-
icantly" since the 108 Memorandum was issued:134
The Congress has entered into this area of considera-
tion through two hearings and language in connection
with our appropriation act. The Council on Environ-
mental Quality has now initiated a study of projects
containing channel modification.
I do not wish to create another level of review which
requires still more time and overlaps activities and re-
views already being carried out. Until the total picture
of these requirements becomes more clearly in focus and
I can determine the best possible make-up of the water-
sheds environmental committee, and the areas in which
the committee can make the most significant contribu-
tions to the issues in question, I plan to delay formal
establishment of this committee. In the meantime, we
are making full use of the expertise and advice avail-
able within our agency, the State game and fish agen-
cies, the Bureau of Sport Fisheries and Wildlife, and
some outside consultants who are experts in their fields.
We are giving careful consideration to all the issues
raised, both at the field and Washington levels.
More than two years have elapsed, but the committee has
not been established. However, the four objectives for which that
committee was proposed deserve further attention. They have not
been made obsolete or unnecessary either by the SCS 108 review,
by the Subcommittee's intensive studies and hearings, by efforts
in 1971 and 1972 to legislate a 1-year moratorium on SCS chan-
nelization, by the recently completed Arthur D. Little study of
channelization for the CEQ, or by the countless efforts of fish
and wildlife and environmental agencies and groups to bring
new thinking to the massive and complex issues of channeliza-
tion.
The Committee therefore recommends as follows:
The Soil Conservation Service should promptly establish a
committee composed of representatives from other Federal
agencies, the States, and the public to perform the functions
proposed by the SCS Watersheds Memorandum 108 of February
1971 and publish its findings.
134 Hearings, part 4, p. 2704.
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WATER—GUIDELINES AND REPORTS 647
X. COMPLIANCE BY THE SOIL CONSERVATION SERV-
ICE WITH THE REQUIREMENTS OF THE NATIONAL
ENVIRONMENTAL POLICY ACT OF 1969 HAS BEEN
SPOTTY
In 1970, Congress enacted the National Environmental Policy
Act of 1969 (83 Stat. 852; 42 U.S.C. 432.1, et seq.) stating that
its purposes are:
To declare a national policy which will encourage pro-
ductive and enjoyable harmony between man and his
environment; to promote efforts which will prevent or
eliminate damage to the environment and biosphere and
stimulate the health and welfare of man; to enrich the
understanding of the ecological systems and natural re-
sources important to the Nation; and to establish a
Council on Environmental Quality.
Section 102 of NEPA mandates that "to the fullest extent
possible": (1) "the policies, regulations, and public laws of the
United States shall be interpreted and administered in accord-
ance with the policies" of that Act, and (2) that "all agencies
of the Federal Government shall" develop procedures which will
"insure that presently unquantified environmental amenities and
values" be given "appropriate consideration in decisionmaking
along with economic and technical considerations." (42 U.S.C.
4332.) It requires that each agency give "appropriate consid-
eration" to environmental values in decisionmaking. Section 102
also requires "all agencies of the Federal Government" to pre-
pare a "detailed statement" to be included in "every recom-
mendation or report" concerning "Federal actions significantly
affecting the quality of the human environment." That detailed
statement must include each of the following matters:
(i) The environmental impact of the proposed 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 maintenance and enhance-
ment of long-term productivity; and
(v) And irreversible and irretrievable commitments of
resources which would be involved in the proposed ac-
tion should it be implemented.
In addition, section 105 of NEPA declares that the policies
and goals of NEPA "are supplementary to those set forth ir
existing authorizations of Federal agencies."
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648 LEGAL COMPILATION—SUPPLEMENT n
The Third Annual Report of the CEQ (August 1972) entitled
"Environmental Quality" nicely sums up the importance of
NEPA.134a The report states (pp. 224, 225):
Although much of the public discussion of NEPA has
revolved around the environmental impact statement
procedure of section 102(2) (C), NEPA's substantive
thrust cannot be overlooked. The primary purpose of
Congress in enacting NEPA was to establish a Federal
policy in favor of protecting and restoring the environ-
ment. The broad terms in which that policy is declared
clearly makes all aspects of man's surroundings the
subject of Federal concern.
* * * * *
Together, these provisions tell the agencies to add a
new criterion—effect on the environment—to those
against which they have traditionally tested their ac-
tions. The far-reaching result is that agencies whose
statutory mandates previously did not call for attention
to the environmental effects of their actions are now
required to take those effects into account. And agencies
whose mandates previously directed their attention only
to certain facets of the environment now have a, re-
sponsibility as broad as the environmental policy de-
clared in NEPA. (Italic supplied.)
The CEQ report noted that NEPA policies have led to modi-
fication, and even abandonment, of some projects because their
adverse environmental effects were "unacceptable". The report
cited several such examples, including the Corps' indefinite post-
ponement of its project to "channelize portions of the Buffalo
Bayou in Houston, Texas, largely because of its negative esthetic
effects". (P. 226.)
On March 5, 1970, shortly after enactment of NEPA, Presi-
dent Nixon issued Executive Order 11514 (3 CFR, Rev. as of
Jan. 1973, p. 285) which affirmed that the Federal Government
must provide "leadership" in protecting and enhancing environ-
mental quality. He directed that all Federal agencies "initiate
measures" needed to "direct their policies, plans and programs
so as to meet national environmental goals." Full compliance
«4a Title II of NEPA established the three-member Council on Environmental Quality to
prepare an annual report and, among other things, to assist the President in implementing
NEPA. To help the CEQ carry out its functions effectively, Congress on April 3, 1970, en-
acted the Environmental Quality Improvement Act of 1970 (84 Stat. 114) which established,
in the Executive Office of the President, an Office of Environmental Quality to provide a
"professional and administrative staff" for the CEQ.
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WATER—GUIDELINES AND REPORTS 649
with NEPA was the order of the day. The message to Federal
agencies from the President was that they arrange their pro-
grams, policies, etc., to achieve such compliance quickly. They
were told to identify, by September 1, 1970, program "deficien-
cies" or "inconsistencies" that might inhibit such compliance,
and to develop "procedures," including public hearings to en-
sure the "fullest practicable" provision of "timely public infor-
mation and understanding of Federal plans and programs with
environmental impact."
The President directed the CEQ to provide leadership in the
executive branch to insure compliance with NEPA, to issue guide-
lines to Federal agencies concerning preparation of environmen-
tal impact statements and, where necessary, to issue "other in-
structions" to the Federal agencies to carry out the Act.
Pursuant to this directive, the CEQ, on April 23, 1971, adopted
its first guidelines for Federal agencies concerning the prepara-
tion of environmental impact statements (36 F.R. 7724).135 Sec-
tion 5(b) of the CEQ guidelines directed Federal agencies to
prepare impact statements whenever "there is potential that
the environment may be significantly affected," either by the in-
dividual project or cumulatively.
The U.S. Court of Appeals for the First Circuit, in Silva v.
Lynn, No. 73-1200, July 5, 1973 (5 ERG 1654), described the
importance of the impact statement as follows:
The "detailed statement" required by [42 U.S.C.] §
4332(2) (C) serves at least three purposes. First, it per-
mits the court to ascertain whether the agency has made
a good faith effort to take into account the values NEPA
seeks to safeguard. To that end it must "explicate fully
its course of inquiry, its analysis and its reasoning."
Ely v. Velde, 451 F.2d 1130, 1138 [3 ERG 1280]
(4th Cir. 1971); Appalachian Power Co., supra at 507.
See also Natural Resources Defense Council v. E.P.A.,
F.2d (1st Cir. 1973) ; Environmental Defense
Fund v. Ruckelshaus, 439 F.2d 584 [2 ERG 1114] (B.C.
Cir. 1971). Second, it serves as an environmental full
disclosure law, providing information which Congress
thought the public should have concerning the parti-
cular environmental costs involved in a project. To that
end, it "must be written in language that is under-
standable to nontechnical minds and yet contain
enough scientific reasoning to alert specialists to parti-
135 On August 1, 1973, CEQ published its revised guidelines (38 F.R. 20550; 40 CFR Part
1600). They are effective on January 1, 1974.
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650 LEGAL COMPILATION—SUPPLEMENT n
cular problems within the field of their expertise." En-
vironmental Defense Fund v. Corps of Engineers, 348 F.
Supp. 916, 933 (W.D. Miss. 1972). It cannot be com-
posed of statements "too vague, too general and too
conclusory." Environmental Defense Fund v. Froehlke,
473 F.2d 346, 348 [4 ERG 1541] (8th Cir. 1972).
Finally, and perhaps most substantively, the require-
ment of a detailed statement helps insure the integrity
of the process of decision by precluding stubborn prob-
lems or serious criticism from being swept under the
rug. A conclusory statement "unsupported by empiri-
cal or experimental data, scientific authorities, or ex-
planatory information of any kind" not only fails to
crystallize issues, Natural Resources Defense Council v.
Grant, 355 F.Supp. 280, 287 [5 ERG 1001] (E.D. N.C.
1973), but "affords no basis for a comparison of the
problems involved with the proposed project and the
difficulties involved in the alternatives." Monroe
County Conservation Council v. Volpe, 472 F.2d 693,
697 [4 ERC 1886] (2d Cir. 1972). Moreover, where
comments from responsible experts or sister agencies
disclose new or conflicting data or opinions that cause
concern that the agency may not have fully evaluated
the project and its alternatives, these comments may
not simply be ignored. There must be good faith,
reasoned analysis in response.
Initially, many Federal agencies resisted the requirement of
NEPA that environmental impact statements be prepared in
connection with their programs and projects. This resulted in a
number of challenges in the courts in which the agencies gen-
erally were on the losing side. Today, such resistance has largely
vanished and the court challenges center more on the quality
and substance of the NEPA statements. But procedural prob-
lems and efforts to skirt the NEPA requirements still persist.
For example, the Corps established a priority for preparing
impact statements that in many instances has delayed their is-
suance. When the Subcommittee asked the Corps on March 2,
1972, why it was proceeding with construction of the Carr
Fork project in Kentucky without preparing an environmental
impact statement thereon, the Corps replied on April 27, 1972,
that: "Continuation of construction of the Carr Fork project
pending preparation and filing of an environmental statement is
considered in the public interest." The Corps said it had worked
out with the CEQ a "priority arrangement" for the preparation
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WATER—GUIDELINES AND REPORTS 651
of impact statements which gives low priority to projects "in a
construction status," such as Carr Fork. At the time of the Sub-
committee's inquiry, the outlet works at the Carr Fork project
dam had been completed, but work on the dam itself had not yet
begun. In any event, the Corps informed the Subcommittee on
December 8, 1972, that a draft impact statement "is under prep-
aration and is scheduled to be filed with" the CEQ "before the
end of 1972" and that a final statement would be filed "by the
spring of 1973."
On August 1, 1973, the Corps informed the Subcommittee that
even the draft statement had not yet been filed with the CEQ,
although much of the work on the dam had been completed.
The Corps said, however, that the draft would be filed with
CEQ in October 1973.
The Corps, however, has at least established a system for pre-
paring NEPA statements concerning Corps projects and, to its
great credit, generally now tries to comply with NEPA.
The Soil Conservation Service's level of compliance with NEPA
has been so low as to verge on deliberate evasion of the law.
In 1971, Subcommittee Chairman Reuss described SCS's fail-
ure to comply with NEPA requirements in its first impact state-
ments on 28 projects as follows:136
A review of 24 SCS environmental impact statements
indicates that little attention has been given by the SCS
to the environmental impact of these projects.137 In at
least one case, where 26 miles of channelization will
take place, the SCS concludes in a brief three-page
statement that "no adverse effects on man's environ-
ment are anticipated." The views and comments of
other agencies were not even solicited, as required by
the National Environmental Policy Act.
The CEQ was equally appalled by the inadequacies of the
SCS impact statements. CEQ's General Counsel wrote to the
Department of Agriculture as follows:13S
™ Hearings, part 2, p. 391.
137 The watershed projects are as follows: Tallaseehatchie Creek, Alabama; Spadra Creek,
Arkansas; Upper Petit Jean, Arkansas; Upper Quachita River, Arkansas; Crooked Arroyo,
Colorado; Headwaters of the Chattooga River, Georgia; North Oceanee River, Georgia; Clear
Creek, Illinois; Lost River, Indiana; Lake Verret, Louisiana; West Carroll, Louisiana; Fish
Stream, Maine; St. Mary's River, Maryland; West Branch Westfleld River, Massachusetts;
East Upper Maple River, Michigan; Bahala Creek, Mississippi; Indian Creek-Bobo Bayou,
Mississippi; Newlon Creek, Montana; Clear Creek, Nebraska; Upper Turtle River, North
Dakota; McKay-Rock Creek, Oregon; Pine Valley, Oregon; Rocky Creek, South Carolina;
Wilson Creek, South Carolina; Hog Creek, Texas; McClellan Creek, Texas; Pond Creek,
Texas; and Upper Cibolo Creek, Texas.
138 Hearings, part 2, p. 392.
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652 LEGAL COMPILATION—SUPPLEMENT n
The Soil Conservation Service [environmental impact"]
statements have given us difficulties. While we have re-
ceived 32 statements from SCS, the SCS appears to be
going through the motions in their preparation. They
are almost identical in form and appear to have been
prepared in Washington from a standard form system
rather than in the field. Most SCS statements fail to
mention esthetics. Only one mentions how many miles
would be channelized. Only two mention the number of
acres of swamp or wetlands to be drained. None of
them include Department of Interior Fish and Wildlife
Service comments on environmental impact. A change
in the method of preparation of SCS 102 (2) (C)
statements is clearly needed. The discussion of them in
last week's hearings in the House Committee on Mer-
chant Marine and Fisheries is indicative of the criti-
cism outside of the Council on Environmental Quality
upon SCS procedures.
One way in which SCS 102(2) (C) statements could
be improved would be to develop a form which would
include significant environmental impacts of SCS proj-
ects. This form would cover some of the criticisms
leveled at SCS regarding compliance with 102(2) (C).
Here is a list of suggested items of such a form:
1. Total floodplain in project.
2. Total wetlands in project.
3. Amount of wetlands drained.
4. Artificial wetlands (added 'Duck windows' et
cetera).
5. Acreage inundated dams ponds.
6. Number of dams.
7. Miles of streambank channelized (total of both
sides).
8. Miles of channel inundated by structures.
9. Recreation potential—day use.
10. Wildlife—gains and losses.
11. Fishery—gains and losses.
12. Vegetation—nature of change.
13. Erosion and sediment—gains and losses.
14. Economic benefits.
15. Increased production of crops.
16. Esthetics.
17. Water quality.
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WATER—GUIDELINES AND REPORTS 653
18. Historical-cultural (will historic or archeologi-
cal sites be inundated ?
19. Land use changes.
Comments of the Fish and Wildlife Service and other
agencies consulted in preparation of the 102(2) (C)
statement should be included. Alternatives should be care-
fully weighed. The statements would probably benefit
by being prepared at field level offices, (Italic supplied.)
SCS's evasion of NEPA requirements is further illustrated by
its handling of the statement on the Lake Verret watershed
project in Louisiana. Like the others, it was three pages long.
Although it mentioned that about 230 miles of "channel
improvement * * * will be installed for flood prevention and
drainage," it provided little information about the environ-
mental impact of the proposed channelization.
In March 1971, the Conservation Council of Louisiana wrote
to SCS State Conservationist J. B. Earle questioning the adequacy
of the SCS environmental statement. He responded simply that
the SCS was "in the process of reviewing all our watershed
projects" with the fish and wildlife agencies "to determine if
alterations are needed in the proposed" work plans. More than
a year later, the Louisiana Wild Life and Fisheries Commission
asked the SCS for an impact statement on this project. Adminis-
trator Grant responded in a July 9, 1972, letter that the SCS
has "had no occasion * * * to reassess the basic course of action
to which we committed ourselves in agreeing" to the work plan
in July 1970 and "recommending" its approval to OMB. Two
days earlier Mr. Grant informed the Natural Resources Defense
Council that, "No modification of * * * the environmental state-
ment is contemplated." Yet it was this very project which the
Mayor of Morgan City, La., severely criticized in his letter of
July 12, 1972 (see p. 32, supra), for its potential pollution and
impairment of the city's water supply and consequent environ-
mental blow to the city's survival.
Eight months later, on February 20, 1973, Mr. Grant reversed
himself and sent a memorandum to Mr. Earle stating:
The Watershed Work Plan for the Lake Verret Water-
shed, Ascension, Assumption, and Iberville Parishes,
Louisiana, has been approved by resolutions adopted on
February 7, 1973, by the Committee on Agriculture and
Forestry of the Senate, and on September 26, 1972, by
the Committee on Agriculture of the House of Re-
presentatives. * * *
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654 LEGAL COMPILATION—SUPPLEMENT n
As you know, a final environmental statement was
filed with CEQ on August 11, 1970, using preliminary
guidelines available at that time. It is now apparent,
however, that this statement is insufficient and that it
must be revised and circulated for the necessary review
and comments by other interested parties. * * *
Subject to the foregoing, you are authorized to pro-
vide Federal assistance in the installation of works of
improvement on the Lake Verret Watershed in accord-
ance with terms, conditions, and stipulations contained
in the work plan as funds appropriated for this pur-
pose are made available.
In a March 15, 1973, letter to the Subcommittee, the SCS
said that it "did not consider it appropriate to take further
action on the project while it was under consideration by the
Office of Management and Budget or by the Congress".
Thus, by simply waiting until the project had been approved
by OMB and the Congress before proceeding to prepare an
adequate environmental impact statement, the SCS deprived the
OMB and Congress of the opportunity to have the benefit of
the revised statement before approving the project.
Another example of how SCS has sought to evade NEPA
requirements involved the Cameron Creole project, which in-
cluded about 35 miles of channelization and the construction
of a levee within the Sabine National Wildlife Refuge in
Louisiana.
On August 6, 1971, Subcommittee Chairman Reuss and Rank-
ing Minority Member Vander Jagt wrote to the Secretary of
Agriculture about the Cameron Creole project, as follows:139
During our examination of this project, we learned
that a private citizen asked the SCS for a copy of the
environmental impact statement required under section
102 of the National Environmental Policy Act (Public
Law 91-190) and the Guidelines of the Council on En-
vironmental Quality (36 F.R. 7724, April 23, 1971).
Mr. J. B. Earle, SCS State Conservationist, told him
on June 16, 1971, that:
We have not prepared an environmental im-
pact statement on this project. The Louisiana
Wild Life and Fisheries Commission and the
U.S. Fish and Wildlife Service and local sports-
men's groups participated in the development
139 Hearings, part 4, pp. 2608, 2609.
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WATER—GUIDELINES AND REPORTS 655
of the work plan for this watershed project.
They have recently requested some minor modi-
fications in the levee to alleviate possible prob-
lems that recent experimental work indicated
could occur. We have concurred in their rec-
ommendations and we know of no adverse
results from this project. (Italic supplied.)
We fail to understand why the SCS has not com-
plied with the procedural duties of section 102 of
NEPA and prepared an environmental impact state-
ment. It is unmistakably clear that the procedural
duties of section 102 of NEPA must be fulfilled to the
"fullest extent possible". The United States Court of
Appeals for the District of Columbia Circuit empha-
sized this in its recent opinion (Calvert Cliffs' Coordi-
nating Committee, Inc. et al. v. U.S. Atomic Energy
Commission, Nos. 24,839 and 24,871, July 23, 1971)
when it said (pp. 10-11):
Thus the Section 102 duties are not inher-
ently flexible. They must be complied with to
the fullest extent, unless there is a clear conflict
of statutory authority. Considerations of ad-
ministrative difficulty, delay or economic cost
will not suffice to strip the section of its fun-
damental importance. (Emphasis in original.)
We conclude, then, that Section 102 of NEPA
mandates a particular sort of careful and in-
formed decisionmaking process and creates
judicially enforceable duties.
In his August 23, 1971, reply, Assistant Secretary of Agricul-
ture T.K. Cowden said: uo
In the initial review conducted pursuant to Water-
sheds Memorandum—108 the Cameron-Creole Water-
shed Project was placed in Group 2 because of
environmental impacts. Subsequent to this action con-
tacts were made by personnel of the Soil Conserva-
tion Service of this Department with representatives
of the Fish and Wildlife Service, Bureau of Sport
Fisheries and Wildlife, and the Louisiana Wildlife and
Fisheries Commission. Agreement was reached with these
agencies to some modifications of the structural meas-
ures which would reduce or remove the adverse en-
140 Hearings, part 4, p. 2613.
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656 LEGAL COMPILATION—SUPPLEMENT n
vironmental impacts. It was agreed that the remaining
impacts would not be significant.
* * * * *
This agreement to the modifications changed the
grouping under Memorandum-108 from 2 to 1. Since
the modified plan would have no significant adverse
environmental impacts, no environmental impact state-
ment was required under [CEQ] Guideline 11. Also
Watersheds Memorandum-108 provides that once agree-
ment is reached with the concerned fish and wildlife
agencies that a project is in Group 1, works of im-
provement "can be implemented without further ac-
tion except for minor changes of design and specifica-
tions and of construction drawings already prepared."
Hence invitations for bids were solicited in July.
Subsequent to this action, you, the National Audu-
bon Society and the Sierra Club have raised questions
as to the environmental impact and the adequacy of
the considerations given to the environmental values.
The questions which you and they have raised would now
appear to bring a degree of controversy into the proposed
action. Therefore, under the provisions of Guide-
line 5(b) we are developing an environmental impact
statement in accordance with Section 102(2) (C).
The Congressmen also wrote to the Interior Department about
Mr. Earle's comment that the BSF&W "participated" in develop-
ment of the workplan. They said:141
We are, however, at a loss to understand, if Mr.
Earle's letter correctly reported the position of the
Fish and Wildlife Service, why the Fish and Wildlife
Service apparently has sanctioned this project with
"some minor modifications in the levee to alleviate pos-
sible problems." Such acquiescence appears to be quite
inconsistent with the Bureau of Sport Fisheries and
Wildlife regional office's 1967 report, which said the
project "will have a significant effect" on the Sabine ref-
uge and marshlands around the refuge; the June 1970
report by the same regional office on constructed SCS
projects in North Carolina which said that ". . . the
practice of stream channel excavation is contrary to the
stated policy of the National Environmental Policy
Act;" and your own recent testimony before this Sub-
141 Hearings, part 4, pp. 2616, 2617.
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WATER—GUIDELINES AND REPORTS 657
committee "that stream channelization has had a dev-
astating effect upon our nation's waterways."
Certainly, the effect of channelization on a national
wildlife refuge—the elevation of which does not "usually
exceed" 2 to 3 feet above sea level—cannot be any less
"devastating".
We request that a thorough re-evaluation of this
project and its effect on the Sabine refuge and surround-
ing marshland be promptly undertaken by the Bureau of
Sport Fisheries and Wildlife and that a report thereon
be submitted to this Subcommittee. Pending completion
thereof, your Department should request that SCS halt
work on this project.
The Interior Department's March 16, 1972, reply to the Sub-
committee asserted that BSF&W had not agreed that the project
would have "no adverse results", and that the "conclusion con-
cerning the adverse results was reached" by the SCS "without
our concurrence". 142
The Committee notes, however, that as long ago as 1969, the
BSF&W entered into an agreement with the SCS which does
not mention any "adverse" project results, and recites that the
"improvements authorized under the approved plan * * * are
expected to enhance wildlife management opportunities on lands
within the watershed and, in particular, on that portion within
the" Sabine National Wildlife Refuge.143 The BSF&W cannot
have it both ways. It ought not attack the project as "adverse"
to wildlife and simultaneously whisper meekly that it will "en-
hance wildlife management opportunities". Admittedly, 1969
was in an era when public concern about channelization was far
less evident, and the BSF&W then stood almost alone in efforts
to curtail engineering depredations. If the BSF&W asked for
too much, it chanced the likelihood of a cold shoulder and a
deaf ear from the SCS and the local project sponsors, and hence
BSF&W often bargained for a partial loaf.
But in the case of Cameron Creole, the Bureau had the upper
hand. Because the project involved construction within a BSF&W
refuge, the local sponsors had to obtain a permit from the Bureau.
Section 4(c) of the Act of October 15, 1966 (16 U.S.C. 668dd(c) )
prohibits uses of a national wildlife refuge "unless * * * per-
mitted" by the Secretary of the Interior under section 4(d) of
the Act. Such permission can be granted only if the Secretary
finds "such uses are compatible with the purposes for which"
142 Hearings, part 5, p. 3134.
"" Hearings, part 4, p. 2693.
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658 LEGAL COMPILATION—SUPPLEMENT n
the refuge was "established" (Sec. 4(d) (2) ). According to
Assistant Secretary of Agriculture Cowden, the local sponsors
obtained a permit from the Bureau "to use the refuge in con-
nection with the project." 144 It is obvious that the Bureau failed
to utilize fully the tools available to it and now is seeking through
NEPA to recoup its losses.
We commend BSF&W's renewed devotion to protecting wild-
life, but the better avenue would be to withdraw its permit.
The SCS draft impact statement on the Cameron Creole proj-
ect was filed in August 1971.145 The Under Secretary of the In-
terior told the SCS, on January 10, 1972, that the project will
affect the Sabine Refuge; that "the plan addressed in the draft
environmental statement does not cover" two water control
structures "later added to the project to regulate exchanges" of
water; that these changes "evidence the uncertainty of the effects
of the project" on the refuge and on the marine and estuarine
resources; that the statement should "be withdrawn because
of its inadequacy, its lack of full coverage of the plan as now
visualized, and the remaining uncertainty as to the environ-
mental effects"; and that further studies should be made.146
The SCS refused to withdraw it, filed its final statement, and
insisted, in a letter to Interior dated March 7, 1972, that
"the beneficial effects far outweigh adverse effects".147 Interior's
response of April 6, 1972, insisted that SCS's final impact state-
ment does not "materially supplement information contained in
the draft"; that it was prepared "without benefit of further
studies", and that "we can find nothing in the final statement
which would cause us to alter our views that the environmental
problems involved are not fully understood and that a comprehen-
sive study should be undertaken prior to initiation of the proj-
ect." 148 But BSF&W did not rescind its permit.
Subsequently, SCS agreed to conduct the studies, but only
upon assurance that the Corps of Engineers would issue a permit
for the project and allow it to proceed.149 The Interior Depart-
ment told the Subcommittee that a committee was appointed in
August 1972 to provide guidance for the study. But, after several
meetings, Interior concluded "that the proposed project con-
struction schedule would not allow sufficient time to conduct true
baseline studies of existing preconstruction conditions, particu-
144 Hearings, part 4, p. 2614.
'" Hearings, part 4, p. 2697.
J.J.Cai.lll(£'>> JJQJ- li t, l-f. £|U£M.
148 Hearings, part 5, p. 3136.
147 Hearings, part 5, p. 3137.
148 Hearings, part 6, p. 3138.
148 Hearings, part 5, p. 3141.
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WATER—GUIDELINES AND REPORTS 659
larly with respect to the contribution of nutrients to the estuarine
and marine environment as a result of sheet drainage and tidal
action." Accordingly, Interior "objected to the issuance" of a
Corps' permit "until the studies have been completed." 15°
In sum, although SCS initially placed the project in Group 2
as part of its 108 review "because of environmental impacts",
thereafter, SCS made some modifications requested by fish and
wildlife agencies and labeled it a Group 1 project (minor or no
known adverse effect), and then insisted that no environmental
impact statement was needed. But for the persistent questioning
of the project by the Subcommittee and several environmental
groups, the SCS would probably never have prepared a NEPA
statement.
Still another example of SCS's use of the 108 review process
"to escape full compliance" with NEPA is the Chicod Creek
project.151 In that case, the NRDC filed suit in November 1971
to enjoin the SCS from financing and participating in the con-
struction of the Chicod Creek channelization project. The court
ruled on March 15, 1972 (Natural Resources Defense Council
v. Grant, supra), that NEPA is "applicable" to the project "as
it is an ongoing Federal project on which substantial actions
remain to be taken", and that the SCS was misusing the 108
review process. The Court said:
It is interesting to note that one of the Soil Conserva-
tion Service's own biologists, prior to the implementa-
tion of any mitigation, concluded that this project
would have significant effects upon the environment.
See letter dated March 24, 1971, from John P. Edwards,
Biologist, to Mr. Charles L. Lehning, Jr. Also note-
worthy is the fact that subsequent to Watersheds Mem-
orandum 108, the Soil Conservation Service placed this
project in Group 2, a category established by the Water-
sheds Memorandum indicating that projects placed in
this group could have some adverse effect upon the en-
vironment. After certain mitigation measures were im-
plemented, this project was placed in Group 1, signify-
ing minor or no known adverse effect upon the environ-
ment. It is the opinion of this Court that an environ-
mental impact statement should have been issued when
this project was placed in Group 2.
Following that ruling, the SCS, on April 6, 1972, issued to its
field offices its "Advisory WS-12" memorandum. This advisory
150 Hearings, part 5, pp. 2821, 2822.
><" Hearings, part 5, p. 3352.
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660 LEGAL COMPILATION—SUPPLEMENT n
established guidelines for preparing environmental impact state-
ments on projects approved before January 1, 1970 "(1) with
channel improvement scheduled for installation with fiscal year
1973 funds and (2) that were placed in groups 2 or 3 (WS-108
study) * * * unless agreement has been reached that plans for
structural measures, as revised, do not have significant adverse
impacts." The need for impact statements on all other projects
scheduled for installation with fiscal year 1973 funds "will be
determined on a case-by-case basis." (Italics supplied.) The mem-
orandum also stressed that the "determination of the environ-
mental impact is an SCS responsibility and is not to be relegated
to another agency".152 These instructions were generally repeated
by Administrator Grant in Watersheds Memorandum-121 on
September 1, 1972.153 Neither memorandum was published in the
Federal Register.
The effect of Memoranda 12 and 121 is that most projects in-
volving channelization that were placed in Group 1 during the
108 review will probably not receive impact statements. Even
projects in groups 2 or 3 could escape the need for an impact
statement if, pursuant to some quiet arrangement—such as those
noted by the Subcommittee during its investigation of the Cam-
eron Creole and Chicod Creek projects—between the SCS and a
fish and game agency to revise the work plans, SCS determines
that the project does not "have significant adverse impacts". Thus,
the 108 review—which was limited to fish and wildlife consid-
erations, which did not consider other project impacts such as
water quality, and which did not afford an opportunity for pub-
lic participation—has become the primary basis for determining
whether or not the SCS will prepare a NEPA statement. If the
SCS intended to use the 108 review in this way, Administrator
Grant did not disclose this fact in the Memorandum itself or to
the Subcommittee.
When the Subcommittee questioned the SCS about the basis,
in the law and the CEQ guidelines, for the SCS position, SCS
responded:154
We have not construed Public Law 91-190 (NEPA)
to be retroactive to actions taken before January 1,
1970. We believe the Council on Environmental Quality
has recognized this in guideline 11 which states, with
respect to on-going projects, "Where it is not practicable
to reassess the basic course of action, it is still impor-
152 Hearings, part 5, p. 3218.
113 Hearings, part 5, p. 3220.
154 Hearings, part 5, p. 2854.
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WATER—GUIDELINES AND REPORTS 661
tant that further incremental major actions be shaped so
as to minimize adverse environmental consequences."
Our Watersheds Memorandum—108 review identified
projects from which adverse effects might result. These
projects are being studied in consultation with fish
and game agencies and modifications made, where ap-
propriate, to eliminate or minimize adverse effects. In
this way, we have complied with the intent of NEPA
and the CEQ guidelines. If there is any reason to believe,
or if other agencies believe, adverse effects may remain
after modification, then an environmental statement is
prepared for public display to show the basis for the
project action.
CEQ Chairman Train disagreed with the SCS view as to the
retroactivity of NEPA, and stated that NEPA applies to proj-
ects authorized prior to January 1, 1970. He said: 155
Mr. FINNEGAN. Mr. Train, the SCS, in reply to our
questions, told us that they construe the National Envi-
ronmental Policy Act as not being retroactive to actions
taken before NEPA was enacted in January 1970.
Is that your understanding of the court decisions and
of the act, itself?
Mr. TRAIN. That is neither my understanding of the
court decisions nor the Council's own policy. The act
definitely applies to projects authorized prior to its effec-
tive date of January 1, 1970, as I recall, but where the
major impacts with significant effect on the environment
occur after that date.
SCS Memoranda 12 and 121 are not in accord with the court's
opinion in the Chicod Creek case, insofar as they say that an
impact statement is not required where projects in Group 2 or
3 have been revised and it is agreed that they no longer "have
significant adverse impacts". The court, in the Chicod case,
squarely held that an environmental impact statement "should"
have been issued when that project "was placed" in Group 2
(some adverse effect), and a fortiori in Group 3 (serious ad-
verse effect). At that time there was a clear indication that a
project placed in those groups "could have some adverse effect
upon the environment" and thereby require a NEPA statement.
This same reasoning applies to all other SCS projects placed in
either Group 2 or 3. But the SCS is apparently applying the
court's ruling only to the Chicod case. Surely the SCS ought not
155 Hearings, part 5, p. 2882.
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662 LEGAL COMPILATION—SUPPLEMENT n
litigate the issue over and over again on a project-by-project
basis.
The Committee therefore recommends as follows:
The Soil Conservation Service should promptly abandon Wa-
tersheds Memoranda 12 and 121 and adopt a policy of full com-
pliance with the requirements of section 102(2) (C) of the National
Environmental Policy Act of 1969.
The SCS complied with the March 1972 court order in the
Chicod case and filed a draft statement on April 17, and a final
statement on July 13, 1972. The court then reviewed the impact
statement and, on February 5, 1973, ruled (Natural Resources
Defense Council v. Grant, Civil No. 754, 355 F. Supp. 280, 5
ERG 1001) that it "does not fully and adequately disclose the
adverse environmental effects" of the project; "nor does the state-
ment adequately disclose or discuss reasonable alternatives" to
the project; and, therefore, there is substantial probability that
NRDC "will be able to demonstrate at trial on the merits" that
it is not "the 'full disclosure' statement required" by the
court order of March 1972.
On March 30, 1973, the SCS recommended to the Justice De-
partment that "appeal not be taken" from that ruling, because
it "intends immediately to supplement the impact statement to
meet the deficiencies" which the court "enumerated." On July 31,
the Justice Department informed the Subcommittee that it
would not appeal the Chicod decision.
Most Federal agencies are now generally preparing impact
statements, but their quality is often quite poor. The CEQ com-
mented on this at the Subcommittee's March 1973 hearings, as
follows:156
In terms of substantive assessment of impacts, there
is much variation from project-to-project and agency-to-
agency. Much of the variation is the direct result of the
availability of environmental data. In some instances
there are many data sources, in others very few. The
corps has undertaken a number of research projects re-
garding environmental impacts of its programs, while
BuRec [Bureau of Reclamation] has done so to a less
extent, and SCS generally does not undertake such
research.
The agencies receive many comments on the draft
impact statements, many of which point to significant
environmental impacts. While the corps final EIS usually
1M Hearings, part 6, p. :
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WATER—GUIDELINES AND REPORTS 663
acknowledges and discusses these impacts, many of SCS
and BuRec final environmental impact statements fail
to adequately consider comments related to adverse im-
pacts and fail sometimes to balance these against proj-
ect benefits.
NEPA is an evolving process and we will continue to
work with the implementing agencies to arrive at better
and more comprehensive environmental impact state-
ments. We are insisting that the impact statements fully
reflect the nature and severity of the adverse environ-
mental impacts and fully discuss and evaluate the al-
ternatives to the proposed action.
The adequacy of environmental impact statements by Federal
agencies was recently reviewed by the General Accounting Office,
on the basis of a detailed examination of selected statements of
six different agencies, including one each of the SCS, the Corps,
and the Bureau of Reclamation.157 In general, the GAO found
that, although the agencies "were definitely concerned about the
environmental impacts" of their proposed projects, "the useful-
ness" of the statements "was impaired" by several "common
problems," such as:
Inadequate discussion of, and support for, the identified
environmental impacts.
Inadequate treatment of reviewing agencies' comments
on environmental impacts.
Inadequate consideration of alternatives and their en-
vironmental impacts.
The Corps and Reclamation Bureau projects which GAO re-
viewed did not involve channelization, but the SCS project did.
The GAO report noted that SCS's environmental impact state-
ment for a project in Indiana and Ohio:
Did not discuss the (1) impact on water quality resulting
from the proposed project or (2) relocation of businesses and
private dwellings resulting from acquisition of lands for
the project.
Was neither prepared in time to be available to the
various agencies during their field reviews of the project
work plan, contrary to agency guidelines, nor made avail-
able for public comment.
On December 18, 1972, CEQ Chairman Train wrote to Con-
157 Comptroller General's report dated November 27, 1972, entitled "Adequacy of Selected
Environmental Impact Statements Prepared Under the National Environmental Policy Act
of 1969" (B-l70186).
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664 LEGAL COMPILATION—SUPPLEMENT n
gressman Dingell that the "quality of impact statements is lag-
ging behind procedural compliance" with NEPA, and that the
NEPA statements reviewed by GAO, although they are "examples
of early agency efforts * * * concededly fall short of full and
fair analysis." The Department of Agriculture has assured the
Congress that the SCS is making efforts to "improve the quality
and usefulness" of its impact statements and is:
Establishing the position of Assistant to the Administra-
tor for Environmental Development and assigning environ-
mental responsibilities to key staff members at all levels;
Issuing 13 policy memorandums dealing with various as-
pects of environmental considerations;
Revising project-type program handbooks to include pro-
cedures for making environmental assessments an integral
part of the planning process and for developing environ-
mental statements to aid in decisionmaking.
Designing and conducting intensive training activities for
all personnel on environmental procedures and commitments ;
and
Maintaining close working relations and consulting with
CEQ in development of policy, procedures, and in evaluating
the adequacy of environmental statements.
The Committee hopes that the Department, including the SCS,
will make even greater efforts in this direction, and that such
efforts will help reduce channelization that is harmful to our
Nation's streams and waterways and thereby help reduce the
public opposition to those SCS projects which do aid the public
good.
XI. IN MID-1971, THE COUNCIL ON ENVIRONMENTAL
QUALITY CONTRACTED WITH ARTHUR D. LITTLE,
INC., FOR AN ASSESSMENT OF THE PHYSICAL AND
ENVIRONMENTAL EFFECTS OF STREAM CHANNELI-
ZATION
Soon after the Subcommittee began its stream channelization
hearings in May 1971, the CEQ concluded that an in-depth study
of the physical and environmental effects of stream channeliza-
tion, for the CEQ's "internal staff purposes in its policy-
formulation work, is required within 5 months." 158 However,
from the very beginning, that study has been steeped in con-
troversy.
158 Hearings, part 6, p. 3510.
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WATER—GUIDELINES AND REPORTS 665
A. CONTRACT BACKGROUND
On June 4, 1971, two days before the study contract was ap-
proved, Mr. W. Don Maughan, then Director of the Water Re-
sources Council (hereinafter referred to as the "WRC") sent a
memorandum to the CEQ in which he said that the "objective"
and "scope" of the proposed study was "obscure." He added that
it is "unrealistic to expect to find (a) an objective contractor
whose work would be readily accepted by both the preservation
and development interests, and (b) a competent contractor who
could in 4 or 5 months seek, find, assimilate, evaluate, and suc-
cinctly report on a meaningful representative sample of channel
improvement projects by government agencies." He then said:159
In our opinion the essence of the channelization con-
troversy is that inadequate attention has been given to
the divergent private and social values associated with
the use of preservation of channels, streams, valleys,
marshes, and wetlands. Economic returns loom large in
the eyes of landowners and users of flood plains for a
livelihood. On the other hand, environmental benefits
are not evaluated in the marketplace. Some means is
needed to better reconcile these two basic objectives
both in the short and long range. The States must be
deeply involved.
Mr. Maughan testified before the Subcommittee on June 4,
1971—after the administration initially sought to prevent his
testifying.160 Under questioning by Congressman John E. Moss,
Mr. Maughan revealed that in his proposed testimony he would
have said that an adequate study of channelization, with "its
complexity, broad involvement and the availability of much data
that have to be digested and appraised," would require about
two years. However, his proposed testimony was rejected in an
interagency review. Mr. Maughan also expressed the view that
during such study, all channelization should be deferred except
for such projects as the Governor and a "high Federal official"
agreed would be "badly needed for the protection of life or
high value of property." 1M
As shown later in this report, the CEQ should have heeded
Mr. Maughan's recommendations on the length of time needed
159 Hearings, part 6, p. 3607.
nearmgs, pan. o, p. ouui.
160 Soon after the Committee was notified that Mr. Maughan would testify, the Federal
agencies "who have line responsibilities for channelization programs" decided that he should not
testify. But at the Subcommittee's insistence, on May 28, 1971, the Interior Secretary, who is
also Chairman of the Water Resources Council, agreed to allow him to testify. See Hearings,
part 2, pp. 610, 611.
161 Hearings, part 2, p. 611. His proposed draft testimony is printed at pp. 612-615.
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666 LEGAL COMPILATION—SUPPLEMENT n
for study and the importance of having a report which "would
be readily accepted by both preservation and development inter-
ests." But the CEQ did not do so.
Even before Arthur D. Little, Inc. (hereinafter referred to as
"ADL"), submitted its technical proposal, the CEQ executed a
contract with ADL on June 6, 1971. It called for a study "to
evaluate the environmental and physical effects of stream chan-
nel modification" that would be based "on an analysis of at least
20 representative projects."
Shortly after contracting with ADL for the study, CEQ di-
rected ADL to subcontract to the Philadelphia Academy of Nat-
ural Sciences the work on fish and wildlife evaluations.
The contract initially recited that it would be completed
by October 1, 1971. (The eventual completion date was March
1973.) The contract price was initially set at $65,000. (Eventu-
ally the price became three times that much.) 162 CEQ obtained
a substantial portion of the contract funds from the Interior
Department. The director of the ADL study, Mr. John M. Wilkin-
son, had for many years been involved with hydroelectric power
economics.163
The ink was hardly dry on the contract when it was modified
on August 24, 1971 (a) to broaden the study to include an evalu-
ation of the "economic effects"; (b) to extend the contract com-
pletion date by one month; and (c) to increase from 20 to 36
the number of projects to be analyzed.1" These changes were made
despite ADL's expressed "concern" to CEQ about "the magni-
tude of the tasks * * * relative to the time and budget con-
straints" which CEQ "imposed", and ADL's proposal for evalu-
ation of only 15 projects.165 CEQ selected the projects from a list
of 142 drawn from 9 Federal agencies, and ranked them accord-
ing to priority. Mr. Wilkinson testified that "ADL did not parti-
cipate in selection of these 36 projects." 166
None of the projects that had received widespread public
attention—such as the Alcovy, Cameron Creole, Starkweather,
Chicod, Obion Forked Deer, and Cache River projects—was in-
cluded in the list selected by the CEQ on August 6, 1971, nor
amongst those selected by the 9 Federal agencies, according to
the CEQ.167 Only one of five projects marked "controversial" by
the "cooperating agencies" was selected, namely, the Town Bank
1(0 Hearings, part 6, pp. 3515-3522.
lia Hearings, part 6, p. 3432.
1M Hearings, part 6, p. 3623.
1M Hearings, part 6, p. 3508.
1M Hearings, part 6, p. 3429.
187 Hearings, part 2, p. 479.
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WATER—GUIDELINES AND REPORTS 667
watershed project in New Jersey.168 Moreover, only nine of the
projects selected were recommended by the BSF&W or EPA,
according to the CEQ list. For example, in Tennessee the en-
vironmental agencies recommended five projects, but none was
accepted, although the two recommended by the TVA were in-
cluded. When the Committee asked Mr. Wilkinson and the other
members of the study team why none of the more "controversial"
projects was included, they said:169
Mr. WILKINSON. I cannot comment on why some of the
more controversial ones, such as Starkweather or some
of these others, were not involved. We were not included
in that, and I simply do not know what went into the
selection decisions.
* * * * *
Mr. FINNEGAN. Did you express any objections to
the selections of the projects of the SEQ or suggest that
they broaden them and include some of the controversial
ones?
Mr. WILKINSON. No, I never made any such suggestions.
Mr. FINNEGAN. Did you, Dr. Patrick?
Dr. PATRICK. No, sir. I mean, we were handed the list
of projects as a fait accompli, and we did the ones that
we were told to do. We did spend considerable time in the
field and on some of the projects looked at other areas.
Mr. Thomas Barlow of the Natural Resources Defense Council
also criticized the selection of projects in an August 16, 1971,
letter to the CEQ, as follows: 17°
We are deeply disturbed with the manner in which
the Council on Environmental Quality's Stream Channel
Modification Study by Arthur D. Little, Inc., is being
conducted. There are a number of factors in Arthur
D. Little's organization of this analysis and operating
procedures for gathering relevant data which lead us
and other conservation organizations to suspect that the
results of this study will not be truly objective, but
in fact, will constitute a whitewash of the environ-
mental destruction caused by many channel modifica-
tion projects.
Mr. Boyd Gibbons has stated that "noncontroversial"
channel modification projects have been selected for re-
1M Hearings, part 2, pp. 476-479.
m Hearings, part 6, pp. 3442, 3443.
170 Hearings, part 2, p. 481.
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668 LEGAL COMPILATION—SUPPLEMENT n
view by Arthur D. Little research team. We submit
that by avoiding "controversial" projects where groups
are challenging stream modification because of the de-
struction this work will create, by studying those proj-
ects where there is no controversy, Arthur D. Little
has biased the selection of evidence on which it will
base its report and is already calling into serious ques-
tion the objectivity of this future report.
In addition, Mr. Barlow's letter criticized the ADL procedures
which appeared to exclude any public participation at the field
hearings. He said:
Although six Federal agencies were invited to become
involved in this study—Water Resources Council, Office
of Management and Budget, Environmental Protection
Agency, Fish and Wildlife and Parks, Bureau of Out-
door Recreation, National Water Commission—the field
trips by the Arthur D. Little research team are being
scheduled and arranged by the very agencies whose
projects are being studied. In Michigan, Arkansas, and
Louisiana, which were visited by the Arthur D. Little
group August 9-13, officials of the Soil Conservation
Service and Corps of Engineers were the group's official
hosts, shepherding them throughout their itinerary. The
credibility of Arthur D. Little's objectivity will be ques-
tioned if they gather evidence for their report in
such an intimate fashion with the agencies being stud-
ied. Can we expect the Arthur D. Little team to return
to these States for an itinerary arranged by the Bureau
of Sport Fisheries and Wildlife and a series of meet-
ings at which the Bureau of Sport Fisheries and Wild-
life officials will be the hosts ?
* * * * *
It has been reported to us by representatives of pri-
vate conservation groups that the Louisiana office of
the Soil Conservation Service replied to inquiries about
the Louisiana Arthur D. Little meetings that these
meetings were not public meetings, that only Federal
agencies were to be involved—other parties were not
welcome. (Italic supplied.)
ADL's representative, Mr. John M. Wilkinson, disputing Mr.
Barlow's contentions, stated he did not intend the field trips
and inspection tours to be akin to public meetings, and stressed
that "a little more time" for these field trips probably "would
not have produced much incremental data," even though it
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WATER—GUIDELINES AND REPORTS 669
would "have enabled more views to be expressed by more
people."171 However, the opportunity for public participation
and expression is often as important as, or even more important
than, the fact-finding itself.
B. THE DRAFT REPORT
On August 6, 1971, Subcommittee Chairman Reuss and Rank-
ing Minority Member Vander Jagt wrote to CEQ Chairman
Train urging that the draft report be made available to the Sub-
committee, State agencies, environmental and conservation or-
ganizations, and others as soon as it was sent to CEQ, and that
they be allowed to comment on it before its completion.172 Mr.
Train agreed, and on March 24, 1972, CEQ Secretary Boyd H.
Gibbons III, informed numerous agencies and public interest or-
ganizations that CEQ would welcome comments on the draft
ADL report. Within the 30 days allowed for such comments,
many State and Federal agencies and public groups and citizens
responsed.173
Several of those commenting on the draft gave it high praise.
For example, the Corps said it "appears to reflect a commend-
ably objective approach to this sensitive subject." The Corps noted,
however, that the projects "chosen for evaluation were devel-
oped under procedures and criteria that are not necessarily rep-
resentative of today's project formulation," and that today's
projects include greater "involvement of the general public and
conservationist elements" than the projects studied.173"
A spokesman for TVA concluded that the study had "been
reasonably successful." 173b
The National Association of Conservation Districts said that
the Association was "impressed with the comprehensiveness
and objectivity" of the report and expressed the hope that it
"can help to dampen the emotion with which channel modifica-
tion has been discussed in recent years."
A similar comment was expressed by SCS's Administrator
Grant.1730 Indeed, the SCS cited the report in its April 13, 1972,
letter to Senator J. W. Fulbright, who had asked the SCS to
comment on a pamphlet he received on the subject of channeliza-
tion. The SCS said that the ADL study was intended to "provide
171 Hearings, part 6, p. 3430. However, the "Field Survey Schedule" and "Lodging
Arrangements," prepared by CEQ, on December 22, 1971, give some credence to Mr. Barlow's
criticism. In connection with each area visited, SCS or Corps personnel were the ADL local
contacts and arranged to transport the ADL team. (Hearings, part 6, pp. 3458-3459.)
171 Hearings, part 6, p. 3451.
1T3 For a ]ist of those who filed comments with the CEQ, see Hearings, part 6, p. 3460.
173» Hearings, part 6, p. 3554.
i?3b Hearings, part 6, p. 3551.
173c Hearings, part 6, p. 3552.
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670 LEGAL COMPILATION—SUPPLEMENT u
an impartial assessment of the channelization issue," and con-
cluded that:173d
The appraisals on these projects show little or no
impact on fish and wildlife resource values but very
measurable gains to the rural and agricultural economy.
The Arthur D. Little report summarizes findings on
the fishery resources of the projects: "On the 36 exist-
ing projects evaluated, we find total destruction to se-
vere diminution the immediate and still prevailing re-
sult on six completed projects, temporary and minor
disturbance to modest recovery on 15 completed proj-
ects and no appreciable adverse effects on 15 completed
projects. For the six proposed projects, one would be
seriously destructive to existing and potential resources,
one moderately but temporarily disturbing, three would
experience no effect as no resource exists, and one
would beneficially affect an adjacent lake."
Most of the others who commented on the report did not be-
lieve it was as praiseworthy as the Corps, TVA, SCS, and the
NACD indicated. For example, the Interior Department said: "*
We agree with the overall appraisal of the BSFW
that the report manages to touch all of the beneficial
and adverse impacts of channel modification but does so
in such a way as to lead the public reader to conclude
that (1) channel modification is not particularly de-
grading to environmental values in most instances and
(2) environmental damages, when inflicted, are short-
lived and reversible. This is an unfortunate and mis-
directed conclusion. The report evokes a wide range of
reaction as attested by the fact that BR found the
report "unusually objective" and BSFW found that it
seriously "misses the mark" insofar as its assessment
of project effects on the natural environment is con-
cerned.
We conclude that it covers economic (financial) as-
pects fairly adequately, but is seriously deficient in its
environmental assessment, the principal charge to the
contractor. We believe the report deficiencies stem from
two principal sources. First, the contractor too often ig-
nored and took positions contrary to the views of its
environmental consultants, the Philadelphia Academy of
17M Hearings, part 6, p. 3486.
174 Hearings, part 6, pp. 3664-3666.
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WATER—GUIDELINES AND REPORTS 671
Natural Sciences (PANS), as the BSFW report docu-
ments. The disagreeing viewpoints expressed by the con-
tractor were invariably in the direction of minimizing
adverse environmental impacts and stressing economic
benefits. Second, the selection of projects was such as
to lend serious bias to the study—a shortcoming to
which this Department was admittedly a party. Be-
yond this, the contractor did not give sufficient attention
to larger questions of national policy on such matters
as the actual and appropriate planning objectives, al-
ternatives, interest groups that are and should be served
by the practice, needs of future generations for reserve
agricultural productive capacity and natural stream val-
leys, and the like. Natural needs for food and fiber vis-
a-vis national needs for environmental excellence were
not adequately discussed, along with alternative ways
of achieving both objectives. (Italic supplied.)
We are concerned about the statements that much of
the channel work would be undertaken by private inter-
ests in the absence of the Federal or federally assisted
project. This being true, how good is the rationale for
Federal involvement? What are the additional environ-
mental costs that are averted by having a Federal proj-
ect with local veto over environmental recommenda-
tions? Private development would probably place the
financial costs where they belong—on the beneficiaries.
The report indicates that this is frequently not the
case under the present system. The entire question de-
serves more attention.
The study was intended to get at the facts concern-
ing environmental impacts of channel modification, but
we believe it has failed to respond to that charge. We
would not endorse its publication as drafted. (Italic sup-
plied.)
Several State fish and game agencies were also quite critical
of the report. The Arkansas Game and Fish Commission said it
"falls far short of the objectivity requirements set forth by
CEQ."
The North Carolina Wildlife Resources Commission said:
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672 LEGAL COMPILATION—SUPPLEMENT n
The strongest criticism of the entire report is epito-
mized in the implication carried by the sentence (page
13, paragraph 2, line 2) "Much more of the fisheries
resource and habitat and the biological life of aquatic
systems of natural streams has been destroyed than
improved, and recovery of productivity is slow—but
streams do recover." This statement, made without qual-
fication, leads the uninformed reader to the conclusion
that no matter how damaging to fish and wildlife habi-
tat the channelization may be, eventually the area will
enjoy the dual benefits of project drainage plus restora-
tion of the adjacent wetlands and the stream channel
to their pre-project levels of productivity. Nowhere in
the report is the statement made that stream recovery
inevitably is predicated upon failure of the sponsors to
abide by their signed agreement to maintain the chan-
nelization. In other words, stream recovery can occur
only as the objectives of channelization are lost by ne-
glect. Unless the sponsors renege upon their signed
maintenance agreement, recovery is impossible. The in-
verse relationship between stream recovery and the
maintenance of channelization by the sponsors is too
fundamental to be overlooked. (Italic supplied.)
EPA noted that the report "fails to present systematically the
in-depth information and analysis required for a sound assess-
ment of channelization," and "does not carefully analyze the
controversial issues nor adequately discuss alternative ap-
proaches." 175
The Georgia Game and Fish Commission said:
We are disturbed by the preface which states that
"the resolution need not, indeed should not, lie at the
extremities of viewpoint". This statement is disturbing
and tends to indicate that from the beginning a decision
was made to reach some compromise in the middle
ground and not consider the possibility that stream
channel improvement might, in fact, be an undesirable
practice which should not be continued. It appears that
the study was conducted with this objective in mind.
We do not feel that the basic philosophies of the stream
channelization programs were investigated but that
rather the physical accomplishments only were the is-
sues in question. It is our feeling that the basic philoso-
115 Hearings, part 6, p. 3576.
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WATER—GUIDELINES AND REPORTS 673
phy of spending public monies for private benefiits, at the
expense of public resources, must be questioned and was
not during the course of this study.
Subcommittee Chairman Reuss and Ranking Minority Member
Vander Jagt, after careful review of the draft ADL report, wrote
to CEQ on May 31, 1972, as follows:176
In our opinion, the report fails to provide a true
assessment of the effects of stream channelization on the
environment. It does not adequately discuss the merits
of channelization nationally and regionally to achieve
water control objectives, but simply assumes that a na-
tional program of channelization is necessary and should
continue. The draft report also fails to discuss the
change, that is now evident, from the original purpose
of channelization to control floods in order to protect
life and property to the quite different purpose of en-
couraging drainage of wetlands and reduction of floods
in flood plain areas in order to convert such lands to
the "better" or "higher" use of crop production. Its
discussion of alternatives is largely an apology as to why
alternatives to channelization are rarely, if ever, adopted.
On May 25, 1972, CEQ advised ADL that the report will "re-
quire very substantial reworking in a number of respects if it
is to be the guide to policymaking." 17T
There then ensued several months of dispute and negotiations
between ADL and CEQ about increases in the contract price
and the scope of ADL's duties. Finally, late in December 1972,
the contract price was further increased to $195,000, and on
March 31, 1973, the report was completed.178 One aspect of this
dispute involved the extent to which ADL was obliged, but
failed, to consider the comments which CEQ had solicited and
received from non-Federal agencies. On April 11, 1973, the Sub-
committee wrote to CEQ Secretary Boyd Gibbons as fol-
lows: 179
On May 25, 1972, you wrote to ADL commenting ex-
tensively on the ADL's draft report and referring to
the foregoing written comments. You acknowledged in
the letter that "many" of the comments "are well con-
ceived, objective, and rational critiques" which should
176 Hearings, part 6, p. 3481.
177 Hearings, part 6, p. 3461.
178 ADL's three volume report entitled "Report on Channel Modifications" is available at the
Government Printing Office.
179 Hearings, part 6, p. 3B06.
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674 LEGAL COMPILATION—SUPPLEMENT n
"provide" ADL with "ample assistance" in redrafting
the report. In that same letter, you advised ADL that
it "is imperative that in rewriting the report" ADL
should "review carefully your general and specific com-
ments and those of the other commenting entities."
Subsequently, ADL wrote to you (letters of John M.
Wilkinson, July 24, 1972, and Todd C. DeBinder, Novem-
ber 24, 1972) requesting additional funds because CEQ's
"release of the draft report for public review increased
the number of comments to be reflected" substanti-
ally. ADL said its January 1972 request for additional
funds which was granted by CEQ on April 3, 1972,
"did not allow for incorporation of comments from a
public review," except those involving "corrections of
fact."
In your reply of December 15, 1972, you agreed with
ADL's interpretation of the contract and its modifica-
tions, and instructed ADL:
"* * * only to take into account the comments of
CEQ, other revewing agencies, the Scientific Advisory
Group, and your consultant—a task for which you
were specifically compensated in modification 3 [of April
3, 1972, to the ADL contract]. Aside from correcting
errors of fact, which you indicate you intend to do,
you are to exercise your own judgment in evaluating
the additional views of those groups outside the Gov-
ernment who provided comments on the draft." (Italic
supplied.)
Thus, unbeknown to the public, you revised your
May 25 instructions to ADL and, in an apparent effort
to minimize the contract cost, issued new instructions
that unnecessarily clouded ADL's adequacy of considera-
tion of the public's comments in rewriting the report. It
is ironic that CEQ had praised the public's written
comments as "well conceived, objective, and rational,"
but then proceeded to instruct ADL that it was not obli-
gated to take those comments "into account."
We think this was a serious error and false econ-
omy. Once CEQ, pursuant to our 1971 request, was com-
mitted to giving the public an opportunity to have an
impact, through written comments, on the report, we
believe it was incumbent upon CEQ to provide the
necessary funds to meet this commitment. But you did
not.
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WATER—GUIDELINES AND REPORTS 675
It will now be difficult, if not impossible, for ADL
or CEQ to convince the public that ADL exercised its
"judgment" in favor of giving full consideration to the
"additional views of those groups outside the Govern-
ment who provided comments on the draft" report. Cer-
tainly, ADL was not paid to do so. After ADL re-
ceived your December letter, ADL gave, we feel certain,
only cursory consideration to those comments.
On May 8, 1973, Mr. Gibbons replied that the December 15
quote "was simply an accurate interpretation of the contract."
He insisted that all comments were "assessed and analyzed" by
ADL, and asserted that his own, as well as Interior's and EPA's,
comments on the ADL draft report, "addressed the key points
raised by the environmental groups." 18°
This dispute should never have occurred. It unnecessarily de-
layed the report. Moreover, it has left some doubt, despite Mr.
Gibbons' assurances, about the extent to which the authors of
the ADL report considered the comments of the non-Federal
respondents. CEQ admitted that many of those comments were
"well conceived, objective and rational critiques," and they con-
tained many suggestions, and views not in, or varying from,
the comments made by CEQ, EPA, and Interior. Since CEQ
had agreed to the Subcommittee's 1971 request that CEQ ob-
tain wide public review of the draft report, the CEQ should have
incorporated that requirement in ADL's contract at that time
to assure that the comments of the public were taken into con-
sideration in the final version of the report.
C. THE FINAL ADL REPORT
At least some of the comments received by ADL must have
been very helpful, since the final report is a vast improve-
ment over the much criticized draft. Its findings should be quite
helpful, although in many respects they are inconclusive and
will not lay to rest the channelization controversy.
The report provides a great deal of information about the
way projects are formulated, describes their effects on environ-
mental values and resources, and assesses those effects. In addi-
tion, it discusses extensively the economic merits of projects, cost
sharing and financial arrangements, and non-structural alterna-
tives. It also states some general comments that help to illustrate
the complexity of the channelization issue. For example, it states
(P. 48):
180 Hearings, part 6, p. 3507.
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676 LEGAL COMPILATION—SUPPLEMENT n
* * * It is difficult to quantify, in economic terms,
project induced damage to the environment and there
is no established procedure or recognized extra-agency
authority for evaluating a project on other than eco-
nomic terms. Ultimately, of course, the decision to au-
thorize a project rests with Congress, but the Congress
is poorly equipped and would be inefficiently employed
in the detailed balancing of non-commensurable effects
on individual water resource projects.
In practice, the judgment is made by the channeling
agency in terms of the projects submitted for Con-
gressional approval. These agencies are historically tied
to efficient engineering solutions and economic evalua-
tions, and to serving the needs of the local sponsors
who are almost always economically motivated. These
historical tendencies, originated and reinforced over the
years by Congressional action, are coupled with general
inadequacies in the environmental inputs to the design
process. The result has been, and to a degree still is,
that environmental aspects of channel projects are not
adequately covered.
The ADL report emphasized the point that channelization is
often selected in the development of a project simply on the
basis of economics. It states (pp. 346, 347):
While it is probably theoretically true that any flood
problem can be solved by any of the major flood control
alternatives discussed above, the actual selection is made
on the basis of economics. Floodways and reservoirs
generally require more land than does channel modifica-
tion. These land requirements mitigate against these
alternatives in two ways. First, the cost of acquiring or
obtaining easements on the land is significant. Second,
the basic purpose of the sponsors and the constructing
agency is to protect land from floods and to free it
for more productive use. Land required for the project
work is not in productive use and therefore the flood
protection benefits associated with the project works are
correspondingly reduced. (Italic supplied.)
Channel modification, by contrast, affords protec-
tion at the point of the modification. Therefore, a flood
control project based on channel modification can be
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WATER—GUIDELINES AND REPORTS 677
finely tuned to give a maximum cost-benefit ratio. The
designer can add one more mile to project length if
the benefits accruing from that mile warrant the ex-
tension.
* * * * *
The use of levees, floodways or reservoirs in lieu of
channel modification is technically feasible in most in-
stances. While these alternatives are generally less dis-
ruptive to the environment, they will continue to be
relatively little used as long as the historical economic
evaluation criteria remain in force.180a
The report also criticized the lack of coordination or com-
munication between "the local sponsors of projects and their
constituent members on the one hand and the local or State fish
and game interests and their broader and less well identified
constituency on the other hand."
The report discusses the various aspects of most of the major
channelization issues, but has one major shortcoming—it makes
no recommendations. After reading nearly 400 pages summariz-
ing the findings of ADL and the Philadelphia Academy of Nat-
ural Sciences, and several hundred more pages on field evaluation
reports on 42 projects, the readers, and particularly the Federal
agencies, are left to develop their own conclusions about what to
do next. All readers of the ADL report can reasonably draw
whatever policy conclusions fit their fancy, since the report rarely
concludes that one side is more persuasive than the other. Even
when the report seemingly takes a position, it is accompanied
by several caveats. Thus, the proponents and the opponents of
channelization can each just as easily claim that the report sup-
ports their respective views.
Mr. Wilkinson said: "We were asked not to recommend poli-
W0a The TV A. project at Sevierville illustrates these points. The TVA prepared two separate
flood control plans; a comprehensive plan which was based on three reservoirs upstream of
Sevierville, and the local channel modification plan eventually adopted. The economic estimates
for the two plans are summarized below.
Capital cost
Annualized costs per year -..
Annualized benefits per year .._ - _.
Benefit-cost ratio
Comprehensive plan r
$9 000,000
.- -- $311,000
$505,000
1.6
Local channel
nodification plan
$2,700,000
$82,000
$233,000
2.8
Both plans are economically attractive, but the additional cost associated with the
comprehensive plan produced diminishing returns and reduced the benefit-cost ratio from an
impressive 2.8 to 1.6. This occurred, in large part, because the added protection provided by the
reservoirs in the comprehensive plan accrued mostly to rural riparian lands between the
reservoirs and Sevierville, lands on which the value of flood damages was minimal anyway. The
citizens of Sevierville, faced with paying a fraction of the project costs, quite understandably
selected the local channel modification plan.
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678 LEGAL COMPILATION—SUPPLEMENT n
cies but to provide the factual basis for" the CEQ "in its own
policy deliberations." Indeed, he said that CEQ, strange as it may
seem, did not want ADL to "specifically identify policy changes
or policy recommendations." 1S1
Subcommittee Chairman Reuss and Ranking Minority Mem-
ber Vander Jagt, in a July 20, 1973, letter to the CEQ, com-
mented:
We think it is unfortunate that the ADL study
team was given this instruction, since it was in the best
position after its extensive work to make recommenda-
tions concerning any policy changes in the Govern-
ment's stream channelization programs for considera-
tion by your Council and by the public. Even if ADL's
recommendations were not accepted by your Council,
they would at least form a basis for your Council's
developing its own recommendations * * *.
Several months have now passed, the $195,000 study is gather-
ing dust, and the CEQ is still strangely silent. No new policies
have been announced or publicly proposed, and the bulldozers,
dredges, draglines, and other engineering tools are still busily
channelizing miles and miles of streams and wetlands—
hampered only by an occasional injunction resulting from litiga-
tion initiated by environmentally motivated citizens and civic
groups. On September 16, 1973, CEQ told the Subcommittee that
it has "advanced no definite proposals" nor "established a time-
table for any such proposals."
When ADL submitted its "technical proposal" to the CEQ in
June 1971, it said that the "issue" to be considered was
whether stream channel modification, as one among many re-
lated water-management programs, provides sufficient values to
offset costs when each is measured in both economic and environ-
mental terms.182 The report provides an excellent analysis of the
many problems surrounding this "issue." It shows that some
significant modifications in the policies, practices, and procedures
followed by the channelization agencies and, in some instances,
by the environmental agencies, must be made soon to reduce the
schism between the proponents and opponents of channelization.
But until the CEQ recommends such modifications to the Presi-
dent pursuant to section 204 of NEPA, it is doubtful that these
agencies will act appreciably on their own to resolve these prob-
lems.
The Committee therefore recommends as follows:
181 Hearings, part 6, p. 3440.
182 Hearings, part 6, p. 3509.
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WATER—GUIDELINES AND REPORTS 679
The Council on Environmental Quality should promptly de-
velop and, after providing public opportunity for comment
thereon, recommend that the President promulgate, compre-
hensive guidelines for Federal agencies in planning and carrying
out projects involving channelization. These guidelines should
require the agencies to show affirmatively that the proposed
channelization is in accord with the public interest and that
adequate measures to prevent or mitigate environmental damage
or destruction are effectivley provided for before work on the
project is initiated.
The Committee notes that one matter not covered by the ADL
report is the relationship of the Refuse Act of 1899 to the chan-
nelization program of the SCS. The court, in the Chicod Creek
case, ruled that discharges of sediment and other refuse from the
Chicod Creek project site "both during and after construction
* * * without the requisite permit" from the Corps of Engineers
violate the Refuse Act which prohibits such discharges.183 The
Government did not appeal this ruling.
Despite this ruling, the SCS has danced around the question of
whether or not local sponsors must obtain permits from the
Corps under the 1899 law. The SCS points to a "proviso" in the
1899 law which exempts from its application any "construction
of public works." But in a letter of April 27, 1973, to the Sub-
committee, the Department of Agriculture's General Counsel,
Mr. John A. Knebel, concluded that "a determination as to
whether a project is a public work within the meaning of the
Refuse Act is one for the Corps of Engineers [to make] since
it administers" the 1899 law.184
The Corps takes a different tack. It recently advised the Sub-
committee that it "does not consider" the 1899 law "to be ap-
plicable" to SCS stream channelization projects, because it un-
derstands that such projects "are public works affirmatively au-
thorized by Congress." 185
On June 1, 1973, Subcommittee Chairman Reuss wrote to Mr.
Knebel and to the Corps, questioning the Corps' conclusion that
SCS projects are "public works," since the Department of Agri-
culture has for some 30 years followed the view that SCS proj-
ects "are not conducted by a department or agency of the United
States" and therefore are not Federal projects.186
183 For a discussion of the scope and administration of the Refuse Act, see this Committee's
report of August 14, 1972 (H. Kept. 92-1333), entitled "Enforcement of the Refuse Act of
1899."
184 Hearings, part 6, p. 2940.
185 Hearings, part 5, p. 2938.
186 Hearings, part 5, p. 2941.
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680 LEGAL COMPILATION—SUPPLEMENT n
The Corps has not yet replied.
Mr. Knebel, however, in a June 26 letter to the Subcommittee,
merely said:
We have no basis for questioning the interpretation
of the Corps of Engineers that the subject projects are
"public works" for purposes of the 1899 Act.
*******
With respect to the interpretation by the Corps
that such projects are "affirmatively authorized by
Congress," as that term is used in 33 U.S.C. 403, such
interpretation would not appear unreasonable, particu-
larly as to those projects which must be submitted
to the appropriate committees of the Senate and the
House of Representatives for approval pursuant to sec-
tion 2 of the Watershed Protection and Flood Prevention
Act (16 U.S.C. § 1002).
In any event the Corps of Engineers has been given
responsibility for the administration of the 1899 Act,
and therefore necessarily has responsibility within the
Executive Branch for the interpretation and implemen-
tion thereof.
On August 7, 1973, Mr. Barlow of the NRDC wrote to Ad-
ministrator Grant, asking whether SCS is preparing "guide-
lines" to help "in securing" Corps permits under the 1899 law
for 124 SCS projects in 25 States. Resolution of the issue may
perhaps require further litigation, but it would appear, for the
moment at least, that the Subcommittee's view, buttressed by
the court's holding in the Chicod case, is more persuasive than
the Corps' view.
XII. CONSTRUCTION AGENCIES FREQUENTLY CITE
LOCAL OPPOSITION OR LACK OF CONGRESSIONAL
AUTHORIZATION AS THE REASON FOR THEIR FAIL-
URE TO PROVIDE ADEQUATE MEASURES TO MITI-
GATE FISH AND WILDLIFE LOSSES CAUSED BY A
WATER RESOURCE PROJECT
Enactment of the Fish and Wildlife Coordination Act in 1946
resulted in the development of the concept of mitigation of fish
and wildlife losses, i.e., the installation of compensatory measures
designed to lessen the impact of the loss of, or damage to, fish
and wildlife resources caused by construction or other project
work. In theory, that concept is quite sound. The water resource
project can be built, despite its adverse effects on fish and wildlife
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WATER—GUIDELINES AND REPORTS 681
resources, because there will be compensation for any loss or
destruction to the resources. But in practice, mitigation has been
only mildly successful.
First, rarely are all such wildlife losses or damage mitigated.
Second, once a wetland area is drained, its valuable ecosys-
tem is lost forever. It cannot be replaced. Acquisition of another
wetland area in reality preserves only the latter area. It does
not replace the area destroyed.
Several witnesses discussed this mitigation issue with Con-
gressman Dante B. Fascell, as it relates to channelization, as
follows:187
Mr. ROGERS. * * * It is extremely difficult to provide
methods that will adequately mitigate the loss of water-
fowl or other wildlife habitat resulting from the destruc-
tion of wetlands and bottomlands upon the channelization
of a stream. The nature of a channelization project re-
quires drainage of adjacent areas. This means that often
the lands acquired for mitigation will no longer be viable
wetlands, and suitable habitat for waterfowl. Instead,
they will have become upper bottomlands or uplands for
all practical purposes.
Further, it should not be forgotten that once wetlands
are destroyed, they are not replacable; mitigation only
means that other lands which may or may not have been
eventually converted to other uses will now be set aside
for so-called mitigation.
*****
Mr. FASCELL. * * * I just wonder then about the value
of mitigation. I mean, can we or should we even be
talking about mitigation as an element. If the statement
is correct—and I have reason to kind of feel that way,
that once the stream is changed, modified, or altered,
and the wildlife is affected both within the project and
outside of the project— is it possible in fact to actually
mitigate the damage? Is there any case in which you
could properly do it? Isn't the original destroyed? How
could a swap of land for changed land mitigate the dam-
age to the altered stream and land? I never have under-
stood that. Can we consider, or should we consider, miti-
gation any more ?
Mr. WANT. I agree with the inference of your statement
that the focus should be on eliminating harmful chan-
7 Hearings, part 6, pp. 3339, 3373-3374.
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682 LEGAL COMPILATION—SUPPLEMENT n
nelization; but we have been trying that for years, and
until that day comes, we would like to salvage what we
can of the projects that are going ahead. Another aspect
of mitigation is that, if it is required, and the costs are
included in the cost-benefit ratio, it will indicate how
expensive and economically unjustified these projects are,
and hopefully lead to abandoning those projects that have
become clearly unjustified in the terms of the real costs.
*****
Mr. BARLOW. Mitigation is particularly inadequate in
Soil Conservation Service projects because the SCS has
no continuing responsibility once the channelization work
and the project are completed. Now, they might be prom-
ised by local sponsors that mitigation will be provided in
the form of a lake, or a wetlands area that is going to be
preserved, or a green tree impoundment which is going to
be constructed by diking existing swampland. But once
the SCS finishes the project and leaves, the sponsors do
whatever they please. In many projects, mitigation has
not only not been maintained properly, but sponsors have
just moved in and destroyed this mitigation.
When the Subcommittee asked the Interior Department
whether the mitigation measures recommended by the Depart-
ment actually mitigate the losses resulting from a channelization
project, the Department responded emphatically: "no. * * * In
many instances, a new stream or wooded swamp would have to
be constructed to gain complete compensation." This, the De-
partment said, "is very unlikely." 188
Recommendations for mitigation are voluntarily accepted by
the water resource agencies in a limited set of circumstances.
The Interior Department, in commenting on the extent to which
construction agencies accept BSF&W recommendations for migi-
gation measures, said:189
In most cases, the Corps of Engineers and the Soil
Conservation Service accept our recommendations for
mitigation measures if they are minor in nature, do not
adversely affect the project's benefit-cost ratio, and are
acceptable to local sponsors. Generally, the Corps of
Engineers is more responsive than the Soil Conservation
Service because the costs of mitigation measures under
Public Law 566 are assigned to project purposes caus-
188 Hearings, part 6, p. 2817.
188 Hearings, part 5, p. 2817.
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WATER—GUIDELINES AND REPORTS 683
ing the damages, many of which are non-Federal re-
sponsibilities * * *. It sometimes appears that the Corps
of Engineers and the Soil Conservation Service accept
our recommendations knowing that local sponsors will
reject them because of increased costs or unacceptable
changes in land use. It should be noted that recom-
mendations concerning the elimination of stream chan-
nelization often are met with resistance or outright re-
fusal.
The efforts of the BSF&W to obtain mitigation measures for
fish and wildlife losses in the Obion and Forked Deer Rivers proj-
ect, mentioned above, are illustrative. As early as 1959, ac-
cording to BSF&W wildlife biologist Crowther's May 21, 1970,
memorandum mentioned above, the BSF&W recommended "al-
ternative plans for stream development and measures to mitigate
or prevent project-occasioned losses of fish and wildlife re-
sources." Construction began in 1960 without inclusion of these
measures. In fact, the BSF&W's memorandum noted that "had
it not been for inability of the Tennessee Highway Department
to acquire all the necessary rights-of-way, authorized project con-
struction would be virtually completed today" (i.e. May 21,
1970).
In February 1973, the Senate authorized another $6 million,
based on the Corps' recommendation, "to provide for the acquisi-
tion and development of 14,400 acres of land for fish and wild-
life management purposes, development of the Gooch and Tigrett
Wildlife Management Areas and minor channel modifications"
at this project. The House has not yet acted on this legislation.190
When the Senate acted, 32 percent of the project had already
been completed. The Senate Public Works Committee's report
noted that the "fish and wildlife problem" was caused by "Acceler-
ated flood plain land clearing operations for agricultural produc-
tion as a result of project improvements and increased demands
for hunting and fishing opportunities within the watershed
areas." 191
Fortunately for the fish and wildlife, and the people who
enjoy them, work on the project was halted in December 1972,
when the U.S. District Court for the Western District of Ten-
nessee issued its decision, in Akers v. Resor, supra, concerning
the Corps' channelization of these rivers in Tennessee. The court
noted that the environmental impact statement did not adequately
190 S. 606, Flood Control Act of 1973. A similar bill (S. 4018, 92nd Cong.) was pocket vetoed
by the President on October 27, 1972.
191 S. Rept. 93-6, Jan. 29, 1973, pp. 27, 28.
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684 LEGAL COMPILATION—SUPPLEMENT n
discuss project alternatives, such as deferring channelization
work until "after" mitigation land is acquired. The report also
stated that the report "deals only peremptorily with the accepted
importance" of wetlands in the project area "to the Mississippi
flyway, to the production of waterfowl to the water quality in
these streams and to other unquantifiable values."
Delays in acquisition of mitigation features and land specula-
tion by private interests have resulted in land clearing and con-
version to croplands, thereby negating wildlife values. In EDF
v. Froehlke, supra, the court noted that the Corps "obtained
authorization for acquiring some 6,000 acres of wildlife habitat"
at one project in the St. Francis Basin, but between the time the
Corps "selected the lands for authorization" and the time it
"received" the authorization, "the lands were cleared and under
cultivation."
The Corps has reported to the Subcommittee that since 1958 it
has received authority to acquire land for mitigation purposes
at four projects within the jurisdiction of the Corps' South
Atlantic and Lower Mississippi Valley Division offices. The total
authorized acreage to be acquired for these projects is over
45,500 acres. But only one-third of this total has been acquired—
all at one project. At the Subcommittee's March 1973 hearings,
the Corps' General Kelly discussed this delay in land acquisition
as follows:192
In some cases during the time lag between project
authorization and project execution (funding for land
acquisition), substantial changes occur within a project
area due to local activity beyond the jurisdiction of the
Corps. A specific example is the St. Francis Basin proj-
ect where local interests have cleared and brought into
agricultural production 13,500 acres of land which were
originally intended to be purchased and managed for
fish and wildlife purposes.
We have not identified specific increases in Govern-
ment costs as a result of delayed acquisition nor have
we determined the acreage which no longer lends it-
self to mitigation acquisition because of changed land
use. Any increase in costs would be due to two major
factors. The first would be from general inflation or over-
all rise in land prices. The second would result where
lands initially considered for acquisition become no
longer suitable and substitute lands, more costly as a
consequence of having become relatively scarce, must
192 Hearings, part 5, pp. 2895-2896.
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WATER—GUIDELINES AND REPORTS 685
be purchased. When land has changed use and is no
longer suitable for fish and wildlife purposes it is not
acquired, so the increased value of these lands is not a
factor in increasing Government costs.
One step we have taken to try and overcome cost
increase problems is to avoid, in more recent survey
reports, specifying the precise tracts to be acquired
should the project be built. This greatly increases ad-
ministrative flexibility in securing lands suitable for
mitigation or enhancement purposes. The surest "cure"
to the problem would be guaranteed expeditious funding
of acquisition appropriations. Yet we must recognize the
increasingly severe competition for available program
funds and it is simply not feasible to establish any
absolute priority for mitigation or enhancement acquisi-
tions, regardless of potential merit.
The Interior Department was more critical of the "delay"
factor and places the blame on the water resource development
agencies. The Department said:193
Ideally mitigation should be accomplished prior to or
in conjunction with installation of other project fea-
tures. Land values normally rise with inception of proj-
ect plan and land utilization patterns are typically
changing. The time between preauthorization planning
and initiation of construction of a Federal project is
seldom less than 5 years and often more than 20. Land
costs normally start escalating the day a Federal proj-
ect is conceived. More often than not, the local land-
owners are violently against acquiring land needed to
replace fish and wildlife habitat by the time construc-
tion is started. For all practical purposes, compensa-
tion for losses at this point is difficult if not beyond
the realm of reason.
The Government's costs are increased when there is
a delay in acquiring lands needed for "mitigation" of
fish, wildlife, and other environmental losses. For
example, the acquisition of the 13,500 acres of mitiga-
tion lands recommended for damages associated with
the Corps of Engineers' St. Francis Basin feature of the
Mississippi River and tributaries project in Arkansas
and Missouri was authorized by the Congress in 1965.
Unfortunately, acquisition was delayed until 1973 at
193 Hearings, part 5, p. 2818.
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686 LEGAL COMPILATION—SUPPLEMENT n
which time most of the originally proposed mitigation
lands had been timbered and converted to cropland. As
a result, the cost of acquisition and the associated re-
forestation of croplands to bring about anticipated miti-
gation would have been substantially more costly and
required many years to accomplish the desired results.
Therefore, additional time, manpower, and funds are
being expended by this Department for additional in-
vestigations and studies to determine acceptable alterna-
tive mitigation sites. The costs of these areas, in all
probability, will be greater now than if they had been
acquired in 1965 because of inflated values. In addition,
the fish, wildlife, and environmental values of each
remaining acre of timbered bottomlands substantially
increases as additional wooded bottomlands are cleared
and such habitats become scarce.
An example of inflated values resulting from land
speculation is the proposed Reedy Creek wildlife man-
agement and enhancement area associated with the Cen-
tral and Southern Florida flood control project. This
area could not be purchased because of the substantial
rise in land prices caused by the Walt Disney project.
In spite of the fact that fish and wildlife are referred
to as "equal partners" in project planning, it is obvious
the more traditional aspects of water development are
"more equal." It is our feeling that the project con-
struction agencies often fail to accept fish and wildlife
measures as an integral part of a project but leave it
dangling off as an isolated appendage which can be
chopped off at any time it becomes obnoxious. Thus,
those responsible for project costs and other features
can excise this offending feature without damage to the
remainder of the project.
In November 1958 BSF&W predicted the St. Francis Basin
project would cause wildlife losses and recommended that the
Corps acquire certain lands to partially offset the losses. The
delay in acquiring these lands by the Corps and Interior was
partly due to a requirement in the 1965 Flood Control Act that
the Corps review the local cost sharing for the project and report
thereon to Congress. The review was completed in 1967 and
congressional approval given in 1968 (Public Law 90-483).
By then, most of the "identified" mitigation lands were con-
verted to croplands. BSF&W asked the Corps to acquire other
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WATER—GUIDELINES AND REPORTS 687
mitigation lands. But the Corps insisted, in September 1970 and
June 1972, that the 1965 and 1968 laws would not permit it to
acquire substitute lands and that new congressional authoriza-
tion is needed. In January 1973, BSF&W "identified" substitute
lands, and on July 12, 1973, the Corps held public hearings on
the new acquisition proposal. Thus, a new cycle of proceedings
commenced with no promise of success in mitigating project-
caused wildlife losses.
In another situation, the BSF&W, in its letter of July 19,
1973, complained to the Corps that in March 1959 it had identi-
fied 12,800 acres in the Laito Lake to Jonesville segment of the
Red River Backwater project in Louisiana as suitable for mitiga-
tion acquisition. As in the case of the St. Francis project,
Congress had authorized the acquisition in 1965. But, once
again, because of the Corps' delay in carrying out the mitiga-
tion effort, the lands authorized for mitigation acquisition had
been converted to croplands. Furthermore, the Corps has nar-
rowly construed its authority as precluding "the purchase of
mitigation lands at an alternate site" in the project area without
a new authorization from Congress.
A third example of delay in carrying out mitigation measures
occurred at the Cache River project which was authorized in
1950. Planning began 13 years later—in 1963—and continued
until June 1972, when a contract was made to clear and excavate
6.7 miles of the lower Cache. However, it wasn't until September
24, 1971, that the Corps presented a mitigation plan to acquire
30,000 acres for wildlife management purposes.
Several months later, on March 28, 1972, Acting Assistant
Secretary of the Interior Curtis Bohlen commented on the Corps'
plan and draft environmental impact statement. He said that
the proposed channelization "will ultimately result in the clear-
ing and drainage of over 170,000 acres," much of which is high
value fish and wildlife land. He estimated that there are about
125,000 acres "of quality fish and wildlife lands which should be
preserved" through the use of fee acquisitions and assessments.
Mr. Bohlen stressed that Interior's "sanction of the mitigation
plan is contingent" on the Corps cooperating with Interior "in
the development of a program to preserve the remaining high
quality wildlife habitat." He noted that the "Arkansas Game
and Fish Commission has withdrawn its support for the project
and has entered as a plaintiff in the legal action aimed at halting
project construction." 194
In his April 28, 1972, reply, Lieutenant General F. J. Clarke,
Hearings, part 6, pp. 2895-2898.
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688 LEGAL COMPILATION—SUPPLEMENT n
Chief of Engineers, reminded the Interior Department that the
BSF&W itself, in a report dated December 21, 1972, "recom-
mended" to the Corps the acquisition of about 28,900 acres. He
said that the Corps' September 1971 mitigation plan "is es-
sentially the plan" proposed by the BSF&W in 1970.195
Unfortunately, General Clarke's comments do not reveal the
entire story. The BSF&W commented on this project in 1953,
1959 and 1969, as well as in 1970. In June 1968, the Corps'
District Engineer in Memphis, Tennessee, rejected the BSF&W
recommendation for a diversion canal to divert floodflows from
the Cache River to Bayou DeView. However, he stated, the Corps
"would be pleased to consider other modification, or mitigation,
measures, which are compatible" with the project's "purpose of
drainage and flood control and would be acceptable to local in-
terests." Thus, the BSF&W, in its "advisory" capacity, which
places it at the mercy of the Corps and "local interests," pointed
out in June 1969 that "land clearing has proceeded at a more
rapid rate" than the Corps or the BSF&W "anticipated" in 1959
and implored that "effective means" of mitigating fish and wild-
life losses be "explored."
On December 21, 1970—18 months later and 20 years after
project authorization—the BSF&W, in a letter to the Corps'
District Engineer in Memphis, Tennessee, recommended nine
mitigation measures including the acquisition of lands. One of
the nine measures was that:
5. No project funds be applied to construction work
or structural features for flood control and drainage
before fish and wildlife mitigation lands have been ac-
quired or until eminent domain proceedings have been
filed.
In commenting on its recommendation, the Bureau expressed
considerable alarm about the delays usually inhibiting the achieve-
ment of mitigation measures. The Bureau said:
We are concerned that the minimum time schedule re-
quired for obtaining modification of the project author-
ity and the ultimate appropriation of necessary funds
could entail a period of several years. In the interim,
existing suitable forested lands that should be acquired
to mitigate fish and wildlife losses may be cleared or
altered, so that they will no longer be suitable or avail-
able for fish and wildlife conservation purposes. There-
fore, if mitigation is to be effective, urgency is essential
185 Hearings, part 5, p. 2899.
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WATER—GUIDELINES AND REPORTS 689
in securing authorizing legislation and in placing a clos-
ing order on the desired tracts to halt further land
clearing.
*******
The results of past efforts to preserve these resources
have been disappointing. Even in those cases where fish
and wildlife mitigation was included in the project
authorization, action had been delayed to the point
where it became impossible or impractical to acquire the
necessary lands. A major concern, in seeking authoriza-
tion for mitigation, is to develop a procedure whereby
implementation can be assured in a timely manner.
On December 7,1970, the Arkansas Game and Fish Commission
wrote to the BSF&W "that when and if fish, wildlife and en-
vironmental losses are mitigated at project expense and are
funded by Congress concurrently with or before the construc-
tion aspects, then the Commission will drop its opposition" to
the project.
In his March 28, 1972, letter to the Corps, Acting Assistant
Secretary of the Interior Bohlen made a similar plea for urgent
action on mitigation measures. He said:196
The fish and wildlife resources in the Cache River
Basin are of national significance and accomplishment
of the mitigation plan should be assured and funded
prior to initation of channelization work. (Italic in orig-
inal.)
The Corps, however, was not swayed by this argument. General
Clarke replied on April 28, 1972, as follows:197
In regard to your recommendation that the mitigation
plan be assured and funded prior to initiation of con-
struction, our plans to initiate and complete the first
item of work while the mitigation report is undergoing
the review, authorization, and funding process were
clearly presented at the public hearing held in con-
nection with the mitigation report on 24 March 1971.
Construction funds for this project were first made
available by the Congress in fiscal year 1971; additional
funds were provided in fiscal year 1972; and further
funding is included in the President's budget for fiscal
year 1973. Since the first item of work can be prosecuted
without effect on the mitigation plan, there is ample
196 Hearings, part B, p. 2897.
m Hearings, part B, p. 2900.
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690 LEGAL COMPILATION—SUPPLEMENT n
opportunity for the Congress to consider my recom-
mendations. If and when the mitigation plan is author-
ized and funded by the Congress, we shall prosecute this
plan in the same timely manner as we will prosecute the
work already authorized.
In EDF v. Froehlke, supra (at pp. 351, 352), the court, in
considering the adequacy of the Corps' environmental impact
statement on the Cache River project, said in December 1972:
* * * Responsible critics of the project have urged
that no project be initiated until a mitigation plan is
actually put into effect in order to prevent easily avoid-
able environmental losses. They state that following the
commencement of construction, it will become difficult—
if not impossible—to acquire suitable land for mitiga-
tion because of increased property values and the con-
tinued clearing of land for cultivation. Thus, in their
view, any mitigation proposal is inextricably linked to
the project itself. Such a view is not clearly without
merit.
Yet the Corps has provided no evaluation or analysis
of the costs and benefits of delayed construction. This
failure is contrary to the guidelines of the CEQ which
states:
"* * * Sufficient analysis of such alternatives and
their costs and impact on the environment should ac-
company the proposed action through the agency review
*******
process in order not to foreclose prematurely options
which might have less detrimental effects."
*******
Here, neither agency decision-makers, such as the
Chief of Engineers or the Secretary of the Army, nor
the Congress were presented in the impact study with
sufficient information to make an intelligent decision
about proceeding with the project or awaiting the ef-
fectuation of a mitigation plan. Thus, the statement did
not insure that the option of mitigation would not be
prematurely foreclosed.
In addition, we see no practical reason why the Corps
could not have included in its final impact study a
thorough exploration of the possibility of mitigation in
order to give decision-makers an opportunity to consider
the possibility of delaying construction until a mitigation
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WATER—GUIDELINES AND REPORTS 691
plan was put into effect. There is no suggestion that
speed is of the essence in this project. It has already
waited approximately twenty-five years. Furthermore,
mitigation measures have been suggested by government
agencies, at least since 1959. This is not a case where
a previously unthought of or implausible alternative sud-
denly becomes practical because of the development of
new sources of information or new technology. (Foot-
notes omitted.) (Italic supplied.)
The Corps submitted its proposed mitigation plan to Congress
which, in the flood control bill of 1972 (S. 4018), modified and
expanded it to provide for acquisition by fee or easement "of not
less than 70,000 acres for mitigation lands." The bill was pocket
vetoed by President Nixon on October 27, 1972, for reasons un-
related to this project. On February 1, 1973, the Senate passed a
new bill (S. 606) which included the mitigation measure. The
House will probably support this mitigation measure again. How-
ever, some of the States in the Mississippi flyway which filed
amicus briefs in EDF v. Froehlke opposing the project have
indicated concern that even with this mitigation the project will
gravely affect migratory waterfowl.
The Committee believes that these long delays are contrary to
the spirit and intent, and the plain language, of the Fish and
Wildlife Coordination Act.
Mr. Edward Lee Rogers, General Counsel of the Environ-
mental Defense Fund, noted in his testimony "that the Corps
has traditionally taken the position that it cannot acquire lands
for mitigation purposes without specific authorization" by the
Congress "for that purpose," in projects authorized prior to the
1958 amendments to the Coordination Act. However, he stated
that he believed the Corps was in error as a matter of law. He
pointed out that the Solicitor of the Interior Department, in
Opinion M-36643 dated December 18, 1962 (69 I.D. 224), ruled
that section 3(c) of the Coordination Act provides ample au-
thority "to acquire lands for fish and wildlife purposes in con-
nection with previously authorized projects." The Solicitor's opin-
ion noted that the Corps "would still be required to seek an
appropriation to acquire such lands." The opinion noted that any
construction agency might, however, decide in individual cases to
"recommend the acquisition to Congress rather than" using this
authority.198
Subsequently, on November 15, 1967, Secretary of the In-
198 Hearings, part 6, pp. 3339-3340. The opinion was transmitted to the Corps on February
19, 1963, but the Corps declined to accept the Solicitor's view of the law.
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692 LEGAL COMPILATION—SUPPLEMENT n
terior Stewart L. Udall transmitted a copy of the Solicitor's 1962
Opinion to the Attorney General and requested that he rule
"as soon as possible" on the matter. In his letter, Secretary Udall
noted:
It should be noted that the Bureau of Reclamation,
pursuant to Solicitor Barry's opinion, has used this
authority to acquire lands for several projects. For ex-
ample, the Bureau has acquired or is planning to acquire
over 90,000 acres at two projects—the Yellowtail project
in Wyoming and the Columbia Basin. Also, in connection
with the construction of the Cibola Channelization, in
Arizona, as part of the Colorado River Front Work and
Levee System, the Department recently requested the
institution of condemnation proceedings, citing the Fish
and Wildlife Coordination Act as authority, and Dec-
larations of Taking have been filed. (See United
States of America v. 436.06 acres of land, more or less,
in the County of Yuma, State of Arizona, Robert H.
Bishop, et al.; and United States of America v. 151.99
acres of land, more or less, in the County of Yuma, State
of Arizona, Dean H. Moore, et al.)
Unfortunately, the Justice Department delayed acting on In-
terior's request, After almost two years had elapsed, the In-
terior Department's Solicitor, Mitchell Melich, wrote to the At-
torney General on August 4, 1969, calling attention to the 1967
request for the Attorney General's opinion and noting that no
reply "has ever been received." He must, however, have been
quite chagrined when he received an August 14, 1969, reply
from Assistant Attorney General William H. Rehnquist, as fol-
lows:
This will confirm the conversation of August 8, 1969,
in which Mr. Vaughan, Assistant Solicitor, Fish and
Wildlife, told Mr. Sellery of this Office that your letter
of August 4, 1969 (your file reference 19147.2594),
should be deemed to be withdrawn. Your letter referred
to the absence of a reply to former Secretary UdalPs
request of November 15, 1967, for an opinion on § 3(c)
of the Fish and Wildlife Coordination Act, as amended,
16 U.S.C. 663 (c). Mr. Sellery told Mr. Vaughan that
we have in our files an internal memorandum of January
7, 1969, stating that a few days earlier former Solicitor
Weinberg informally advised former Deputy Assistant
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WATER—GUIDELINES AND REPORTS 693
Attorney General Richman of this Office that the 1967
request should be deemed to have been withdrawn.
The Subcommittee has not yet learned why the Solicitor's
office withdrew the request in early 1969. It certainly is not
because the problem had been resolved, because it hasn't.
The lack of a definitive ruling on this issue is even more
appalling, in the light of the following comment by Interior
Secretary Udall in his 1967 letter to the Attorney General:
There is pending before the Committee on Merchant
Marine and Fisheries of the House of Representatives a
bill, H.R. 7638, which is designed to resolve this issue.
Since the matter is a legal one, we believe that it is best
to resolve it within the executive branch. Accordingly,
we have asked the Committee to refrain from taking
any action on the bill this session of the 90th Congress
pending your review and opinion.
In light of the language and legislative history of section 3(c)
of the Coordination Act, it appears that the Interior Depart-
ment's view of this section is legally sound. Particularly is this
so in view of the National Environmental Policy Act of 1969
which declares that it is the Nation's policy "to use all practi-
cable means and measures" to protect and enhance our environ-
ment. Mitigation is within that declaration, as noted by the
court in Sierra, Club v. Froehlke, supra. The court said: "NEPA
states indirectly, but affirmatively, that under some circum-
stances Federal agencies must mitigate some and possibly all of
the environmental impacts arising from a proposed project."
Moreover, in view of today's skyrocketing land acquisition
costs, and considering the time it takes to process a proposal to
authorize land acquisition through the Office of Management and
Budget and the Congress, it is wiser policy for the Corps to seek
ways to save Federal funds and wildlife by acting expeditously.
The mitigation of fish and wildlife losses in the Cache River
project still remains only a gleam in the bureaucratic eye because
the planned measures are a small part of the larger flood con-
trol bill that has been caught up in other unrelated problems.
Even after the bill is enacted, more time will pass before funds
are appropriated to implement it. If the Corps had been willing
to adopt the view of the Interior Department's Solicitor, parti-
cularly since NEPA, the mitigation measures for the project
might have been closer to reality today.
The Committee notes, furthermore, that the Corps follows a
complicated and time consuming "general procedure" before rec-
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694 LEGAL COMPILATION—SUPPLEMENT n
ommending to Congress that mitigation lands be acquired at
"previously authorized" Corps projects. That procedure con-
tributes to the delay and, most importantly, places on the BSF&W
the entire burden of justifying the land acquisition. The pro-
cedure is as follows: 199
a. The Fish and Wildlife Service will be requested to pre-
pare a plan of wildlife management for the project with
particular reference to the lands needed, with support in
detail, including benefits expected and method of accomplish-
ment of the objectives.
b. After receipt of the Fish and Wildlife Service report by
the Chief of Engineers, a meeting of Fish and Wildlife Serv-
ice and Corps representatives with interested Congressmen
and Senators will be arranged.
c. The views of the Governor and the head of the State
agency exercising administration over the wildlife resources
will be obtained.
d. A public hearing in the vicinity of the project will then
be held jointly by the District Engineer, and the Fish and
Wildlife Service, at which the latter will present and support
its plan before the public.
e. // it is decided to proceed with the wildlife plan after
the hearing, a report will be prepared for this purpose by
the District Engineer and include detailed information and
recommendations upon which the authorization is to be
based. Supporting data, including the report of the Fish and
Wildlife Service, will be included in the appendices. The
Chief of Engineers will process the report to Congress.
(Italic supplied.)
The Committee is concerned about the Corps' lack of prompt-
ness in providing for, and carrying out, measures to mitigate
fish and wildlife losses on a timely basis. This lackadaisical drift-
ing deals the taxpayer a double blow. First, it results in in-
creased costs of land acquisition. Second, it causes additional and
irreplaceable losses of wildlife habitat. In the latter case, funds
from other Federal and State wildlife programs must often be
diverted to compensate at least partially for these unnecessary
losses.
As time passes, the matter will, of course, become less import-
ant because there will be fewer uncompleted projects whose au-
thorization antedated the 1958 Act. Nevertheless, the Corps should
199 Source: Corps' Regulation No. 1120-2-401 of August 14, 1970, appendix I. This regulation
has never been published in the Federal Register or gone through the rulemaking procedures
of the Administrative Procedure Act, supra.
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WATER—GUIDELINES AND REPORTS 695
endeavor to minimize the inevitable cost increases for such proj-
ects by more expeditiously developing mitigation measures to
conserve and protect wildlife habitat. This is certainly the pur-
pose and authority of the Coordination Act.
When land acquisition for mitigation purposes is required, it
should be carried out before or concurrently with project con-
struction. Once actual construction begins, fish and wildlife are
displaced. Congress should not be asked to authorize such acquisi-
tion and then find that because of the Corps' delay in utilizing
the authority, speculation and land clearing have imperiled the
congressional efforts and intent. Moreover, the Corps, which is
prompt in acquiring project lands in order to begin construction,
should not be less diligent in acquiring mitigation lands. Clearly,
the acquisition of mitigation lands deserves a greater priority in
the Corps' project activities.
It is sad that the executive branch has not made more diligent
efforts to resolve this issue. It is, furthermore, rather absurd thai
one Federal water-resource development agency (the Bureau of
Reclamation) has interpreted section 3(c) of the Coordination
Act as allowing it to acquire mitigation lands at its projects
which were authorized before August 1958 without having to go
to Congress for a separate specific authorization of such acquisi-
tion, while another Federal agency (the Corps) follows the op-
posite interpretation. Such a result is hardly in the public inter-
est, especially since Congress has apparently not objected to the
interpretation followed by the Bureau of Reclamation.
The Committee therefore recommends as follows:
The appropriate committee of the House of Representatives
should consider clarifying section 3(c) of the Fish and Wildlife
Coordination Act to insure that water resource development
agencies can acquire in a timely fashion mitigation lands and
interests therein without further authorization by Congress, but
subject to obtaining an appropriation for such acquisition.
XIII. THE SCS'S STARKWEATHER PROJECT IN NORTH
DAKOTA WILL DRAIN SIGNIFICANT WETLAND ACRE-
AGE
A. THE COMPROMISES INHERENT IN REPORTING TO FISH AND
WILDLIFE MITIGATION MEASURES HAVE NOT WORKED EFFECTIVELY
The BSF&W has, until recently, often been reluctant to air its
professional displeasure with some channelization projects, and,
in some cases, has been content to enter into compromises that
have later proven environmentally unsound.
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696 LEGAL COMPILATION—SUPPLEMENT n
Earlier this year, the Subcommittee asked the SCS and the
Interior Department about the extent to which the term "mitiga-
tion measures" has become a "euphemism for compromise" on
the adverse environmental consequences of many channelization
projects.200 The Interior Department candidly admitted that any
such measure is a compromise, saying: "The ideal objective
should be to prevent damages, or at least compensate for all
project losses." 201 The SCS, however, sought to redefine the term
"mitigation." That agency said:202
The term "mitigation" has come to have different
meanings to different people. To the Soil Conservation
Service in watershed projects it means a lessening, soft-
ening, or amelioration of a loss of fish and wildlife
habitat. It may take various forms such as full or partial
preservation, and full or partial replacement in kind or
compensation. Precise results are difficult to achieve
through "replacement" type measures because they are
based on estimates and because the physical opportuni-
ties for replacement are often limited. We believe, how-
ever, that overcompensation is achieved about as often
as undercompensation.
The NEPA concept of minimizing adverse effects pro-
vides the means of clarifying some of the misunder-
standings concerning mitigation measures. What were
formerly considered "mitigation measures" now are
planned features of the project taking all resource im-
pacts into account. It is our policy to add more such
features to the extent that they provide reasonably
feasible solutions to reduce losses still remaining. All
losses and gains expected from the project as planned
are then described in our environmental statements.
(Italic supplied.)
One highly controversial example of "compromise" or "amelio-
ration of a loss of fish and wildlife habitat" is the SCS Stark-
weather project involving 246,000 acres near Devils Lake, North
Dakota, in the heart of the prairie pothole country, which pro-
duces an estimated 65,000 waterfowl annually, not including
coots and rails.
The project involves over 60 miles of channel construction, as-
sorted land treatment measures, and a control structure on Dry
Lake, and will "pull the plug" on both the Starkweather and
200 Hearings, part 5, p. 2800.
201 Hearings, part 5, p. 2817.
202 Hearings, part B, p. 2859.
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WATER—GUIDELINES AND REPORTS 697
the adjoining Edmore watersheds which include thousands of
acres of potholes.
For years, the BSF&W has opposed this project, unless it "in-
cluded the preservation of 15% of the type 3, 4, and 5 wetland
acreage" in the Starkweather and Edmore watersheds.203 In
July 1969 the BSF&W, in its comments on SCS's proposed work
plan, said the plan "is entirely unsatisfactory and is totally lack-
ing in conception of the essentials of wetland preservation and
compensation." The Bureau estimated that the project will cause
waterfowl production to "decline by at least 60 percent." 204 Dep-
uty Assistant Secretary of the Interior J. G. Watt, in an October
6, 1969 letter to the Secretary of Agriculture, recommended that
the plan be "returned" to the SCS State Conservationist in
North Dakota "for revision and reevaluation".
The difference between the two agencies' views is illustrated,
also, by the wide discrepancy between the SCS and BSF&W
estimates of wetlands affected.205
Unable to persuade SCS, the BSF&W finally agreed on January
19, 1970, to a compromise with the SCS and the project sponsors,
and on June 22, 1970, agreed to the plan as revised to reflect
the compromise agreement. However, the compromise did not in-
volve a reduction in channelization or restrictions on the con-
struction of drainage outlets. Instead, it was a vague and ambig-
uous agreement for the purchase of wetlands by the BSF&W in
fee and easement.
Mr. Laurence R. Jahn, Vice President of the Wildlife Manage-
ment Institute, testified that there was no opportunity "for full
public participation or review" of the agreement before it was
signed; that the North Dakota Game and Fish Department "re-
fused" to sign it; that "wetland preservation goals" for the area
"have been continuously adjusted downward"; that "through all
the negotiations and compromises, the 13,500 acres" originally
supposed to be preserved "finally became equivalent rather than
actual acres"; and that the "anticipated" loss of wetlands will
be about "55,000 acres." In addition, he stated:206
The loss of 55,000 wetland acres can never be com-
pensated for in this project, except in a very limited
manner. The work plan does not provide for it and the
^'For a description of wetlands types 1 through 5, see Hearings, part 3, p. 1987.
204 Hearings, part 5, p. 3044.
205 The SCS estimates are (Hearings, part 6, p. 2862): Wetlands affected—Type 3—246 acres,
Type 4—988 acres. Type 5—7000 acres.
The BSF&W estimates are (Hearings, part 5, p. 2820): Starkwater: Type 1, 6,000. Types 3
and 4—18,500, Type 5—7,000. Edmore Watershed: Type 1—5,000, Types 3 and 4—26,000, Type
5—8,000.
*" Hearings, part 5, pp. 3689, 3690.
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698 LEGAL COMPILATION—SUPPLEMENT n
local people have agreed to accept only limited mitiga-
tion. During project negotiations for wetlands preserva-
tion the Sweetwater-Dry Lake management district was
involved in the following activities from 1965 on:
1. It spearheaded resolutions asking the Bureau
of Sport Fisheries and Wildlife to discontinue op-
position to drainage in the Devils Lake Basin.
2. Advised people not to sign easements or sell
wetlands for wildlife over KOLR Radio Station,
Devils Lake.
3. Wrote letters to Senator Burdick accusing the
Bureau of Sport Fisheries and Wildlife of defeating
a local drainage project.
4. Sent a letter to then Secretary Udall with an
attached resolution accusing the Bureau of Sport
Fisheries and Wildlife of using devious means to
obtain easements.
5. Released news articles in the Devils Lake
"Journal" opposing wetland acquisition.
6. Opposed extension of the wetland program.
7. Released news articles in the Devils Lake
"Journal" calling for lower wetland standards in
the Starkweather watershed.
In March 1972, the Interior Department said it could "make
no defense" of the Starkweather project from the standpoint of
"environmental soundness." 207 In its statements to the Subcom-
mittee, the Interior Department commented on the agreement
as follows:20S
The original goal was to preserve or compensate for
75 percent of the existing acreage of types 3 and 4 wet-
lands in the watershed. Preservation terms ultimately
accepted by the BSFW were significantly less than
waterfowl biologists desired. Because of biopolitical
pressure, however, the BSFW agreed to major com-
promises in the Starkweather project which allowed
wetland acquisition to proceed in other parts of North
Dakota.
It is our belief that the project should not proceed
as currently planned. (Italic supplied.)
297 Hearings, part 5, p. 2801.
208 Hearings, part 5, pp. 2819-2821.
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WATER—GUIDELINES AND REPORTS 699
In short, the agreement was a trade-off. The Bureau aban-
doned its efforts to protect wetlands in the Starkweather area in
order to obtain the consent of the Governor (then Governor
William L. Guy) to allow BSF&W to acquire lands in North
Dakota, pursuant to 16 U.S.C. 715k-5, which in 1961, authorized
purchase of wetlands for migratory birds with moneys from the
migratory bird conservation fund only if "the acquisition
thereof has been approved by the Governor of the State".
The Governor strongly supported the Starkweather project,
and wanted it built. Six months before entering into the January
1970 agreement with the SCS, the BSF&W Regional Director,
in a July 1, 1969, memorandum to the BSF&W Director, said
"it would be desirable for the Secretary of the Interior to meet
with the Governor of North Dakota to propose a means of re-
solving the Starkweather controversy." A by-product of any such
resolution "would be to persuade the Governor to lift his morator-
ium on the purchase of wetlands." The Regional Director noted
that "the Governor has 37 fee-purchase options on his desk cover-
ing 3,506.52 acres" outside the Starkweather area which "were
sent to him" by the Bureau in April, May, and June 1969, and
that the Governor "has not approved these options." Of the 37,
only one was opposed by local county commissioners. The Re-
gional Director enclosed a copy of a draft letter he was going
to send to the Governor in which he referred to his May 7, 1969,
meeting with the Governor and said:
Although you cautioned us of the possibility of a mora-
torium on your approval of Federal wetland purchases,
it was my impression that such action could be a pos-
sibility only after we could examine with you alterna-
tive solutions and then only if there was failure to
agree on a mutually acceptable solution.
Thus, the former Governor moved from a threat in May 1969
of a moratorium on acquisitions of the fast-dwindling wetlands
to an actual moratorium in July 1969 to pressure the BSF&W
into an accommodation for Starkweather. This is certainly a
misuse of the 1961 law giving the Governor veto power over Fed-
eral wetland acquisitions. When the veto provision was added in
1961, national concern for wetlands was not as great as it is to-
day. There was, at that time, particularly in the Dakotas where
most of the wetlands are, a greater concern that too much land
would be taken off local tax rolls.208a Thus, the States were given
an opportunity to review each acquisition with local officials and,
M8» House Report 90-359, June 13, 1967, p. 7.
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700 LEGAL COMPILATION—SUPPLEMENT n
in appropriate cases, to veto the acquisition. The veto provision
was not intended as a club to bludgeon the BSF&W into aban-
doning its opposition to Federal projects that would be detri-
mental to the purposes of the 1961 law.
The Committee therefore recommends as follows:
The appropriate committee of the House of Representatives
should give consideration to repealing the veto provisions of sec-
tion 3 of Public Law 87-838, as amended (16 U.S.C. 715k-5), or
amending them to allow the Governor or the appropriate State
agency 30 days to disapprove acquisition of any particular tract
of land recommended by the Bureau of Sport Fisheries and
Wildlife.
In May 1972, the Bureau's Regional Director, Mr. Travis S.
Roberts, wrote to Governor Guy informing him that the
BSF&W had "achieved its share of wetlands acquisition goal"
within the Starkweather project as specified in the revised plan
agreed upon in October 1971 between Assistant Secretary of the
Interior Bohlen, the BSF&W and the Governor.209 Mr. Roberts
then said: 21°
On behalf of the Bureau of Sport Fisheries and Wild-
life and the Department of the Interior, I wish to ex-
press our appreciation for your patience and assistance
in helping to achieve the mutual goals of wetland pro-
tection in the watershed. In addition, your approval
of land purchases elsewhere in North Dakota during
this period has been very much appreciated. (Italic sup-
plied.)211
From an environmental standpoint, it is quite apparent that
the 1970 compromise agreement and its 1971 revision were ill-
advised. On more than one occasion this Committee and the
Committee on Merchant Marine and Fisheries have urged that
the BSF&W follow its professional judgments and refrain from
making compromises that are unsound environmentally. BSF&W
209 In October 1971, the agrreement was modified, pursuant to an "understanding" reached
with the Governor of North Dakota, (a) "that the Bureau of Sport Fisheries and Wildlife could
acquire land along legal subdivision lines, and of whole ownerships where necessary, W
facilitate purchase of land which the owner would not sell in small or 'odd lots' " ; and (b)
"that one-to-one credit (i.e., 1 acre credited toward the total goal for each acre purchased)
would be granted for all acres acquired, including those areas which are of no particular value
to waterfowl but which are acquired to block out an ownership." This was the so-called
"equivalent" agreement referred to by Mr. Jahn. (P. 122, supra.)
210 Hearings, part 5, p. 3048.
312 The 1961 wetland acquisition goals of the BSF&W for North Dakota were to acquire about
1.7 million acres in fee and easement. As of June 30, 1973, the BSF&W had acquired about
650,000 acres in easement and about 175,000 acres in fee. The BSF&W estimates that over
200,000 acres in North Dakota have been drained since 1961.
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WATER—GUIDELINES AND REPORTS 701
still contends that "all wetlands" within the Starkweather and
Edmore watersheds, regardless of type, will be affected "directly
or indirectly." This amounts to about 56,000 wetland acres which
will be "unprotected and subject to destruction" when the proj-
ect is installed, while about 12,500 acres of wetlands "under
Federal and local sponsor control in both watersheds will be
protected." 212 Thus, for about every acre of wetlands protected
in the watershed about 4.5 acres will probably be destroyed.
This is hardly a sound compromise.
But the SCS was also a party to this agreement. It had long
been eager to see the work plan approved and construction be-
gun. In the sixties, the Federal Government's wildlife experts saw
danger in the project for wildlife. They communicated their
views to the SCS, the local sponsors, and others. Yet the SCS
made little effort to investigate this danger. Bent on work plan
approval, SCS rushed it to completion.
Prior to the 1970 compromise, the BSF&W complained about
the SCS efforts to steamroll the project into fruition. The BSF&W
stated:213
Until early 1969, project planning proceeded at a
normal pace with adequate communication among all
concerned agencies and interests. On March 26, 1969, a
planning progress meeting of representatives of proj-
ect sponsors, the Soil Conservation Service, the North
Dakota Game and Fish Department, and the Bureau
of Sport Fisheries and Wildlife was held in Devils Lake,
N. Dak. Definite channel routes for major drainage
ditches in the benefited area were specifically identified
for the first time. The Bureau was led to believe that
planning would be delayed until the project sponsors
could resolve wildlife preservation problems. Accord-
ingly the preparation of a detailed report on fish and
wildlife resources by the Fish and Wildlife Service was
delayed with the understanding that the Soil Conserva-
tion Service would help resolve apparent differences on
a local level. In July 1969, however, a meeting was
called [by SCS] on short notice to review a draft
work plan for Starkweather watershed. Clearly, final
watershed planning had proceeded without benefit of
adequate interagency coordination. Following this meet-
ing, the Bureau completed its report entitled "A Detailed
m Hearings, part 6, p. 2820.
213 Hearings, part 5, pp. 3041-3042.
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702 LEGAL COMPILATION—SUPPLEMENT 11
Report on Fish and Wildlife Resources," hereafter re-
It was not until July 25, 1969, that the Detailed
Report could be submitted to the North Dakota State
conservationist of the Soil Conservation Service. By that
time, the draft work plan already had been approved
by project sponsors and submitted to higher authority
for review. In essence, the work plan for Starkweather
watershed was developed without the benefit of a re-
porting effort from the Department of the Interior in
accordance with the intent of section 12 of the Water-
shed Protection and Flood Prevention Act (68 Stat.
666; 16 U.S.C. 1001 et seq.), as amended.
Then, in a marathon negotiation session on January 19, 1970,
under the glare of TV cameras, SCS participated in a wetlands
compromise or tradeoff that was later roundly criticized by the
BSF&W professionals and others. In short, the SCS succumbed
to pressures by the local sponsors of the project, tossed caution
to the wind, and joined with BSF&W in a deal that offered not
even half a loaf for wildlife protection.
When the Subcommittee questioned the SCS about the com-
promise, the SCS informed the Subcommittee that the work plan
and agreement "are the results of reasoned tradeoffs that will
provide a better future environment with project than without
project." 214
Assistant Secretary of the Interior Reed testified about the
compromise and the Department's current position on the project
at the March 1973 hearings as follows:215
Mr. REUSS. * * * Secretary Reed, has the Department
of Interior taken a position on the environmental con-
sequences of the proposed Starkweather channelization
project of the Soil Conservation Service in North Dakota?
Mr. REED. Several positions, Mr. Chairman. It can be
safely said that a number of years ago, because of the
political climate in the State of North Dakota, the Depart-
ment took one position.
Mr. REUSS. Which was ?
Mr. REED. Which was to go along with the project and
have a tradeoff, being able to acquire refuge lands and
other areas of North Dakota. North Dakota, as you know,
contains some of the most prized wetlands for the produc-
214 Hearings, part 5, p. 2863.
215 Hearings, part 5, pp. 2924-2925.
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WATER—GUIDELINES AND REPORTS 703
tion of waterfowl in the United States, if not the best in
the United States. The only place that comes close to it is
the pot-hole country of Canada.
When I came into office, I asked the Secretary very
promptly whether I was bound by decisions other As-
sistant Secretaries and Directors of the Bureau of Sport
Fisheries and Wildlife had made with the Governor of
North Dakota and was told "no"—that I was to use my
own judgment on all prior deals. And in good conscience,
after examining the entire proposal, I could not, on the
basis of competent biological advice, concur with the
recommendations of the Bureau in years gone by; and
I have so instructed the Bureau to notify the Soil Con-
servation Service. We are continuing our dialog relating
to a meeting that took place last week to incorporate many
of the genuine concerns of many other States downstream
of North Dakota who share in the bounty of the water-
fowl that come out of that State.
Mr. REUSS. The Bureau is under your jurisdicion?
Mr. REED. Yes, sir.
Mr. REUSS. They have obeyed your instructions?
Mr. REED. Yes, sir.
Mr. REUSS. And conveyed the negative view of the In-
terior Department to the Soil Conservation Service?
Mr. REED. That is correct.
Mr. REUSS. In a nutshell—and at the risk of oversimpli-
fying—is one of the Department's objections the fact
that one of the indirect consequences of the project could
be the drying up of many thousands of areas of wetlands
which are valuable for the breeding and nesting of water-
fowl?
Mr. REED. Either drying up or a severe alteration so
they would no longer be of such extreme value to water-
fowl populations in North America. Those wetlands,
those pot hole areas, produce ducks that go into the cen-
tral United States and Mississippi and the Atlantic fly-
way. (Italic supplied.)
Mr. Reed obviously does not share the SCS view that the
1970 agreement was a "reasoned tradeoff that will provide a
better future environment."
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704 LEGAL COMPILATION—SUPPLEMENT n
B. ONLY AFTER SCS WAS REQUIRED To RESUBMIT ITS ENVIRON-
MENTAL IMPACT STATEMENT ON THE STARKWEATHER PROJECT
TO CEQ DID THE INTERIOR DEPARTMENT RECOGNIZE ITS EFFECTS
ON FISH AND WILDLIFE WETLANDS, AND THE DEPARTMENT
THEREAFTER REPUDIATED THE 1970 COMPROMISE
SCS made scarcely a perfunctory attempt to comply with the
requirements of NEPA, by filing, in April 1970, a draft impact
statement on the Starkweather project stating that since the
work plan "was approved prior to enactment" of NEPA, "no
draft environmental statement was prepared." Section 102 of
NEPA requires that SCS and other agencies, in preparing such
statements, shall "consult with and obtain the comments of any
Federal agency which has jurisdiction by law or special exper-
tise with respect to any environmental impact involved." The
SCS failed to "consult" with the BSF&W and, despite earlier
statements of the Bureau on the project's environmental im-
pact, the SCS concluded:216
Wetland preservation provision of the plan will in-
sure the preservation of the equivalent of 13,500 acres
of types 3, 4, and 5 wetlands habitat for wildlife use.
Project installation will not directly offset the remain-
ing approximately 4,000 acres of types 4 and 5 wetlands.
The potential exists, however, for local interests to ex-
tend the project works of improvement to drain those
wetlands acreages without Federal assistance.
Channel improvements will drain 345 acres of the
existing 18,000 acres of wetlands in the watershed.
More than 10,000 acres of semipermanent wetlands,
if not protected by easements against drainage, could
be lost through on-the-farm and group drainage, once
the primary laterals and major outlets are constructed.
Channel work will destroy about 105 acres of grass-
land that provides terrestrial cover which varies consid-
erably in type and quality, as well as quantity. In some
reaches there is only a narrow band of grass, and in
other reaches there may be small clumps of brush and
better permanent type cover.
Fortunately, the CEQ did not accept the SCS view of NEPA,
and on September 28, 1971, returned the SCS's final statement to
it, stating:217
21« Hearings, part 5, p. 3051.
217 Hearings, part 5, p. 3054.
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WATER—GUIDELINES AND REPORTS 705
Sections 7 and 10(b) of the Council's Revised Guide-
lines on the preparation of environmental impact state-
ments (pursuant to section 102(2) (C) of the National
Environmental Policy Act) call for the preparation and
circulation of draft statements for appropriate Federal,
State and local comment.
Your submission for a final environmental impact
statement for the Starkweather, North Dakota, project
appears to be not in conformity with this requirement
for the filing of a draft statement.
Your letter of transmittal indicates that the views of
other agencies were obtained during the plan review
process. However, there is no indication of when this
took place nor are the comments appended to the final
environmental impact statement as required by section
10(b) of the guidelines.
Unless the guidelines have been complied with, I sug-
gest you resubmit the Starkweather environmental im-
pact statement in draft form with distribution to the
relevant Federal, State, and local agencies and groups
for comment.
After SCS issued its new draft statement in August 1972,
the Interior Department criticized it extensively on December 4,
1972, ,and said that any reference to the 1970 "agreement" be-
tween SCS and BSF&W should be "deleted", and that the project
would result in "a net loss of wetlands and the related water-
fowl carrying capacity and production." 218
EPA, in its comments of February 5, 1973, called the project
"environmentally unsatisfactory." 219
Dr. Stanley M. Greenfield, Assistant Administrator of EPA,
Messrs. Berg and Davey of the SCS, and Assistant Secretary
of the Interior Reed, testified at the Subcommittee's 1973 hear-
ings as follows: 22°
Mr. REUSS. * * * Your comments—EPA's comments—
were negative, were they not, and indicated that the
Starkweather project could be an environmental disaster?
Dr. GREENFIELD. That is correct, Mr. Chairman.
* * * * *
Mr. REUSS. Well, now, Mr. Berg: Is it not a fact that
the Soil Conservation Service is going on as if nothing
218 Hearings, part 5, p. 3055.
!19 Hearings, part 5, p. 3071.
220 Hearings, part 5, pp. 2925-2928.
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706 LEGAL COMPILATION—SUPPLEMENT n
had happened, when even those two great agencies of
the Government—the Environmental Protection Agency
people and the Fish and Wildlife Service people—have
pronounced it a disaster? Despite these pronouncements,
SCS, for some reason known but to God, is going ahead.
Mr. BERG. Mr. Chairman, the project, although ap-
proved prior to January 1, 1970, has yet to have any
construction activity. It has a long history, as we do have
some excellent work that has been done cooperatively with
all of the concerned groups and the local sponsors of that
particular project to try to reach an agreement that will
satisfy the objections that have been raised by various
groups.
Mr. REUSS. Welcome, Mr. Davey. Would you tell us how
you are going to modify a project which is going to result
in the modification of thousands of acres of wetland and
the destruction of the finest waterfowl habitat on the
continental United States so that you can satisfy the
EPA on pollution and Interior on waterfowl protection?
Mr. DAVEY. * * * We attempted an environmental im-
pact statement which turned out to be rather weak,
particularly because we did not have much experience, or
even very much in the way of guidelines, at that stage
of the game.
We have developed a draft environmental impact
statement, to which EPA and Interior and other groups
have commented and expressed very much concern.
Mr. REUSS. Well, is that not the one which caused EPA
and Interior to say that your project is a disaster and
should be abandoned forthwith?
Mr. DAVEY. Yes, sir; they expressed many concerns.
Mr. REUSS. Why don't you abandon it?
Mr. DAVEY. Many of these concerns, we feel, can be
accommodated and some of them are based, in our
opinion, on differences of interpretation of the data. Most
of the watershed is already cropland now, and this is a
problem that most people do not seem to fully understand.
Mr. REUSS. Is that a reason for blocking up the
remaining bits of wetlands and wildlife habitat?
Mr. DAVEY. Well, in our judgment it will not. There
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WATER—GUIDELINES AND REPORTS 707
are, obviously, people who have other views on this but,
in our judgment, it will not blot out all of the rest of
these. Our meeting last week with Interior was to sur-
face the specific issues. What we have in mind doing is
issuing a revised draft environmental statement, which
we hope addresses these concerns. We would like to have
the input of the Bureau of Sport Fisheries and Wildlife,
EPA, and others in developing this revised statement.
* * * * *
Mr. BERG. Mr. Chairman, the watershed work plan
does state that: "There shall be no construction on Stark-
weather watershed project until all preservation methods
to compensate for wetland losses are fulfilled." There
have been dramatic advances made already in regard to
some of the things that need to be achieved.
Mr. REUSS. Is there lurking in the mind of the Soil
Conservation Service the hope that maybe Mr. Reed
and Dr. Greenfield will go away and that you will get
somebody else in their position who can be wooed into
saying "OK"?
Mr. BERG. No.
Mr. REED. * * * / think it will take more than bandaids
to fix this project up to make it—to recognize the tre-
mendous national involvement in this area. * * * the
waterfowl that come out of this area go to numerous
other States across many borders and many boundaries.
DR. GREENFIELD. I certainly agree with what Mr. Reed
says, and to add to it, I would just say that there are
significant potential water quality problems with this
project that you do not fix up very easily. You have down-
stream effects with which you must be concerned. If
you increase the velocity of these waters, and also in-
crease the use of the land around them, then you get
the pesticides and other chemicals flowing off. If you
take away the wetlands and their ability to purify the
water, and dump all of these waters quickly in the channel
and move it downstream, you are just pushing the pol-
lution problem further downstream, so it is difficult to
take care of the associated impacts.
In addition, if you consider just Starkweather, with-
out worrying about the rest of that drainage basin, then
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708 LEGAL COMPILATION—SUPPLEMENT n
you are also in trouble because the whole area is hydro-
logically connected—which gives rise to a whole series of
problems. (Italic supplied.)
The Committee also doubts that this project can "be fixed up"
merely by working up a new impact statement, or by applying
"bandaids" to patch it. It should be shelved until the wetlands
and water quality problems are resolved and then a new economic
analysis will be needed to see if the benefit-cost ratio supports
going ahead. As presently conceived, it should be abandoned.
On July 25, 1973, Under Secretary of the Interior John C.
Whitaker informed Secretary of Agriculture Butz that the
BSF&W and SCS met on May 30, but without any EPA repre-
sentatives, in an effort "to come to a meeting of the minds"
on making the project "environmentally sound." Noting that the
effort was not "fruitful," Under Secretary Whitaker said that
until a "full reevaluation" of the project occurs, "there is no
course open to us except to reiterate" the Interior Department's
opposition to the project "as currently proposed." In an August
16 reply, Secretary Butz said, without agreeing or disagreeing
on such a reevaluation, that SCS is "taking another look at the
many factors involved in this complex situation."
It would appear that future discussions concerning this project
should include representatives of EPA and State fish and wildlife
and water quality agencies, and that the public should be given
an opportunity to comment on any proposed agreement between
the agencies.
XIV. IN DECEMBER 1972, THE PRESIDENT TERMINATED
THE WATER BANK ACT PROGRAM, UNDER WHICH
LANDOWNERS RECEIVED INCENTIVE PAYMENTS TO
PRESERVE WETLANDS AND MIGRATORY WATER-
FOWL HABITAT. HIS ACTION WAS CONTRARY TO LAW
AND HAS BEEN REPUDIATED BY BOTH THE HOUSE
AND THE SENATE
On December 19, 1970, President Nixon approved the Water
Bank Act (16 U.S.C. 1301-1311) which authorized the SCS to
enter into 10-year agreements to make annual payments to land-
owners and operators in important migratory waterfowl nesting
and breeding areas for the conservation of types 3, 4, and 5 wet-
lands. On May 2, 1972, the SCS initiated payments under the
program, and, at the same time, the Agriculture Department
issued a final environmental impact statement which said:221
1 Hearings, part 5, pp. 3167-3168.
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WATER—GUIDELINES AND REPORTS 709
This program, will help prevent the serious loss of
wetlands in the Nation and thus conserve surface
waters; preserve nesting and breeding habitat for mi-
gratory waterfowl and other wildlife resources; reduce
runoff; reduce soil and wind erosion; 'contribute to flood
control; and retain natural water impoundments and
subsurface moisture.
The retention of wetlands will slow eutrophication of
lakes and streams benefiting future fisheries manage-
ment and water-based recreational pursuits. Wetlands
function as natural filters of soil particles and nu-
trients. Vegetation in wetlands filters out soil particles
and ties up nutrients such as phosphate, that otherwise
would end up in the lakes and streams. Phosphate is
the key nutrient involved in algae blooms, which create
aquatic nuisance problems in many lakes. Eutrophica-
tion will therefore be slowed when soil particles and
nutrients are retained in wetland basins. Also, type
IV and V wetlands directly associated with lakes func-
tion as important fish spawning areas, particularly for
northern pike. Retention of these wetlands will insure
maintenance of key fish spawning areas necessary to
maintain a quality sport fishery.
The payments under the program will result in an
economic stimulus to the participants and, in some in-
stances, those areas selected for the program to be
offered. The multiplier effect and the accumulation of
secondary effects are estimated to result in an eco-
nomic impact on the economy somewhat greater than
the total annual payments made under the program
agreements. Some of these benfits will accrue from the
improved recreational activities associated with stabi-
lized or increased production of migratory waterfowl
and other wildlife. The program will be of some eco-
nomic stimulus to local agricultural-related businesses
providing the services in carrying out the conserva-
tion measures under the agreement. (Italic supplied.)
The Interior Department, in its comments on an earlier draft
impact statement, wrote to the Administrator of the Agricultural
Stabilization and Conservation Service on April 17, 1972, about
the value of wetlands, as follows:222
It seems appropriate to add that retention of wetlands
23 Hearings, part 6, pp. 3159, 3160.
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710 LEGAL COMPILATION—SUPPLEMENT n
will slow eutrophication of lakes and streams. Wetlands
function as natural niters of soil particles and nutrients.
Phosphate is a key nutrient in aquatic nuisance prob-
lems in many lakes and retention of such nutrients that
would otherwise end up in lakes and streams will tend
to slow the eutrophication process.
The positive value wetlands provide in reducing algae
in lakes and streams is believed considerably greater
than recognized by the [impact] statement. The as-
sumption of algae production in wetlands as an ad-
verse effect of significance is incorrect. In wetlands
themselves, algae production is not a serious problem.
The favorable depth, soils, and periodic drying of natural
wetlands encourages the growth of many aquatic plants
that effectively compete. And algae and mosquitoes both
are important elements in the food chain that sup-
ports a variety of animal life.
Type IV and V wetlands directly associated with
lakes also function as. important fish spawning areas.
To maintain a quality sport fishery like northern pike,
for example, requires the retention of key wetland areas.
* # * * *
Wetlands actually have a relatively high rate of evapo-
transpiration and hence water loss. Where run off is
important, totals are reduced. Peak flows downstream
will probably also be lower downstream from a wetland
area than they would if the area were developed, but as
a result of increased surface storage rather than evapo-
transpiration. The effect of wetlands upon low flows
is complex, probably differing from area to area as well
as seasonally. Wetlands should decrease low flows during
periods of high evapotranspiration. During periods of
negligible evapotranspiration, the effect of such stor-
age will probably be to increase low flows.
* * # * *
Reference is again made to the questionable nature
of the adverse effect noted earlier for algae concentra-
tion and mosquitoes as a nuisance in retained wetlands.
Many times more favorable mosquito conditions are
caused by draining wetlands for other uses than by re-
taining them. The Aedes sp., which is most common
to the prairies, requires wet soils that are subjected to
temporary flooding. Favorable mosquito breeding condi-
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WATER—GUIDELINES AND REPORTS 711
tions many times are created when wetlands are drained
for agricultural use, but water still covers the basin
for short periods of time in the summer and increases
mosquito production. Therefore, retention of wetlands
may actually reduce potential mosquito problems and
this should be recognized as a positive value in the state-
ment.
On March 30, 1972, the SCS announced that 17 States would
participate in the new program in 1972. The program included
Cavalier and Ramsey Counties in North Dakota where the Stark-
weather project is located.223 Several months later, in October
1972, the SCS announced that 62 counties in 15 States—again
including Cavalier and Ramsey Counties—"would participate in
the 1973 water bank program which is aimed at helping pre-
serve waterfowl habitat in areas where it is rapidly disappear-
ing".
However, the F.Y. 1973 program never got started. On Decem-
ber 26, 1972, only two months after it was announced, the Presi-
dent terminated this program and "impounded" over $11 mil-
lion of the funds appropriated by Congress for the F.Y. 1973
program. This time, Secretary of Agriculture Earl L. Butz, in a
statement released to the press, labeled the program as "unneces-
sary since the Department of Interior administers similar pro-
grams to enhance and conserve migratory waterfowl".
But the Water Bank program was intended to supplement In-
terior's program, which has never been adequately funded, as
noted in the following colloquy at the Subcommittee's 1973
hearings: 224
Mr. REUSS. Are you not really giving the wetlands
and waterfowl interests a double whammy here? You
are completely cutting out the program to pay farmers
to preserve their wetlands and you are going full speed
ahead with the program to blot out further wetlands
which are very costly in taxpayers' dollars. How can you
justify your action ?
Mr. BERG. I cannot speak for the budget requests of the
Department of the Interior but I believe their program
is suggested for continuation. This activity in the De-
partment was always to be a supplement at a very low
level of financial output compared to their programs.
223 Hearings, part 5, p. 3152.
214 Hearings, part 5, p. 2936.
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712 LEGAL COMPILATION—SUPPLEMENT n
Mr. REUSS. Well, let me ask Mr. Reed: Is it not a fact
that the Interior Department's program is necessarily
quite an expensive land acquisition program; that it is
drastically underfunded; and that the beauty of the Agri-
culture Department's water bank program was that it
kept land ownership with the farmer and simply paid
him a modest fund to serve the public interest by keeping
it in wetlands ?
Mr. REED. It was an extremely useful tool combined
with the purchasing power of the duck stamp money,
an advance authorization of the Wetland Act authorized
by the Congress some years ago. They were good tools.
Testimony by SCS Associate Administrator Berg and by As-
sistant Secretary of the Interior Nathaniel Reed at the Sub-
committee's March 1973 hearings illustrates the downgrading of
environmental values implicit in the Administration's termina-
tion of the Water Bank program:225
Mr. MCCLOSKEY. * * *
Can you tell me why the Secretary terminated the
entire water bank program in December?
Mr. BERG. This program was new. It was operating in
its second year and it was determined, in evaluating sev-
eral programs that were of a lower priority, that this
was one that in the interest of holding down our financial
outlay, stopping the pressures on the Nation's economy
from this kind of work, and shifting the emphasis to
the farmer's ability to do this on his own, based on the
income that he is receiving in the market place; that this
was one program that could be borne by non-Federal
sources.
Mr. MCCLOSKEY. This is not just an impoundment mat-
ter; this is a matter where the Secretary terminated the
program entirely, is it not?
Mr. BERG. Yes.
* * * * *
The greater priority in this particular instance in
terms of the decision not to go forward with this pro-
gram was on the basis of concentrating on agricultural
programs that generate, rather than supplement, in-
comes; and it is on that basis that the actions taken on
December 28, 1972, were to terminate approvals of ap-
plications for benefits under this particular legislation.
225 Hearings, part 6, p. 2933.
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WATER—GUIDELINES AND REPORTS 713
Termination by executive fiat of programs established by Con-
gress is clearly contrary to the constitutional mandate that the
President "shall take care that the laws be faithfully executed".
In Youngstown Sheet & Tube Co. v. Saivyer, 343 U.S. 579, 587-
589 (1952), the Supreme Court stated:
In the framework of our Constitution, the President's
power to see that the laws are faithfully executed re-
futes the idea that he is to be a lawmaker. The Consti-
tution limits his functions to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad.
And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to
execute.
* * * * *
* * * The Constitution does not subject this lawmak-
ing power of Congress to Presidential * * * supervision
or control.
* * * * *
The Founders of this Nation entrusted the lawmaking
power to the Congress alone in both good and bad
times.
Congress enacted and the President approved the Water Bank
Act of 1970. It thus became the law of the land. Pursuant to the
President's budget requests for F.Y. 1972 and F.Y. 1973, the
Congress affirmed the program by appropriating $10 million to
fund it for each of those years. When the President terminated
the program in December 1972 by impounding the unobligated
funds (then amounting to $11,390,820 available in F.Y. 1973),
he attempted in effect to legislate the termination of the entire
program even though the Congress had not declared that it shall
end.
Judge William B. Jones, in Local 2677 v. Phillips, F.
Supp. (D.D.C., April 11, 1973), ruled that the President
lacks the constitutional power to terminate an entire program
enacted by Congress. He said:
Article I, section 1, of the Constitution vests "[a] 11
legislative powers" in the Congress. No budget message
of the President can alter that power and force the
Congress to act to preserve legislative programs from
extinction prior to the time Congress has declared that
they shall terminate, either by its action or inaction.
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714 LEGAL COMPILATION—SUPPLEMENT n
An authorization does not necessarily mean that a
program will continue. Congress, of course, may itself
decide to terminate a program before its authorization
has expired, either indirectly by failing to supply funds
through a continuing resolution or appropriation, or
by explicitly forbidding the further use of funds for
the programs, as it did in the case of the supersonic
transport. But Congress has not chosen either of these
courses, although it may in the future. Until that time,
historical precedent, logic, and the text of the Consti-
tution itself obligates the defendant to operate the * * *
programs as was intended by the Congress, and not
terminate them. (Footnotes omitted.)
Both the House and the Senate rejected the President's action,
when they acted on the Agriculture-Environmental and Con-
sumer Protection Appropriation bill for F.Y. 1974 (H.R. 8619).
The House Appropriations Committee stated in its report on the
bill (H. Kept. 93-275, p. 80; June 12, 1973):
The Committee directs that this [Water Bank Act]
program be reactivated and that the unobligated funds
in the amount of $11,390,820 available in fiscal year 1973,
which will carry over to fiscal year 1974, be used to
fund the program.
The bill was passed by the House on June 15, 1973 without
any change in this recommendation. The Senate Appropriations
Committee went even further. It recommended (S. Kept. 93-253,
p. 57; June 26, 1973) an additional $10 million, which with
the $11,390,820 of unobligated F.Y. 1973 funds, will provide a
"total program of $21,390,820" for F.Y. 1974. The Senate Ap-
propriations Committee explained its views as follows (pp. 57, 58):
The Committee recommends restoration of the Water
Bank Program which was one of the many significant
and highly beneficial programs terminated by unilateral
executive action in December of 1972. The Committee is
at a complete loss to understand or comprehend the ra-
tionale for terminating this program. While relatively
new and certainly modest in scope, it was nevertheless
a high priority program so far as Congress and the Na-
tion are concerned.
The reasons advanced by the Administration for ter-
minating this program are unconvincing and unrealistic,
and there appears to be some degree of confusion within
the Administration as to the relative merits of this
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WATER—GUIDELINES AND REPORTS 715
program. Less than three months following the an-
nouncements of its termination within the Department
of Agriculture the Environmental Protection Agency an-
nounced a new program for the protection and preserva-
tion of the Nation's wetlands. The Committee concurs
with a statement made by EPA Administrator Ruckel-
shaus at that time when he announced publicly that:
"Wetlands are unique recreational areas, high in
aesthetic value, that contain delicate and irreplaceable
specimens of fauna and flora and support fishing as well
as wild fowl and other hunting."
Congress obviously recognized these facts in establish-
ing the Water Bank Program. This Committee likewise
has recognized the facts in funding the program since
its inception. The Committee now calls upon the De-
partment to recognize these facts and to proceed with
administering this law pursuant to the legislative man-
dates of the Congress as contained in the authorizing
legislation and the recommendations of this Committee
in providing funds for this purpose.
The Senate passed the bill on June 28, 1973, in accordance
with the foregoing Committee recommendation, and on Septem-
ber 20, 1973, the House-Senate Conferees adopted the Senate
version (H. Kept. 93-520, p. 23).
The termination of the Water Bank program has aggravated
the problem of wetland drainage resulting from channelization
projects. While a resurrected Water Bank program will not, and
was never intended to, prevent the SCS or the Corps from carry-
ing out their channelization projects, it will help to preserve
many wetlands that might otherwise be drained. Such preserv-
tion of wetlands would most certainly be in the national interest.
XV. THE NATION'S FLOOD LOSSES CONTINUE TO IN-
CREASE DESPITE THE EXPENDITURE OF BILLIONS
OF DOLLARS SINCE 1936 TO CONSTRUCT FLOOD CON-
TROL STRUCTURES. INSUFFICIENT ATTENTION HAS
BEEN GIVEN TO REGULATING FLOOD PLAIN AREAS
IN ORDER TO REDUCE FLOOD LOSSES
On August 10, 1966, President Johnson transmitted to Congress
the report of a task force established to study Federal flood control
policy (supra, footnote 5). President Johnson noted that despite
expenditures of over $7 billion by the Federal Government in the
previous 30 years, the Nation's annual flood damage costs of
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716 LEGAL COMPILATION—SUPPLEMENT n
over $1 billion continued to increase. He stated: "The key to
resolving the problem lies, above all else, in the intelligent plan-
ning for the State and local regulation of use of lands exposed
to flood hazard." (P. III.)
The task force report gives some inkling as to why these
costs continue to mount. It states (pp. 9,11,14):
The major purpose of engineering projects is chang-
ing from the protection of established property to the
underwriting of new development. Increasingly, Federal
funds are used to support projects justified on the basis
of protection of lands for future use. This is illustrated
by the contrast in the benefit base between Corps of
Engineers projects authorized in the Flood Control
Act of 1941 and the Flood Control Act of 1965. A
similar trend is found in approved Soil Conservation
Service flood prevention and watershed protection
projects.
* * * * *
Studies of flood plain use show that some flood plain
encroachment is undertaken in ignorance of the hazard,
that some occurs in anticipation of further Federal pro-
tection, and that some takes place because it is profitable
for private owners even though it imposes heavy burdens
on society. Even if full information on flood hazard were
available to all owners of flood plain property (a serv-
ice now conspicuously lacking) there still would be
conscious decisions to build in areas where protection
has not been feasible, for the private owner may not
perceive the hazard in the same way as the hydrologist
and he does not expect to bear all the costs of his
use of hazardous property. Moreover, the chief en-
couragement he now receives under Federal programs
is the prospect for relief or future Federal protection.
Technical assistance in developing alternative ways of
dealing with flood losses, as by floodproofing, is not
provided. Consequently such means receive little atten-
tion. Similarly, alternative uses for flood plains are not
thoroughly canvassed.
The day President Johnson transmitted this report to Congress,
he also issued Executive Order 11296 of August 10, 1966 (3
CFR, 1966-1969 Comp., 571), which directs Federal agencies to
"provide leadership in encouraging a broad and unified effort to
prevent uneconomic uses and development of the Nation's flood
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WATER—GUIDELINES AND REPORTS 717
plains and, in particular, to lessen the risk of flood losses in
connection with * * * federally financed or supported improve-
ments." However, according to the National Water Commission's
report of June 1973,226 "this is not being done." In fact, guide-
lines for applying the 1966 Executive order were not developed
until the Water Resources Council issued its guidelines in April
1972.227
When the Subcommittee asked the construction agencies about
the extent to which each was complying with the Executive order,
the Bureau of Reclamation and the SCS rather vaguely responded
as follows:
The Bureau of Reclamation said:228
Reclamation is complying with Executive Order
11296. Where portions of the flood plain have been leased
to the public for marinas or golf courses, the major
facilities must be constructed so that they will not im-
pede flood flows or float downstream; removable facili-
ties must be removed upon notice of an impending flood;
bypass channels may be required; major structures are
restricted to areas as high or higher than the levees.
The SCS said:229
Where urban protection is an objective of a project,
our policy requires that it be planned to protect existing
residential, commercial and industrial parts of the urban
areas from at least the 100-year frequency flood. When
this objective cannot be met, care must be exercised to
assure that a false sense of security does not lead to
unwise development of the flood plain. In order to pre-
vent this, where the project will provide less than 100-
year frequency protection, we require that the work
plan shall include several provisions to prevent unwise
development. These provisions are:
(1) A thorough description of the remaining flood
hazard.
(2) A map showing the area expected to be flooded
by the 100-year event after the project is installed.
(3) Provision for the local sponsoring organization
to publicize, at least once annually, the nature and
extent of the hazards remaining in those areas subject
to flooding by the 100-year event.
226 Footnote 4, supra.
227 Water Resources Council, "Flood Hazard Evaluation Guidelines for Federal Executive
Agencies."
228 Hearings, Part 5, p. 2816.
220 Hearings, Part B, pp. 2854-2856.
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718 LEGAL COMPILATION—SUPPLEMENT n
(4) Provision for the sponsoring local organizatioi
to prevent, to the extent possible, reconstruction ana
development in the area subject to flooding by the 100-
year event.
In several cases where work plans for watershed
projects include protection for urban or urbanizing areas,
we have required that the work plans include provision
for flood plain land use controls. Our primary objective
in this requirement is to prevent reconstruction or devel-
opment in areas subject to flooding by the 100-year flood
and thereby preclude unwise, hazardous, and uneconomic
development of the urban flood plains.
The 1966 task force report, however, did stimulate enactment
of the National Flood Insurance Act of 1968 (42 U.S.C. 4001,
et seq.). Under this Act the Federal Government provides flood
insurance in cooperation with the private insurance industry.
Even more significantly, the Act has encouraged State and
local governments to adopt laws and ordinances restricting the
use and development of land exposed to flood hazard. As o''
August 31, 1973, 2,467 communities in all 50 States and Puerto
Rico had qualified for the flood insurance program by adopting
land use and control measures required by the Department of
Housing and Urban Development (24 CFR 1910, Subpart A)
pursuant to the National Flood Insurance Act. More than 282,000
policies, with almost $5 billion insurance coverage, are now in
force.
The scope of this Act would be substantially expanded by a
bill (H.R. 8449) passed by the House on September 5, 1973.
This bill, the Flood Disaster Protection Act of 1973, would not
only increase the existing limits of insurance coverage but also
prohibit any Federal "financial assistance for acquisition or con-
struction purposes" after December 31, 1973, for any area or
community having special flood hazards unless the building to
which the financial assistance relates is covered by flood insurance.
In addition, all banks and savings institutions regulated by the
Federal Government would have to require flood insurance on all
improved real estate in such areas as a condition to making loans
on property within flood hazard areas.
Other recent significant developments in tackling the problem
of flood damage were the publication of (a) the Water Resources
Council's 2 volume study entitled "Regulation of Flood Hazard
Areas to Reduce Flood Losses" (vol. 1, December 1971; vol. 2,
December 1972); and (b) the Corps of Engineers' detailed study
entitled "Flood Proofing Regulations" (June 1972), to provide
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WATER—GUIDELINES AND REPORTS 719
guidance to the public for developing flood proofing building
standards which could be adopted by State and local governments.
These excellent steps to help reduce the Nation's annual
flood damage bill herald the increasing shift from the former
reliance on the strictly structural techniques of building dams
and levees, and channelizing streams, to more diverse alterna-
tive methods for combating flood hazards. Much more study and
effort on these alternative methods is needed. The public today
is concerned as much about environmental damages as about
floods. The day has come for requiring that prevention or maxi-
mum reduction of both environmental damages and further de-
velopment within a flood prone area be assured before a water
resource project is constructed within it. In many cases, the
use of nonengineering alternatives for reducing flood damages,
such as the strict regulation of flood plain development, flood
insurance, etc., will make unnecessary the construction of dams,
levees and channelized streambeds which inflict substantial en-
vironmental damages.
The Fourth Annual Report of the CEQ (September 1973),
which noted (p. 313) that flood losses "now amount to a national
average of almost $2 billion annually," has stressed the impor-
tance of these alternatives as follows (p. 314):
There can be little question, however, that there
are many locations where millions of dollars could be
saved by locating high-value industrial, commercial, and
residential developments outside the flood plain and de-
veloping the land along the rivers for parks and other
low-density uses.
ADDITIONAL VIEWS OF HON. JACK BROOKS (CON-
CURRED IN BY HON. L. H. FOUNTAIN AND HON. JIM
WRIGHT)
Land is a previous natural resource and one that must be
carefully safeguarded. The pressures of a growing population
and a vastly increased mobility in recent years have made us
aware that this valuable commodity is available only in limited
quantities and that it must be utilized efficiently and preserved
to the maximum extent possible.
Undoubtedly, there have been occasions where unnecessary or
badly planned stream development has occurred. However, it
must also be appreciated that life, property, and commerce have
been enhanced in all parts of our Nation through enlightened
public works projects, including channelization, in many instances.
Well planned projects which give consideration to all aspects of
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720 LEGAL COMPILATION—SUPPLEMENT n
stream modifications—benefits as well as losses—have greatly
benefited our Nation's people.
Conservation of our natural resources is an essential task. Wise
conservation, however, does not preclude appropriate stream de-
velopment as a legitimate means of improving flood control, drain-
age, navigation, and erosion prevention. Channelization has long
been recognized as an effective flood control instrument when
wisely used. This committee report should not be taken in any
way as a condemnation of channelization, but rather as recogni-
tion by the committee that every effort must be made to preserve
the natural environment to the maximum extent possible wherever
these vital public works projects are carried out.
JACK BROOKS.
We concur in the additional views of Congressman Jack Brooks.
L. H. FOUNTAIN.
JIM WRIGHT.
4.7b REPORT TO CONGRESS ON WATER POLLUTION
CONTROL MANPOWER DEVELOPMENT AND TRAIN-
ING ACTIVITIES, ENVIRONMENTAL PROTECTION
AGENCY DECEMBER 1973.
Dear Mr. President:
I have the pleasure to forward herewith a Report to Congress
on Water Pollution Control Manpower Development and Train-
ing Activities. The Report is submitted pursuant to Section 104
(g) (4) of the Federal Water Pollution Control Act.
Sincerely yours,
Russell E. Train
Honorable Gerald R. Ford
President
United States Senate
Washington, D.C. 20510
Enclosure
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WATER—GUIDELINES AND REPORTS
721
CONTENTS
Page
PART I. INTRODUCTION
A. Purpose and Scope 1
1. Authority 1
2. Scope of this report 1
B. Manpower Implications of P.L. 92-500 2
C. Conclusions 5
PART II. MANPOWER AND TRAINING DETERMINATIONS _. 9
PART III. MANPOWER ANALYSIS
A. Purpose and Scope 18
B. Approach 18
C. Federal-State-Local Manpower Planning System 20
D. Manpower Overview 24
E. Supply and Demand 27
1. Nongovernmental Sectors 27
(a) Industrial ___r 27
(b) Education Institutions 30
(c) Manufacturers of Wastewater Analysis and
Treatment Equipment and Chemicals 31
(d) Consulting Engineers in Design and
Operations 32
2. Local Government Sector 35
3. State Sector . 36
4. Federal Government Sector . _ 38
PART IV. TRAINING PROGRAMS
A. General „ 41
B. Professional Training Grants for Graduate
Programs 42
C. Research Fellowships 46
D. Technical Training Grants and Scholarships
for Undergraduate Study 49
E. Direct Technical Training Programs 51
F. EPA Training for Operators and Technicians 54
1. Externally Funded 54
(a) On-the Job Training 54
(b) Institutional 59
(c) Public Service Careers (PSC) 63
(d) Transition 66
(e) Work Incentive Program (WIN-II) 70
2. Internally Funded 71
(a) State Operator Training Programs 72
(b) National Impact Programs . 74
LIST OF EXHIBITS
Page
EXHIBIT I Manpower Engaged in Water Quality Activities—
FY 71 13
II Manpower Projected in Water Quality Activities—
FY76 14
-------
722 LEGAL COMPILATION—SUPPLEMENT n
Page
III Minimum Additional Manpower Required by FY 76,. 15
IV Labor Force Growth By FY 76 16
V Forecasted Training Requirements—Average Annual
Load 17
VI Recent and Planned Professional Training Grants
Program Activities 45
VII Recent Research Fellowship Program Activities 48
VIII Resume of the Third National 0 JT Contract 57
IX Summary of Institutional Training Program 61
X Summary of Public Service Careers Program 65
XI Summary of Transition Training Program 69
XII Summary of Internally Funded Training Programs , - 77
PART I. INTRODUCTION
A. PURPOSE AND SCOPE OF THIS REPORT
1. Authority—Subsection 104 (g) (4) of Public Law 92-500
dated October 18, 1972, requires that: "The Administrator shall
submit, through the President, a report to the Congress not later
than December 31, 1973, summarizing the actions taken under
this subsection and the effectiveness of such actions and setting
forth the number of persons trained, the occupational categories
for which training was provided, the effectiveness of other State
and local training programs in this field, together with estimates
of future needs, recommendations on improving training pro-
grams, and such other information and recommendations, includ-
ing legislative recommendations, as he deems appropriate."
2. Scope of Report—This report has been prepared as a supple-
ment to EPA Report to the Congress, Number 92-36, dated March
1972, pertaining to water pollution control manpower and devel-
opment training activities. In this supplement, special emphasis
is placed on the potential impact of Public Law 92-500 relative
to manpower and training program activities. The original EPA
Report to the Congress, is to be considered as the primary
source document relative to EPA manpower development and
training program strategies and activities and programmatic
findings, conclusions and recommendations predicated on man-
power demand and supply and other factors unless otherwise
specified by information contained in this supplement.
[p.l]
-------
WATER—GUIDELINES AND REPORTS 723
B. MANPOWER—IMPLICATION OF PUBLIC LAW 92-500
The 1972 Amendments are considered to be the most exten-
sive and far reaching legislation ever enacted at the Federal
level pertaining to water pollution abatement and control. The
law sets the stage for a coordinated series of actions that must
be taken within stringent guidelines and enforcement provisions
by both federal, state, and local governments and industry.
Summarized below are some of the more important require-
ments of the legislation, all of which impact on current and future
manpower and training needs.
1. Federal construction grant authorizations have been sig-
nificantly increased for municipal water pollution control in order
to assist local communities to build wastewater treatment plants
and systems.
2. Additional funds are authorized in the legislation, totalling
two and three quarter billion, to reimburse local governments for
treatment plants constructed prior to the enactment of the cur-
rent bill.
3. The Federal Government share for providing funds for con-
struction is 75% in lieu of the 55% under old legislation.
4. At least "secondary" treatment will be required for munici-
pal plants constructed prior to mid-1974 and best practicable
treatment will be required for plants constructed after that time.
(All treatment plants must provide a minimum of secondary
treatment by mid-1977).
5. Area wide waste treatment management plans will be re-
quired to be devised by mid-1976 in areas where significant
water pollution control problems exist.
6. Industrial Pollution: (a) industries will be required to pre-
treat
[p. 2]
effluents before they are discharged into the municipal treat-
ment systems; (b) industries will be required to have the best
practicable control technology by rnid-1977 and the best available
by 1983; and (c) discharge of toxic pollutants listed by EPA
must meet effluent standards to be promulgated by mid-1974.
7. States: The overall framework for management of state
water quality planning is delineated in the new legislation under
Sections 303(e), 208 and 201. The state wide water quality
planning required by Section 303 (e) is the central tool of the
states in administering their water quality programs. The plan-
ning process provides direction to resource expenditures to the
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724 LEGAL COMPILATION—SUPPLEMENT n
establishment of priorities and appropriate schedules of action.
It also provides the goals and framework for construction grant
planning in area-wide planning required by Sections 201 and
208. These management processes are designed to achieve maxi-
mum effectiveness from state water pollution control programs.
The following are indicative of some of the responsibilities or
opportunities for the States: (a) states must adopt water quality
standards for interstate waters and periodically report on the
quality of their waters within their borders; (b) states are re-
quired to submit reports on non-point sources of pollution and
establish and recommend various control programs; (c) states
must submit an annual water quality inventory; (d) states may
issue permits (if not, EPA will issue the permits) which require
that no source can discharge any pollutant into any waterway of
that state without permission of that State; and (e) all states,
regardless of the permit issuing authority, will periodically in-
spect facilities in order to assure adherence to the permit appli-
cation requirements and to take action where operations and
maintenance result
[p. 3]
in violations of discharge limitations. These programs are ex-
pected to stimulate more comprehensive state programs in opera-
tions and maintenance as well as the administration and enforce-
ment of state operator certification programs. It is also expected
that states will develop and administer effective training pro-
grams for all levels of personnel in water pollution to assure
abatement and control success.
8. Municipalities: Water quality, effluent limitations and per-
mit compliance requirements will require many local communities
to provide for more stringent operation and maintenance pro-
cedures and practices including: (a) additional manpower for
24-hour-a-day waste treatment plant operation; (b) additional
record keeping, particularly test results and other efficiency ele-
ments; (c) additional and more complex water analysis testing
procedures to assure maximum plant efficiency and proper effluent
discharge (automatic monitoring and sampling equipment will
necessitate new operator/technician skill and knowledges) and
(d) adoption of user charges to pay the costs of operation and
maintenance.
9. Federal Activities: (a) the Federal Government, including
EPA, is expanding its programs in accordance with the new
legislation. (Federal facilities, under Section 313 of the Act, must
comply with federal, state and interstate and local water pollu-
-------
WATER—GUIDELINES AND REPORTS 725
tion control and abatement requirements to the same extent that
any person is subject to such requirements), (b) Federal agen-
cies having water pollution control facilities must meet the higher
water quality standards and effluent limitations, (c) Agencies
may be expected to provide for more extensive training of their
personnel
[p. 4]
in order to improve their treatment operations; and provide for
possible certification of operator personnel within the state.
(d) EPA, with the assistance of the states must provide for: A
system of permit issuance including a system of surveillance,
monitoring and enforcement; the establishment of water quality
standards and effluent limitations; the development of new tech-
nologies, and the issuance of guidelines for proper operations
and maintenance; for the development of training programs;
and for numerous activities, including the abatement and control
of other sources of water pollution control such as: agricultural,
rural, thermal, oil and hazardous material dumping and spillage,
sedimentation, acid mine drainage, etc.
C. Conclusions
1. From information gathered during FY-73, implementation
of the 1972 Amendments to the Federal Water Pollution Control
Act indicates that a greater number of new personnel and addi-
tional numbers of better trained personnel must be available to
the federal, state and local sectors than initially estimated in the
1972 Manpower and Training Report to the Congress. Such in-
creases are attributed to intensified waste treatment plant con-
struction, more stringent water quality standards and effluent
limitations, increased regional, state and local planning require-
ments and the administration and enforcement of a "permit"
program.
2. EPA water training programs continue to satisfy at least
in part the unmet needs of various employer groups and their
employees in numerous occupational categories (professional, op-
erator and technician) who constitute the existing or potential
manpower pool required to control water pollution.
[p. 5]
3. Emphasis continues to be placed on having the state and
local water pollution control agencies define manpower and train-
ing needs of their jurisdictions through the establishment of
manpower planning capabilities and meet these needs through
-------
726 LEGAL COMPILATION—SUPPLEMENT n
their established educational institutions. Further efforts to extend
and intensify operation and maintenance training will be impor-
tant elements.
4. (a) The current supply of professionals (scientists and
engineers) qualified in water pollution control cannot fill the
technical requirements of the field under present circumstances.
Demand will continue particularly for sanitary, chemical and
civil engineers as a result of increased waste treatment plant
construction, more stringent water quality standards and effluent
limitations. To the extent that financial support to professional
training programs at the graduate level is of interest, EPA,
through its Training Grants Program, has been one source of
funds.
(b) The EPA Undergraduate Training Grants and Scholar-
ship Program has been operating to satisfy some of the unmet
needs for entry training of senior level technicians and opera-
tors. EPA has developed a program of Agency fellowships for
professional employees of state and local agencies for special
training programs unrelated to degree programs, to fulfill some
of the demand for a management training need which results
from the new requirements of the 1972 Act.
5. (a) Waste treatment plant operator training (entry and up-
grade) remains an important element as a result of increased
plant construction,
[p. 6]
effluent limitations, and the need to bring plants to efficient oper-
ation and as near "design" capacity to meet EPA Permit Pro-
gram water quality requirements. A 1973 study by the Municipal
Waste Water Systems Division of EPA's Office of Water Program
Operations on the effectiveness and efficiency of existing treat-
ment plants, indicates serious impairments by under-staffing and
under-training of operation and maintenance personnel (see
Clean Water Report to the Congress 1973 (pages 43-46). Parti-
cular emphasis needs to be placed in training "higher skilled
operators" in activated sludge techniques, digestion, process con-
trol, instrumentation, etc., in order to meet secondary treatment
standards called out by the new legislation.
(b) More highly trained technicans will be required in the
future as compared to the substantial majority of technicians
today. Update training of these technician personnel has become
increasingly more important as a result of reporting requirements
outlined under the National Pollution Discharge Elimination Sys-
-------
WATER—GUIDELINES AND REPORTS 727
tern. The system requires performing complex water analysis tests
and reporting within strict time intervals.
6. EPA will be required to place additional emphasis on deter-
mining national manpower training needs relative to other
sources of water pollution, i.e., thermal sources, feedlots, various
other agriculture wastes, mine drainage, oil and hazardous ma-
terials, sedimentation/erosion, and watercraft wastes.
7. Technological developments will continue to affect the need
for more training, (a) New water pollution control equipment
and processes
[p. 7]
for municipal operations in conjunction with effluent limitations
through state "permit" programs will dictate a higher caliber op-
erator for the treatment system, (b) Surveillance technology will
introduce automated sampling, chemical analysis procedures and
more complex instrumentation for water analysis, (c) Manage-
ment in state and local governments will be required to be aware
of technological improvements and alternative solutions to
achieve improved water quality.
8. The EPA Direct Technical Training Program presently
provides a wide variety of activities to fill the technology gap.
Increased skill and knowledge requirements of personnel at all
levels of federal, state and local government, industry and educa-
tion resulting from new legislative mandates, dictate an intensi-
fied technical training effort.
[p. 8]
PART II. MANPOWER AND TRAINING
DETERMINATIONS
These data have been extracted from the EPA Report to
Congress, Number 92-36, March 1972, and are to be considered
as estimates, which are conservative in view of the recent water
quality legislative requirements under Public Law 92-500. Despite
certain data limitations discussed in the 1972 report, however,
the forecasts are considered indicative of the order of mag-
nitude of the manpower and training needs since some considera-
tion was given to proposed legislation at that time. Future po-
tential changes to these data resulting from further analysis of
the impact of the 1972 Water Act Amendments and new assess-
ment information will be outlined in the text of the report
that follows.
Water quality personnel with a wide variety of skills are
-------
728 LEGAL COMPILATION—SUPPLEMENT n
needed to perform these functions. For purposes of this report,
they are categorized into four overall groups: professionals,
technicians, operators, and others.
1. Professionals
Into the professional category fall those jobs that require crea-
tive problem-solving; the professional is expected to deal with
analysis and correction of unusual management or technical prob-
lems.
[p. 9]
Sanitary engineers are the predominant professionals in the field.
The professional category also includes civil, electrical, and me-
chanical engineers and architects who design and construct fa-
cilities, chemical engineers who design and modify treatment
processes, and mechanical and electrical engineers who design
and operate the electrical and materials handling systems in the
larger wastewater treatment facilities and the sewage collection
systems.
In addition to engineers the professional category includes
scientists who are involved in research, monitoring, and techni-
cal supervision. Chemists and microbiologists engage in water
analysis in facilities and in streams, while aquatic biologists
analyze the effects of pollution on water life.
Recently, as the interdisciplinary impact of water pollution
control has become more apparent, other professionals have be-
come more closely identified with the field. For example, lawyers,
economists, and political scientists are frequently involved in
enacting and administering water quality legislation, and man-
agement specialists and computer specialists have joined with
engineers and scientists to provide interdisciplinary teams to
solve water quality problems.
[p. 10]
2. Technicians
The technician performs complex but routine analytical tasks
which require a knowledge of engineering and/or scientific tech-
niques. This category consists largely of wastewater treatment
laboratory technicians who perform chemical and biological tests
to analyze influents, treatment processes, and effluent characteris-
tics. Particularly large or sophisticated water and/or sewage
utilities also utilize electronic technicians to work with telemetry
and automated control systems. Other technician level personnel
include the draftsmen and survey party personnel who work with
-------
WATER—GUIDELINES AND REPORTS 729
the consulting engineering firms and large municipal depart-
ments.
3. Operators
The operator manpower category includes several levels of
personnel who are directly responsible for operation of equipment
and systems involved in treating wastewater. The lowest grade
of operator is an entry-level job. These operators may have less
than a high school education and may have little mechanical
experience.
The second grade of operators include those who are more ex-
perienced and are responsible for operations of part of the plant,
or possibly a small plant in its entirety, including the indoctrina-
tion of new operators.
The third level of operator includes supervisory personnel such
[p. 11]
as shift supervisors and plant superintendents who have ultimate
operating responsibility for effectively running a plant.
4. Others
Other categories include the craftsmen (such as electricians,
mechanics, and machinists) who are required for maintenance of
wastewater treatment plants; the laborers who support the oper-
ators and craftsmen; and clerical and administrative personnel.
Although the nature of plant operations gives maintenance
jobs a number of unique characteristics, personnel fulfilling the
maintenance function generally require standard craft skills.
Heavy equipment operators, mechanics, and bricklayers are
needed for sewer collection system operation and maintenance.
[p. 12]
EXHIBIT I
MANPOWER ENGAGED IN WATER QUALITY ACTIVITIES—FY 71
SECTORS
Non-
Personnel category governmental Local State Federal* Total
Professional
Operator
Technician
Other
TOTAL _
13,200
15,400
20,500
4,700
53,800
4,300
29,700
4,000
38 700
76,700
2,100
300
1,200
3,600
5,800
4,200
2 100
3 200
15,300
25,400
49,300
26,900
47,800
149,400
Source: A Report to Congress in Water Pollution Control Manpower Development & Training
Activities, (March 1972—Page 76)
'Federal EPA and Federal Non-EPA have been combined for the purposes of this report.
[p. 13]
-------
730
LEGAL COMPILATION—SUPPLEMENT n
EXHIBIT II
MANPOWER PROJECTED IN WATER QUALITY ACTIVITIES—FY 76
SECTORS
Personnel category
Professional
Operator
Technician
Other
TOTAL
Non-
governmental
23,400
48,700
38,900
15,100
126,100
Local
5,600
38,600
5,200
50400
99 800
State
5,500
700
2,100
8,300
Federal
7,700
5,600
2,500
4,200
20,000
Total
42 200
92 900
47,300
71 800
254 200
Source: Ibid., p. 77
[p. 14]
EXHIBIT III
MINIMUM ADDITIONAL MANPOWER REQUIRED BY FY 76
SECTOR
Personnel category
Professional
Operator
Technician
Other .--
TOTAL .
Non-
governmental
10,200
33,300
18,400
10,400
72,300
Local
1,300
8,900
1,200
11,700
23,100
State
3,400
400
800
4,600
Federal
1,900
1,400
400
1,000
4,700
Total
16,800
43,600
20,400
23,900
104,700
Source: Ibid., p. 5.
[p. 15]
EXHIBIT IV
LABOR FORCE GROWTH BY FY 76
Personnel category 1971 Manpower Engaged
1976 Manpower
Requirements
% Increase
Professional
Operator
Technician -
Other
TOTAL
25,400
49,300
26,900
47,800
149,400
42,200
92,900
47,300
71,800
254,200
88%
77%
50%
70%
Source: Ibid., p. 5.
[p. 16]
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WATER—GUIDELINES AND REPORTS
731
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[p. 17]
-------
732 LEGAL COMPILATION—SUPPLEMENT 11
PART III. MANPOWER ANALYSIS
A. PURPOSE AND SCOPE
The purpose of this section is to provide additional informa-
tion and rationale relative to current and new manpower con-
siderations resulting from Public Law 92-500 and results of
education and training efforts by EPA.
B. APPROACH
It is concluded that implementation of the Water Pollution
Control Act Amendments of 1972 will require more and better
trained people. The legislation provides a large increase in the
funds available for the construction of new and upgrading of
existing municipal wastewater treatment facilities. New plan-
ning approaches will be required for state-wide water quality
planning, area systems for waste treatment, and water quality
surveillance. Implementation of the National Pollutant Discharge
Elimination System adds new regulatory responsibilities to EPA
and to state agencies which have programs approved by EPA.
This will require new capabilities not only in the public agencies
but also in the private organizations who must comply with the
new law. Also increased attention will be given to non-point
sources of pollution such as erosion, agricultural wastes, mine
drainage and runoffs from urban areas. All these new activities
will need to be carried out with new and constantly improving
technology and institutional arrangements.
[p. 18]
EPA intends to meet its manpower responsibilities primarily
in collaboration with the Federal and State educational and labor
agencies which have primary responsibility for manpower de-
velopment.
Additionally, to deal with the manpower factors of the pro-
gram, the new Federal Water Pollution Control Act continues
the authorization for EPA to conduct a broad range of training
programs and to establish a system, in cooperation with other
public and private organizations, for forecasting manpower. In
this regard, the EPA strategy is to have state and local water
pollution control agencies define the manpower and training needs
of their jurisdictions and meet these needs primarily through
their established educational institutions. EPA, in cooperation
with the state environmental agencies, will strive to fill training
gaps that exist while exploring new training concepts. Also, EPA
will develop materials and programs centrally for state and local
-------
WATER—GUIDELINES AND REPORTS 733
application and provide technical assistance to state and local
manpower training efforts to assure adequate performance. Fur-
ther, under Subsection 109(b) of the new legislation, EPA is
authorized to provide up to $250,000 per state for the construc-
tion of a facility for training of waste treatment operation and
maintenance personnel. This effort will take on increasing sig-
nificance in assisting states to meet their manpower and training
needs.
To assist in accomplishment of the manpower program, EPA
is endeavoring to have a manpower planning capability estab-
lished in the water pollution control agency of each major metro-
politan area and each state and territory. This manpower plan-
ning activity will assist state training personnel in determining
the manpower needs in water
[p. 19]
pollution control activities of their jurisdictions, and then with
counterpart manpower planning councils of the mayor, gover-
nor, or planning area the education agency plan programs to
meet these needs.
This strategy, in line with the President's decentralization
policy, is directed to establishing responsibilities and capabilities
at the local level. The EPA role in this regard, in addition to
providing assistance in the establishment of the capabilities,
involves doing things that can best be done centrally; e.g., de-
velop the manpower planning methods and tools, and training
curricula and demonstration training programs, that can be
adapted to the needs of individual jurisdictions.
EPA will continue to work with those federal agencies which
have primary manpower responsibilities such as the U.S. Depart-
ment of Labor and U.S. Office of Education, and with them, de-
velop programs to meet mutual objectives. Additionally, EPA
also recognizes the contributions that can be made by the mem-
bers and staffs of the professional and employer associations of
the water field—principally, the Water Pollution Control Federa-
tion, American Water Works Association, Consulting Engineers
Council, and the Water and Wastewater Manufacturers Associa-
tions. EPA is continuing to effect communications at all levels
which will draw upon the capabilities of their members and meet
mutual needs.
C. FEDERAL-STATE-LOCAL MANPOWER PLANNING SYSTEM
EPA continues to carry out a comprehensive program to de-
velop the tools and to implement the system for cooperative
-------
734 LEGAL COMPILATION—SUPPLEMENT n
manpower planning described in Section B above and Part II of
the 1972 Manpower Report to Congress.
[p. 20]
Occupational definitions and staffing guides have been devel-
oped for the management, operations and maintenance functions
of wastewater treatment plants in the 0-1 million gallons per
day (MGD) range and also the 1-25 MGD and 1-100 ranges.
Additionally, occupation and manpower requirement information
has been completed for wastewater collection systems in cities
and towns from 1,000 to 150,000 in population, and a second
manual for cities up through 500,000 in population is nearing
completion. Thousands of copies of these manuals have been dis-
seminated to state and local water pollution control agencies,
educational institutions and consulting engineering firms, among
others.
Projects have been completed relative to the development of
manpower planning criteria for state water pollution control
agencies. They include demonstration pilot studies in Ohio and
Indiana and an initial national effort by EPA. Additional devel-
opmental work will be required for the validation of planning
criteria relative to state water pollution control functions.
The U.S. Office of Education (HEW), recently funded a proj-
ect in cooperation with EPA, the American Water Works Asso-
ciation, and the Oklahoma Vocational Education Agency for the
development of manpower planning criteria for water supply
facilities. Also included in this effort will be materials and infor-
mation relative to curriculum and training program parameters.
A number of actions have been taken to develop and implement
the cooperative manpower planning system. In FY-72 a manual
"Manpower Planning for Wastewater Treatment Plants" was
published and disseminated. This provides specific guidance on
how to obtain, compile and analyze data
[p. 21]
and to forecast manpower and training needs. It also provides
guidance on planning, recruiting and training programs and ac-
tions to improve employee retention and productivity. Included
in this effort is a current project at North Carolina A&T State
University relative to personnel management practices in waste-
water collection systems. In FY-73, the manual was expanded
into a training manual and in FY-74, a similar manual applicable
to the total water quality field is to be produced.
In 1972, orientation in the need for and methods of manpower
planning was given to 200 representatives of Federal, State and
-------
WATER—GUIDELINES AND REPORTS 735
local water pollution control, education and labor agencies. In
1973, one-week training courses and one-day orientation confer-
ences were attended by 180 representatives of these agencies.
As a result of these efforts over 30 state water pollution control
agencies have assigned either a part-time or full-time employee
to the manpower planning function. Eight additional states are
in the process of establishing this capability. EPA has initiated
several demonstration grants for the establishment of state man-
power planning activities. Also, EPA is presently working with
the State of South Carolina to develop and install a computerized
municipal facilities and manpower information system.
The U.S. Office of Education is providing technical and finan-
cial support for the EPA manpower planning efforts. The Depart-
ment of Labor is also supporting this effort. A "Cooperative
Area Manpower Planning Issuance" explains the objectives of the
EPA program to Governor's
[p. 22]
and Mayor's Manpower Planning Councils and solicits their sup-
port. Occupation definitions are being developed with support of
DOL Field Centers. Also, linkage has been established with the
Intergovernmental Personnel Program of the Civil Service Com-
mission.
Last year a nationwide manpower survey of municipal waste-
water treatment plants was completed by the DOL-Manpower
Administration (MA) and the EPA. Data collected by the MA-
affiliated State Employment Security Agencies for more than
90% of the 3,500 plants surveyed in this project, tend to verify
most of the conclusions and projections outlined in the 1972
Report to Congress. Although the findings of this survey are
now somewhat obsolete at this time in light of numerous new
state and local requirements outlined in P.L. 92-500 it still repre-
sents a cornerstone in the federal survey effort.
Other surveys completed or currently under development in-
clude: A National Survey of Manpower Utilization and Future
Needs in Water Pollution Control (complete); Manpower Needs
of Equipment Manufacturers conducted by the Water and Waste-
water Equipment Manufacturers Association (partial results
available for this report); an Initial Study of Private Industrial
Manpower Needs (results partially available).
As explained in Part III of the 1972 Manpower Report, EPA
is also concerned with manpower recruitment, retention and utili-
zation. Efforts in this area have concentrated on improvement of
operator certification practices of state agencies. EPA, with sup-
-------
736 LEGAL COMPILATION—SUPPLEMENT n
port of the American Water Works Association and the Water
Pollution Control Federation,
[p. 23]
made the following accomplishments in this area: (1) a Model
State Law was developed and promulgated by the Council of
State Governments; (2) a national certification authority (Asso-
ciation of Boards of Certification (ABC)) to promote improved
and consistent certification practices among state agencies has
been established; and (3) a body of guidelines for the adminis-
tration and evaluation of state certification programs was de-
veloped and issued; (4) a classification system for water and
wastewater personnel and facilities is currently under develop-
ment by ABC under a grant by EPA.
To provide a basis for promoting productivity improvement in
wastewater facilities, a study was completed in FY-73 on the
application of industrial engineering techniques to facility de-
sign and operation.
In FY-74 a project will be undertaken to identify and develop
solutions for problems encountered by small communities in re-
cruiting and retaining qualified workers for their wastewater
facilities. This will also address the need to ensure fair employ-
ment opportunities in this expanding area of employment.
D. MANPOWER OVERVIEW
The manpower available for implementing the new legislation
can be readily characterized under the general occupational cate-
gories of (1) professional (which includes engineers and scien-
tists), (2) operators, (3) technicians, and (4) others which in-
cludes maintenance
[p. 24]
personnel and related blue collar and general administrative types.
New entry employment opportunities in water pollution control
are expected to exceed the 1972 estimates over the next several
years. The original estimates were 5,000 per year for profes-
sionals, 8,700 per year for operators, 4,000 per year for techni-
cians, and 4,700 for other occupations.1 An increase in sources of
supply, on the other hand, does not seem likely to occur.
Professionals—The current annual supply of qualified per-
sonnel from external sources will not adequately cover the total
manpower demand. Professional hiring will come from related
fields in all sectors (government and non-government) and grad-
1 Ibid., p. 6.
-------
WATER—GUIDELINES AND REPORTS 737
uate training programs of universities will supply approxi-
mately 2,000 2 specialized graduates per year under a multitude
of engineering and scientific disciplines for the water pollution
control field. Undergraduate programs will provide a very nom-
inal number (perhaps as few as a few hundred) of "specialized"
graduates for water pollution control, who can take on profes-
sional level assignments initially. Of course, various types of non-
environmental degrees will fill positions which are available in
order to help take up some of the slack that exists. Additionally,
vocational education schools with two-year programs provide for
a limited number of personnel entering the professional ranks
who are fully qualified. These non-specialized personnel acquire
the necessary additional skill and knowledge requirements
through additional training (formal or informal) provided by
their employer and others.
Care must be shown in placing these individuals to ascertain
that
[p. 25]
their performance ability is of high enough caliber to meet oper-
ating criteria. It is worth noting that the conferees on Environ-
mental Education at Drexel University (August 1973) gave
tentative approval to less than professional level education, recog-
nizing the need for added trained personnel. Where professionally
trained personnel are not available, pollution control activities
are making use of lesser trained individuals, with an apparent
resulting loss of efficiency in pollution abatement and control.
Operators, Technicians and Maintenance Personnel—EPA-
sponsored programs are currently providing training for between
1,000-2,0003 new entry personnel and 5,000-7,000* upgrade
and update category personnel annually for the operation and
maintenance of wastewater treatment plants, mostly at the local
level. Similarly, upgrade and update training for technicians
numbers at about 800-1,2005 annually. The actual new entry
need for operators, technicians and maintenance personnel still
far exceeds this entry training provision. Most new entry per-
sonnel are drawn from the general labor market. They have little
or no previous experience in related activities, yet do possess
some demonstrated ability. Others from the labor market have
related
[p- 26]
skills or are untrained people who receive hands-on experience
2 EPA Office of Water Programs Academic Training Analysis Report (1973).
3>*'5 EPA Office of Water Programs, Manpower Development Staff Summary Analysis:
1971-73.
-------
738 LEGAL COMPILATION—SUPPLEMENT n
through on-the-job training; numerous positions though remain
vacant and are not filled.
E. SUPPLY AND DEMAND
The water pollution control manpower universe can be divided
into sectors for the purposes of analyzing their manpower and
training situations. These sectors are: (1) non-governmental;
(2) local government; (3) state government; and (4) federal
government.
1. Nongovernmental
a. Industrial—Industrial firms can be expected to represent
one of the largest consumers of the current available manpower—
an increase of over 100,0006 over the next 3-5 years. The increase
can be directly attributed to the water pollution control legisla-
tive provisions outlined
[p. 27]
under Part I.C. of this report. The demand will cut across all
occupational categories (professional engineers and scientists,
treatment plant operators, laboratory technicians and maintenance
personnel), but plant operators and technicians represent the
greatest demand. Professional staffs will be involved with more
complex treatment plant process selection, plant design, supervi-
sion, analysis of industrial effluents and coordination with munici-
pal utilities to negotiate pretreatment processes and municipal
treatment charges for wastewater discharged into the municipal
sewer system. Operators will assume increased responsibility
for the operation and maintenance of the increasing number
of types of treatment facilities, while laboratory person-
nel will be employed to analyze the effluent and monitor its qual-
ity through various processes to the discharge point. As pre-
viously pointed out, industrial concerns discharging wastes into
a receiving waterway, will be issued "permits" either by EPA or
the state all in conformance with effluent limitations guidelines.
Industrial organizations will be responsible to see that these ef-
fluent limitations are maintained.
The most significant difference from the projections made in
the 1972 Report to Congress is that there is a much greater
number of people presently employed by industry in water pollu-
tion control activities.7
• Study by Dr. J. Middlebrooks, Utah State University—Sept. 1973.
7's Ibid.
-------
WATER—GUIDELINES AND REPORTS 739
However, careful examination of the data obtained in an EPA
survey of 10,000 industries8 indicates that although the total
number of employees engaged in water pollution control may have
been underestimated, the number of full-time-equivalent em-
ployees may not be in error to any
[p. 28]
significant degree. The majority of the companies reporting the
percent of effort for the various personnel indicated an average
of less than one-eighth of their time was devoted to water pollu-
tion control. When the totals are reduced to full-time equivalents
and the number of industries that were not included in the 1972
Report are considered, the results indicate reasonable agree-
ment between the two estimates.
The 1973-76 period will witness a continuation of the current
trend of using personnel actively engaged in some other produc-
tion process of the industry to supervise the personnel conduct-
ing industrial wastewater treatment operations. Therefore, the
increase in professional personnel will be largely in process func-
tions, and people now devoting a small portion of their time to
handling water quality responsibilities will allocate more time to
wastewater concerns. While the professionals hired into the in-
dustrial wastewater treatment positions will require training
specifically focused on water concerns, because their responsibili-
ties in training have been process-oriented, little increased burden
from this sector is expected on those educational institutions
that now educate environmental engineers. Rather it is reason-
able to expect that educational institutions will utilize an increas-
ing portion of their resources to deliver specialized short courses
to accommodate the needs of new industrial entrants and others
in need of similar training.
In light of these considerations, it appears that industrial em-
ployers of water quality personnel will experience sizable in-
creased need for trained personnel in the 1973-76 period and
that the nature of training delivered will increase in technological
sophistication at all levels. Estimates of the average annual in-
dustrial water quality training load needed to maintain progress
in the efforts to control water pollution are
[p. 29]
expected to remain basically as projected in the 1972 Report to
Congress.
b. Educational Institutions—Manpower employed by educa-
tional institutions consists almost entirely of engineers, scien-
-------
740 LEGAL COMPILATION—SUPPLEMENT n
tists, and technicians who perform activities in teaching, re-
search, curriculum planning, and advisory consulting to govern-
ment agencies and consulting engineering firms. The ratio of
technicians to professionals in this subsector is approximately
two to one, and the total number of technicians employed in these
institutions is under 1,000.9 Most technicians hold bachelor's de-
grees and are responsible to collect data and conduct laboratory
experiments in research areas, and few technicians teach. A num-
ber of graduate students also serve as teaching fellows and re-
search fellows, but they are not included in the educational water
quality manpower inventory because they are still active students.
The current inventory of professionals in this area is estimated
to be approximately TOO.10
It is estimated that educational institutions are now operating
at two-thirds of their capacity to produce trained professionals
and that they would be able to produce 50 percent more if the
job openings existed to create the educational demand. However,
utilization of this capacity would necessitate a major diversion
of current staff from research to teaching—which is, of course,
unrealistic. The true expansion factor for the production of
trained professionals using only the existing teaching force is
therefore something less than a 50 percent increase.
[p. 30]
For this reason, educational institution manpower in water qual-
ity is expected to experience little change between 1972 and
1976.
Training needs for personnel employed by educational institu-
tions are not enumerated, but this should not be interpreted to
mean that they do not require additional training. If an in-
structor is to remain current in his specialty area and possess
enough general knowledge to produce well rounded professionals
and technicians for practice, it is essential that he devote at least
one of every 5 to 6 years of his career to additional study at
another institution or research laboratory.
c. Manufacturers of Wastewater Analysis and Treatment
Equipment and Chemicals—The wastewater equipment and
chemical suppliers represent the most diverse groups that employ
professional and technical water pollution control personnel. Ser-
vices provided by this group range from turn-key type operations,
which provide everything required from a completed treatment
facility to the sale of chemicals. The professionals performing
the various functions possess all types of academic backgrounds,
"•w Ibid.
-------
WATER—GUIDELINES AND REPORTS 741
and it would be essentially impossible to use a general classification
scheme for the entire industry.
As part of the overall evaluation of manpower needs in the
environmental field, a survey of water and wastewater equip-
ment manufacturers and suppliers is being conducted jointly by
the Water and Wastewater Equipment Manufacturers Association
(WWEMA) and the EPA. A questionnaire has been mailed to
approximately 280 members of the WWEMA.
In certain employee categories, significant increases are antici-
pated, while figures in other categories indicate little change over
those reported in our 1972 Report to Congress. In general, how-
ever, it appears that a significant increase in
[p. 31]
manpower requirements will occur in the employee categories
traditionally employed by equipment and supply firms.11
The anticipated training needs for equipment manufacturing
personnel in the professional and technician categories are some-
what higher than originally estimated. Approximately 10 per-
cent are expected to require long term advanced training over
the next several years. The majority of this training will be
received in residence at universities. A larger percentage are
expected to require short term training, portions of which will
be provided by universities in extension courses and workshops.
Probably a majority of the short term training required in the
equipment area will be conducted by the industries own training
staff.
d. Consulting Engineers in Design and, Operations—Consulting
engineering organizations represent one of the major types of
employers of water pollution control specialists. Water quality
personnel employed by such firms engage in such activities as
water resources planning, preliminary engineering studies, feasi-
bility and economic studies, process selection and evaluation, prep-
aration of plans and specifications, construction administration,
resident engineering supervision, plant start-up and consulta-
tion, and monitoring of systems. In the smaller engineering
firms, a staff of two or three professionals are involved in
all of these activities, while larger firms will be more specialized,
with professionals who are involved in only segments of a proj-
ect and a senior engineer assigned the task of coordinating
the various phases.
[p. 32]
11 Ibid.
-------
742 LEGAL COMPILATION—SUPPLEMENT n
A substantial growth rate is anticipated for all categories of
technical and professional employees in the consulting industry.
All categories are expected to double 12 in numbers of 1976 if
the anticipated growth occurs, and there is little doubt that ex-
penditures will necessarily increase significantly in order to meet
water quality standards.
Even without an increase in industrial expenditures, all pro-
fessional categories will experience approximately a 70 percent
increase in manpower utilization by the consulting industry. The
current manpower inventory of consulting engineering firms has
been calculated from a study recently completed for EPA. The
following pertinent information applies:
(1) There are approximately 1,20013 consulting engineering
firms engaged in water pollution control with four employees or
more;
(2) Professionals employed in the consulting engineering
field will increase from a total of approximately 13,500 to over
28,000 by the end of 1976 14 which is a sizable increase over
1972 estimates. (Based on annual expenditure of approximately
3 billion per year for the next 3 years) ;
(3) Technicians employed by consulting engineering firms are
expected to increase from approximately 11,000 to over 22,000 15
by the end of FY 1976 which is also a significant increase from
our original estimates.
(4) The requirements for chemical and other types of engineers
and professionals can in all probability be met from the existing
and forecasted manpower pool. However, the need for sanitary
engineers and environmental engineers can only be met by draw-
ing from the very limited source of supply.
[p. 33]
(5) On a national basis, it is projected that approximately
4,500 t6 professionals and 2,500 I7 technicians employed in the
consulting engineering industry should attend short-term
training—3 days or less—over the next three years to remain
current and 3,300 1S professional and 1,500 19 technicians should
be enrolled in long-term programs of a week or more. Failure of
the private sector to implement training may have an adverse
affect on personnel competence and manpower supply.
The above results indicate that a significant number of short-
term programs will be needed to satisfy the need for refresher
».«,».» Ibid.
-------
WATER—GUIDELINES AND REPORTS 743
courses. The existing academic programs are probably adequate
to provide the long-term program, but a more concerted effort on
a regional or state level will probably be required to satisfy the
need for short-term programs. The consulting industry represents
only a small percentage of the total number of people employed
in the water pollution control field, and based on the need for
additional training in the consulting industry, it seems reason-
able to assume that the total need for additional training will
far exceed the totals projected for consulting. It is estimated
that the training needs of consulting firms represents less than
5 percent of the total that have similar needs and are employed
in the water pollution control field. Based on the results of this
study it would seem that a significant demand exists for well-
organized, short term, continuing education courses.
[p. 34]
2. Local Government Sector
A vast majority of the approximately 13,000 20 communities in
this country have wastewater collection systems either with or
without wastewater treatment plants and the latest data in-
dicates that there are nearly 21,000 21 municipal wastewater treat-
ment plants in operation with another 4,000+ 22 on the drawing
boards, and another 370 23 currently being built. Plants range
in size from the very small employing a few people, to the
very large employing hundreds. Current EPA inventory in-
formation shows the following breakdown of plants:
(Million Gallons MGD NUMBER
Per Day)
0-1 18,050
1-5 2,170
5-10 355
10-25 225
25+ 150
Total 20,95024
Local government will share significant responsibilities in as-
suring water quality in treatment plant operation and as part-
ners with the State Government in implementing their portion
of the water quality plan with adjoining communities. Man-
power estimates from the 1972 Report to Congress remain valid
although quite conservative (a recent analysis of wastewater
20 A Report to Congress in Water Pollution Control Manpower Development and Training
Activities, March 1972, p. 67.
«,ss,jj.si EpA Storet Data Inventory File, Sept. 1973.
-------
744 LEGAL COMPILATION—SUPPLEMENT n
collection systems, for example, shows an original underestima-
tion of current employment and needs by a factor of 2).25
[p. 35]
As indicated in the 1972 Report, local employment will reach in
excess of 100,0002e by the end of 1976 from a base of ap-
proximately 80,000 27 today (perhaps 30% more predicated on the
new legislation). Wastewater treatment operation and mainten-
ance personnel remain the most critical occupation and there
will be increased demand placed on this occupation category
from private industry and other sectors.
Update and entry level training requirements remain as pre-
viously estimated for the 1972 report, which is considered con-
servative: that is a total annual training need for 4,9002S new
entry level personnel and for updating 23,200 29 plant operation
personnel represent 75% of this training load. As previously stated,
EPA assistance in training activities only partially fills the cur-
rent demand. There are other sources of training assistance in-
cluding the local governments. Assistance for training from local
governments is likely to grow. Local governments should have
increased revenues for operations and maintenance pursuant to
EPA requirements that users be charged for sewage treatment
services.
3. The State Sector
The manpower requirements of state agencies, in order to
properly implement, monitor and control the various water pol-
lution control programs, required by the new Federal legislation
basically parallel the needs portrayed in our 1972 Report to
Congress since the state role in implementing new water pollution
control legislation was anticipated. Strong management will be
required to properly implement their programs. Additional ex-
pertise is required from external sources, particularly in the
professional area. Orientations and specialized training programs
throughout the states are required to assure program success.
[p. 36]
Planning demands imposed by the new legislation require ex-
perienced individuals. Planners have not previously been em-
ployed to any significant extent in many of the state water
pollution control agencies. Planners may be found to an extent in
'"Manpower Requirements for Wastewater Collection Systems, N.C.A.&T. State University,
July, 1973.
-'•" A Report to Congress in Water Pollution Control Manpower Development »nd Train-
ing Activities, March 1972, p. 58.
»•» Ibid, p. 61.
-------
WATER—GUIDELINES AND REPORTS 745
other state agencies, particularly state planning departments.
Other major functions being expanded include: surveillance and
monitoring, inspection, certification; training and programs re-
lative to pollution resulting from feed lots, mine drainage, oil
field brine, etc. Major changes in planning for water pollution
control facilities are associated with metropolitan/basin plans
and with the administration of a "permit" program. Changes in
other programs involve mainly the certification of operators, the
training of operators in operation and maintenance methods and
technician requirements for water analysis surveillance and moni-
toring. A review of the FY 74 submission of state program plans
to EPA from all states indicates a planned manpower level in
excess of 5,000;30 up from 3,600 31 this year (anticipated growth
to over 8,000 32 by the end of FY 76). The expected FY 74 state
increases are most significant in the functions of, "Permit Ap-
plication and Compliance" and "Planning and Water Quality
Standards." A coordinated effort to train state agency personnel
is needed.
Current training needs for entry professional and technician
personnel are estimated at conservatively 1,000 33 per year and
update training for over 2,100 34 annually which is consistent with
the 1972 Report. However, new water analysis reporting require-
ments under the National Pollution Discharge Elimination Sys-
tem indicates, as a result of determinations made in a four-state
study in EPA Region VII, indicates a need for Water Analysis
Testing Techniques and Procedures training for 2,000 35 operators,
[p. 37]
technicians, and supervisory personnel that as many as 25,000
need to be trained on a national basis. This was not projected
in the 1972 estimated training needs in our previous report to
Congress.
4. Federal Government Sector
The Environmental Protection Agency is the lead agency in
the Federal Government's program for water pollution research,
abatement, and control. The Office of Air and Water Programs of
EPA is primarily responsible for ensuring a coordinated and
effective federal effort to protect and enhance the quality of the
nation's water resources. The manpower resource of EPA per-
taining to water pollution control has grown to approximately
s°.« EPA OWPO MDS Summary Analysis, Sept. 1973.
32 Report to Congress, op. cit., p. 64.
M.M Ibid, p. 65.
35 EPA Region VII Manpower Analysis, 6/73.
-------
746 LEGAL COMPILATION—SUPPLEMENT n
3.000.36 Relative to training, over the next several years update
training of agency employees should be at a rate of approxi-
mately 1,000 3T per year/and 400 38 per year for personnel enter-
ing the agency. Both update and entry level training is necessi-
tated by the rapid growth and changes in the EPA Water Qual-
ity Program and the improvements in technology. Training needs
will be partially satisfied through the Agency's Direct Technical
Training programs.
Other federal agencies are required to strengthen their water
pollution abatement and control efforts in that all federal activi-
ties are required to adhere to the same water quality standards
and effluent limitations imposed on private industry, the states
and municipalities.
Data from the 1972 Report to Congress remains usable. There
are over 12,500 39 professional, technical, operator and mainte-
nance personnel
[p. 38]
involved in water pollution activities in non-EPA federal or-
ganizations. The imposition of more stringent requirements will
necessitate an increase to at least 15,800 40 over the next few
years in order to keep their activities up with the latest water
quality requirements. Further study on the total impact of the
new legislation is needed in this sector. Training required will
be in all occupational categories (operator training being the
greatest) to ensure that personnel are aware of the most current
technological advances, that they adhere to the latest require-
ments, and that they observe proper operations and maintenance
procedures relative to wastewater treatment and collection. There
are approximately 9,000 41 waste treatment plants in the federal
system. However, a vast majority, well over 50%, are plants of
very small size requiring only one part-time operator. None-
theless, operator training needs conservatively should be required
to average over 500 42 for entry level per year and update training
of 2,500 4S annually. All other occupational categories should re-
quire entry level training for 700 44 per year and over 3,500 45
update training.
In sum, total water pollution abatement and control manpower
training requirements are projected to rise over the estimated
requirements cited in the 1972 Report to the Congress as a result
" Report to Congress, op. cit., p. 73.
«•» Ibid, p. 74.
»Ibid, p. 75.
«Ibid, p. 68.
41 Ibid, p. 203.
«,«.«.« n,^ p. 70_
-------
WATER—GUIDELINES AND REPORTS 747
of the implementation of the Federal Water Pollution Control
Act Amendments of 1972. Increases will be experienced in all
job categories with the greatest numbers of trained personnel
needed in wastewater treatment and related functions. As ex-
amples, industrial operations will be governed by a
[p. 39]
"permit" to assure water quality and in most instances will re-
quire pretreatment of industrial wastes prior to release into
municipal collection systems; manufacturers of wastewater
equipment and chemicals, supported by consulting engineers, will
expand their businesses as a result of the significant Federal ex-
penditures for the construction of wastewater collection systems
and treatment facilities; Government environmental and related
agencies at the federal, state and local levels will significantly
expand their manpower resource efforts to develop programs and
action plans in order to implement the numerous water qual-
ity legislative requirements.
[p. 40]
IV. TRAINING PROGRAMS
A. GENERAL
The EPA strategy for developing effective and comprehensive
approaches to training relates to the essential ingredients of
any manpower training program; requisite educational capacity,
information, and financial support. Once a need has been identified,
capacities must be identified or developed and supported in order
to respond to that need. It is EPA's policy to work within the
existing institutional framework and develop and encourage the
use of new mechanisms for the delivery of training at the point
closest to the source of the need. EPA strategy is to help build
this capacity and to supplement rather than supplant the activi-
ties of others.
In implementing this strategy and in supplementing the roles
of others, EPA has focused its programs to: (1) support uni-
versities and individual students mainly at the graduate levels
in programs leading to professional careers in water pollution
control; (2) provide a continuous training mechanism for up-
dating these and other personnel, to provide them with the re-
sults of technological advancements in the field; (3) expand the
coverage of programs of other federal agencies to channel their
resources more effectively to the manpower and training needs in
water pollution control; (4) strengthen the capacities and ca-
-------
748 LEGAL COMPILATION—SUPPLEMENT 11
pabilities of the states and two-year educational institutions to help
provide an adequately
[p. 41]
trained core of treatment plant operators and water pollution
control technicians.
In shaping its training programs, EPA's Office of Water Pro-
gram Operations is attempting to help satisfy the unmet needs
of the professionals and the operators and technicians who
constitute the existing or potential manpower who are required to
control water pollution. The EPA's activities in water pollution
control training are described in this section of the supplemental
report.
B. PROFESSIONAL TRAINING GRANTS FOR GRADUATE PROGRAMS
Pursuant to Subsection 104(g)(3)(A) ) of the Act, (formerly
5(g)(3)(A) ), EPA awards professional training grants to in-
stitutions for the establishment, expansion and improvement of
graduate level programs in water pollution control. This pro-
gram is intended to produce a cadre of professionals trained to
contribute to water quality management through subsequent posi-
tions in research, consulting or direct operations in the public or
private sectors. Renewable grants are awarded for one year at a
time as part of a training project of five years duration. Grant
funds primarily are used for student stipends as well as when
needed to expand and improve staff facilities and equipment and
for the development of curriculum.
Under these grants training has been provided in the following
disciplines:
1. Environmental Engineering
2. Sanitary and Public Health Engineering
[p. 42]
3. Environmental Chemical Engineering
4. Environmental Systems Engineering
5. Agricultural and Environmental Engineering
6. Environmental Mining Engineering
7. Soils Environmental Engineering
8. Environmental Biology
9. Limnology and Aquatic Biology
10. Estuarine, Biological, Physical and Chemical Oceanology
-------
WATER—GUIDELINES AND REPORTS 749
11. Physical Sciences
12. Interdisciplinary Environmental Programs
13. Social and Political Science Programs
14. Course and Project Development
Into the professional category fall those jobs that require
creative problem solving ability; the professional is expected to
deal with analysis and correction of unusual management or
technical problems. Environmental and Sanitary Engineers are
predominant professionals in the field. In addition to their en-
gineering training they are schooled in life and physical sciences
and are commonly employed as planners, designers, administra-
tors or facility managers. The professional category also in-
cludes civil, electrical and mechanical engineers and architects
who design and construct facilities, chemical engineers who de-
sign and modify operations and treatment processes, mechanical
and electrical engineers who design and operate the electrical
and materials
[p. 43]
handling systems in the larger wastewater treatment facilities
and the sewage collection systems. As a result of experience and
continuing education, these engineers frequently become special-
ists in water pollution control activities.
In addition to engineers the professional category includes
scientists who are involved in research, monitoring and technical
supervision. Chemists and microbiologists engage in water
analysis in treatment facilities and other water sources while
aquatic biologists analyze the effects of pollution on water life.
These scientists assist in the design and analysis of waste treat-
ment processes and water quality measurement systems.
Over the years these programs largely have been responsible
for the reservoir of scientific and engineering manpower now
available in the water pollution control field. Indeed, most of the
graduate level programs related to water pollution control have
been supported by EPA at one time or another. This support has
been specifically oriented to water pollution control as opposed
to the more general orientation of support from other federal
agencies.
Recent and projected professional training grants program
activities are summarized as follows:
[p. 44]
-------
750
LEGAL COMPILATION—SUPPLEMENT n
EXHIBIT VI
RECENT AND PLANNED PROFESSIONAL TRAINING GRANTS PROGRAM ACTIVITIES
Number of Trainees
Authorized
Number of Professional
Training Grants
Number of States
Involved
1970-71
788
88
43
1971-72
932
91
43
ACADEMIC YEAR
1972-73
1241
102
43
1973-74
845
74
40
1974-75
640
52
33
Number of Institutions
Involved
72
82
92
69
48
Funds Awarded $3,781,756 $4,562,682 $4,701,679 $3,181,890 $2,950,000
C. RESEARCH FELLOWSHIPS
Pursuant to Subsection 104(g) (3) (B) of the Act, (formerly
5(g)(3)(B)), EPA has awarded fellowships to students for
selected specialized training in water pollution control. The pur-
pose of this program is to increase the number and competence
of engineers and scientists qualified to conduct independent study
and advanced practice at the graduate level. Awards are made
on a competitive basis primarily to doctoral candidates in en-
gineering, physical sciences, and biological sciences of socio-
economic disciplines. Applicants for this program have been re-
viewed with the objective of selecting only the most promising
students. The Research Fellowship Program has been viewed as
the primary source of instructors for university training of pro-
fessionals and the primary mechanism for building the capacity
of research and training for professionals.
Recent evaluation of the production from the Research Fellow-
ship Program has led EPA to phase out this program and initiate
a program designed to augment and improve the caliber of pro-
fessional personnel working for state and local water pollution
control agencies. It has become apparent during the past few
years that the supply of professionals in teaching, research, and
in specialty levels is approaching saturation and that the need
for federal support for research fellowships at this level should
be eliminated. Concomitantly, the need for better qualified and
more
[p. 46]
highly skilled professionals at the state and local agency level,
has become more critical. Fellows will be selected from pro-
spective or actual employees of state and local agencies as a
-------
WATER—GUIDELINES AND REPORTS
751
means of improving those agencies' role in environmental pro-
tection. Therefore, under the same authorization as the Research
Fellowship Program a new Fellowship Program, having a great
impact on meeting Federal clean water goals is being initi-
ated.
Recent activities under the Research Fellowship Program are
as follows:
[p. 47]
EXHIBIT VII
RECENT RESEARCH FELLOWSHIP PROGRAM ACTIVITIES
New Research Fellow-
ships Authorized __
Total Research Fellow-
ships Awarded
Number of Active
Fellows
Number of States
Involved
Number of Institutions
Involved
Funds Awarded
1970-71
60
105
149
29
51
$600,000
1971-72
46
108
161
27
58
$600,000
ACADEMIC YEAR
1972-73
31
70
103
27
29
$461,003
1973-74
0
21
21
12
12
$135,900
1974-75
0
0
0
0
0
0
D. TECHNICAL TRAINING GRANTS AND SCHOLARSHIPS FOR
UNDERGRADUATE STUDY
Section 109 (formerly Section 16) authorizes the award of
grants to or contracts with institutions of higher education—
to assist them in planning and developing, strengthening, im-
proving or carrying out programs or projects for the prepara-
tion of undergraduates to enter an occupation which involves
the design, operation and maintenance of treatment works and
other facilities whose purpose is water quality control.
The objectives of this section are: (1) to plan, develop or
expand training programs at this level; (2) to train and retrain
faculty; (3) to support innovative and experimental programs of
cooperative education; (4) to develop and research materials to
plan curriculum.
Section 111 (formerly Section 18) authorizes the award of
"Scholarships for Undergraduate Study by Persons Who Plan
to Enter an Occupation Involving the Operation and Mainte-
nance of Treatment Works".
Three areas of training have been addressed under Section
111: (1) training of qualified high school students at two-year
-------
752 LEGAL COMPILATION—SUPPLEMENT n
institutions in the operation and maintenance of waste treat-
ment and related facilities; (2) improvement of the training of
junior and senior bachelor's degree engineering students in the
design of waste treatment facilities at four-year colleges; (3)
short-term institutes for training of undergraduate faculty in
water pollution control.
[p. 49]
Three institutions (Charles County Community College, Linn-
Benton Community College, and the Greenville Technical Educa-
tion Center) have completed development of program curricula
based on the guidelines prepared by Clemson University and
have opened their degree programs in wastewater technology
training. Curricula will vary among the institutions but will
essentially cover wastewater treatment operations including
classroom theory and hands-on training in a nearby cooperating
wastewater treatment plant as well as basic training in algebra,
general biology, microbiology, hydrology and practical physics.
About 20 students will attend each program. Graduates receive
associate of science degrees and will be eligible under voluntary
or mandatory state certification programs to apply for superin-
tendent positions of medium-size wastewater treatment plants.
During the past five years the number of undergraduate courses
dealing with the environment has increased significantly. This
increase in course offerings has not been matched by a corre-
sponding increase in qualified staff to teach these new courses.
Therefore, in FY 1974 two short-term institutes will be held to
retrain undergraduate faculty in water pollution control tech-
niques. They will be given at Tufts University and Utah State
University in June 1974. This training is intended to fill the
gap between entry level operator training and the three to five-
year professional training.
[p. 50]
As the shortage of manpower for water pollution control
becomes more acute the importance of senior level entry train-
ing in four-year design engineering will increase. This can
be attributed to the entrance requirements to assume responsi-
bility previously reserved for the "professional" level.
With construction grants presently funded at the multi-
billion dollar level annually and with the growing manpower
requirements to service these facilities as established by all man-
power projection studies, it appears that this will be an im-
portant area.
-------
WATER—GUIDELINES AND REPORTS 753
E. DIRECT TECHNICAL TRAINING PROGRAM
Under Subsection 104(g) (3) (C) , (formerly 5(a)(5) and
5(g)(3)(C) ), of the Act, EPA is authorized to provide training
in technical matters relating to the causes, prevention, reduc-
tion and elimination of water pollution to personnel of public
agencies and other persons with suitable qualifications. Under
this authority EPA provides its own program of direct training
and related supportive activities to supplement the technical
activities of others.
The EPA Direct Technical Training Program is directed to
key federal, state, local and private personnel who hold re-
sponsibility for evaluation, prevention, abatement and control
of water pollution. Its purpose is four-fold.
1. To provide a continuing comprehensive program of special-
ized and technical training generally unavailable elsewhere.
2. To research and develop instructional technology and
to provide an instructional program for individuals who are
responsible for and/or conduct environmental training or
related activities.
[p. 51]
3. To provide, on request, instructors and/or training ma-
terials in support of training programs of other federal,
state and local agencies.
4. To develop new training delivery methods, curricula and
materials, such as those for use in correspondence courses.
Most direct training consists of short-term seminars, work-
shops and courses of one to two weeks duration. These courses,
at the National Training Facility in Cincinnati, Ohio and in
EPA Regional facilities, are conducted by a highly trained and
experienced EPA professional staff.
During FY-74 a number of short courses will be expanded
and courses will be offered in regions that lack a permanent
training facility. Federal personnel who will be working with
programs related to state and local agency activities will form
the single largest group of participants. State and local personnel
will form the next largest group.
EPA estimates and actual classroom students over prior and
forecasted fiscal years are/will be as follows:
Number of Students
Fiscal Years
1972 1973 1974 1975 1976
2,200(a) 2,800(a) 2,850(e) 2,900(e) 3,000(e)
(a) = Actual (e) = Estimated
-------
754 LEGAL COMPILATION—SUPPLEMENT n
EPA also supports state training programs for professionals,
technical and operator personnel on request through technical
[p. 52]
consultation on the planning and development and dissemina-
tion of training courses. In addition, the Agency arranges for
guest appearances of instructors and provides instructional ma-
terial such as training manuals, course plans and audio-visual
training aids. In FY-73 audio-visual training aids were loaned out
for 843 training efforts which were used as instructional ma-
terial for over 10,000 trainees.
Training provided through scheduled and unscheduled (special)
workshops, seminars and short-term courses has increased in
volume during the last five years. This increase has been accom-
plished within restricted funding and an actual reduction in in-
structor man-hours. The increase in the number of courses pre-
sented and the number of students attending since 1969 is as
follows:
Year Courses Students
1969 45 1,297
1970 57 1,560
1971 59 1,630
1972 89 2,200
1973 73 2,800
In addition, there has been a steady increase of requests by
local, state and federal agencies for professional assistance and
instructional materials to satisfy their special training needs.
This assistance is making it possible for the states to increase
their own training capabilities.
[p. 53]
F. EPA TRAINING FOE OPERATORS AND TECHNICIANS
1. Externally Funded
EPA has collaborated with the Department of Labor (DOL),
the Department of Health, Education and Welfare (HEW)
and the Department of Defense (DOD) in administering and op-
erating five Interagency Programs funded under the Manpower
Development & Training Act of 1962 and the Social Security
Act, to provide entry level and upgrade training for operators
and technicians. These programs are designed to bring persons
into the water quality field and to develop and increase the skills
of those already employed. They include: (a) MDTA On-the-
Job (OJT) Training; (b) MDTA Institutional Training; (c) Pub-
-------
WATER—GUIDELINES AND REPORTS 755
lie Service Careers Plan B; (d) MDTA Military Transition
Training, and (e) Work Incentive (WIN-II) Program.
All five are supported by funds provided by the Department
of Labor through Interagency Agreements. Subagreements are
awarded by EPA to units of state government, municipalities,
special wastewater treatment districts, vocational schools, com-
munity colleges and universities.
a. On-the-Job-Training
This program offers entry-level and upgrade operator training
in water and wastewater treatment plants through combined
classroom and on-the-job training tailored to meet operational
realities.
Under the decentralized approach, classroom instruction is
given in one plant during working hours depending on the class-
plant environment. Supervised OJT is provided by the class in-
structor (who must have operational knowledge) in the plant
[p. 54]
where the trainee is employed. To eliminate gaps in coverage,
two correspondence courses and audio tapes are available for self-
study at home.
The national program seeks to assist states in developing train-
ing capabilities. Initially, the program focused on improving the
skills of operators already in place and in turn, upgrading plant
operators. Its objectives were to help trainees meet certification
requirements and to reduce turnover and stabilize the existing
work force. The first Interagency Agreement required that 10%
of all trainees be new entry and that the remainder be employed
in the treatment plant prior to attending the program. The second
Interagency Agreement increased the number of new entries to
30%. The third and fourth years required that 40% of all trainees
be new entrants.
The length of the first training course was 44 weeks and
consisted of 330 hours of classroom instruction and at least 70
hours of supervised OJT for each trainee. The first 100 hours
of classroom instruction were normally devoted to basic courses
and varied subjects such as mathematics, biology and chemistry,
which would help the trainee during the following 230 hours of
job related courses and 70 hours of supervised OJT. This was
modified in later Interagency Agreements to meet the needs of
the trainees.
Based on the success of the initial program which cost
$1,031,775; the second National MDTA-OJT Interagency Agree-
-------
756 LEGAL COMPILATION—SUPPLEMENT n
ment was awarded to train 1,000 persons at a cost of $1,260,000.
A total
[p. 55]
of 1,260 trainees were enrolled into the second program and
1,123 completed the training. The program under this Interagency
Agreement represented refinement of the initial training course.
The third agreement was awarded to train 870 persons at a cost
of $999,978. A total of 1,548 trainees were enrolled and 1,413
completed the training.
The Fourth National MDTA-OJT Interagency Agreement is
designed to train 1,000 water and wastewater operator trainees
as part of a larger program which includes training for air pollu-
tion control, solid waste management and pesticides control.
Funding support for the water and wastewater portion is
$850,000. Projects will be conducted for 16 to 26 weeks depend-
ing upon a trainee's occupational level (16 weeks for upgrade—
20 weeks for new entries and 26 weeks for disabled veterans
and/or disadvantaged persons). Forty percent of those trained
will be new entries.
Most graduates of the National MDTA-OJT program have
received promotions, earned higher salaries, and passed certifi-
cation examinations. A major strength of the program has been
its mobility in searching out the small wastewater treatment
plant through decentralized OJT and its introduction of the class-
room instruction into the treatment plant. This program is now
operated by the 10 Regional Offices of EPA with funding and
program guidance coming from Headquarters. During FY-73 this
regionalization resulted in 34% more completed trainees for 20%
fewer dollars.
The following table is a resume of the third National OJT
Agreement:
[p. 56]
EXHIBIT VIII
Resume of the Third National OJT Contract
Effective Date March 1, 1972
Termination Date July 31, 1973
Total Amount of Contract $999,978.00
Total Number of Trainees Under Contract 1,270
Total Number of Trainees Starting Program 1,543
Total Number of Trainees Completing Program In Progress
Trainees Trainees
Sponsor/Subcontractor Entered Completed
California State Water Resources Control Board, Sacramento, CA 108 101
California State Dept. of Public Health, Berkeley, CA 56 52
Connecticut Environmental Protection Agency, Hartford, CN 62 58
Delaware Dept. of Natural Resources, Dover, DE 23 20
Florida State Dept. of Pollution Control, Tallahassee, FL 30 30
Georgia Dept. of Natural Resources—EPD, Atlanta, GA 22 21
-------
WATER—GUIDELINES AND REPORTS
757
EXHIBIT VIII CONTINUED
Sponsor/Subcontractor
Trainees
Entered
Trainees
Completed
Illinois State Environmental Protection Agency, Springfield, IL 23
Indiana State Board of Health, Indianapolis, IN 185
Kansas State Dept. of Voc. Education, Topeka, KS 22
Louisiana State D$pt. of Public Health, New Orleans, LA 17
Maryland Environmental Services, Annapolis, MD 30
City of Neosho, MO, Neosho, MO 22
Dept. of Environmental Control, Lincoln, NB 41
Dept. of Public Health, Las Vegas, NV 26
New Mexico Environmental Improvement Agency, Santa Fe, NM 40
North Carolina State Dept. of Natural Resources, Raleigh, NC 21
Oklahoma City-County Health Dept., Oklahoma City, OK 61
The City of Portland, OR, Portland, OR 42
Public Service Institute, Harrisburg, PA 33
Environmental Quality Board, San Juan, PR 50
South Carolina State Pollution Control Authority, Columbia, SC 28
South Dakota State Dept. of Health, Pierre, SD 17
Tennessee State Dept. of Public Health, Nashville, TN 26
Utah State Division of Health, Salt Lake City, UT 26
Vermont Agency of Environmental Conservation, Montpelier, VT 46
Virginia State Water Control Board, Richmond, VA 17
West Virginia State Dept. of Health, Charleston, WV 43
Texas Water Quality Board, Austin, TX 45
Dept. of Health, Div. of Environmental Health, St. Thomas, VI 10
City and County of Honolulu, Honolulu, HI 26
Metro Sanitary District of Greater Chicago, Chicago, IL 22
Idaho State University, Pocatello, ID 59
North Central Texas C.O.G., Arlington, TX 92
Detroit Metro Water Dept., Detroit, Ml 167
Binghamton-Johnson City, Binghamton, NY 10
Totals 1,548
21
166
20
16
30
20
41
20
35
18
59
37
33
50
27
17
26
22
44
10
40
[p. 57]
35
10
21
19
54
89
141
10
1,413
[p. 58]
b. Institutional Training
The EPA administers the institutional training program in
the area of water and wastewater treatment plant operations,
for the unemployed and underemployed or those persons with no
marketable skill. The first Interagency Agreement was negotiated
in FY-1971 for 360 trainees at a training cost of $739,690. Nine
pilot regional manpower training centers were established.
A distinctive feature of this 22-week program is coordination
of half classroom instruction with half of the course in practical
hands-on training at nearby municipal wastewater treatment
facilities. Most classes enrolled 20 students with an operator in-
structor and related subject instructors. At first the recruiting
and placement were conducted primarily by local employment
services. Actually 458 trainees enrolled and 323 completed the
course, 19 of which continued their education in the field with
289 entering the labor force leaving 15 who could not be located.
Under the national emphasis to assist veterans, inquiries from
veterans requesting training resulted in EPA serving as registrar
-------
758
LEGAL COMPILATION—SUPPLEMENT 11
for the courses and referring the applicants to the proper employ-
ment services for testing and final screening. The major portion
of job placement assistance was stepped up by EPA staff partici-
pation. With continuous evaluation, better education programs
for students and more maturity of veteran separatees and re-
tirees, the program became more effective under a second inter-
agency agreement in FY-1972 with DOL and HEW for training
260 students at a cost of $551,234.
[p. 59]
Included in this agreement was a provision to permit upgrade
training of 82 operators.
By the middle of August 1973, a total of 299 had been en-
rolled for entry level training with 178 in jobs, 14 continuing
education and 38 in training. Ten more trainees with committed
job openings had yet to be enrolled. The upgrade segment had
68 enrolled out of the anticipated 82 operators. In Mississippi
where 50 of these have been hired for training the majority are
from the disadvantaged ranks.
Under this agreement, institutional training is scheduled for
completion and termination in early 1974. A summary of the
program's activities to date is included below:
[p. 60]
EXHIBIT IX
Summary of Institutional Training Program
FY-1971
Sponsor/Subcontractor
Charles County Community College
Kirfcwood Community College
Atlanta Area Technical School
Delaware State College
Columbus Technical Institute
Brevard Community College -
Delgado Junior College
Penn Valley Community College __ . ..
Miami Dade Junior College
Kirkland Hall College
Charles County Community College
Union College
Kirkwood Community College . .
FY-1972
Delgado Junior College
Charles County Community College
Miami Dade Junior College
Cedar Crest College ._
Kirkwood Community College
Columbus Technical Institute
Junior College District of Metro Kansas City _
Denver Community College
Gulf Coast Wastewater Authority
Kirkwood Community College
Mississippi Valley State College
Kirkwood Community College __
Mississippi Gulf Coast Junior College ... __
Union College
No. of
Trainees
40
60
40
40
40
40
60
40
30
15
20
20
20
20
25 Water
25 W/Water
10 Water
30 W/Water
70
20 Water
20
20
40
12 Upgrade
20 Upgrade
20 Upgrade
14
30 Upgrade
10
Starting
Date
1/25/71
2/1/71
2/22/71
2/1/71
5/3/71
6/21/71
6/21/71
6/22/71
9/7/71
11/15/71
6/26/72
6/27/72
6/28/72
3/20/72
2/3/72
2/28/72
2/7/72
2/28/72
5/1/72
3/1/72
5/15/72
4/2/73
3/15/73
4/9/73
5/15/73
7/1/73
6/29/73
Training
Location
LaPlata, Md.
Cedar Rapids, la.
Atlanta, Ga.
Dover, De.
Columbus, Oh.
Cocoa, Fl.
New Orleans, La.
Kansas City, Mo.
Miami, Fl.
Easton, Md.
LaPlata, Md.
Cranford, N.J.
Cedar Rapids, la.
New Orleans, La.
LaPlata, Md.
Miami, Fl.
Goodland, Fl.
Cedar Rapids, la.
Columbus, Oh.
Kansas City, Mo.
Denver, Co.
Houston, Tx.
Cedar Rapids, la.
Cedar Rapids, la.
Gautier, Ms.
Cranford, N.J.
[p. 61]
Graduates of the 22 or 24-week courses have been the catalyst
in demonstrating that trained personnel is a most necessary com-
-------
WATER—GUIDELINES AND REPORTS 759
ponent in proficient operations of wastewater treatment plants
with secondary treatment and above. Superintendents as a whole
are willing and anxious to employ the trainees from the training
programs.
The Institutional Program, in less than two years, shows num-
erous benefits: (1) Reduction in unemployed ranks; (2) a cadrr
of employees who are entering semi-professional careers; (3)
operators better equipped to utilize the capabilities of the more
sophisticated plants and; (4) state regulatory agencies have be-
come convinced of the need and benefits derived from training.
These superintendents have expressed the need for training pres-
ent personnel. The market for certified operators is expanding
daily.
Attempts have been made at all training sites to secure
college credits for the course and to have a state certification test
given near graduation date. In a survey of 75 graduates in 1973,
the average starting wage was $3.27% cents per hour. Within 9
months time this rose to $3.69 per hour. Success stories are on
file where graduates have become head operators, superintend-
ents, instructors or have been accepted in state agencies.
Two of the educational institutions have incorporated the pro-
gram as part of their regular technical courses.
A need is readily observed for at least several sites to train
the unemployed who are unable to enter the field because of their
present habitat in relation to plants with openings and lack of
funds to support their families or finance training elsewhere.
[p. 62]
The low starting wages of smaller communities are a deterrent
to the unmarried who are mobile. Job placement assistance is
most important in solving both the community needs and the
unemployment and is valuable in staffing plants at scattered loca-
tions.
Already a few of the graduates have become instructors. A
number of highly qualified ex-military teachers have graduated
and are now in plant operations to gain the necessary exper-
ience in certification to become operators, thus combining two
careers in one.
c. Public Service Careers (PSC)
With the initiation of the Public Service Careers Program, and
specifically its Plan B, which is tailored to channel funds from
federal agencies to state and local agencies, EPA negotiated an
interagency agreement with DOL to train 1,355 disadvantaged
persons newly or previously employed in wastewater treatment
-------
760
LEGAL COMPILATION—SUPPLEMENT n
plants. Five states, Texas, Virginia, South Carolina, Wisconsin,
Alaska and the Virgin Islands were awarded contracts to par-
ticipate in the EPA program which began in November 1970
and will cost $2,252,689.
Almost all sponsoring agencies have subscribed to the theory
of upward mobility for current employees and have secured
agreement from employers to furnish vacancies for entry level
jobs.
This approach has resulted in an initial disproportion of en-
try to upgrade training. Agreement between the DOL and EPA
calls for a total of 600 entry level trainees and 755 upgrade
trainees. As of July 31, 1973 total enrollment in the program
was 2,749 of whom 1,242 were at the entry level and 1,507 were
being trained for upgrade positions.
[p. 63]
EPA's PSC Program has been extremely successful. Through
the PSC 1,015 persons have been hired into and trained into
entry level jobs, while upgrade training has improved the skills
and raised the salaries of over 1,100 others. Although agreement
commitments call for a total of 1,355 trainees this figure was
exceeded by 80% upon contract termination on September 30,
.1973. Throughout the program only 310 have been terminated
prior to completion. PSC has been able to reach all segments of
the disadvantaged spectrum including young persons, minorities,
women, school dropouts and handicapped persons with a pro-
gram designed to provide them with marketable job skills in a
growing industry. Efforts to assist Viet Nam veterans entering
the job markets have been particularly successful.
Listed below is a summary of enrollment in the PSC Pro-
gram including sponsors, trainees, project start dates and loca-
tions.
[p- 64]
EXHIBIT X
Summary of Public Service Careers Program
Sponsor/Subcontractor
No. of
Trainees
Starting
Date
Training
Location
State Board for Technical and
Comprehensive Education
North Central Texas Council
of Governments
Texas Water Quality Board
Public Works Commission
Wisconsin Board of Vocational,
Tech. and Adult Education
State Water Control Board
Alaska Water Laboratory
148 entry
144 upgrade
276 entry
253 upgrade
166 entry
166 upgrade
9 entry
9 upgrade
25 entry
127 entry
123 upgrade
4 entry
12/70
11/70
1/71
1/71
1/71
1/71
8/71
Columbus, SC
Arlington, TX
Austin, TX
St. Thomas, VI
Madison, Wl
Richmond, VA
College, AK
[p. 65]
-------
WATER—GUIDELINES AND REPORTS 761
d. Transition Training
Recognizing the potential manpower for water pollution con-
trol represented by returning servicemen from Viet Nam and else-
where overseas who already have basic skills as a result of their
military experience and training, EPA negotiated an interagency
agreement with the Departments of HEW and Defense to establish
a program of Transition Training in entry level operator posi-
tions. The purpose of the Transition Training Program is to pro-
vide veterans with marketable skills for employment in waste-
water treatment plants through retraining before discharge from
the service.
Over 1,300 servicemen have been trained in this program which
began during November 1970.
Basic education and OJT are provided by joint facilities (mili-
tary institutions in or near wastewater treatment plants and
nearby academic institutions). The duration of the course is 12
weeks or 480 hours. Total cost of the program including the
cost of instructors, supplies, equipment, program administration
and supervision and job location assistance is $1,981,000.
In addition to managing the Interagency Agreement for Tran-
sition Training, EPA performs other related functions. First, it
coordinates efforts to place successful trainees in water or water
pollution control plant jobs upon their separation from the mili-
tary service. EPA also has a responsibility to provide job coun-
seling for veterans with whom they come in contact or those
that contact EPA. In the future, EPA intends to encourage
veterans to further their training
[p. 66]
by enrolling in a junior or community college offering a one or
two-year curriculum in water and wastewater technology or by
seeking employment in a treatment plant offering EPA or state/
local sponsored OJT in order to qualify for higher level jobs.
Secondly, EPA, through direct contact with VA offices, en-
courages the Veterans Administration to channel veterans into
water pollution control occupations and training programs. For
example, it has distributed guidelines to VA State Agencies which
approve wastewater treatment plant operator training programs
recommending the following:
Option 1: Enrollment in an EPA sponsored training pro-
gram if the trainee is within commuting distance of one
of EPA's training projects.
Option 2: Enrollment in a training project equivalent to the
EPA sponsored program which may be sponsored by a
-------
762
LEGAL COMPILATION—SUPPLEMENT n
state or local water pollution control agency if the trainee
is within commuting distance of the training project.
Option 3: Enrollment in a correspondence course which
could be administered by the state water pollution control
agency and/or EPA's Manpower and Training Regional
and Headquarters organizations if no training projects
are available or accessable under Options 1 and 2.
Since the last report to the Congress EPA has started new
training programs in the Far East and in Europe. The first project
was started in Okinawa. EPA, in cooperation with the Depart-
ment of Defense branched out into two additional areas; one
in Korea and one in the Philippines. Subsequently, four addi-
tional sites were added in Germany and one in England. EPA
has just completed negotiations
[p. 67]
for a new Military Transition Program for $650,000. Listed be-
low is a summary of the Transition Training Program:
[p. 68]
EXHIBIT XI
Summary of Transition Training Program
Sponsor/Subcontractor
Charles County Community College,
LaPlata, MD ..
Fayetteville Technical Institute,
Fayetteville, NC
El Paso Independent School District,
El Paso, TX
Central Texas College, Kileen, TX
Orange Coast Community College,
Costa Mesa, CA ._ _.-
Contra Costa Community College District,
Martinez, CA
Sinclair Comm. College, Dayton, Ohio
Clover Park Voc. Tech. Inst,
Tacoma, Washington
San Diego Comm. College District,
San Diego, CA .
Sumter Area Tech. Ed. Center. Sumter, SC __
Charles County Community College
Wayne County Community College
Orange Coast Community College
University of Kentucky __
University of Hawaii _ - ___ _ -
Kirkwood Community College
Kirkwood Community College .. --_
Charles County Community College _..
Clover Park Voc. Tech. Inst.
San Diego - - -- -- -
Neosho
Hawaii - -__ ---
Orange Coast Community College
No. of
Trainees
70
70
70
70
30
40-48
40-48
30
40-48
40-48
40
40
40
40
156
30
104
60
60
40
30
60
30
30
Starting
Date
11/9/70
12/7/70
12/1/70
1/18/71
1/11/71
9/7/71
9/7/71
7/12/71
8/16/71
7/26/71
1/72
2/72
1/72
2/72
5/72
5/72
10/72
2/73
2/73
2/73
3/73
5/73
5/73
5/73
Military
Installation
Ft. Belvoir, VA
Ft. Bragg, NC
Ft. Bliss, TX
Ft. Hood, TX
El Toro Marine Base
Treasure Island, NAS, CA
Wright-Patterson AFB
McCord AFB
San Diego NAS
Shaw AFB
Andrews AFB
Seymour Johnson
El Toro
Fort Knox
Far East
Schofield Barracks
Europe
Europe
Andrews AFB
McCord AFB
San Diego NAS
Far East
Schofield
El Toro
[p. 69]
e. Work Incentive (WIN-II)
The EPA has just negotiated an Interagency Agreement with the
Department of Labor for a Work Incentive Program (WIN-II).
This program is funded for $1,000,000 and designed to provide
-------
WATER—GUIDELINES AND REPORTS 763
remedial education and skill training for 700 adult welfare recip-
ients on Aid to Families with Dependent Children (AFDC).
The program objectives are to train and provide job development
assistance in placing trainees in established budgeted positions
in public or quasi-public agencies.
It is estimated that there will be five local project sponsors.
The scope of this program will include training for over 400 in
water and wastewater or related occupations. The remainder
will be trained in other pollution areas.
[p. 70]
2. Internally Funded
To date, Subsection 104(g) (1))—formerly Subsection 5(g) (1))
of the Act—which authorizes a pilot program for supple-
mental manpower development and training programs for per-
sons entering into operations and maintenance of treatment
works and related activities, has been used to provide update
and upgrade training for existing plant operators. Training was
also provided for Training Program Instructors, and for special-
ized courses in advanced Waste Treatment. Since the program's
inception with FY 1971 supplemental funds, 138 Grants have
been awarded to 40 States and 15,800 Trainees from all 50 States
plus the District of Columbia, Puerto Rico, and the Trust Terri-
tory, have been trained.
Section 104 (g) (1) training is summarized below:
Program Total Trainees Total Amount
State Operator Training Programs 13,200 $2,100,000,00
National Impact Programs and
Special Programs _ . _ _ _ 2,100 1,160,000.00
15,300* $3,260,000.00
The Pilot Program to date has:
Established a mechanism to initiate quickly the train-
ing necessitated by an accelerated program.
Provided an initial framework upon which the States
can build and for which they can eventually assume
responsibility.
Summary descriptions of each program appear in Exhibit
XII.
*Includes trainees also reenrolled in short courses and corres-
pondence courses.
[p. 71]
-------
764 LEGAL COMPILATION—SUPPLEMENT n
(A) STATE OPERATOR TRAINING GRANTS
A wide range of operator training needs has been identified
by State Water Pollution Control and other Public Agencies across
the Country. Given the availability of funds under the Pilot Pro-
gram, the States were asked to suggest innovative projects rep-
resenting their most compelling needs. Each EPA Region then
selected at least one Training Project to answer the State's as
well as Regional Priorities for development and implementation,
based on the following criteria:
—Replicability
—Geographic Diversity
—Potential for Problem Solving
—Coverage (For example, management Training for Super-
visory Personnel, electrical and instrumentation courses,
field study, correspondence and so forth).
To date, 114 Grants have been awarded to 39 States, Puerto
Rico and the Trust Territory for the development and imple-
mentation of operator and operations—related training pro-
grams. These projects cover the following major needs among
the several States:
(i) Management training for first-line supervisors to
expand and upgrade administrative skills of persons
involved in operation and maintenance of wastewater
treatment facilities to improve overall plant efficiency
and personnel performance.
(ii) Phosphorous reduction training programs. These pro-
grams must assist in demonstrating feasible control
processes because states are now legislating for phos-
phrous reduction.
(iii) Electrical and instrumentation courses for plant per-
sonnel to provide expertise in preventing plant shut-
down as a result of minor electrical and instrumenta-
tion problems; in other words, preventive maintenance
training in these critical areas.
[p. 72]
(iv) General skill improvement training for higher level
plant personnel (operators and technicians). Most
of our training effort falls in this category.
(v) Information and orientation seminars for local of-
ficials and policy decision-makers to demonstrate their
-------
WATER—GUIDELINES AND REPORTS 765
unique function in the solving of pollution problems
in their own sectors.
(vi) Mobile laboratory programs have been initiated in
cooperation with the Department of Labor to provide
more extensive laboratory methods to operators who
either are unable to attend on-going programs or have
inadequate laboratory facilities at his own plant.
The municipal decision makers are also able to ob-
serve what equipment is necessary to perform the
required tests to meet Permit standards.
(vii) Certification programs to update and upgrade op-
erators in order to pass mandatory certification tests
as each state enacts their mandatory certification
laws.
(viii) Water supply system programs to train operators of
potable or drinking water systems. Four grants were
tendered in this area. Also, many small town op-
erators have responsibility for both water and waste-
water treatment and require training in both areas.
(ix) Small Plant (usually extended aeration package
plants) and lagoon training in a short-course format
for the small town operator.
(x) Minority Programs. In answer to a need to provide
training to Blacks, Indians, and Spanish-speaking
operators. Several special programs have been pro-
vided at minority institutions and various agencies
to provide training in a special manner. These pro-
g-rams have helped in retaining minorities and pro-
viding career opportunities heretofore unavailable at
the entry level.
Each state conducts its own training programs or selects a
designate agency for its performance. EPA provides technical as-
sistance at the request of the State and monitors programs peri-
odically to assure program compliance.
[p. 73]
Approximately 13,200 trainees have participated in these pro-
grams at a cost of $2,100,000 since the program's inception in
July of 1971.
(B) NATIONAL IMPACT PROGRAMS AND SPECIAL PROGRAMS
Twenty-four grants were tendered to various agencies to de-
velop programs under the National Impact and Special Project
-------
766 LEGAL COMPILATION—SUPPLEMENT n
portion of our activity. These grants were made to various insti-
tutions to develop projects that were national or interregional
in scope and were considered prototypes with national implica-
tions. The lessons learned were to be useful for all training pro-
grams throughout the country. The method helped us to avoid
"reinventing the wheel" in duplicating innovative programs with
national applicability in several states rather than using the re-
sults and disseminating them to interested states individually.
Types of programs developed under this category are as follows:
(1) Curriculum and materials development programs to
keep abreast of improvements in the state of art and to dis-
seminate these curricula and materials to the various training
efforts in the several states.
(2) Correspondence Field Study program to reach plant
personnel in hard to reach areas unable to participate in
on-going training programs. For this purpose a grant was
made to the University of California to administer this
training course for over 4,000 operators at no cost to the
trainee.
(3) Plant start-up training to operators in the Trust Ter-
ritory for newly constructed plants on various islands. This
program was developed to observe if intensive training were
given prior to start-up, we might avoid the initial drop-off
in plant efficiency during the first year shake down.
[p. 74]
(4) Specialized Training in Advanced Wastewater Treat-
ment. When the Pilot Program was authorized, few pro-
grams on advanced wastewater treatment operations were
offered at the State and local levels. EPA awarded two
grants under the Pilot Program for development of two ad-
vanced experimental and demonstration projects to provide
intensive technical training in the operation of wastewater
treatment processes for advanced waste treatment opera-
tors, treatment plant supervisory personnel, public works
department personnel, and others with a need for such train-
ing. Both recipients of these grants, the Tennessee Depart-
ment of Public Health and the Texas Engineering Experi-
mental Station, were selected on the basis of the unique
contribution they could make to the program. Both contrac-
tors have well-qualified staff personnel capable of conducting
the programs. The total cost of the two advanced waste-
water treatment programs, including trainee subsistence
-------
WATER—GUIDELINES AND REPORTS 767
and travel, will be approximately $305,000.00. Each of these
programs is discussed briefly below.
a. Tennessee Program. The State of Tennessee is in an area
currently moving from primary to secondary treatment, and
the State Department of Public Health was in the process of
establishing a training laboratory, usable for such courses,
at the time the grant was awarded. The program is regional
in concept and is designed to reach 60 trainees from states
in the southeast region of the United States. Enrollees re-
ceive four weeks of classroom instruction, followed by on-
site plant visits. Participants from the State of Tennessee
will receive additional on-the-job training over a four-week
period following the classroom phase of the program. The
pilot program will be used to develop a blueprint for similar
regional and State programs.
b. Texas Program. The Texas Engineering Experimental
Station, with a large research and development investment,
is in one of several states moving from secondary to tertiary
treatment; it already had a training laboratory at the time
of the grant award. The Texas program was regional in con-
cept at inauguration but was designed to become national
as it developed. The program will provide training in ad-
vanced wastewater treatment to 130 participants
[p. 75]
from several sections of the nation, especially for plant per-
sonnel from systems utilizing (or soon to utilize) advanced
treatment processes. Courses will be conducted in several
locations throughout the nation and the Texas Experimental
Station.
(5) Advanced Instructor Training. Instructors of the basic
operator training courses also required upgrade training in
advanced teaching techniques to instruct these and higher
level training programs. A pilot project was initiated to sat-
isfy this compelling need.
This project, referred to as Phase II and III Instructor
Training, provides advanced education techniques to opera-
tor training instructors who have already learned basic edu-
cation skills. It represents a refinement of the basic Phase I
training course currently offered under EPA's Technical
Training Program. The course emphasizes motivation, sensi-
tivity training, design of effective instructional techniques,
and evaluation and utilization of learning resources.
-------
768 LEGAL COMPILATION—SUPPLEMENT n
Grants were awarded to an association of instructors and to
Drake University to develop and conduct this training, which
began in June 1971. To date 150 instructors have enrolled
in the course. Participation in the course provides the ad-
vantages of contact with professional educators, more sophis-
ticated education skills, and the opportunity for both college
credit and upgrading of instructor credentials.
(6) National decision-maker workshop to demonstrate to
100 selected State officials who could carry the program
ideas back to their individual states and implement these
programs with their own municipal decision makers.
(7) Federal Agency Operators Training Program. To take
specific area training programs to the operators of treat-
ment facilities in the National Parks and U.S. Forests as
requested by operations and Maintenance Engineering per-
sonnel of these two respective agencies.
National Impact programs and Special Projects have provided
training for 2100 persons at a cost of $1,160,000 since July of
1971. Twenty four separate programs were implemented.
[p. 76]
-------
WATER—GUIDELINES AND REPORTS
769
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4.8d Memorandum of Understanding Between the Environmental
Protection Agency and the Department of Transportation
Concerning the Definition of Transportation Related and
Non-Transportation related Facilities as Used In Executive
Order 11548.
This memorandum establishes policies and guidelines relating
to the definition of transportation and non-transportation related
onshore and offshore facilities and the responsibilities of the En-
vironmental Protection Agency and the United States Coast
Guard with respect to the prevention of oil discharges from ves-
sels and onshore and offshore facilities.
SECTION I
GENERAL
1. Section ll(j)(l)(C) of the Federal Water Pollution Control
Act, as amended authorizes the President to issue regulations
consistent with maritime safety and with marine and naviga-
tion laws establishing procedures, methods and requirements for
equipment to prevent discharges of oil from vessels and onshore
and offshore facilities.
2. This authority was delegated by the President in Executive
Order 11548. Section 1 of that Executive Order delegates respon-
sibility and authority to the Secretary of the Interior to carry
out the provisions of subsection (j)(l)(C) of section 11 of the
Act after consultation with the Secretary of Transportation re-
lating to procedures, methods and requirements for equipment
to prevent discharges of oil from non-transportation related on-
shore and offshore facilities. The authority delegated to the Secre-
tary of the Interior was subsequently vested in the Administra-
tor of the Environmental Protection Agency in Reorganization
Plan No. 3 of 1970 and Section 9 of Executive Order 11548.
3. Section 2 of Executive Order 11548 delegates responsibility
and authority to the Secretary of Transportation in« consultation
with the Secretary of the Interior, to carry out the provions of
subsection (j)(l)(C) of Section 11 of the Act relating to pro-
cedures, methods and requirements for equipment to prevent
discharges of oil from vessels and transportation-related onshore
and offshore facilities. The Secretary of Transportation in turn
redelegated this authority to the Commandant, U.S. Coast
Guard.
4. Although Executive Order 11548 divided responsibility and
authority into transportation-related and non-transportation-
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WATER—GUIDELINES AND REPORTS 779
related facilities, no indication of the extent of transportation
relation is given. In the broadest sense every facility is transpor-
tation related. Any activity that can possibly discharge oil must
transport materials to some extent and have materials trans-
ported either to, from or by the facility.
5. In distinguishing between transportation related and non-
transportation related facilities, a systems approach was utilized.
It is recognized that the life-cycle of oil is characterized by vari-
ous operations conducted at many different types of facilities.
Most facilities necessarily engage in more than one type of
operation. These operations include drilling, producing, refining,
storing, transferring, transporting, using and disposing. To
the extent possible and considering agency resource capabilities
and expertise, it is considered most practical to assign one agency
the responsibility for regulating a complete operation at any one
facility. The Department of Transportation will generally be re-
sponsible for regulating the transferring of oil to or from a
vessel at any facility including terminal facilities; the transport-
ing of oil via highway, pipeline, railroad or vessel; and certain
storing operations. The Environmental Protection Agency will
generally be responsible for regulating drilling, producing, re-
fining, storing, disposing and certain transferring operations at
various types of facilities.
6. While the following definitions are intended to be as specific
and inclusive as possible, it is recognized that certain problems
concerning these definitions will arise from time to time requir-
ing the cooperation and agreement of the Department of Trans-
portation and the Environmental Protection Agency for resolu-
tion.
SECTION II
DEFINITIONS
The Environmental Protection Agency and the Department of
Transportation agree that for the purposes of Executive Order
11548, the term—
(1) "non-transportation-related onshore and offshore facilities"
means
(A) fixed onshore and offshore oil well drilling facilities
including all equipment and appurtenances related thereto
used in drilling operations for exploratory or development
wells, but excluding any terminal facility, unit or process
integrally associated with the handling or transferring of
oil in bulk to or from a vessel.
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780 LEGAL COMPILATION—SUPPLEMENT n
(B) mobile onshore and offshore oil well drilling plat-
forms, barges, trucks, or other mobile facilities including all
equipment and appurtenances related thereto when such mo-
bile facilities are fixed in position for the purpose of drilling
operations for exploratory or development wells, but exclud-
ing any terminal facility, unit or process integrally associ-
ated with the handling or transferring of oil in bulk to or
from a vessel.
(C) fixed onshore and offshore oil production structures,
platforms, derricks, and rigs including all equipment and
appuretenances related thereto, as well as completed wells
and wellhead equipment, piping from wellheads to oil separa-
tors, oil separators, and storage facilities used in the pro-
duction of oil, but excluding any terminal facility, unit or
process integrally associated with the handling or trans-
ferring of oil in bulk to or from a vessel.
(D) mobile onshore and offshore oil production facilities
including all equipment and appurtenances related thereto
as well as completed wells and wellhead equipment, piping
from wellheads to oil separators, oil separators, and stor-
age facilities used in the production of oil when such mobile
facilities are fixed in position for the purpose of oil produc-
tion operations, but excluding any terminal facility, unit or
process integrally associated with the handling or transfer-
ring of oil in bulk to or from a vessel.
(E) oil refining facilities including all equipment and ap-
purtenances related thereto as well as in-plant processing
units, storage units, piping, drainage systems and waste
treatment units used in the refining of oil, but excluding
any terminal facility, unit or process integrally associated
with the handling or transferring of oil in bulk to or from
a vessel.
(F) oil storage facilities including all equipment and ap-
purtenances related thereto as well as fixed bulk plant stor-
age, terminal oil storage facilities, consumer storage, pumps
and drainage systems used in the storage of oil, but exclud-
ing in-line or breakout storage tanks needed for the continu-
ous operation of a pipeline system and any terminal facility,
unit or process integrally associated with the handling or
transferring of oil in bulk to or from a vessel.
(G) industrial, commercial, agricultural or public facilities
which use and store oil, but excluding any terminal facility,
unit or process integrally associated with the handling or
transferring of oil in bulk to or from a vessel.
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WATER—GUIDELINES AND REPORTS 781
(H) waste treatment facilities including in-plant pipe-
lines, effluent discharge lines, and storage tanks, but exclud-
ing waste treatment facilities located on vessels and terminal
storage tanks and appurtenances for the reception of oily
ballast water or tank washings from vessels and associated
systems used for offloading vessels.
(I) loading racks, transfer hoses, loading arms and other
equipment which are appurtentnat to a non-transportation
related facility or terminal facility and which are used to
transfer oil in bulk to or from highway vehicles or railroad
cars.
(J) highway vehicles and railroad cars which are used for
the transport of oil exclusively within the confines of a non-
transportation related facility and which are not intended to
transport oil in interstate or intrastate commerce.
(K) pipeline systems which are used for the transport of
oil exclusively within the confines of a non-transportation
related facility or terminal facility and which are not
intended to transport oil in interstate or intrastate com-
merce, but excluding pipeline systems used to transfer oil in
bulk to or from a vessel.
(2) "transportation-related onshore and offshore facilities" means
(A) onshore and offshore terminal facilities including
transfer hoses, loading arms and other equipment and ap-
purtenances used for the purpose of handling or transfer-
ring oil in bulk to or from a vessel as well as storage tanks
and appurtenances for the reception of oily ballast water or
tank washings from vessels, but excluding terminal waste
treatment facilities and terminal oil storage facilities.
(B) transfer hoses, loading arms and other equipment
appurtenant to a non-transportation related facility which is
used to transfer oil in bulk to or from a vessel.
(C) interstate and intrastate onshore and offshore pipe-
line systems including pumps and appurtenances related
thereto as well as in-line or breakout storage tanks needed
for the continuous operation of a pipeline system, and pipe-
lines from onshore and offshore oil production facilities, but
excluding onshore and offshore piping from wellheads to oil
separators and pipelines which are used for the transport of
oil exclusively within the confines of a non-transportation
related facility or terminal facility and which are not in-
tended to transport oil in interstate or intrastate commerce or
to transfer oil in bulk to or from a vessel.
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782 LEGAL COMPILATION—SUPPLEMENT n
(D) highway vehicles and railroad cars which are used
for the transport of oil in interstate or intrastate commerce
and the equipment and appurtenances related thereto, and
equipment used for the fueling of locomotive units, as well
as the rights of way on which they operate. Excluded are
highway vehicles and railroad cars and motive power used
exclusively within the confines of a non-transportation re-
lated facility or terminal facility and which are not intended
for use in interstate or intrastate commerce.
SECTION III
COORDINATION AND ENFORCEMENT
The above definitions have been developed to facilitate the
development and enforcement of regulations for prevention of oil
discharges and to correspond as much as possible to the existing
responsibilities of the Department of Transportation and the En-
vironmental Protection Agency. It is recognized, however, that
in some situations the Department of Transportation may have
expertise that could be helpful to the Environmental Protection
Agency in the development or enforcement of these regulations
and vice versa. Such a situation might arise in connection with
the regulation of the non-transportation related facilities in-
cluded within definitions 1(J) and 1(K) in section II above.
It is agreed that in such situations the Department of Transpor-
tation and the Environmental Protection Agency will provide as-
sistance to and coordinate with each other in the development
and enforcement of the regulations to the extent that existing
resources permit.
FOR THE DEPARTMENT OF TRANSPORTATION
FOR THE ENVIRONMENTAL PROTECTION AGENCY
4.9a. "Clean Water," Report to Congress, Environmental Pro-
tection Agency, May 1973.
Dear Mr. President:
Dear Mr. Speaker:
I am pleased to transmit to the Congress, as required by
Section 516(a) of the Federal Water Pollution Control Act, the
first of a series of annual reports covering measures taken to
implement the objectives of the Act..
The scope of this first report for calendar year 1972 is
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WATER—GUIDELINES AND REPORTS 783
restricted—essentially it is confined to the nine subject areas
listed in Section 516(a).
Future reports of the series are expected to be more com-
prehensive in scope and balanced in presentation. They will in-
clude coverage of water quality required by Section 104(a)(5)
and sewage flow reduction required by Section 104 (o) (2).
Sincerely,
Robert W. Fri
(Acting) Administrator
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Honorable Carl B. Albert
Speaker of the House of Representatives
Washington, D.C. 20510
CONTENTS
Page
I. Introduction 1
II. Water Quality Planning and Surveillance 7
The Planning Approach 7
Statewide Water Quality Planning 7
Areawide Waste Treatment Management Planning _ _ 9
Planning for Construction of Treatment Works 10
Water Quality Surveillance 10
Planning Problems and Status 11
III. Water Quality Research 13
Processes and Effects - - 13
Control Technology 15
Implementation Research 16
IV. Development of Industrial Effluent Limitations - - - 19
Guideline Development 19
V. Federal Enforcement 25
Federal Enforcement Procedures before
the 1972 Amendments 25
Enforcement Procedures under the 1972
Amendments 27
VI. State and Local Water Pollution Control Programs - - - 31
State Program Grants 31
Municipal Waste Water Treatment Works Grants _ - 33
Role of the States 37
VII. Efficiency of Treatment Works 43
Procedures for Accomplishment 43
Data Analysis 43
General Problems 46
Status 47
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784 LEGAL COMPILATION—SUPPLEMENT n
Page
VIII. Manpower Programs 49
Manpower Planning 49
Manpower Training 49
Estimate of Manpower Needs 50
IX. Water Pollution Control Advisory Board 51
Animal Wastes 51
Land Use 51
Ocean Disposal 51
I. INTRODUCTION
The Nation's policies for the achievement of water quality
suitable for many purposes have evolved through six legislative
enactments since the passage in 1948 of the initial Water Pol-
lution Control Act. The evolution of our water quality laws has
brought with it the development of a wide range of related
activities in financial and technical assistance, research, plan-
ning, and regulation. A brief overview of the development of
Federal water quality law is given below.
1948 Act
Before 1948, Federal law relating to water pollution was applied
only to the specific concerns of navigation, disease, and oil dis-
charges in the territorial sea and other tidal navigable waters.
It is interesting to note, however, that one early law, the Refuse
Act of 1899, was later used as a water pollution abatement in-
strument, particularly in the years 1970-72.
The 1948 act recognized the primary rights and responsibili-
ties of the States in water pollution control, and this position
is still the congressional policy in present law. The initial act
provided for comprehensive water pollution control programs,
research, financial assistance to States, municipalities, and inter-
state agencies for waste treatment facilities. Also included was
a program of construction loans and preliminary planning grants
that were never implemented because the funds were not ap-
propriated. The act authorized abatement of interstate pollution
of interstate waters through Federal court suits after two noti-
fications to the discharger and a public hearing. The require-
ment that the offending State consent to the suit inhibited ef-
fective enforcement. Only one hearing was held and no suits
were brought. The act's 5-year authorizations were extended for
another 3 years to 1956, when the first permanent law was en-
acted.
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WATER—GUIDELINES AND REPORTS 785
1956 Act
Provisions of the 1956 act are outlined below; the law
• gave impetus to municipal waste treatment by authoriz-
ing Federal construction grants;
• strengthened the research function of the law including
research grants, fellowships, and technical training;
• authorized the collection and dissemination of basic water
quality data;
• authorized grants for the establishment and maintenance
of adequate State water pollution control programs;
• continued the authority for comprehensive programs,
technical assistance, and interstate cooperation; and
• established a three-step enforcement procedure (a
Federal-State conference, a public hearing, and Federal
court suit) in the case of interstate pollution of interstate
waters endangering the health or welfare of persons.
(State consent to a suit in such a case was not required.)
1961 Amendments
In 1961, the enforcement authority was extended to navigable
as well as interstate waters and was applied to cases of the
intrastate pollution of such waters on request of a governor.
Further, the term "interstate waters" was redefined to include
coastal waters. These steps greatly expanded the scope of the
law. The authorization for construction grants for waste treat-
ment works was increased and extended, the dollar ceiling was
increased, and a higher ceiling was fixed for joint projects as an
incentive to inter-community cooperation. Research was stepped
up and regional laboratories were authorized. The program grant
authorization was increased and extended. The use of water
storage in Federal reservoirs for low-flow aug-
[p. 1]
mentation to improve water quality was fixed in law, but not
as a substitute for adequate treatment or other waste control
at the source.
1965 Amendments
The 1965 law provided for the establishment, revision, and
enforcement of water quality standards for the Nation's inter-
state waters. The standards, consisting of water quality criteria,
were designed to provide water of proper quality for a range
of designated uses. A plan of implementation and enforcement
was to be prepared in conjunction with the standards. The States
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786 LEGAL COMPILATION—SUPPLEMENT n
were given the first opportunity to adopt standard subject to
Federal approval. Research and demonstration projects addressed
to the difficult problem of storm sewer and combined storm-sani-
tary sewer wastes were authorized. Additional grant funds for
waste treatment works were authorized under conditions that were
beneficial to populous areas and conducive to State participation
in project financing. A 10-percent increase in the amount of a
grant was authorized for projects conforming with comprehen-
sive metropolitan area plans. In certain cases of pollution in-
jurious to the shellfish industry, the amendments authorized
enforcement action on Federal initiative, whether or not the pol-
lution was interstate in effect. The organizational placement of
the national program was elevated with the creation of the Fed-
eral Water Pollution Control Administration (the agency was
transferred from HEW to Interior in 1966, and its functions
were transferred to EPA in 1970).
1966 Amendments
The principal thrust of the 1966 act was the expansion and
redirection of the grant program for construction of waste treat-
ment works. It was extended for 4 years, with authorizations
increasing from $450 million in fiscal year 1968 to $1.25 billion
in fiscal year 1971. (Appropriations in the first 2 years, parti-
cularly, fell far short of the authorization, however.) Dollar
ceilings were removed, and the maximum Federal share of the
project cost was raised from 30 to 40 percent if the State con-
tributed 30 percent, and to 50 percent if the State contributed
25 percent and if enforceable water quality standards were estab-
authorized for larger communities and more populous States.
or local funds (up to the full Federal share) from future Fed-
eral fund allotments was authorized if adequate Federal funds
were not currently available. Proportionately more funds were
authorized for larger communities and more populous States.
Grants to develop basin water pollution abatement plans were
authorized; State program grant assistance was increased; and
research and demonstration grants were authorized in the
areas of advanced waste treatment and water purification,
joint municipal-industrial treatment, and pollution by industry.
Also, a study of pollution in the Nation's estuaries and special
studies on costs, manpower, watercraft pollution, and incentives
to industry for pollution control were directed. Authority was
provided in an enforcement conference to request an alleged pol-
luter to file a report on the character and quantity of his dis-
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WATER—GUIDELINES AND REPORTS 787
charges and on the measures being taken to prevent or reduce
them. Authority was provided to require such information in a
hearing.
1970 Amendments
The 1970 law repealed the Oil Pollution Act of 1924 (originally
an Army Corps of Engineers authority vested in 1966 in the
Secretary of the Interior) and added strong oil pollution control
provisions to the basic Federal Water Pollution Control Act.
EPA enforcement responsibilities in the implementation of this
authority are described in Chapter V, Federal Enforcement.
The removal of hazardous substances other than oil was pro-
vided, but, pending a study and report to Congress, no liability or
penalty provisions as in the case of oil. Sewage from water craft,
mine drainage, lake euthrophication, Great Lakes pollution, man-
power requirements, and pesticides were aspects of the total
pollution problem addressed in the 1970 law. An important pro-
vision added to the basic act was that before a Federal licensing
or permitting agency could issue a Federal license or permit,
it had to be provided with State (or in some cases Federal)
certification that applicable water quality standards would not be
violated. Regulations governing marine sanitation devices pro-
mulgated under the watercraft pollution authority would pre-
empt State and local regulation, but a State could seek a pro-
hibition of any sewage discharge from a vessel. The oil pollution
control provisions expressly preserved the right of States
[p. 2]
and localities to impose any requirement or liability.
1972 Amendments
The most extensive and far-reaching amendments to the Fed-
eral Water Pollution Control Act were those enacted in 1972.
They reflect a concern for the Nation's waters and a strong
commitment to end water pollution. They set the stage for a
coordinated series of specific actions that must be taken—with
strict deadlines and strong enforcement provisions—by Federal,
State and local governments and by industries.
Some of the more important requirements organized by activ-
ity or area of concern are:
Industrial Pollution
• Industries must use "best practicable" water pollution
control technology by mid-1977 and the "best available"
by mid-1983.
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788 LEGAL COMPILATION—SUPPLEMENT 11
• Discharges of toxic pollutants will be controlled by ef-
fluent standards to be issued by 1974.
• Industries must pre-treat effluents that are discharged into
municipal treatment systems.
Municipal Pollution
• Federal construction grants up to $18 billion are au-
thorized over the next three years to help local govern-
ments build needed sewage treatment facilities.
• An additional $2.75 billion is authorized to reimburse
local governments for treatment plants constructed earlier
in anticipation of Federal grants.
[p. 3]
• The Federal share of treatment facilities costs is in-
creased to 75 percent (the maximum Federal share was
55 percent under previous legislation). An Environmental
Financing Authority is established to help State and local
governments raise their share of the cost of treatment
facilities.
• Secondary treatment will be required for plants approved
for construction before mid-1974; "best practicable" treat-
ment will be required for plants approved thereafter.
• Treatment plants must provide a minimum of secondary
treatment by mid-1977 and for plants under construction
by mid-1978.
• All plants must apply and higher treatment necessary to
meet water quality standards by mid-1977.
• All treatment plants will have to use "best practicable"
treatment by mid-1983.
• Areawide waste treatment management plans shall be
established by mid-1976 in areas with substantial water
pollution problems.
Nonpoint Source Pollution
• EPA is required to develop information on (1) the nature
and extent of nonpoint sources of pollution and (2) means
to control such pollution from a range of activities.
• States are required to (1) submit reports on nonpoint
sources of pollution, and (2) recommend control pro-
grams.
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WATER—GUIDELINES AND REPORTS 789
Water Quality Standards
• States must adopt water quality standards for intrastate
waters and submit them by April 1973 for EPA approval.
EPA is required to set standards if the States fail to do so.
• EPA is required to submit a report to Congress by 1974
on the quality of the Nation's waters.
• The .States are required to submit to EPA and the Con-
gress similar reports on waters within their borders by
1975.
[p. 4]
• A national surveillance system to monitor water quality
will be established by EPA in cooperation with other
Federal agencies and State and local governments.
Permits and Licenses
• The 1899 Refuse Act permit program is replaced by a new
permit system which requires that no discharge of any
pollutants from any point source.
• Publicly-owned treatment works, certain other munici-
pally controlled discharge points, and commercial, agricul-
tural and industrial dischargers must obtain permits.
Enforcement
• The 1972 law supplanted the former enforcement mech-
anisms with authority to enforce permit conditions and
other requirements of the law through court action or
administrative orders. Civil and criminal penalties can be
applied to dischargers who violate permits.
• EPA is provided emergency power to seek immediate
court injunctions to stop pollution. That represents an im-
minent or substantial danger to health or welfare.
« Dischargers may be required to keep proper records, in-
stall and use monitoring equipment, and sample their dis-
charges.
• EPA is provided authority to enter and inspect any pol-
luting facility.
• Any citizen or group of citizens whose interests may be
adversely affected has the right to take court action against
anyone alleged to be violating an effluent standard or
limitation, or an order with respect thereto issued by EPA
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790 LEGAL COMPILATION—SUPPLEMENT n
or a State; or against the Administrator for his alleged
failure to perform a nondiscretionary act or duty.
Some of the specific requirements of the Act and progress made
toward their implementation are discussed in the following chap-
ters of this report.
[p. 5]
II. WATER QUALITY PLANNING AND
SURVEILLANCE
The 1972 amendments to the Federal Water Pollution Control
Act obligated the Environmental Protection Agency to under-
take a comprehensive reassessment of its programs, policies,
and general control strategies. Major attention has been given to
the greatly expanded planning requirements stipulated by the
legislation. Major attention has also been afforded the develop-
ment of a more extensive and usable water quality surveillance
system.
The Planning Approach
The 1972 amendments provide a combination of two basic
methods to achieve national water quality goals: effluent limita-
tions based on control technology, and effluent limitations based
on water quality standards.
Through its water quality planning activities, EPA will im-
plement a control strategy designed to delineate the alternative
solutions for those areas in which pollution is most severe and in
which significant population concentrations would benefit from
clean water.
The varying severity and nature of the water pollution problem
throughout the country has resulted in a control strategy that
embraces the following precepts:
• Water pollution control must be directed toward those
areas where the problem is most severe. Generally, these
areas are coincident with areas of greatest population
concentration; a cleanup will thus have an impact on large
numbers of people.
• EPA develops the guidelines by which river reaches are
assigned priority for cleanup, but actual delineation of the
areas is a State responsibility. This process will increase
both State participation in and responsibility for imple-
mentation of the Act.
• EPA will initially concentrate on the 1977 water quality
goals established by the legislation (secondary treatment
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WATER—GUIDELINES AND REPORTS 791
of municipal discharges, best practicable control tech-
nology for industrial dischargers, and more stringent
limitations where they are needed to meet water quality
and treatment standards). But the 1977 goals will not be
implemented so as to preclude meeting the more restric-
tive 1983 goals.
• Paramount in the planning process will be the establish-
ment of a continuing process by which States set priorities
for the complex control actions required by the law.
• EPA will emphasize the preservation of existing high
qualtiy waters and, at the same time, the improvement of
substandard ambient conditions to meet water quality
standards.
Water Quality Planning functions are delineated in the new
legislation under sections 303(e), 208, and 201; of these, 303(e)
provides the overall framework for management of State efforts.
Statewide Water Quality Planning [Section 303(e)]
The statewide water quality planning required by Section
303 (e) is designed to be the central management tool of the States
in administering their water quality programs. The planning
process will provide direction to resource expenditures through
establishing priorities and schedules of action. It will also pro-
vide the goals and framework for construction grant planning
and areawide planning required by sections 201 and 208. A prime
objective of the process is to
[p. 7]
achieve maximum effectiveness in pollution control programs.
The planning requirements of several other sections of the Act
will be achieved through the 303(e) planning process, including
those concerning water quality inventories, protection and res-
toration of lakes, water quality surveillance, and costs of water
quality programs.
Emphasis will be afforded basin planning which will (1)
identify water quality problems and their relative severity, (2)
direct the application and mix of program elements such as local
planning, monitoring, permitting, and construction grants to-
ward solution of these problems, (3) set the effluent limits for
each discharge in the basins, and (4) provide the basis on
which the States' water quality program plans under section 106
will be developed.
Basin plans will be either section 303 (e) management plans
covering basins where there are relatively few water quality
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792 LEGAL COMPILATION—SUPPLEMENT n
limited segments,1 or more complex full plans for the smaller
number of basins with many water quality limited segments where
load allocations must be prepared for dischargers to meet water
quality standards. Both kinds will be prepared by the States.
The general approach to be employed in preparing section
303 (e) plans will entail the following steps:
• States will be required to classify all river segments as
either water-quality limited or effluent-guidelines limited.
An effluent-guidelines limited segment would meet water
quality standards after application of the best practica-
ble control technology for industry, and secondary treat-
ment for municipal plants. All other segments would be
classified as water-quality limited. States should submit
the classification list as part of their initial response to
to section 303(e) regulations.
• For water-quality limited segments for which adequate
data is available to make load allocations, full plans
should be prepared and submitted no later than June
30, 1973.
• For water-quality limited segments for which adequate
data is not available to make load allocation, States should
identify resources and time schedules for obtaining the
necessary data and completing the required full plans.
• For effluent-guidelines limited segments, States should
begin preparing 303(e) management plans.
The section 303 (e) planning process provides that the level of
planning for a basin is to be tailored to the complexity of the
pollution problems in the area and to the information require-
ments for water quality decisions in that basin.
All plans are required to include:
• a display of in-stream water quality data to certify that
segments are properly classified as water quality class or
effluent limitation class,
• an assessment of needs for publicly owned treatment
works,
• an inventory and ranking of individual dischargers, and
• schedules of compliance and effluent requirements for dis-
chargers.
1 Water quality limited segments are those portions of a basin where it is known that water
quality does not meet applicable water quality standards, or which are not expected to meet
such standards even after application of best practicable control technology for industries,
or secondary treatment for municipalities.
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WATER—GUIDELINES AND REPORTS 793
In addition, plans for water quality class will include:
• an assessment of total maximum daily loads necessary to
meet water quality standards,
• an assessment of whether effluent limitations established
will achieve the needed reductions to achieve water quality
standards, and
• an assessment of nonpoint-source pollution and needed
control measures.
Areawide Waste Treatment Management Planning (Section 208)
Areawide waste treatment management (AWTM) planning
will be accomplished primarily in metropolitan areas that have
substantial water quality problems requiring treatment levels
beyond secondary for municipal wastes and best practicable con-
trol technology for industrial
[p. 9]
wastes. The planning would be limited to areas where units of
local government have agreed, or have indicated their intent, to
operate a coordinated waste treatment management system. Gen-
erally, the Governors of the States involved will designate the
AWTM areas and the planning agencies that will conduct the
work. The planning will include description of the regulatory
programs required to assure pretreatment of industrial and com-
mercial wastes and to abate nonpoint source pollution.
Draft regulations covering designation of AWTM planning
areas are being prepared and are scheduled for publication by
May 1973. Preparation of guidelines covering AWTM planning
procedures has been initiated with completion scheduled for
June 1973.
Planning For Construction of Treatment Works (Section 201)
Approval of construction grants will be contingent, in part, on
evidence that alternatives and least-cost solutions have been in-
vestigated, and that the projects will be consistent with plans
to meet water quality standards and effluent limitations. The
facilities planning involved will emphasize the cost-effective eval-
uation and the environmental assessment of alternatives. The
alternative approaches to be considered are grouped into three
broad categories: (1) treatment and discharge to receiving water,
(2) treatment and resue, and (3) spray-irrigation or other
land disposal. The most cost-effective solution to correct excessive
infiltration of the sewer collection system will also be examined.
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794 LEGAL COMPILATION—SUPPLEMENT n
Through the facilities planning process, unnecessary expendi-
ture of public funds is expected to be avoided.
Regulations covering grants for construction of treatment
works are under preparation and are scheduled for publication
by summer 1973. Supplemental guidelines covering facilities
planning are scheduled to be published by July 1973.
The Federal role, in addition to preparing regulations and
guidelines, will involve (1) the development of criteria for the
construction grant priority list, (2) providing funds at the ap-
plicable rate for approved projects and (3) participating in the
various stages of construction. Such participation will emphasize
preapplication and design conferences, and the assessment of
environmental impacts.
Water Quality Surveillance
Effective planning requires an adequate water quality data
base. Under the strategy developed by EPA, the States will under-
take intensive monitoring surveys as an integral part of their
continuing planning processes. These surveys will provide the
States with an understanding of their water quality problems,
including data to describe cause and effect relations of pol-
lution in each river basin. For section 303 (e) plans these sur-
veys will provide the basis for determining the effects of point
and non-point sources of pollution on receiving water quality.
At the national level, the 1972 amendments provide for the
establishment of a national water quality surveillance system.
This network of stations will provide a baseline of data against
which the effects of pollution control actions can be assessed.
One of the most frequent problems encountered in developing
such a baseline is the difficulty of measuring localized concen-
trations of pollutants. The location and characteristics of these
concentrations make monitoring more difficult and the inter-
pretation of data more complex. With this problem in mind,
EPA is developing a plan to establish permanent monitoring
sites primarily located at points upstream and downstream of
major concentrations of polluters. These sites will be part of the
National Water Quality Surveillance System required by Sec-
tion 104(a) (5), and will be operated in cooperation with the
States and other Federal agencies.
Until the surveillance system is operative, data for national
assessments will come form existing sites operated by States,
EPA and other Federal agencies. Using data from such sites,
EPA is preparing a report that will cover both local and wide-
-------
WATER—GUIDELINES AND REPORTS 795
spread pollution concentrations in selected major rivers of the
nation.1 The report is scheduled for completion in January 1974.
[p. 10]
Planning Problems and Status
Problems. Problems relating to implementation of the water
quality planning requirements of the new legislation fall generally
under the following categories:
• Structuring national programs to accommodate widely
varying types and extent of pollution.
• Coordination with States and local entities.
• Coordination among affected EPA programs and with
other interested Federal agencies.
Resolving implementation problems will require a continuing
effort, since many of the problems are not susceptible to a
single, easy solution. Therefore, continuing review, refinement,
and reassessment will be vital to efficient program development.
Provision has been made for such activities in both the regulations
and the guidelines prepared by this agency.
Coordination is of prime concern since so many different
types and levels of goverment are affected. Steps are being
taken at both the headquarters and regional levels to assure
coordination.
Status. Tables 1 and 2 display information on river basins.
The basin categories will determine the type of planning that
will be employed to help meet water quality objectives.
1 Selected for analysis are the following basins: Missouri, Mississippi, Rio Grande, Yukon,
Arkansas, Colorado, Columbia-Snake, Ohio-Allegheny, Red (Oklahoma-Arkansas), Brazos,
Tennessee, Mobile-Alabama, Susquehanna, Willamette, Hudson-New York Harbor, Los Angeles
Harbor, Chicago-Lake Michigan, Delaware, Detroit, San Francisco Bay-Sacramento River,
Potomac, Boston Harbor. Data and other constraints may preclude inclusion of all of these
basins in the forthcoming report.
TABLE 1
DISTRIBUTION OF POPULATION AND MAJOR INDUSTRIAL DISCHARGERS BY TYPE OF BASIN*
Type
of
basins
Criticalt
Other
Number
of
basins
89
178
Population
accounted
for (%)
65
35
Number of
major industrial
dischargers
l,590t
1,078**
Average number
of major industrial
dischargers
per basin
18
7
*Does not include 24 nonpriority basins in Alaska, Hawaii and U.S. Territories.
fBasins where pollution is most severe and significant concentration of population would benefit
from cleaner water.
{Equals 60 percent of total major dischargers.
"Equals 40 percent of total major dischargers.
[P- HI
-------
796 LEGAL COMPILATION—SUPPLEMENT n
TABLE 2
SYNOPSIS OF BASINS
Type of
basin
Critical basins
Other basins:
High pollution
Medium pollution
Low pollution .-
Uncategorized* .. ..
Total _
•Basins located in Alaska,
Low in
nonpoint-source
pollution
79
30
68
177
Hawaii, and U.S. Territories.
High in
nonpoint-source
pollution
10
18
10
28
66
Total basins
89
18
40
96
24
267
[P-
12]
III. WATER QUALITY RESEARCH
The search for new and improved solutions to old problems
through research, development, and demonstration is an important
element of EPA's overall water quality control program. In
broad terms, these activities may be divided into three categories—
processes and effects, control technology, and implementation
analysis.
PROCESSES AND EFFECTS
Ecological Effects. Studies of ecological effects are directed
primarily toward the development of criteria to be used in the
setting of water quality standards. Such standards will cover
fresh water, estuarine, and marine uses. Research results will
also be used to develop predictive capabilites for short term and
long term effects of pollutants on species, community structure,
and total ecosystems. Current, research is specifically directed
toward (1) determining acceptable levels of pesticides and pesti-
cide derivatives in freshwater, estuarine, and coastal waters, (2)
determining the effects of organic chemicals, heavy metals, petro-
leum, and petroleum by-products on freshwater and marine life,
and (3) determining the temperature and dissolved oxygen re-
quirements for freshwater and marine life.
EPA has published a number of reports pertaining to ecological
effects, including the Water Quality Data Book: Vol. I, Organic
Chemical Pollutants of Freshwater; Vol. II, Inorganic Chem-
ical Pollutants of Freshwater; Vol. Ill, Effects of Chemicals
on Aquatic Life; and Vol. IV, An Investigation into Recreational
Water Quality. Guidelines for pesticides will be published in
early 1973, primarily for use by the States.
Research has shown that polychlorinated biphenyls (PCB's)
have the highest cumulative effect in freshwater fish and inverte-
brate tissue of any organic chemical known. Because of this,
-------
WATER—GUIDELINES AND REPORTS 797
the safe concentration of PCB has been revised downward by one
to two orders of magnitude in the latest revision of water quality
criteria.
Studies have also determined that chlorine used to disinfect
waste treatment plant effluents has great potential harm on
aquatic life. As a result of this finding, an effort is underway
to demonstrate alternative disinfection methods and dechlorina-
tion methods.
A research facility has been established that is capable of test-
ing the sensitivity of adult salmon to water pollutants. Results
thus far have shown that adult salmon are more sensitive to a
large number of pollutants than are the young.
Health Effects. Major attention must be afforded health effects
in the development of water quality standards. Accordingly,
EPA has assigned priority attention to research activities in this
problem area. Current research stresses the health effects of
chemical and infectious contaminants in drinking and recrea-
tional water. During 1973 and 1974 emphasis will be placed
on an assessment of the toxic effects of trace minerals in the
environment.
Transport Processes. Research on transport processes involves
the study of the routes, rates, and mechanisms of pollutant move-
ment and transformation in surface and underground bodies of
water. Knowledge of these factors aids in predicting the en-
vironmental consequences of discharging pollutants to bodies of
water. Pollutants receiving research emphasis are persistent
organics, heavy metals, and nutrients.
Research attention has also been directed toward the effects
and methods of controlling thermal discharges. A thermal dis-
charge report, required by the new water quality legislation, is
scheduled for release by July 1973. Eight monographic reviews
covering various aspects of the thermal problem will be made.
In addition, EPA has requested selected Federal agencies1 to
contribute to the report. *
[p. 13]
Measurements and Instrumentation. A broad range of research
activities has been undertaken to develop water quality measure-
ment techniques and instruments. The more significant research
efforts are discussed briefly below:
1 Tennessee Valley Authority, National Science Foundation, Federal Power Commission,
National Oceanographic and Atmospheric Administration, and Bureau of Sport Fisheries and
Wildlife.
-------
798 LEGAL COMPILATION—SUPPLEMENT n
• Development of test procedures required in the promul-
gation of effluent guidelines under section 304(g) is under-
way. Thirty-eight methods have been completed and are
ready for publication by reference in the Federal Register.
Twenty-eight additional methods will be completed by
March 15,1973.
• A system for characterizing the organic components of
municipal and industrial wastes has been developed. Work
is in progress to establish "fingerprints" for each constit-
uent in the wastes.
• A chemical indicator of fecal pollution to rapidly detect
contamination of potable water has been developed. This
method is superior to earlier microbiological techniques, as
it is independent of nutrient concentration in the water
and is not subject to falsification by other sources of
microorganisms.
• A device has been developed for extracting and concentra-
ting viruses from water at very low concentrations. The
concentrate can be shipped from the field to central lab-
oratories for subsequent analysis. The lack of this capa-
bility has been the major deterrent to large scale surveys
of water sources for viral contamination.
• An instrument capable of detecting the highly toxic
organophosphorous pesticides at a level of one part per
billion has been developed.
• A fluorescent antibody technique, which is rapid and
specific, has been developed for the detection of strepto-
cocci bacteria.
Water Supply. Much of the research in the water supply area
is directed toward improving the quality of drinking water as
opposed to the prevention or control of water pollution. Current
work includes studies oij diseases associated with water-based
recreation. For example, several projects are underway to qualify
the measurement of bacterial pathogens and indicators in bath-
ing waters. Useful results were obtained in salmonella-coliform
ratios to support current criteria for body-contact-recreation
water standards.
A test method has been developed that allows a reduction
from 4 days to 7 hours in the time required to complete a coli-
form test. This will provide for one-shift control at water-
treatment plants or bathing beaches.
-------
WATER—GUIDELINES AND REPORTS 799
Control Technology
Research, development, and demonstration programs are neces-
sary to establish a technological base for the implementation of
water quality objectives. Initially, emphasis will be placed on
municipal, industrial, and other point sources of water pollu-
tion. Later, as the point sources of pollution are brought under
broadened control programs, emphasis will shift to research of
nonpoint sources.
Municipal. Conventional wastewater treatment, still in use in
most localities, was developed over a period of years to remove
suspended solids, biodegradable organics, and to some degree,
microorganisms. The efficiencies of these treatment processes are
generally below today's requirements. In addition, the character-
istics of the wastewater to be treated have changed considerably
because of the increasing amounts of industrial waste in munic-
ipal sewage. Therefore, new and improved treatment processes
and process combinations are required.
Improved treatment processes in practice today which are to
a large extent the result of EPA's research, development, and
demonstration efforts, include processes that reduce the sus-
pended solids, microorganism, and biodegradable organics con-
tent of municipal wastewater to very low levels. Processes are
also available to reduce nutrient materials such as phosphorus
and nitrogen, refractory organics, some heavy metals, and viruses
to low levels. Improvement in operational reliability and process
control through the use of better electronic sensing devices and
computers is being made.
Collection and transport system technology has also been up-
graded. Means of exercising control of flow in collection systems
have been developed and demonstrated. Thus, it is possible to
store or route flows to prevent system overflows and to equalize
flow to treatment works. High-rate methods for treating over-
flows from combined sewers have been developed. Separation of
sewers is no longer considered necessary or desirable in all cases
for
[p. 15]
the control of pollution from combined sewer overflows, as
equivalent control can be achieved at lesser cost.
Future work in the municipal technology area will include
refinement of several of the newer unit processes to achieve bet-
-------
800 LEGAL COMPILATION—SUPPLEMENT n
ter cost effectiveness and to improve process reliability. Additional
emphasis will be placed on cost effectiveness factors of treatment
processes. New efforts will be initiated toward developing the
ability to reduce sewage flow. These efforts will include work in
the area of infiltration control.
Systems developing joint liquid and solid waste transport and
treatment will be investigated. The current minimal efforts in
developing improved technology for collection and treatment of
rural sewage will be upgraded. Sludge treatment and its ul-
timate disposal is an area of great concern, and additional work
will be conducted in sludge processing and alternative treatment
techniques.
A total collection-transport-treatment concept will be empha-
sized in EPA's approach to research, development, and demonstra-
tion programs.
Industrial. The industrial pollution control program, which
emphasizes innovative, efficient, and economical technology, is
focused on (1) recycling and resource recovery, (2) integrating
facilities to jointly meet other environmental problems such as
solid waste and waste heat, and (3) facilities that produce al-
ternative resources such as power or heat. The technology is
structured toward recovery of some or all of the costs of control
through sale of control byproducts and resources. The research
efforts, in addition to demonstrating technological capabilities,
will also contain an assessment of the direct costs of the facilities
and benefits such as cost savings arising from byproduct re-
covery, more efficient production processes, and water recycling.
Joint industrial-municipal projects are planned that will dem-
onstrate comprehensive and alternative approaches to regional
waste management and/or treatment. They will be developed
during the period 1973-76 with States and other public in-
stitutional water management authorities.
Requirements for industrial wastewater will be established by
the formulation of industrial guidelines. Research for the guide-
lines will cover the character of the industries, their wastes,
and the best practical and best available pollution control tech-
nologies currently employed. Research will also establish the
pretreatment requirements for industrial discharges to public
systems and identify the limits of toxic industrial pollutants for
discharge to public treatment systems and receiving bodies of
water.
EPA will expand treatment and control research of new
methods and processes for the abatement of thermal pollution.
-------
WATER—GUIDELINES AND REPORTS 801
Nonpoint Sources. Nonpoint sources of water pollution is
another problem area in which major research, development, and
demonstration effects will be applied. The efforts will be directed
primarily toward obtaining information on the nature and means
of controlling pollution from agricultural, mining, construction,
and forestry activities, and to control and abate pollution from
oil and hazardous materials spills.
Implementation Research
Implementation research, based primarily on economic and
systems analyses, assists EPA in meeting its environmental pro-
tection responsibilities. The research includes: (1) development
of improved techniques for quantification of economic benefits
and damages related to various levels of water pollution, (2)
development of improved methods for setting and implementing
both ambient and emission water quality standards, (3) devel-
opment of procedures to assist EPA in responding to the Na-
tional Environmental Policy Act, (4) exploration of fiscal and
other alternatives to the regulatory process for achievement of
environmental goals, and (5) a search for optimal water quality
management concepts.
Completed economic analysis projects include assessment of the
benefits of improving the quality of a recreational lake, a com-
pilation of available current water pollution cost and benefit
functions, a study of the effect of water pollution on land
values, and a bibliography of water pollution costs literature
containing nearly 2,000 entries.
Concerning environmental standards, the following projects
were completed: (1) analysis of the feasibility of a strict in-
terpretation of "zero-discharge" standards for water pollution,
(2) exploration of the desirability of applying environmental
quality standards on a combined air-water-solid waste basis, (3)
an assessment of
[p. 16]
the use of reliability criteria in setting water quality standards,
and (4) development of quantitative procedures for designing
water quality standards surveillance systems.
Systems evaluation projects completed include an assessment
of land use controls for protecting water quality, demonstration
of water quality enforcement information systems, develop-
ment of procedures for comprehensive management of phosphate
pollution on an areawide basis, investigation of the air and solid
waste pollution problems associated with water pollution con-
-------
802 LEGAL COMPILATION—SUPPLEMENT n
trol, a demonstration of regional water quality planning in a
rural area, and development of procedures for analyzing cost
effectiveness of water quality monitoring systems.
In response to the 1972 amendments, a project was initiated
to determine and document the most effective benefit analysis
techniques and practicable costs currently available for environ-
mental analysis.
A study was begun to analyze the impact of the availability
of water and sewer services on land development in the Lake
Tahoe Basin. A related project, conducted in cooperation with
the Council on Environmental Quality, considers the sewers-
development question is a more general sense. Further study on
this topic will investigate the use of environmental impact analyses
of water supply and wastewater facilities in regional development
decisions.
Projects were started on regional analysis of ambient and
effluent standards, design of optimal effluent monitoring systems,
and air-water-solid waste impacts of strict ocean disposal stand-
ards. Also, projects have been initiated (1) comparing the cost
effectiveness of stormwater pollution control versus sewage
treatment in a metropolitan area, (2) exploring new financing
methods for pollution control equipment, (3) identifying the
economic factors related to the potential reuse of used lubricating
oils, and (4) investigating the use of crop insurance to decrease
the demand for pesticides.
Research results are made available to all interested parties,
particularly government authorities charged with water quality
control at the Federal, interstate, State, regional, and local level.
[p. 17]
IV. DEVELOPMENT OF
INDUSTRIAL EFFLUENT LIMITATIONS
Industries discharge into our Nation's waters a broad range of
pollutants. In the aggregate, they form the largest and most
toxic of all concentrated sources of pollution. On the average, in-
dustry discharges about three times the amount of waste that is
discharged by all the sewered private residences in the United
States, and the volume is increasing several times as fast as that
of sanitary sewage.
The 1972 amendments provide for a vigorous attack on indus-
trial water pollution, with set deadlines for a number of specific
control actions. Guiding the control program will be two salient
requirements: (1) existing industries discharging pollutants into
the Nation's waters must use the best practicable water pollution
-------
WATER—GUIDELINES AND REPORTS 803
control technology currently available by July 1, 1977; and (2)
they must employ the best available technology by July 1, 1983.
EPA will publish effluent limitations and guidelines to de-
fine the "best practicable" and "best available" technologies for
various industries, by October, 1973. The guidelines can be ad-
justed for several factors, including the cost of pollution control,
the age of the industrial facility, the process used, and the en-
vironmental impact (other than water quality) of the controls.
EPA will also identify where possible pollution control measures
for completely eliminating industrial discharges.
After May 1974 new sources of industrial pollution must use
the best available demonstrated control technology which will be
defined by EPA in the form of standards of performance for
various industries. Where practicable, EPA may require that
there be no discharge of pollutants from new industrial facilities.
Review of the legislation reveals that most of the required in-
dustrial pollution control activities are closely interrelated. Be-
cause of the close relationship, these activities are being per-
formed simultaneously for each industry that is to be studied.
Contracts are being negotiated with responsible contractors to
perform the necessary studies and analyses of the 27 industrial
categories listed in section 306 of the FWPC Act. A tabulation
of the industrial categories together with an estimation of the
number of dischargers involved is shown in Table 1. The legislation
directs that additional categories be identified and added to the
mandatory listing already provided by Congress. Eighteen addi-
tional categories have already been identified as having substan-
tial impact on critical river basins (Table 2), and 16 more cate-
gories (Table 3) have been identified for remaining industries.
Both lists will be expanded as work progresses in identifying
permit applicants and as pretreatment and cost recovery require-
ments are implemented.
Guideline Development
In the development of effluent limitations and guidelines it is the
intention of EPA to obtain technical input and obtain critical
review comments from other Federal agencies, the States, in-
dustry, citizen groups, and the Effluent Standards and Water
Quality Information Advisory Committee. Public hearings will be
held as indicated. The steps required to develop effluent limita-
tions and guidelines for existing sources of industrial pollution,
and performance standards for new sources of such pollution are
outlined as follows:
-------
804 LEGAL COMPILATION—SUPPLEMENT n
• Industrial categorization. A preliminary listing of indus-
tries by categories has been developed. Industries are to be
subcategorized based on raw material used, product pro-
duced, manufacturing processes employed, and other fac-
tors.
• Waste characterization. Raw waste characteristics for
each category and/or subcategory must be identified. A
waste and wastewater material balance is performed,
[p. 19]
indicating the source, flow, and volume of water and waste-
waters. Constituents (including thermal) and the chemi-
cal, physical, and biological characteristics of all waste-
waters (including toxic and other constituents causing
taste, odor, and color effects) are identified.
• Identification, documentation and verification of control
and treatment technology.
This step includes consideration of the following items:
—In-plant control techniques
—All existing and potential treatment and control tech-
nologies (including in-plant and end-of-process technol-
ogies)
—Limitations and reliability of each treatment technol-
ogy and required implementation time
—Effects of application of each treatment technology on
other pollution problems
—Resulting solid wastes and solid waste control technol-
ogies
—Intake structure technology
• Development of cost information. For each treatment tech-
nology cost information must be developed for investment
costs and annual costs (including capital costs, deprecia-
tion, operating and maintenance costs, and energy and
power costs).
[p. 20]
• Evaluation of data. Data will be evaluated to determine
the best practicable control technology currently available
(Level I), the best available technology economically
achievable (Level II), and the best available demonstrated
control technology (Level III).
The effluent limitations and guidelines for existing sources and
performance standards for new sources of pollution are being
-------
WATER—GUIDELINES AND REPORTS
805
developed for the 27 industrial categories (listed in Table 1) in
accordance with the steps outlined above. These categories will
be formally identified by publication in the Federal Register by
February 1973.
TABLE 1
MAJOR INDUSTRIAL CATEGORIES LISTED IN FWPC ACT
Category
Permit
applications
Major dischargers
1. Pulp and paper mills __ 404
2. Paperboard, builders paper and board mills
3. Meat product and rendering processing ___ 307
4. Dairy product processing 301
5. Grain mills 71
6. Canned and preserved fruits and vegetables processing .. .. 308
7. Canned and preserved seafood processing 456
8. Sugar processing _ 137
9. Textile mills ... . 550
10. Cement manufacturing 100
11. Feedlots .. 24
12. Electroplating . 472
13. Organic chemicals manufacturing 276
14. Inorganic chemicals manufacturing 214
15. Plastic and synthetic materials manufacturing 174
16. Soap and detergent manufacturing 54
17. Fertilizer and phosphate manufacturing 480
18. Petroleum refining 193
19. Iron and steel manufacturing 328
20. Nonferrous metals manufacturing 278
21. Steam electric powerplants 2,619
22. Ferroalloy manufacturing 48
23. Leather tanning and finishing 338
24. Glass manufacturing 132
25. Asbestos manufacturing 43
26. Rubber processing 306
27. Timber products processing 402
Total 9,015
306
19
10
16
46
98
143
14
0
0
125
112
102
35
14
52
130
111
32
357
13
31
17
12
27
32
1,854
[p. 21]
TABLE 2
ADDITIONAL INDUSTRIAL CATEGORIES WITH IMPACT IN CRITICAL RIVER BASINS
Ranking*
Category
Major dischargers
Permit Major in critical
applications dischargers river basins
1 Coal mining
2 Water supply
3 Motor vehicles
4 Nonferrous metal forming
5 Nonelectrical machinery
6 Misc. food and beverage
7 Petroleum and gas
8 Fish hatcheries and fish farming
9 Electrical machinery
10 Limestone
11 Misc. mineral products
12 Metal mining
13 Misc. chemicals
14 Fabricated metal products
15 Sand and gravel
16 Railroads -
17 Paving and roofing materials ..
18 Steam supply
798
898
317
210
276
422
1,031
309
333
392
152
403
320
337
397
326
129
17
Total 6,662
31
28
19
30
16
60
28
19
26
10
11
54
71
11
22
8
8
1
453
23
16
12
12
11
24
9
10
4
4
6
10
4
2
1
5
1
174
' This ranking is based upon impacts within critical basins.
[p. 22]
-------
806
LEGAL COMPILATION—SUPPLEMENT n
TABLE 3
REMAINING INDUSTRIAL CATEGORIES IDENTIFIED AS SIGNIFICANT
Category
Major dischargers
Permit Major In critical
applications dischargers river basins
1.
?.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
*
Misc. plastic products .
Auto and other laundries
Natural gas liquids .
Converted paper products _.
Chemical and fertilizer mining
Petroleum products, wholesale
Public warehousing ___ _
Airports -- _
Groceries
Printing
R&D laboratories
Marine cargo handling .
Sanitary services - - .
Gasoline service stations . - - - .
Hospitals
Miscellaneous*
Total
Includes a number of permit applications
164
185
157
.__ 124
57
449
152
60
65
64
53
46
42
29
28
1,470
3,145
that are not classified at this
4
0
1
27
13
1
0
5
0
1
0
0
9
0
0
61
time.
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
[p. 23]
V. FEDERAL ENFORCEMENT
Federal Enforcement Procedures Before The 1972
Amendments (October 18, 1972)
Before the 1972 amendments, the FWPC Act provided for (1)
the abatement of pollution of interstate or navigable waters en-
dangering the health or welfare of persons, and (2) the abate-
ment of pollution lowering the quality of interstate waters below
the water quality standards established under the Act.
The first authority, provided in 1956 and expanded by subse-
quent enactments, set out a three-step enforcement procedure—
conference, public hearing, and court action. The succeeding step
was taken if satisfactory progress toward abatement was not at-
tained at the preceding step. A conference could be called either
at state request, in a case of interstate or intrastate pollution, or
initiated by EPA, in a case of interstate pollution. The EPA Ad-
ministrator could initiate a conference in certain cases of pollu-
tion resulting in economic injury to shellfish producers, whether
or not the pollution of interstate or navigable waters was inter-
state in effect. The conferees (representing EPA, the States, and
any interstate water quality agency) convened to review the ex-
isting situation and any progress made, to lay a basis for future
action for all parties concerned, and to give the States, localities,
and industries an opportunity to take any indicated remedial ac-
tion under State and local law.
The second authority, provided in 1965, permitted court action
against a discharger alleged to be in violation of water quality
-------
WATER—GUIDELINES AND REPORTS 807
standards after expiration of a 180-day notice period. The legis-
lative history of the 1965 enactment directed that an informal
hearing be held at the request of a State, the alleged violator, or
other interested party so that voluntary agreement could be
reached if possible during the 180-day period, thus eliminating
the necessity for suit. EPA regulations provided for an informal
hearing in any case of a water quality standards violation no-
tice.
The FWPC Act was amended in 1970 to provide for the abate-
ment of pollution by oil in navigable waters, on adjoining shore-
lines, and in the Contiguous Zone. EPA has shared responsibili-
ties in such abatement with the Coast Guard and other Federal
agencies. Federal enforcement may be taken in these cases:
• Failure to notify of harmful discharge (criminal penalty)
• Knowing harmful discharge (civil penalty)
• Vessel in marine disaster (removal or destruction, cost
recovery)
• Imminent and substantial threat, onshore or offshore fa-
cility (court relief)
• Recovery of cleanup cost
• Violation of removal and prevention regulations (civil pen-
alty)
EPA was made responsible for enforcement in the case of an
imminent and substantial threat to the public health or welfare
because of an actual or threatened discharge of oil into or upon
navigable waters from an onshore or offshore facility. Further,
EPA was assigned responsibility for (1) the assessment of civil
penalties in cases of violations of removal regulations in inland
waters and prevention regulations with respect to nontranspor-
tation related onshore and offshore facilities, and (2) for the sup-
port of the Coast Guard in its enforcement responsibilities.
The Refuse Act, section 13 of the River and Harbor Act of 1899,
prohibits the discharge of refuse (except that flowing from streets
and sewers and passing from them in a liquid state) into navi-
gable waters without a permit or in violation of the conditions of
a permit. The Act was administered for many years by the Army
Corps of Engineers, primarily in the interest of navigation. Al-
though court decisions had supported the Act's use in water pollu-
tion abate-
[p. 25]
-------
808 LEGAL COMPILATION—SUPPLEMENT n
ment cases, it was not until 1970 that it became a viable water
pollution enforcement mechanism. The Act does not expressly
provide for injunctive relief, but the Supreme Court has ruled
that the Federal Government may obtain injunctions under the
Act. Generally, EPA has not recommended criminal prosecutions
under the Refuse Act other than in cases of isolated or instantan-
eous discharges resulting in serious damage. A civil remedy has
generally been more effective in preventing future pollution.
The Refuse Act Permit Program, established under Executive
Order 11574, December 23, 1970, took effect July 1, 1971. The
program required that all discharges or deposits into navigable
waters or their tributaries, or into waste treatment systems other
than municipal systems from which the matter will flow into navi-
gable waters or their tributaries, should be made only in compli-
ance with the conditions of a permit issued by the Army Corps
of Engineers. EPA was responsible for determinations with respect
to water quality aspects of the permit. The participation of the
States in the program was provided for by Section 21 (b) of the
FWPCA, as amended in 1970, which required State certification
that a proposed discharge would not violate water quality standards
before a permit could be issued. If the State denied certification,
no permit could be issued; EPA could, however, recommend
denial of a permit even though the State had granted certification.
Under the Refuse Act, EPA regions received applications
through the Corps of Engineers district offices and determined
what requirements were necessary to prevent violations of water
quality standards. The Corps incorporated into the permits
consideration of effects on navigation and the opinions of the De-
partment of the Interior's Bureau of Sport Fisheries and Wildlife
and opinions of the Department of Commerce's National Oceano-
graphic Atmospheric Administration. In anticipation of permit
issuance, the Corps gave public notice (sometimes jointly with
the State), allowed 30 days for comment, and where indicated,
held a public hearing. The Corps was also responsible for such
administrative decisions as whether or not to give confidential
status to information supplied on the application form. The fail-
ure to make timely application for a Refuse Act permit under the
program became cause for enforcement action.
To maximize the impact of the program on water quality, EPA
developed a systematic approach to the job. Major dischargers
(that is, the relatively small number of facilities which contribute
about 85 percent of the Nation's total pollution load) were identi-
-------
WATER—GUIDELINES AND REPORTS 809
fied for early attention, as were high priority basins. A major
task was the development by headquarters of guidance on
achievable effluent limits for 22 different industrial categories for
use by the regions as a basis for setting uniform requirements for
similar facilities throughout the country. Certain conditions that
would be standard to all permits were also developed. Two sophis-
ticated computer systems were put into use to record, manipulate,
and retrieve the vast amount of data that is reported on permit
applications.
Of the 20,000 applications that were received, very few were
complete enough to be processed. As a result, only about 25 per-
mits had been issued by December 1971, at which time a court
injunction blocked further issuance. A Federal court decision in
the Kalur case, December 21, 1971, enjoined the granting of per-
mits under the program until the Army Corps of Engineers
amended its permit regulations to require environmental impact
statements as specified by the National Environmental Policy
Act. The court also held that no permits whatever could be issued
for discharges into nonnavigable tributaries of navigable waters.
A further legal obstacle was created by the decision of the Third
Circuit Court of Appeals in the PICCO case, May 30, 1972, that
the company could not be held criminally responsible for dis-
charges under the Refuse Act until a permit system was in opera-
tion. These legal difficulties were removed with respect to future
cases by the FWPCA Amendments of 1972. Preparation of permit
requirements continued, however, in anticipation of new enabling
legislation.
Enforcement Procedures Under the 1972 Amendments
The 1972 amendments confer major new regulatory authorities
on EPA. Following is a description of the most significant pro-
cedures.
Enforcement (Section 309). Whenever the Administrator finds
that any person is in violation of any condition or limitation in a
State-issued National Pollutant Discharge Elimination System
(NPDES) permit which implements
[p. 27]
Sec. 301 (effluent limitations),
Sec. 302 (water quality related effluent limitations),
Sec. 306 (national standards of performance for new sources),
Sec. 307 (toxic and/or pretreatment effluent standards), or
Sec. 308 (inspection, monitoring, and/or entry requirements),
he is directed:
-------
810 LEGAL COMPILATION—SUPPLEMENT n
• To issue an order requiring compliance, which must state
with reasonable specificity the nature of the violation and
specify a reasonable time for compliance (not to exceed
30 days), taking into account the seriousness of the viola-
tion and any good faith efforts to comply (with copy of
order to States involved, and opportunity for alleged viola-
tor to confer with Administrator in case of section 308
violation); or
• To bring a civil action for appropriate relief, including a
permanent or temporary injunction, in the United States
district court in which the defendant is located or resides
or is doing business, which court shall have jurisdiction to
restrain the violation and to require compliance (with im-
mediate notice of the commencement of the action to ap-
propriate State); or
• To notify the alleged violator and the State, and if the
State has not commenced appropriate enforcement action
after 30 days, to issue a compliance order; or
• To bring a civil action.
The Administrator is directed to give notice to a State when-
ever he finds that permit violations are so widespread as to ap-
pear to result from a failure of State enforcement; and if the
failure extends beyond 30 days, he is directed to enforce any per-
mit within the State through compliance order or civil action.
The period of Federally assumed enforcement begins with the
public notice and ends when the State satisfies the Administrator
that it will enforce the permits.
The Administrator is further directed, whenever he finds that
any person is in violation of sec. 301, 302, 306, 307, or 308, or of
any condition or limitation in an EPA-issued or a State-issued
permit implementing any of those sections, to issue a compli-
ance order, or to bring a civil action.
Penalties. The willful or negligent violation of sections 301,
302, 306, 307, or 308, or any condition or limitation in an EPA-
issued or State-issued permit implementing any of those sections
is punishable by a fine of not less than $2,500 nor more than
$25,000 a day, or by imprisonment for not more than 1 year, or
by both, with a $50,000 fine or 2 years' imprisonment or both the
maximum penalty for a second conviction.
Knowingly making a false statement in a document filed or
required to be maintained under the Act, or tampering with a
-------
WATER—GUIDELINES AND REPORTS 811
monitoring device, is punishable by a fine of not more than
$10,000, by imprisonment for not more than 6 months, or by both.
The violation of sections 301, 302, 306, 307, or 308, of an imple-
menting permit condition or limitation, and the violation of any
compliance order issued by the Administrator, is subject to a civil
penalty not to exceed $10,000 a day.
Oil and Hazardous Substance Liability (Section 311). The pro-
visions of former Section 11 are retained largely unchanged in
Section 311 of the amended Act. Hazardous substances, to be
designated in EPA regulations, are made subject to the same pro-
visions. Substances determined to be not removable are liable for
money penalties.
National Pollutant Discharge Elimination System, (Section
402). The provisions of this section gave the permit authority to
EPA with the Corps of Engineers still responsible for evaluating
effects on anchorage and navigation. The new permit program
includes additional discharges in its jurisdiction—for example,
municipal treatment facilities, commercial establishments, and
additional agricultural activities. General farming operations, dis-
charges to municipal treatment facilities, and a limited number
of other very specific discharges are still exempt from the pro-
gram. Standardized application and discharge reporting forms
have been prepared for each type of discharger, requiring report-
ing of the minimum data elements necessary for thorough evalua-
tion of the discharge.
The States will play a much greater role in the NPDES. Those
having adequate permit programs can apply for and receive
either interim authority or final approval from EPA to issue the
[p. 28]
permits. After extensive coordination with the States, EPA pre-
pared guidelines describing the elements that are necessary in a
State program in order to receive the permit authority. EPA
maintains the power to veto permits if an affected State objects
to the issuance of the permit, or if the Administrator finds that
it would be outside the law's guidelines and requirements, and
to retract the program approval if a State fails to maintain the
conditions of approval. While NPDES permits will also prohibit
violation of water quality standards, the new emphasis is on com-
pliance with the effluent requirements. Effluent guidance for in-
dustrial categories developed in connection with the Refuse Act
permit program will be applied, where appropriate, in the is-
suance of NPDES permits. Pretreatment standards will be set
-------
812 LEGAL COMPILATION—SUPPLEMENT n
for industries discharging to municipal treatment facilities, and
these facilities themselves will be regulated by a formal definition
of secondary treatment. Permits will be issued for a maximum
of 5 years and will be conditioned to bring the discharger to the
scheduled levels of water quality required by the Act.
Emergency Powers (Section 504). The Administrator is au-
thorized to bring suit on behalf of the United States in the ap-
propriate district court in the event of pollution which presents
an imminent and substantial endangerment to the health of per-
sons, or to the welfare of persons if the pollution endangers their
livelihood (such as inability to market shellfish). The Administra-
tor's suit in such a case may be to immediately restrain any per-
son causing or contributing to such pollution to stop the polluting
discharge or to take other necessary action.
Appearance (Section 506). The Administrator shall request the
Attorney General to appear in civil or criminal actions. EPA
attorneys shall represent the United States in civil actions if the
Attorney General does not notify the Administrator within a
reasonable time that he (the Attorney General) will appear.
Federal Facilities (Section 313). Federal agencies must comply
with Federal, State, interstate and local pollution control and
abatement requirements, to the same extent that any person is
subject to such requirements. Since similar provisions were in-
cluded in the Clean Air Act Amendments of 1970 and the Noise
Control Act of 1972, a multipollutant compliance system for Fed-
eral facilities is being analyzed for feasibility.
EPA Enforcement Actions. The following table summarizes
enforcement actions taken under the authorities available to
EPA immediately prior to the enactment of the Federal Water
Pollution Control Act Amendments of 1972. In this first annual
report, we include as of possible interest to the Congress actions
initiated since EPA's establishment in December 1970, and ac-
tions taken under the Refuse Act, as well as the Federal Water
Pollution Control Act, inasmuch as the former statute was ex-
tensively used in water pollution abatement during the period.
Appendixes A-F list the dischargers involved in actions taken
under the several authorities and give additional information
on the cases.
[p. 29]
-------
WATER—GUIDELINES AND REPORTS 813
TABLE 1
SUMMARY OF WATER ENFORCEMENT ACTIONS
PURSUED BY EPA DECEMBER 2, 1970—SEPTEMBER 30, 1972
Enforcement Actions Under the Federal Water Pollution Control Act 245*
Water Quality Standards Violation Notices
(180-Day Notices) Served—(See Appendix A) 171
Enforcement Conference-type Actions—(See Appendix B) 50
Water quality standards-setting conference 1
New enforcement conferences 8
Reconvenings, additional and progress evaluation sessions
of conferences 19
Approvals of conference abatement recommendations
and remedial programs 22
Referrals to Justice Department for Prosecution
Under Section 11 (Oil Pollution)—(See Appendix C) 24
Enforcement Actions Under the Refuse Act of 1899 323
Civil Actions Referred to Justice Department
by EPA Headquarters and Regional Offices (Appendix D) 97
Criminal Actions Referred to Justice Department
by EPA Headquarters and Regional Offices (Appendix E) ._. 143
Non-filing of Section 13 Permit Application
Cases Referred to Justice Department by EPA (Appendix F) 83
Total water enforcement actions 568
* Excludes 4 additional referrals to Justice Department on expiration of the 180-day notice period.
[p. 30]
VI. STATE AND LOCAL WATER POLLUTION
CONTROL PROGRAMS
The primary rights and responsibilities of the States in water
pollution control are explicitly recognized in the Federal Water
Pollution Control Act. To assist the States in exercising these
rights and responsibilities, EPA provides a broad range of pro-
gram activities, including financial and technical assistance, re-
search, planning and regulation. The status of State programs,
Federal assistance provided, and a discussion of the role of the
States in water pollution control are presented below.
State Program Grants For Fiscal Year 1972
Federal authorizations for State water pollution control pro-
gram grants have grown from $3 million for FY1957 to $15 mil-
lion for FY1972. The grants are based on annual State program
submissions, which are evaluated to determine (1) their consis-
tency and compatibility with regional and national water policies
and objectives and (2) the feasibility of achieving expected re-
sults taking into consideration implementation problems. The
grants are used to support many State and interstate programs,
including those dealing with permits, municipal facilities, opera-
tion and maintenance, planning, enforcement, monitoring, train-
ing, water quality standards, research and development and
administration.
The Federal and State funds allocated for pollution control pro-
-------
814 LEGAL COMPILATION—SUPPLEMENT 11
grams for FY1972 are presented by program element as follows
(in millions):1
Planning and water quality criteria $ 8.2
Water pollution control facilities 11.6
Other programs 4.6
Surveillance 14.0
Enforcement 5.9
Executive and auxiliary 7.4
Total 51.7
The expenditures for these program elements are summarized
in Table 1 by States. The summary shows that the States, on an
average, expended nearly 3 dollars of State funds for each dollar
received through Federal assistance.
State Activities Changed in FY1972. The major areas of ex-
pansion and/or change by State agencies were in the areas of
surveillance, planning, water pollution control facilities, and other
programs (certification, training, feedlots, mine drainage, oil
field brine, etc.). Table 2 indicates program changes by State.
The major changes in planning and water pollution control
facilities were associated with metropolitan/Basin plans, and with
the national permit system. Changes in other programs involved
mainly the mandatory certification of waste treatment plant op-
erators and the training of qualified operators in methods of water
quality control. Surveillance included an expansion in quanlity
and quantity of monitoring equipment and laboratory facilities.
Areas Where EPA Assistance was Needed to Complement and
Support State Activities and Goals. The States in their annual
program submissions listed the areas where Federal assistance
was most needed. Table 3 indicates that research and develop-
ment, planning, and other programs were the major areas need-
ing assistance in FY1972. These requests reflect both financial
and technical needs.
[p. 31]
1 These funds were supplemented during fiscal year 1972 by $5 million in Federal funds, and
$1.8 million in additional State and local funds, raising the total to $58.5 million. (See Table
1 for breakdown by States.)
-------
WATER—GUIDELINES AND REPORTS
815
TABLE 1
FY 1972 EXPENDITURES—WATER QUALITY PROGRAMS*
Federal
State
Total
Region I
Connecticut $251,250
Maine 95,500
Massachusetts 401,700
New Hampshire . 97,350
Rhode Island 163,200
Vermont 66,300
NEIWPCCt .. 132,450
Region II
New Jersey 468,300
New York 968,100
Puerto Rico 288,750
Vir. Islands 109,800
I.S.C4 207,450
Region III
Delaware 129,000
Dist. of Col. 130,200
Maryland 275,850
Penna. 734,100
Virginia 312,600
West Virginia 161,400
D.R.B.C.** 200,250
INCOPOTtt 76,800
Region IV
Alabama 277,350
Florida 415,200
Georgia 320,700
Kentucky . 246,000
Mississippi 205,800
N. Carolina 387,600
S. Carolina 226,500
Tennessee . 306,450
Region V
Illinois 646,350
Indiana 350,700
Michigan 540,150
Minnesota 237,000
Ohio 671,700
Wisconsin 299,250
ORSANCOtt 283,050
Region VI
Arkansas 168,900
Louisiana 269,400
New Mexico . 79,650
Oklahoma 177,000
Texas 636,900
Region VII
Iowa 184,950
Kansas 143,850
Missouri .. 296,100
Nebraska _ 101,550
Region VIII
Colorado 136,350
Montana 59,250
North Dakota 56,100
South Dakota 58,350
Wyoming 36,300
Utah 84,150
Region IX
Arizona _.. 115,200
California 1,008,000
Guam 111,450
Hawaii 103,500
Nevada 38,250
$453,731
521,512
1,132,363
555,535
219,100
339,989
134,900
912,936
4,665,269
144,000
36,600
241,615
238,300
388,224
1,793,990
2,731,000
1,178,490
530,631
487,354
94,728
158,750
836,603
675,200
344,950
173,852
614,778
468,629
778,100
1,791,248
535,024
1,556,895
1,385,002
1,085,041
1,709,800
198,400
345,500
428,641
183,814
263,710
3,668,346
170,400
478,100
249,972
173,023
341,415
195,381
31,100
58,014
47,800
136,714
81,310
4,934,000
65,505
330,900
36,200
$704,981
616,912
1,534,063
652,885
382,300
406,289
267,350
1,381,236
5,633,369
432,750
146,400
449,065
367,300
518,424
2,069,840
3,465,100
1,491,090
692,031
687,604
171,528
436,100
1,251,803
995,900
590,950
379,652
1,002,378
695,129
1.084,550
2,437,598
885,724
2,097,045
1,622,002
1,756,741
2,009,050
481,450
514,400
698,041
263,464
440,710
4,305,246
355,350
621,950
546,072
274,573
477,765
254,631
87,200
116,364
84,100
220,864
196,510
5,942,000
176,955
434,400
74,450
-------
816 LEGAL COMPILATION—SUPPLEMENT n
Region X
Alaska . . ._ .
Idaho
Oregon _ .
Washington -
Total
TABLE 1 (Continued)
Federal
30,600
65,850
148,350
205,950
$15,000 000***
State
127.900
216,552
649,585
1,157,700
$43,484 121ttt
Total
158,500
282,402
797,935
1,363,650
$58,484,121
*Does not include expenditures for construction of waste water treatment facilities.
tNew England Interstate Water Pollution Control Commission.
{Interstate Sanitation Commission (New York, New jersey, Connecticut).
"Delaware River Basin Commission.
ttlnterstate Compact for the Potomac River Basin.
KOhio River Valley Water Sanitation Commission.
***26 percent of total expenditures.
ttt74 percent of total expenditures.
Man-years Assigned to Water Pollution Control. Total man-
years assigned to water pollution control by the States for FY1972
are as follows:
Planning and water quality criteria 496.45
Water pollution control facilities 833.98
Other programs - - 260.62
Surveillance 972.50
Enforcement 432.58
Executive and auxiliary _ 450.23
Total 3,446.36
Reported manpower allocations have increased by 87 percent
during the period from FY1968 through FY1972. The bulk of
the increase has been in activities related to water pollution
control facilities and surveillance.
Municipal Waste Water Treatment Works Grants for FY1972
National attention has been focused on the expanding need for
municipal waste treatment facilities since enactment of the first
permanent Federal Water Pollution Control Act in 1956. That
Act initiated the program to provide Federal grant assistance to
communities to
[p. 33]
improve or construct sewage treatment facilities. Subsequent
amendments have helped accelerate plant construction by mak-
ing more money available on a more liberal basis.1
Since 1957, the Federal government has provided $5.3 billion
for construction and expansion of more than 13,700 municipal
waste treatment projects. These funds have assisted States and
1 See Chapter I for evolution of the grant program.
-------
WATER—GUIDELINES AND REPORTS
817
TABLE 2
PROGRAM AREAS IN WHICH ACTIVITIES WERE CHANGED DURING FY 1972, BY STATE
State
Alabama
Alaska
Arizona
Arkansas - -- _.
California _.
Colorado
Connecticut ..
Delaware ..
District 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 - . _.
Total _
Planning
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
~~ X
X
X
X
X
X
X
X
_ 30
Water
quality
criteria
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
20
Water
pollution
control
facilities
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
30
Other
programs*
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
33
Surveil-
lance
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
33
Enforce-
ment
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
19
and
develop-
ment
X
X
X
X
4
•Includes programs such as those concerned with certification, training, feedlot pollution and
mine drainage.
communities in the construction of $14.5 billion of treatment
works. In the construction of these works the States and com-
munities spent nearly 2 dollars for each dollar received in Federal
assistance. Table 4 summarizes the Federal expenditures for these
plants, by fiscal year, from 1957 through 1972. The table shows
that more funds have been obligated in the last 2 years than were
obligated in the preceding 14 years.
[p. 35]
-------
818
LEGAL COMPILATION—SUPPLEMENT n
TABLE 3
PROGRAM AREAS WHERE EPA ASSISTANCE WAS NEEDED IN FY 1972 TO COMPLEMENT
AND SUPPORT ACTIVITIES AND GOALS
State
Alabama - -- -
Alaska
Arizona _ - __
Arkansas
California
Colorado - ______
Connecticut
Delaware
District 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
Total __.- __.
'Includes programs
mine drainage.
Planning
_ X
_ X
.. X
. X
._ X
._ X
_. X
__ X
X
__ X
_ X
„_ X
X
._ X
X
.. X
X
._ X
X
.- 19
such as
Water
Water pollution
quality control
criteria facilities
X X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X X
X X
4 16
those concerned with
Other Surveil-
programs* lance
X
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
X X
X
X
X
X
X X
X
X
X
X
X
X X
X
X X
X
X
X
X X
X
X
X
X
X
X X
X
X
X X
41 12
certifiration, training,
Research
and
Enforce- develop-
ment ment
X
X
X
X
X X
X
X
X
X
X
X
X
[p. 36]
X
X
X
X
X
X
X
X
X
X X
X
5 20
feedlot pollution and
The 1972 amendments have greatly expanded the Federal role
in financing construction of municipal waste water facilities: The
Federal share has been increased from a maximum of 55 percent
to 75 percent; Federal grants up to $18 billion are authorized
over the next three years; and an additional $2.75 billion is
authorized to reimburse local governments for treatment plants
constructed earlier in anticipation of Federal grants.
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WATER—GUIDELINES AND REPORTS
819
State allocations and obligations for FY1972 construction grant
funds are listed in Table 5. The table shows that as of December
31, 1972, virtually all of the $2 billion appropriated had been ob-
ligated.
Role of The States
EPA recognizes the primary rights and responsibilities of the
States in water pollution control. Below are listed the more im-
portant activities to be performed by the States in carrying out
their responsibilities.
Planning and Monitoring. States are responsible for section
303(e) statewide water quality
[p. 37]
TABLE 4
MUNICIPAL WASTE WATER TREATMENT WORKS CONSTRUCTION GRANTS ANNUAL
AUTHORIZATIONS, APPROPRIATIONS, OBLIGATIONS & EXPENDITURES
Fiscal
year
1957
1958
1959 _..
1960
1961
1962
1963 ..
1964
1965
1966
1967 ...
1968 _ . .
1969 .
1970
1971
1972
Total .
Authorized
appropriation
$ 50,000,000
50,000,000
50,000,000
50,000,000
50,000,000
80,000,000
.. -. . 90,000,000
100,000 COO
100,000,000
150,000,000
150,000,000
450,000,000
700,000,000
- - . 1,000,000,000
1,250,000,000
2 000,000,000
6,320,000,000
Actual
appropriation
? 50,000 000
45,657 ,000t
46,816,000t
46,101,000t
45,645,260t
80,000,000
90,000,000
90 000 000
90,000 000
121,000,000
150,000 000
203,000,000
214,000,000
800,000,000
1,000,000,000
2 000 000 000
5,072,219,260
Fiscal year
obligations
$ 50,000 000
45,657 000
46,816 000
46,101,000
45,645 260
80,000,000
90,000,000
89 642 425
88,225 123
120,946 373
150,000,000
203,000,000
214,000,000
800,000,000
997.000,000$
2 000,000,000]:
5,067,033,181
Expenditures*
$ 844,000
16,884,000
36,429,000
40 295,000
44 085,000
42,103,000
51,738,000
66 432 000
69 755,000
81 479,000
84,476,000
122,109,000
134,530,000
176,377,000
478,366,000
413 407,888
1,859,309,888
•Payments during fiscal year period.
tlncludes supplemental requests and appropriations of $657,000 in 1958, $1,816,000 in 1959,
$1,101,000 in 1960 and 645,260 in 1961.
^Estimated to nearest million dollars.
TABLE 5
MUNICIPAL WASTE WATER TREATMENT WORKS CONSTRUCTION GRANTS
SUMMARY OF UTILIZATION OF FISCAL YEAR 1972 APPROPRIATED FUNDS AS OF DECEMBER 31, 1972
State
Alabama -
Alaska .. . -
Arizona --
Arkansas
California
Colorado _-
Connecticut -
Delaware
District of Columbia
Florida
Allocations
$ 33,785 150
3,548,000
17,695,750
19,418,050
189,541,250
- - .. - 21,738.150
__ 29,350,500
5,921 650
... .. .. 7,800,150
65.134.450
Obligations
$ 33,785,150
3,548,000
17,695,750
19,418,050
189,541,250
21,738,150
29,350,500
5,921,650
7,800,150
65.134,450
Georgia
Hawaii
Idaho _
Illinois
Indiana
44,438,400
8,074,300
7,074,300
105,887,000
49,976,950
[p. 38]
44,438,400
8,074,300
7,781,900
105,887,000
48,169,170
-------
820
LEGAL COMPILATION—SUPPLEMENT 11
TABLE 5 (Continued)
State
Allocations
Obligations
Iowa 27,588,850
Kansas 22,146,850
Kentucky 31,538,750
Louisiana 35,551,850
Maine 10,403,050
Maryland 37,871,250
Massachusetts 54,569,050
Michigan 84,756,550
Minnesota 36,850,650
Mississippi 22,346,700
Missouri 45,134,550
Montana 7,534,600
Nebraska 14,898,500
Nevada 5,326,250
New Hampshire 7,846,750
New Jersey 68,549,450
New Mexico 10,670,500
New York 172,839,550
North Carolina 49,155,750
North Dakota 6,876,100
Ohio 101,621,800
Oklahoma 25,212,500
Oregon 20,638,000
Pennsylvania 112,444,900
Rhode Island 9,770,100
South Carolina 25,694,050
South Dakota 7,308,800
Tennessee 38,227,450
Texas 106,900,250
Utah 11,030,650
Vermont 5,137,200
Virginia 44,914,250
Washington 33,037,650
West Virginia _ . __. ._. 17,657,050
Wisconsin 42,646,650
Wyoming 4,049,450
Guam 2,172,000
Puerto Rico 27,032,550
Virgin Islands 1,957,500
Total $2,000,000,000
27,588,850
22,146,850
31,538,750
35,551,850
10,403,050
37,871,250
54,569,050
84,756,550
36,850,650
22,346,700
45,134,550
7,534,600
14,898,438
5,326,250
7,846,750
68 549,450
10,670,500
172,839,550
49,155,750
6,874,568
101,621,800
25,212,500
20,638,000
112,444,900
9,770,100
25,694,050
7,308,796
38,227,450
106,900,250
11,030,639
5,137,200
44,914,250
33,037,650
17,657,050
42,499,350
4,042,922
2,172,000
27,032,550
1,957,500
$1,998,036,783
[p. 39]
planning.1 In this planning they classify water body segments as
either water-quality limited or effluent-guidelines limited. On
water-quality-limited segments, they make load allocations, pre-
pare section 303 (e) full plans, and perform monitoring and
analysis where required. On effluent-guidelines-limited segments
they prepare section 303 (e) management plans.
The States are also responsible for reviewing the development
of section 208 areawide waste treatment management plans by
local agencies. State review is to ensure adequacy, completeness,
and compatibility with the overall process developed to imple-
ment the Federal Water Pollution Control Act.
States prepare an annual report that describes (1) the interim
goals to be achieved during the year (based on past progress
and the ultimate goals of their section 303(e) plans), (2) the
State resources to be assigned in meeting the goals, and (3) the
method of assigning resources. These reports help EPA set pro-
i See Chapter II for greater detail.
-------
WATER—GUIDELINES AND REPORTS 821
gram priorities, and allocate financial and other assistance to the
States.
Permits. The effluent discharge permit program will be trans-
ferred to the greatest extent possible to State authorities. Where
transfer does not occur, EPA, while issuing the permits, will
[p. 40]
engage in a cooperative program with the States to mutually
prepare permit conditions, supported by any State analyses per-
formed under section 303 (e) statewide planning.
Municipal Programs. States have responsibility for develop-
ing their construction grants priority lists. In exercising this
responsibility, through review of plans and specifications for
treatment works, the role of the States will be enhanced. Pri-
mary responsibility for seeing that treatment plants operate cor-
rectly also belongs to the State.
Enforcement. States share responsibility with the Federal Gov-
ernment for enforcement. The Federal role is a backup role—
where States cannot maintain an adequate enforcement level, the
Federal Government will ensure enforcement.
Nonpoint Sources. Nonpoint-source pollution control is bas-
ically a State responsibility. States are responsible for the plan-
ning, development and implementation of appropriate control
strategies. In the development of such strategies, it is expected
that the States will consider the special relation of nonpoint-
source pollution to lake eutrophication. In those areas where
deep-well disposal is practiced, States will be expected to de-
velop disposal control programs.
[p. 41]
VII. EFFICIENCY OF TREATMENT WORKS
The 1972 amendments authorize $18 billion over the 3 fiscal
years ending mid-1975 to help local governments build sewage
treatment plants. In order that the planners of such plants may
benefit from the performance of existing facilities, EPA conducts
annual surveys of plant efficiencies. The surveys, required by Sec-
tion 210, take into consideration the planned as well as the actual
efficiency of plant operations and maintenance.
Procedures For Accomplishment
The ongoing EPA operation and maintenance (O&M) pro-
gram includes an operational compliance inspection effort on all
projects assisted by Federal grants. The inspections are accom-
-------
822 LEGAL COMPILATION—SUPPLEMENT n
plished by EPA regional staff engineers or State regulatory
agency engineers. Currently, inspections are conducted near the
end of the first year of new plant operation, but the initial efforts
4 years ago included a sizeable number of older plants.
The results of these inspections for the last 4 years are con-
tained in a computer file, Sewage Treatment Plant Operation
and Maintenance Data Base (STPOM), which has been the basic
data source used in developing information for the O&M efficiency
survey. The STPOM data file contains operational data, but in-
sufficient design data, on approximately 1,400 grant-funded
plants.
The file was searched and a selection made of plants with op-
erating data usable for the purposes of the efficiency survey. Of
the 1,400 plant data files examined, 470 were found to have
insufficient operational data to permit the desired efficiency com-
parisons and were deleted from the survey. These included pri-
marily smaller plants, which have reported little or no opera-
tional performance testing. The remaining 930 projects were
referred to the 10 EPA regional offices for development of orig-
inal design data. Additional projects were deleted during this
phase, as described later under "Problems." The final group of
projects was examined by coding operation data, design data,
and other information into a computer. Various printouts were
obtained in the development of the comparisons and in analyzing
problem areas. Results of the analyses are presented below.
Data Analysis
Plants Analyzed. Records of approximately 1,400 plants (10
percent of all grant-funded plants) were examined, but only 48
percent contained sufficient information to accomplish an analy-
sis. Comparisons were made on a sample of some 670 plants, dis-
tributed throughout the nation, that included all sizes and types.
Table 1 is a display of the sample by size groupings and by type
of principal process.
Efficiency Compared to Design. Operational data for conduct-
ing the efficiency comparison were taken from plant operational
records at the time of the EPA or State inspection (conducted
some time between 1968 and 1972, inclusive). The data included
the annual average percentage removal of biological oxygen de-
mand (BOD5), suspended solids and settleable solids, and the av-
erage flow for the 12-month period preceding the inspection.
These values were directly compared with those determined to be
applicable to the original design.
-------
WATER—GUIDELINES AND REPORTS 823
The principal results of the survey can be summarized as fol-
lows:
• Compared to original design cirteria
—67 percent of all plants surveyed were meeting the orig-
inal design criteria for removal of BOD5
—55 percent were meeting design criteria for suspended
solids removal
—70 percent were meeting design criteria for settleable
solids removal
• For those plants not meeting design criteria, the average
deviation below design
[p. 43]
TABLE 1
NUMBER OF PLANTS ANALYZED, BY SIZE AND PRINCIPAL PROCESS
Principal
process
Primary
Lagoons
Trickling filter
Activated sludge
Total
Group 1
(15+ mgd*)
10
"4
6
20
Group 2
(5-14.99 mgd)
13
2
19
20
54
Group 3
(1-4.99 mgd)
30
4
98
57
189
Group 4
(0-0.99 mgd)
42
42
119
204
407
Total
95
48
240
287
670
'Million gallons per day.
[p. 44]
was nine percentage points of BOD5 removal.
• For those plants meeting or exceeding design criteria, the
average deviation above design was six percentage points
of BOD5 removal.
• For all plants, the average actual removals were:
BOD5 79%
Suspended solids 11%
Settleable solids 96%
Table 2 shows the number of plants that do and do not meet
design criteria for BOD5.removal, by size and principal process.
The deviation below design is shown for those plants that do
not meet design. The table shows that a higher percentage of small
plants than large plants is meeting design criteria. Such a con-
clusion should be moderated by an appreciation of the fact that
laboratory test data for small plants are normally accomplished
with less expertise and at a lesser sampling and analysis fre-
quency than for large plants. Table 2 also indicates a striking
-------
824 LEGAL COMPILATION—SUPPLEMENT n
uniformity of deviation of those plants not meeting design, re-
gardless of size or type.
Average Removal Efficiencies. The average removal efficiencies
for each process type and size grouping are shown in Table 3. The
average design values are also shown for comparison.
This survey has determined that 33 percent of the individual
plants examined are not meeting their design efficiency in terms
of BOD5 removal. Table 3 shows, however, that the average ac-
tual percent of BOD5 removal for all plants slightly exceeds the
average design values. This is not true for suspended solids. In
fact, in the case of lagoons, there is an average deviation of 14
percentage points below average design values for suspended
solids removal.
Plant Problems. The survey revealed that in
[p. 45]
the plants that do not meet design, certain problems could be
identified:
• 20 percent were hydraulically overloaded.
• 40 percent were affected by infiltration problems during
wet weather.
• 14 percent had a structural problem.
• 41 percent had a temporary mechanical failure.
• 49 percent had an operational problem (improper opera-
tion and/or need to upgrade training of operators).
• 24 percent were found to provide inadequate laboratory
testing.
• 17 percent were rated fair or poor in the area of general
maintenance.
Of those plants not meeting design, it was reported that 44
percent were faced with pending action by the State regulatory
agency. In a similar EPA survey a year ago, a recheck deter-
mined that within 1 year of inspection, 25 percent of the de-
ficiencies had been corrected through follow-up actions of State
agencies or EPA regional offices.
General Problems
Deficiencies in Plant Sampling and Laboratory Analysis. As
previously mentioned, some 470 inspection data files did not in-
clude sufficient operational data to accomplish the desired effi-
ciency comparison and were deleted from the survey. The prin-
cipal reason for lack of operational data was the failure of some
plants [p 46]
-------
WATER—GUIDELINES AND REPORTS
825
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-------
826 LEGAL COMPILATION—SUPPLEMENT n
to conduct sampling and laboratory testing. This failure was
largely restricted to the smaller plants of less than 1 million
gallons per day capacity. The operators of such plants may have
been unduly influenced by a guidance manual issued in 1963
which suggested that only settleable solids tests be conducted for
small plants. Also, the FY 1972 EPA Digest of State Programs
shows that 10 States do not require monthly reporting of operat-
ing results, a fact that quite likely affects the degree of sampling
and testing performed in those States. In a few cases, the survey
used data from grab samples tested by State agencies in the
absence of routine testing by the plant staff.
Within the limited time available to conduct this survey, it was
not possible to confirm the accuracy or validity of the plant oper-
ational data. It was necessary to use the operational data al-
ready available in the computer file from the grant compliance
inspection program. As a result, the figures cited for the small
plants of less than 1 million gallons per day capacity, may be
based on very limited analytical data (in some cases, only one
grab sample). For the larger plants, however, the data base is
generally much better and there is good assurance that the in-
formation presented represents actual conditions for the plants
inspected.
Availability of Design Criteria. As previously stated, a listing
of 930 projects from the STPOM file were referred to EPA re-
gional offices for determination of original design criteria. The
design criteria were not available for a number of plants for the
following reasons:
• For many years, it has been a fairly common practice to
design municipal wastewater plants on the basis of the
type of process utilized (standard rate trickling filter,
conventional activated sludge, extended aeration, etc.). To
each of these processes a general range of annual average
removal efficiencies was ascribed. There was no definable
single numerical value by which plant performance could
be measured. Only very recently have design engineers
begun to identify design intent in specific terms (pre-
sumably in response to 40 CFR 35.835-4, June 9, 1972,
which requires a minimum removal of 85 percent of
BOD6).
• The limited time available for this study, and other con-
straints, precluded a search of State files of each project to
secure the original design criteria. The search was re-
stricted to data currently available within the 10 EPA
-------
WATER—GUIDELINES AND REPORTS 827
regional offices. Where original design criteria was avail-
able for a specific plant, that data has been used. For
those projects for which data retrieval was not feasible, an
evaluation of applicable State requirements was made. If
a clearly identifiable State requirement for design effici-
encies existed at the time of original approval, then those
criteria were used.
Status
Deficiencies in Plant Sampling and Laboratory Analysis.
There are several actions currently underway by EPA in the
implementation of the 1972 amendments that will directly im-
prove the sampling, testing, and reporting activities of plant op-
erations. Regulations and guidelines in various stages of develop-
ment will accomplish this through (1) elements of the National
Pollutant Discharge Elimination System, (2) establishment of
effluent limitations under section 301, (3) definition of the effluent
reduction attainable by application of secondary treatment under
section 304, (4) improved operation and maintenance functions
within State program plans, and (5) grant eligibility require-
ments under Title II. The ongoing development of source docu-
ments by EPA for guidance in plant staffing, laboratory staffing,
minimum sampling and testing procedures, and model State op-
eration and maintenance programs will provide overall detailed
information for improved operational control. The present com-
puter file will be expanded to include data from an additional
1600 plants within 6 months.
Availability of Design Criteria. Steps have been taken to im-
prove the availability of design data. Further, the FY1974
study effort will permit sufficient time to secure design data from
additional sources to supplement existing regional files. Regula-
tions and guidelines in various stages of promulgation or develop-
ment will provide for the clear identification of intended design
efficiencies in project submissions and reviews in the future.
Plant Problems. The general existence of the deficiencies re-
ported has been known for some time and was the basis for or-
ganizing in 1968 operation and maintenance programs and
staffs
[p. 47]
at headquarters and regional levels. Many of the program ele-
ments initiated then and since are just now beginning to have
an impact on the problems through source documents, guide-
lines, and manuals. Program needs are being coordinated agency-
-------
828 LEGAL COMPILATION—SUPPLEMENT n
wide in a number of areas, including research, manpower develop-
ment and training, State programs, and construction grants.
Existing efforts will be expedited and enhanced greatly by regula-
tions now being promulgated (as mandated by FWPC Act) cov-
ering permits, pretreatment standards, effluent limitations, state
programs, and grant eligibility requirements. Increased sam-
pling and reporting of operational efficiencies, more frequent
inspections, more positive follow-up actions, upgrading of opera-
tional personnel and facilities, and higher standards nationally
are expected to accomplish direct and lasting correction of the
principal deficiencies now identified.
[p. 48]
VIII. MANPOWER PROGRAMS
The effectiveness of water quality control programs will be
influenced to a major degree by the availability of skilled man-
power. This manpower will be needed in the Federal, State, and
private sectors of the economy and will involve skill levels that
vary from complex professional specialties to simple manual op-
erational tasks.
Because of the major changes in the national water pollution
effort, the first manpower implementation activity that must be
completed is a detailed analysis of the impact of the new legisla-
tive requirements on the national manpower pool. Such an analy-
sis must identify both manpower shortages and skill deficiencies.
The identified needs must then be assessed in terms of costs and
feasibility of action.
In addition to a program for identifying specific needs, EPA
has a series of manpower and training programs designed to af-
fect the areas of identified deficiency. These programs are de-
scribed below in summary fashion.
Manpower Planning
The existing manpower planning program is designed to de-
velop the capability of Federal, State, and local agencies to de-
termine and meet their manpower and training needs.
Accomplishments. Manpower planning capability has been es-
tablished in more than 30 States. The Department of Labor has
issued an interagency instruction encouraging the establishment
of linkages between the water pollution control agency man-
power planner and the manpower planning coordinating staffs in
the offices of governors and mayors. The Office of Education is
supporting the training of 200 manpower planners from Federal,
-------
WATER—GUIDELINES AND REPORTS 829
State, and local agencies in planning for wastewater treatment
plants. Occupational definitions and staffing guides have been de-
veloped or are being developed for wastewater treatment plants,
collection systems, and State agencies. A priority has been placed
on improvement of operator certification practices of State agen-
cies. EPA, with support of the American Water Works Associa-
tion and the Water Pollution Control Federation, made the fol-
lowing accomplishments in this area: (1) a model State law was
developed and promulgated by the Council of State Govern-
ments; (2) a national certification authority (Association of
Boards of Certification) to promote improved and consistent
certification practices among State agencies has been established;
and (3) a body of guidelines for the administration of State
certification programs was developed and issued. In cooperation
with State agencies, professional and employer associations, and
other EPA organizations, a series of manpower demand and sup-
ply studies has been completed, started, or planned to cover all
sectors of the water pollution control program.
Manpower Training
Operator Training for Municipal Waste Treatment. The pri-
mary objective of this program is to foster an adequate supply of
skilled manpower to properly operate, maintain, and monitor
existing and future water and wastewater treatment facilities
and collection systems. Operator training programs to provide
additional personnel for new plants and to improve the effective-
ness of operators in plants with operating deficiencies will be pro-
vided on the basis of priority basin needs.
Undergraduate Training (Section 109a and 110-112). The
undergraduate training program is designed to prepare students
for work relating to the design, operation, and maintenance of
treatment plants and other related facilities. Curriculum develop-
ment projects and pilot training programs have been imple-
mented in a limited number of schools. Three schools 1 with 100
[p. 49]
trainees conduct 2-year training programs for plant operators,
and the University of Wisconsin conducts a 4-year engineering
design program for 20 trainees.
Direct Technical Training. EPA provides direct technical train-
ing to help meet the short term needs of Federal, State, or muni-
cipal agencies responsible for implementing the new water qual-
1 Charles Country Community College (Maryland), Greenville Technical center (South Caro-
lina), Linn-Benton Community College (Oregon).
-------
830 LEGAL COMPILATION—SUPPLEMENT n
ity legislation. Priority will be given to personnel with respon-
sibilities for improving water quality in the 89 critical basin
areas.
Professional Training. Demand for personnel in the profes-
sional category will continue to increase, primarily as a result of
expanded construction grants, State planning and administration
programs, and a broad range of research needs. The Agency's
professional training grant program has been a source of fund-
ing for the preparation of advanced professionals entering the
field of water quality management.
ESTIMATE OF MANPOWER NEEDS
Although special manpower planning studies must be com-
pleted before detailed estimates of the manpower implication of
the 1972 amendments can be fully assessed, existing information
provides a general measurement of possible need. The last na-
tional manpower estimate is summarized in Table 1. This esti-
mate forecasts a large increase in manpower and training needs,
but it can be considered conservative, since it does not consider
the specific requirements of the new water quality legislation.
TABLE i
ADDITIONAL MANPOWER REQUIRED BY 1976*
Sector
Personnel
category
Professional
Operator
Technician
Other
Total
Nongovern-
ment
10,200
33,300
18,400
10,400
72,300
Local
1,300
8,900
1,200
11,700
23,100
State
3,400
400
800
4,600
Federal
(non-EPA)
1,300
1,400
200
400
3,300
EPA
600
200
600
1,400
Total for 1976
16,800
43,600
20,400
23,900
104,700
'Source: A Report to Congress on Water Pollution Control Manpower Development and Training Activ-
ities (Committee on Public Works Print 92-36 of March 1972).
[p. 50]
IX. WASTE POLLUTION CONTROL ADVISORY BOARD
A Water Pollution Control Advisory Board has served since
enactment of the first Water Pollution Control Act in 1948. The
Board under present law consists of the Administrator or his
designee who serves as Chairman, and nine non-Federal members
appointed by the President for 3-year terms. The Board consults
with, advises, and makes recommendations to the Administrator
on matters of policy relating to water pollution control. During
1972 the Board held three meetings and developed findings and
recommendations on animal wastes, land use, and ocean disposal.
-------
WATER—GUIDELINES AND REPORTS 831
Animal Wastes
In late 1971 and early 1972, the Board undertook a review of
problems relating to pollution of water resources by animal
wastes. It toured agricultural areas in Colorado, Nebraska, Kan-
sas, Illinois, and Indiana and conducted meetings to receive tes-
timony from experts and interested citizens. In addition, the
Board considered recommendations developed by a national sym-
posium on animal waste management and by workshops con-
ducted by several academic institutions. The Board's recommenda-
tions concerning animal wastes are presented in Appendix G.
Land Use
The Water Pollution Control Advisory Board met jointly with
the Air Quality Advisory Board (15 members appointed by the
President for 3 year terms) to review relationships between en-
vironmental quality and land use. The Board toured areas of
California from Lake Tahoe to Los Angeles. The recommenda-
tions of the two Presidential advisory boards are presented in
Appendix G.
Ocean Disposal
The Board met in New York City during September 1972 to
explore and make recommendations on the subject of ocean dis-
posal. Based on (1) briefing by representatives of Federal, State,
and local agencies, (2) a flyover to view sewage sludge dumping,
dredge spoil dumping, and acid waste dumping in the New York
Bight, and (3) a day of public testimony, the Board developed
recommendations which are presented in Appendix G.
[p. 51]
-------
832
LEGAL COMPILATION—SUPPLEMENT n
€*S
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834
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WATER—GUIDELINES AND REPORTS
835
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-------
836
LEGAL COMPILATION—SUPPLEMENT n
Appendix B
FEDERAL WATER POLLUTION CONTROL ACT
ENFORCEMENT CONFERENCE-TYPE ACTIONS
(12-3-70/9-30-72)
2/18-19/71 —Convened Second Session of Dade County, Florida, Enforce-
ment Conference, at Miami, Florida.
2/23-24/71 —Reconvened Enforcement Conference for Escambia River and
Bay, Alabama-Florida, at Pensacola, Florida.
2/25-26/71 —Reconvened Enforcement Conference for Perdido Bay,
Florida-Alabama, at Pensacola, Florida.
3/2/71 —Approved Clean-up program for Mobile Bay, Alabama, calling
for completion of abatement measures not later than 2/15/73
(Enforcement Conference had been held 1/27/28, 1970, at
Mobile, Alabama).
3/23-25/71 —Reconvened Enforcement Conference for Lake Michigan and
its Tributary Basin, Wis.-Ill.-Ind.-Mich., to establish thermal
discharge standards, at Chicago, Illinois.
4/5-7/71 —Held Water Quality Standards-Setting Conference for the
Interstate Waters of Alabama, at Montgomery, Alabama
(Sec. 10(c) (2) of FWPCA).
4/13-14/71 —Convened initial session of Enforcement Conference for Long
Island Sound, Connecticut-New York, at New Haven, Con-
necticut.
4/22-23/71 —Reconvened Enforcement Conference on Lake Superior and
its Tributary Basin, Minn-Wis-Mich, to consider Reserve
Mining Co.'s taconite tailings disposal plans, at Duluth,
Minnesota.
4/29-30/71 —Held progress meeting of Potomac River Enforcement Con-
ference, Maryland-D.C.-Virginia, at Washington, D.C.
5/14/71 —Approved Cleanup program developed by 3/23-24/71 Lake
Michigan Enforcement Conference, Wis.-Ill.-Ind.-Mich.
5/26/71 —Approved Cleanup program for the Androscoggin River, New
Hampshire-Maine, growing out of the October 21, 1969 Con-
ference Session.
5/26/71 —Approved Clean-up program for the Pearl River, Mississippi-
Louisiana, growing out of the November, 1968, Conference
Session.
6/7-9/71 —Convened initial session of Enforcement Conference for
Galveston Bay and its tributaries, Texas (Shellfish Confer-
ence, Sec. 10 (d) at Houston, Texas.
6/28/71 —Approvied Cleanup Program developed for Dade County,
Florida, at the February, 1971 reconvened Enforcement Con-
ference (See 1 above).
7/71 —Approved Cleanup Program for Escambia River and Bay,
Ala.-Fla., as developed by the February, 1971 reconvened En-
forcement Conference.
7/2-3/71 —Convened Third Session of Enforcement Conference for Dade
County, Florida, at Miami, Florida.
-------
WATER—GUIDELINES AND REPORTS
837
7/12/71 —Approved Cleanup Program for the Merrimack and Nashua
Rivers, N.H.-Mass., as developed by the October, 1970 re-
convened Conference.
8/5/71 —Approved Cleanup Program for Perdido Bay, Florida-Ala-
bama, developed at the 2/25/71 reconvened Enforcement
Conference.
8/17/71 —Approved remedial program developed during 4/71 reconvened
Enforcement Conference on Lake Superior and its Tributary
Basin, Minn.-Wis.-Mich., and advised that 180-Day Notice
had been served on Reserve Mining Company.
8/24-25/71 —Reconvened 1963 Enforcement Conference on the Mononga-
hela River, W.Va.-Md.-Pa. to adopt remedial actions for acid
mine drainage and other remaining pollution problems, at
Pittsburgh, Pa.
9/21-23/71 —Convened initial Session of the Enforcement Conference
(Shellfish) to abate pollution of Pearl Harbor, Hawaii, at
Honolulu, Hawaii.
9/30-10/1/71—Convened initial Enforcement Conference on the Ohio River
and its Tributaries in the Pittsburgh, Pa. area, (Pa.-Ohio-
W.Va.) to abate pollution in the reach from Pittsburgh to
Chester, W.Va. Conference held at Pittsburgh, Pa.
10/1/71 —Approved remedial program developed during 12/8-9/70
Progress Evaluation Meeting of the Enforcement Conference
on the Potomac River, Md.-D.C.-Va.
10/13/71 —Convened initial Enforcement Conference on the Ohio River
and its Tributaries in the Wheeling, W.Va. area (Ohio-W.Va.)
to abate pollution in the reach from Toronto to Shadyside,
Ohio. Conference held at Wheeling, W.Va.
[p. B-l]
10/18/71 —Approved remedial program developed in Third Session
(7/2-3/71) of Enforcement Conference for Dade County,
Florida.
10/19/71 —Convened Enforcement Conference to abate mercury pollution
in the waters of Western South Dakota (Whitewood Creek-
Belle Fourche-Cheyenne River system, from past industrial
discharges and natural sources.)
10/27/71 —Reconvened Enforcement Conference on Boston Harbor and
its Tributaries, Mass., at Boston, Mass. (Third Session)
11/2/71 —Reconvened Enforcement Conference for Galveston Bay and
its Tributaries, Texas, to consider recommendations of joint
Task Force on technical approach to development of remedial
program,
11/10/71 —Approved remedial program developed during 9/30-10/1/71
initial session of the Enforcement Conference on the Ohio
River and its Tributaries in the Pittsburgh, Pa. area (Pa.-
Ohio-W.Va.).
11/10/71 —Approved remedial program developed by 4/71 Conference on
Lake Superior and its Tributary Basin, Minn.-Wis.-Mich.
11/11/71 —Held progress evaluation meeting of the Potomac River Con-
ference, Md.-D.C.-Va., at Washington, D.C.
11/17/71 —Approved remedial program developed during the Third Ses-
sion of the 10/27/71 Enforcement Conference on Boston
Harbor and its Tributaries, Mass.
-------
838
LEGAL COMPILATION—SUPPLEMENT n
11/19/71 —Held Progress Evaluation Meeting of the Dade County, Fla.
Enforcement Conference.
11/29/71 —Approved remedial program developed during the 4/13-14/71
initial session of the Enforcement Conference for Long Island
Sound, Conn.-N.Y.
12/7-8/71 —Convened initial Enforcement Conference to curb pollution
of Mount Hope Bay, Mass.-R.I. (Conference called under
Shellfish provision of FWPC Act), at Providence, R.I.
12/15/71 —Approved remedial program developed during the 8/24-25/71
Second Session of the Enforcement Conference for the
Monongahela River and its Tributaries, Md.-Pa.-W.Va.
12/16/71 —Approved remedial program developed during the 9/21-23/71
initial Session of the Enforcement Conference for Pearl
Harbor and its Tributaries, Hawaii.
12/23/71 —Approved remedial program developed during the 10/19-21/71
initial session of the Enforcement Conference for the
navigable waters of Western South Dakota (Whitewood
Creek-Belle Fourche-Cheyenne River System), S.D.
1/7/72 —Approved remedial program developed during the 11/2/71
session of the Enforcement Conference for Galveston Bay
and its Tributaries, Texas.
1/6/72 —Reconvened Enforcement Conference on Mt. Hope Bay, Mass.-
R.I.
1/24-25/72 —Reconvened Enforcement Conference on Escambia River and
Bay, Alabama-Florida.
1/25/72 —Approved remedial program developed during 10/13/71 initial
session of the Enforcement Conference on the Ohio River
and its tributaries in the Wheeling, W.Va area (Ohio-W.Va.)
to abate pollution in the reach from Toronto to Shadyside, O.
1/26/72 —Held Progress Evaluation Meeting on Perdido Bay, Fla.-Ala.
2/9/72 —Accepted Summary of Progress Evaluation Meeting of
10/5/71 for the Enforcement Conference on the Potomac
River, Md.-D.C.-Va., as reconvened 11/11/71, urging timely
implementations of Interim Treatment Program.
2/15-17/72 —Convened the Seventh Session of the Enforcement Conference
for the interstate waters of the Colorado River (Calif.-Colo.-
Utah-Ariz.-Nev.-N.M.-Wyo.) to address pollution problems
associated with uranium mill tailings piles and increasing
river salinity concentrations. Conference was held at Las
Vegas, Nevada.
3/22/72 —Convened initial session of Enforcement Conference for the
middle reach of the Savannah River, Ga.-S.C., at Augusta,
Georgia.
4/26-27/72 —Reconvened Seventh Session of the Colorado River Enforce-
ment Conference (alif'.-Colo.-Utah-Ariz.-Nev.-N.M.-Wyo.) to
adopt final recommendations for controlling salinity and
abating pollution from uranium mill tailings.
6/9/72 —Approved remedial program developed during Seventh Ses-
sion of the Colorado River Enforcement Conference (see
entry above).
-------
WATER—GUIDELINES AND REPORTS
839
6/20-21/72 —Held Progress Evaluation Meeting for the Enforcement Con-
ference on the Potomac River (Md.-D.C.-Va.).
7/20-21/72 —Reconvened Enforcement Conference on Lake Michigan and
its Tributary Basin (Wis.-Ill.-Ind.-Mich.) to review compliance
status.
[p. B-2]
-------
840
LEGAL COMPILATION—SUPPLEMENT u
1
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WATER — GUIDELINES AND REPORTS
841
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842
LEGAL COMPILATION—SUPPLEMENT n
C
k)
Append!
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WATER—GUIDELINES AND REPORTS
843
I!
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-------
844
LEGAL COMPILATION—SUPPLEMENT n
, I
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WATER—GUIDELINES AND REPORTS
845
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-------
846 LEGAL COMPILATION—SUPPLEMENT n
3
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WATER—GUIDELINES AND REPORTS
847
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848
LEGAL COMPILATION—SUPPLEMENT n
UJ .
g°.-g
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-------
GUIDELINES AND REPORTS
849
Is
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CAROLINA MILLS, Newton, N.C.
BUCKEYE PIPELINE COMPANY,
Rochester, Ind. (Tippecanoe Riv
Case filed 5/16/72
CITIES' SERVICE COMPANY, For
Meade Mine, Fort Meade, Fla.
(Peace River) Case filed 5/11/7
IOWA BEEF PROCESSORS, Dakot
City, Neb. (Missouri River)
MEAD CORPORATION, Chillicothf
(City System)
VILLA d'ORO OLIVE COMPANY,
Thermalito, Calif. (Trib. of the
Feather River)
INLAND CORPORATION, Clevelan
(Chippewa Creek) Vermillion Riv
(Case filed 5/16/72)
SPENTONBUSH FUEL TRANSPOR1
SERVICE, INC., New York, N.Y.
(Long Island Sound) off New LOI
Conn. Case filed 4/18/72
YOUNGSTOWN SHEET AND TUBE
COMPANY, East Chicago, Ind.
(Indiana Harbor Canal)
HUTCHINSON UTILITIES COM-
MISSION, Hutchinson, Minn. (So
Fork of Crow Creek)
DARLING AND COMPANY, Cleveli
0., (Cuyahoga River) Case filed
5/28/72
ALLIED CHEMICAL CORPORATE
Richmond, Calif. (Castro Creek-
trib. of San Francisco Bay)
CITY WIDE ASPHALT, INC.,
Independence, Co. (Mill Creek,
trib. of Missouri River)
AMALGAMATED SUGAR COMPANY
Twin Falls, Ida. (Rock Creek)
AMERICAN SMELTING AND REFI1
COMPANY, Baltimore, Md. (Baltl
Harbor)
v
I
—
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TEXACO OIL COMPANY, St. Louis,
Mo. (Mississippi River) Case filed
FMC CORPORATION, ORGANIC
CHEMICALS DIVISION, Baltimore,
Md. (Baltimore Harbor) Case filed
UNIVERSAL CONTAINER ORPORATION
Marcus Hook, Pa. (Stoney Creek,
trib. of Delaware River) Case filed
POWELL & MINNOCK BRICK WORKS,
(Subsid of General Dynamics, Inc.)
Coeymans, N.Y. (Hudson River)
Case filed 2/72
INTERNATIONAL INDUSTRIES,
Sayreville, N.J. (Raritan River) Case
filed
MID-CONTINENT PIPELINE COMPANY
Gushing, Okla. (Skull Creek, trib. of
Cimarron River) Case filed
M-K-T RAILROAD, Oklahoma, (Skull
Creek, trib. of Cimarron River)
Case filed
KERR-MAGEE REFINERY, Gushing,
Okla. (Skull Creek, trib. of Cimarron
River) Case filed
MIDLAND COOPERATIVE OIL RE-
FINERY, Gushing, Okla (Skull Creek,
trib. of Cimarron River) Case filed
OZARK-MAHONING MINING COMPANY
Cowdrey, Colo. (North Platte River)
Case filed
J. BURTON AYRES (Freighter)
Lake St. Clair; Case filed
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CROWN CENTRAL PETROLEUM CORP.,
Houston, Tex. (Houston Ship Channel
ALLIED CHEMICAL COMPANY, Semet-
Solvay Division; Detroit, Mich.
(Rouge River) Case filed
SANDACRES, INC., Seymour, Ind.
Vernon Fork of Muscatatuck River)
Case filed— 5/1/72
-------
850
LEGAL COMPILATION—SUPPLEMENT n
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WATER—GUIDELINES AND REPORTS
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852 LEGAL COMPILATION—SUPPLEMENT n
Appendix F
REFUSE ACT1
CASES REFERRED TO JUSTICE DEPARTMENT FOR
NON-FILING OF PERMIT APPLICATIONS
(12-3-70/9-30-72)
Name
Armstrong Chemical Co.
Atlantic Sulphur Terminal,
Inc.
Bancroft Dairy
Basset-Walker Knitting Co.
Benton-Harbor Malleable
Industries
Champale, Inc.
Clermont Fruit Packers
Crown Prince Pet Foods
Denton Sleeping Garments
D & B Products
Denver & Rio Grande Western
Railroad Co.
Diventco, Inc.
Eastern Foundry Co.
El Dorado Terminal Corp.
Forest Products Co.
Foster Wheeler Corp.
Kaiser Cement & Gypsum
Corp.
Kennebec River Pulp & Paper
Lisbon Mills, Inc.
McRae Packing Co.
Meadowbrook Coal Co.
Menominee Enterprises, Inc.
Metals Applied, Inc.
Moline Malleable Iron Com-
pany
Northwestern Steel & Wire
Company
Remington Brothers Produce
Ponce Asphalt Company
Schafer Manufacturing Com-
pany
Stockton Cheese Co.
Tri-County Growers, Inc.
Union Pacific Railroad
U.S. Steel, Universal Atlas
Cement Div.
U.S. Steel, Universal Atlas
Cement Div.
U.S. Steel, American Bridge
Div.
Virginia Iron, Coal & Coke
Company
Hope Valley Dyeing Corp.
Location
Janesville, Wis.
Carteret, N.J.
Marquette, Mich.
Basset, Va.
Benton Harbor, Mich.
Trenton, N.I.
Hudson, N.Y.
North Platte, Neb.
Centreville, Mich.
Youngstown, 0.
Roper, Utah
New Milford, Conn.
Boyertown, Pa.
Bayonne, N.J.
Smelterville, Ida.
Dansville, N.Y.
Delanco, N.J.
Madison, Me.
Lisbon Falls, Me.
Edison, Wash.
Lykens, Pa.
Neoplt, Wis.
Cleveland, 0.
St. Charles, III.
Sterling, III.
St. Anthony, Ida.
Ponce, Puerto Rico
Union City, Mich.
Stockton, Mo.
Monitor, Wash.
Salt Lake City, Utah
Cohoes, N.Y.
Hudson, N.Y.
Trenton, N.J.
Wise County, Va.
West Warwick, R.I.
Date
Referred
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/7 1
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
9/24/71
Remarks
Prosecution declined; file
closed
Prosecution declined; file
closed
No permit req'd; file closed
Prosecution declined; file
closed
Prosecution declined; file
closed
Prosecution req. withdrawn;
file closed
Civil & crlm. filed
12/15/71; fined $12,500
11/72
Not prosecuted; file closed;
no permit
Prosecution declined; file
closed
Prosecution declined; file
closed
Prosecution declined;
permit appl. filed
Civil suit filed on 12/1/71;
consent decree under
negotiation
Pending
Prosecution declined 4/72
Pending
Request for prosecution
withdrawn
Criminal suit filed
10/19/71; fined $500 on
1/7/72
Crim, suit filed 10/19/71
Prosecution declined; file
closed; permit filed
Prosecution request with-
drawn; file closed; permit
filed
Prosecution withdrawn; file
closed; permit filed
Civil suit filed 10/2/71;
case dismissed by court
Prosecution declined; file
closed
Prosecution declined; file
closed
Prosecution declined; 4/72
Prosecution declined; file
closed
Civil suit 10/22/71; con-
sent decree ent. 10/22/71;
treatment facil. to be in-
stalled 2/1/72
[p. F-l]
Declined prosecution; file
closed
Civil suit filed 10/12/71
Declined prosecution; file
closed
Request for prosecution
withdrawn
(EPA Region I)
1 Referred to local U.S. Attorney by EPA regional office.
-------
WATER—GUIDELINES AND REPORTS
853
Name
Vincennes Paper Mill
Products Co.1 (EPA Region V)
Bevin Brothers Manufactur-
ing Co.1
Tremont Nail Company1
Amesbury Metal Products
Company, Inc.1
Cambridge Tool and Manu-
facturing Co.1
Kay-Dee Feeds1
Monroe Auto J
Keokuk Steel Company'
Cook Paint & Varnish
Company J
GAP Corporation J
Oaks Sand & Gravel Com-
pany1
Mid-City Industrial Park J
National Beef Packing Corp.1
Connecticut Hard Rubber Co.'
Kulhman-Chennille Co.1
Mecklenberg County and
Locker PlantJ
A. Leon Capel & Sons'
Pepsi-Cola'
Texfl Industries1
Tampa Soap & Chemical
CompanyJ
Safeway Stores J
Wallace-Murray Corp.1
Midwest International, Inc.1
Carnation Milk1
Midwest Cold Storage & Ice
Company1
Missouri Chemical Corp.1
Wire Rope Corporation of
America J
Inland Containers Corp.1
Green Valley Chemical
Corporation ]
Iowa Fund, Inc.1
PPG, Inc.1
C. F. Industries J
Esmond Machine Tool Co.1
Central States Paper and
Bag Company
South Coast Construction
Company & Park Lido
Development Company
E. M. Carter Packing Co.
Warren Brothers Company
North Carolina Consolidated
Hide Company
Clear Creek Coal Company
The Leisure Group
Mecklenburg County Abattoir
Lefler Concrete Block
Company
Delmar Printing Company
Chemical Leaman Tank Lines
Central Transport, Inc.
Snowco (Missouri River)
Clinton Engines (Maquoketa
R.)
Location
Vincennes, Ind.
East Hampton, Conn.
Wareham, Mass.
Amesbury, Mass.
North Billerica, Mass.
Sioux City, Iowa
Cozad, Neb.
Keokuk, Iowa
Kansas City, Mo.
Kansas City, Mo.
Nr. Redding, Calif.
Kansas City, Kan.
Kansas City, Kan.
New Haven, Conn.
Adairsville, Ga.
Charlotte, S.C.
Troy, N.C.
Miami, Fla.
Mt. Gillad, N.C.
Tampa, Fla.
Kansas City, Kan.
Rolla, Mo.
Kellogg, Iowa
Mt. Vernon, Mo.
Kansas City, Kan.
St. Joseph, Mo.
St. Joseph, Mo.
Fenton, Mo.
Creston, Iowa
Ankeny, Iowa
Crystal City, Mo.
Hanrtibal, Mo.
Rhode Island
Palatka, Fla.
Newport, Calif.
Richland, N.C.
Nashville, Tenn.
Goldsboro, N.C.
Monterey, Tenn.
West Point, Miss.
Charlotte, N.C.
Charlotte, N.C.
Matthews, N.C.
Charlotte, N.C.
Charlotte. N.C.
Omaha, Neb.
Maquoketa, Iowa
Date
Referred
11/1/71
11/24/71
11/29/71
11/30/71
12/2/71
11/29/71
11/9/71
11/17/71
12/17/71
12/71
9/17/71
1/28/72
1/21/72
12/29/71
1/25/72
1/25/72
1/25/72
r/72
1/25/72
1/25/72
2/4/72
2/4/72
2/4/72
2/4/72
2/3/72
2/2/72
2/2/72
2/4/72
2/4/72
2/4/72
2/9/72
2/9/72
3/72
12/71
3/23/72
5/5/72
5/5/72
5/5/72
5/16/72
5/19/72
5/24/72
5/24/72
5/24/72
5/24/72
5/24/72
7/25/72
9/18/72
Remarks
Crim. suit filed 12/1/71;
fined $500 on 6/30/72
Civil suit filed 9/1/72;
consent decree filed
9/6/72
Consent decree pending
Pending
On-slte visit 5/72; dis-
charge ceased; no leach-
ing; not prosecuted; file
closed
Indicted 4/14/72; con-
sent decree in draft
Indicted 4/13/72; fined
$1,000 on 5/72
Criminal case filed 6/14/72
Criminal case filed
4/11/72; fined $500 on
9/72
Criminal case filed
1/20/72; fined $6,750
on 3/4/72
Criminal case filed
4/11/72; fined $500
on 9/72
Criminal case filed 1/72
Prosecution declined; tied
to city system
Fined $500 8/72
Prosecution declined
6/26/62; abatement com-
mitment to be secured
Indicted 4/14/72; fined
$500 8/4/72
Prosecution declined tied
to city system
Consent judgmt & stipula-
tion ent. 7/19/72
Pending &>• F~^
Prosecution declined, per-
mit applic. filed
Pending
Consent agreement 8/72,
$2,500 in costs also
assessed
Pending in court
Civil action filed 4/3/72
& temporary restraining
order granted same day
Criminal suit filed 6/14/72
Criminal suit filed 6/15/72
Criminal suit filed 6/72
dismissed at EPA request
Criminal suit filed 6/15/72
Criminal suit filed 6/15/72
Fined $500 8/72
[p. F-3]
-------
854 LEGAL COMPILATION—SUPPLEMENT n
Appendix G
RECOMMENDATIONS OF WATER POLLUTION CONTROL
ADVISORY BOARD
Animal Wastes
EPA Leadership in Animal Waste Pollution Control. It is recom-
mended that EPA assume a vigorous leadership role in coordi-
nating major activities of all Federal, State, and local agencies
involved in agricultural waste management with those of edu-
cational institutions and private groups and individuals inter-
ested in solving animal waste disposal problems. To aid in this
effort, EPA must be provided with more funds and expanded
staffing to coordinate its own programs in research, training, ad-
ministration, and management.
Agricultural Concerns. It is recommended that EPA join with
the appropriate Federal and State agencies and educational insti-
tutions in developing and implementing a comprehensive public
information program to explain fully the evolving guidelines
and means of achieving effective pollution control measures neces-
sitated by animal waste disposal problems, in recognition of
the widespread concern among members of the agricultural com-
munity about new and changing requirements.
Financing Pollution Control. It is recommended that EPA seek
added appropriations for expanded research and development
programs so that costs to the farmer can be held to minimum
levels. Demonstration projects are a very effective educational
method that should be increased. In addition, USDA should use
all existing programs and technical services to help animal pro-
ducers install systems that comply with regulations.
Degree of Control. It is recommended that EPA encourage the
adoption of State legislation and regulations for animal waste
management based on minimal Federal guidelines that will main-
tain standards with a view to enhancing water quality.
Uses of Animal Wastes. It is recommended that EPA give
high priority to funding for research and development projects
that may develop practicable and safe alternate uses for animal
wastes.
Public Health. It is recommended that EPA initiate coopera-
tive long-range research projects that will result in the collection
of reliable data on the possible but less evident ill effects of
concentrations of animal wastes.
Monitoring. It is recommended that EPA, through program
-------
WATER—GUIDELINES AND REPORTS 855
grants or otherwise, encourage State agencies to increase their
monitoring programs so that an adequate profile of State water
quality by stream basins and groundwater would be available
to easily identify problem areas.
Site Selection. It is recommended that attention be given to the
development of national and/or State site selection guidelines
that will determine the best land areas to be used for animal
production to minimize water pollution.
Training. It is recommended that the Federal Government en-
courage educational institutions and State and local agencies,
through grants and/or other incentives, to expand their gradu-
ate and undergraduate training programs in the environmental
agricultural areas, and thus direct expert manpower into the
pollution control field.
Uniformity. It is recommended that EPA develop animal waste
guidelines and work as closely as possible with the States to en-
sure that these basic minimum requirements be adopted nation-
wide in the interest of uniformity that prevents discrimination
against any particular group or individual.
Land Use
Relationship of Environmental Quality with Land Use Planning
and Implementation. The Boards believe that means should be
developed to bridge the gap between current land use decision-
making and the national efforts to enhance and protect our en-
vironment.
Attitudes Toward Land Use. The need to maintain proper land
use requires a reappraisal _ p -1-1
of private and public land as a resource, as well as a commodity.
Coordination of and Between Federal Agencies. It is recom-
mended that coordination between Federal agencies making land
use decisions and other Federal agencies, especially EPA in its
role as the Federal agency responsible for laws and standards in
the areas of air quality, water quality, solid waste management,
and noise. One method of accomplishing these ends is through
formal interagency agreements between Federal entities involved
in environmental issues.
Role of Federal, State, Regional and Local Government in Land
Planning and Implementation. It is recommended that the Fed-
eral government provide:
• Land use guidelines including attention to:
1. Environmental needs in the large, build-up metropoli-
tan areas
-------
856 LEGAL COMPILATION—SUPPLEMENT n
2. The differential costs and benefits for different sectors
of the population
3. Standards to guide State decision-making in an equit-
able treatment of those costs and benefits
4. The implementation of effective controls.
• Financial assistance to State and/or regional and local
governments for developing and implementing compre-
hensive land use plans.
• Sanctions applied to States unwilling to carry out effective
land use programming.
The States should provide criteria as well as financial and techni-
cal assistance to regional and local governments in their land
management efforts.
The Environmental Protection Agency's Role in Land Use Plan-
ning. It is recommended that:
• EPA move purposefully to improve coordination with other
Federal agencies whose activities affect or are affected by
air and water quality standards; provide more environ-
mental planning guidance to Federal, State, and local
agencies together with close coordination and coopera-
tion with local, regional, and State land use planners and
policymakers; and make full use of present authority to
affect land use decisions with respect to all environmen-
tal quality.
• The Presidents' Air and Water Quality Advisory Boards
continue to assess and evaluate the complex relationships
between land use and overall environmental quality, and
that they define the role of EPA with respect to present
land use planning and future possible regional land use
policy.
Socio-Economic Considerations. It is recommended that:
• Federal policies and programs on standard setting, grants,
contracts, and public works, regulation of and invest-
ments in Federally owned or controlled lands, and prep-
aration and review of environmental impact statements
take into consideration impacts upon population con-
centration, distribution of resources such as inter-basin
water diversions, energy production and distribution,
transportation systems, and locations of industrial plants
and employment opportunities.
• A socio-economic impact statement covering the above
-------
WATER—GUIDELINES AND REPORTS 857
considerations be required as a companion to and equal in
importance to present environmental impact statements.
In this connection, the Federal agencies concerned should
conduct studies of the cost-benefit advantages of such
socio-economic planning and control devices (in contrast
to the cost effectiveness of the installation of "end of the
pipe" control technology).
Pending Legislation Concerning a National Land Use Policy.
The Boards commend the President and the Administrator for
their support of early enactment of legislation to establish a
national land use policy. We believe it imperative that any such
legislation be so structured as to require land use plans at all
levels of government to be developed from the outset in a manner
that will, as a minimum, ensure compliance with applicable
environmental laws and standards, including air and water
quality standards and implementation plans. In connection with
such legislation, the Boards urge that consideration be given to
means for direct support of land use planning by those large
metropolitan areas that request such support, providing that the
requesting agencies can [p. G-2]
demonstrate an ability to work within general guidelines con-
sistent with national policies that are provided by the Federal
government. If such legislation is enacted, we recommend that
the Administrator make the resources of the EPA available to
States and local governments to assist (1) in the formulation of
land use plans to meet environmental objectives and (2) in the
review of plans for the consistency with applicable laws before
Federal approval.
Information and Education. It is recommended that:
1. The importance of environmental considerations as a part
of the planning process be brought to the attention of ap-
propriate officials at all levels of government.
2. An information program be directed toward the general
public.
3. Methods be developed that will aid the planner in quantify-
ing the environmental impact of his plan.
4. Better institutional arrangements be developed for decision-
makers to participate in the planning process.
Development of Required Scientific Knowledge. It is recom-
mended that the Federal Government and in particular the
Administrator of EPA take those steps necessary to assure the
development of plans for and the funding necessary to obtain
-------
858 LEGAL COMPILATION—SUPPLEMENT 11
the new scientific knowledge required to determine strategies
for dealing with the preservation of our environment.
Ocean Disposal
Legislation. It is recommended that:
• Congress enact immediately the Marine Protection Re-
search and Sanctuaries Act of 1972 (Ocean Dumping
Bill).
• The apparent duplication of responsibilities in EPA and
the Department of Commerce for research and monitoring
be eliminated and all responsibilities for establishment
and enforcement of marine water quality criteria and
associated research and monitoring activities be centered
in EPA.
• Congress enact immediately the proposed 1972 amend-
ments to the FWPCA as reported by the Joint Senate-
House Conference Committee.
• EPA seek remedial legislation to require the establishment
of Federal water quality standards for waters in the
contiguous coastal zone located between the 3-mile and
12-mile off-shore lines.
Toxic Substances. It is recommended that EPA press for a
requirement that all industrial wastes containing significant
amounts of toxic substances, including heavy metals, be pre-
treated for the removal of such substances before being dis-
charged to municipal sewage systems.
Incinerators. It is recommended that EPA actively pursue the
development of more accurate emission measuring equipment, so
as to provide adequate assurance that sewage sludge incinerators
do not pose unacceptable threats to human health or air quality.
Scientific Data. It is recommended that an inventory of the
ocean bottom and the coastal waters of the United States and
its territories be completed without delay in order to establish
baseline data to which future comparisons can be referred. The
inventory, or baseline data, should include but not be limited to
the subsurface and bottom ocean currents, upwelling, tempera-
tures and chemical composition of the waters, seasonal changes,
distribution of existing aquatic life food chains, and aquatic
migration patterns.
It is further recommended that EPA take the lead and in co-
operation with the National Oceanic and Atmospheric Adminis-
tration, the Corps of Engineers, Coast Guard and other interested
-------
WATER—GUIDELINES AND REPORTS 859
agencies plan and conduct a program of research and monitoring
that will lead to improvement of marine water quality criteria,
selection and use of ocean dumping sites, provision of guide-
lines for proposed disposal operations, and assurance of non-
degradation and enhancement of the environmental quality of
the oceans.
Sludge Disposal on Land. It is recommended that where
available Federal or State lands of relatively low value be utilized
for experimental sludge-spreading programs.
Dredge Spoils. It is recommended that, where [P- G-3]
possible or feasible, dredge spoils should be used to fill coastal
land development areas. The Board suggests cost-benefit studies
be employed to certain the value of environmental enhancement
resulting from containment versus dumping of dredge spoil. Stud-
ies should also be undertaken to determine the feasibility of
treating dredge spoils before ocean disposal to remove solids
and other components that might be deleterious to the ecosys-
tems.
Nutrient-Rich Wastes. It is recommended that the Federal
government's research activities include efforts to explore more
fully those conditions under which nutrient-rich wastes can be
effectively utilized to improve the marine environment.
Regional Standards. It is recommended that the Federal govern-
ment continue to insist on regional approaches and insure con-
sistency in the application of standards of treatment, disposal,
and controlled dumping procedures applicable to all State and
local agencies in the coastal regions and/or on the river or
estuarine system. Separate regional standards must be applied
where divergent coastal conditions exist.
Shoreline Protection. It is recommended that State govern-
ments intensify their efforts to enhance the quality of their
own shoreline and not depend solely on Federal legislation. Fed-
eral encouragement of, and priority cooperation with all such
States, should hasten the time otherwise required to correct the
current abuse of the Nation's coastal waters.
Raw Sewage. It is recommended that the construction of
facilities to end the unacceptable practice of discharging raw
sewage into any harbor is mandatory. While the Board cannot
condone years of failure to comply with acceptable health and
welfare standards, it recognized that funds available to cities
have been limited. The Board urges that the construction of
sewage treatment plants with sludge digestion be given priority.
-------
860 LEGAL COMPILATION—SUPPLEMENT 11
Federal assistance for such plants must be contingent on EPA
approval of the ultimate method of sludge disposal to assure
nonviolation of environmental protection regulations—whether
disposal is through incineration, marine disposal, land disposal,
or other means.
In the absence of an immediate solution to the present practice
of raw sewage discharge, a moratorium on new building con-
struction should be enforced to the extent that increased raw
sewage discharges and overloading of sewers and treatment
plants will not occur. [p. G-4]
* U.S. GOVERNMENT PRINTING OFFICE' 1974 O -548-492
-------
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U.S. Environmental Protection Agenctf
Region V. Library
230 South Dearborn street
Chicago, Illinois 60604
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