processing, we have reluctantly concluded that to undertake this additional workload would result in serious delays in this program. While some delays are acceptable with respect to Federal actions which are expected to have a detrimental effect on the environment, and may even be necessary in order to examine those effects, the effect of delay in the permit program is ultimately detrimental to the environment. I do not believe that this is acceptable. We must ask at this time for legislative relief from this serious problem.

I believe that the broad purposes of NEPA will not be compromised by this limited suspension. The permit program contains many safeguards designed to ensure that the permit is a vehicle for the improvement, rather than the degradation, of the environment.

Applicants for a permit are required to obtain a certification from their state that the discharge will not violate water quality standards. All permits are conditioned upon compliance with water quality standards, including compliance with any standards that are up-graded during the term of the permit. Where water quality standards are inadequate, more stringent conditions are imposed. There are special restrictions on the discharge of oil and hazardous and toxic substances. Every permit holder is required to periodically monitor his discharge to assure that he is in compliance with the terms of the permit, and in significant cases, the permit holder must monitor the impact of his discharge on the aquatic environment. In addition, EPA intends to require every permit holder to come up to certain defined levels of industrial treatment, regardless of the quality of the particular body of water involved.

As a procedural matter, the permit program offers ample opportunity for public participation. In all cases public comments are solicited and taken into account in the administrative decision. Where substantial public interest is displayed, public hearings are held. Citizens who are dissatisfied with the terms of the permit may obtain judicial review in the federal courts.

Section 402 of S. 2770, as passed by the Senate, and of H.R. 1896 as reported by the House Public Works Committee, would establish a new permit program administered by EPA. That section also contains numerous safeguards to assure protection of the environment and public participation. Every permit must be conditioned on compliance with applicable effluent limitations and performance standards, including standards for toxic substances. In general, existing industrial dischargers will be required to adopt the best practicable treatment, while new dischargers will be required to adopt a higher level of treatment. EPA is required to guarantee effective citizen participation in the permit issuance process. Public notice is required for every application, and in addition, an opportunity for a public hearing is required for every application. Finally, EPA's action in issuing or denying a permit is subject to judicial review in the federal courts.

In summary, we intend to scrutinize each permit application for compliance with water quality standards, and to develop stringent conditions to ensure that the permit is a tool for the enhancement of the quality of the environment, and not a license to pollute. Thus, we believe that a temporary suspension of NEPA's procedural requirements for the permit program would not allow us to be lax in our enforcement of environmental standards through that permit program. Indeed, without such a suspension, we will be subject to intolerable delays in utilizing the program to clean up the Nation's waters.

My staff will be available to work with you to develop a mutually acceptable legislative solution. I urge that early attention be given to this crucial problem. Sincerely yours,

WILLIAM D. RUCKELSHAUS,

Administrator.

Mr. ATKESON. I can add little to the description in that letter of the administrative problems occasioned by the Kalur decision as applied to the nationwide backlog of over 20,000 applications for water quality permits. Even if the production of environmental impact statements were to be limited as you suggest in your opening statement, to between 2,500 and perhaps 3,000 or so applications which EPA is screening in detail, this would be more than the Government's total production of environmental impact statements on action since NEPA was enacted almost 211⁄2 years ago.

And Mr. Ruckelshaus commented at the joint Senate Interior and Public Works Committee hearings on NEPA, the Kalur decision has an antienvironmental result:

We think that under the Kalur case*** given the number of permits and given the incredible administration problem of trying to get these permits issued, and get the people (to stop) from polluting, that to fully require all of the requirements of NEPA as it is presently written would instead of carrying out the spirit of NEPA and * * * protecting the environment, might well have the opposite effect.

Regardless of what view one might have as to the utility of environmental impact statements in the future on EPA's own permit granting activities, the Kalur decision's requirement that the Corps of Engineers now make judgments independent of EPA on the water quality aspects of each Refuse Act permit is an invitation to administrative confusion. EPA was formed to centralize Federal water quality regulatory decisions in one agency. The Executive order which set up the Refuse Act permit program-E.O. 11574 expressly provides that the Corps must accept EPA's determination respecting applicable water quality standards and compliance with those standards. The Kalur decision totally rejects this need for coherent water quality enforcement.

We also concur in the points made by Mr. Ruckelshaus and Mr. Quarles that during the suspension of section 102(2) (C) of NEPA on the backlog of water quality permits existing permit program policies and regulations will assure that the basic objectives of the NEPA provision will be met-now, Mr. Quarles has outlined these in his statement. I think the first point is that all the material will be publicly available. The applications for permits are publicly available. Public comments are solicited. Hearings are available. The comments of the expert agencies are available.

Secondly, the type of expertise outlined in NEPA, that is, the comments of the State water quality agencies, the State and Federal fish and wildlife authorities, and EPA will be brought to bear on these applications and they, too, will be publicly available.

Then finally, as Mr. Quarles has pointed out, all permits will be conditioned on compliance with water quality standards and where water quality standards are inadequate, more stringent conditions will be imposed.

In short, the Kalur decision, unless we can get it reversed on appeal, or corrected by the type of legislation before us today, presents us with unacceptable alternatives: either bog down effective enforcement of water quality standards on a backlog of over 20,000 applications by the attempt to produce thousands of impact statements; or we abandon the permit program and any attempt to attain effective control now over discharges subject to the Refuse Act.

Your amendment is a sensible middle course which gives a moratorium on producing statements on the backlog until we can reduce the problem to manageable proportions and affords an opportunity to carry on the proposed consolidation of the permit program in EPA through the pending water quality legislation.

I would, I think, like to underline this point, that in the Refuse Act permit program, if you were to follow the line of thinking of the Corps in Kalur, instead of one Federal water quality authority, you

would have two Federal water quality authorities, one of them EPA and the other the Corps.

As Chairman Train said to you when he was testifying, with respect to the Quad Cities amendment, your committee and the Council on Environmental Quality share the objective of vigorous implementation of NEPA.

We also share the objective of vigorous and effective enforcement of our water quality requirements. In our judgment, your bill, H.R. 14103, reconciles an unfortunate conflict between these objectives created by the Kalur decision.

You have said quite rightly that NEPA should be treated as the flexible and adaptable instrument of national policy that was intended when it was enacted, rather than as an autocratic voice from the past, to be neither questioned nor reasoned with.

We think your amendment appropriately resolves the problems created by a contrary reading of NEPA in the Kalur decision.

Thank you, Mr. Chairman. That concludes my prepared statement. Mr. DINGELL. Mr. Atkeson, the committee is grateful to you. I express the thanks of the committee for your presence here, and also express the high personal regards and affection of the Chair as I did for Mr. Quarles.

Colonel Cousins.

Colonel COUSINS. My statement is very brief and copies have been furnished.

I would simply say that most of the points that are made in this statement have already been covered by Mr. Quarles, and I would simply want to emphasize that the purposes of this bill, H.R. 14103, would be simply to permit the early implementation of the controls provided by the Refuse Act permit program.

We are processing at the present time approximately 20,000 permit. applications under this program pertaining to 36,000 separate discharges.

The requirement for the preparation of environmental impact statements in connection with these applications could, as a practical matter, result in an intolerable administrative burden which would severely damage the credibility of the discharge permit approach to the regulation of water quality.

The Department of Army supports the enactment of this bill which would represent but a temporary suspension of one of the formal requirements of NEPA in very limited circumstances.

The policies and substance of NEPA would remain unaffected and would continue their substantial contribution to the decisionmaking process.

At the same time, enactment of this bill would help ensure that the Corps discharge permit program and any new discharge permit programs, as presently proposed, would be able to function reasonably in their extremely important early stages.

With that, sir, we would be very pleased to answer any questions you may have.

Mr. DINGELL. The committee thanks you for your very helpful statement, and the Chair recognizes his good friend, Congressman Pelly.

Mr. PELLY. I would like to ask Mr. Quarles how he defines a major project on his page 4 where impact statements would be required. Mr. QUARLES. Yes, sir.

In our work on the permit program, dating now back for more than a year, we have attempted to direct the attention of our personnel around the country first to the more important dischargers.

In order to make sure that that was happening, last summer I requested each of our 10 regional offices, to identify those dischargers in their region which, on the basis of their information and knowledge of the situation, they regarded as the most serious contributors to water pollution in their region.

Mr. PELLY. In other words, the measurement of importance would be on the basis of the seriousness of the damage done by the discharge? Mr. QUARLES. That is correct.

We directed them to pick out roughly 250 plants to a region, and it varied, of course, from region to region. Some of the regions in the Far West had as few as 150 identified. A region around the Great Lakes had 400 identified, but those were identified on an administrative basis and without any reference at all to the requirements of NEPA for an impact statement for each major Federal action.

It would only be a coincidence if the plants, which we identified as our so-called major dischargers for our internal working purposes, would also be the ones that under the requirements of NEPA and the Kalur decision might be classified as major Federal actions.

However, we have assumed that probably all of the plants that we have identified as major dischargers might be of such seriousness that issuance of a permit to them would be classified as a major Federal action.

Mr. PELLY. Have you indicated to your regional offices that special attention be given to those plants which are tied in with employment of a number of jobs?

Mr. QUARLES. Yes; we have.

We have given the first priority to new plants on the theory that in most cases new plants either would not go into operation without a permit or would encounter at least some difficulties in going into operation without a permit.

I believe that in view of the delays that have occurred, undoubtedly a great many new plants have gone into operation without a permit, but we have attempted to accelerate the processing of those permits. Until the permit program was stopped dead in its tracks, they were slated for first handling.

Mr. PELLY. Is there any determination yet as to whether or not the Water Quality Act applies to Indian reservations?

Mr. QUARLES. I do not think I can answer that question.

Mr. ATKESON. Would you like me to answer that question?

Mr. QUARLES. I will ask Mr. Atkeson to answer.

Mr. ATKESON. Mr. Pelly, there has been a decision in the U.S. district court in the Southwest that the Interior Department, in managing Indian lands, is acting in the capacity of a trustee.

Congress enacted a special environmental provision for that type of activity about the same time it enacted NEPA, and the corps held in that case, as I recall, that the special provision for Indian lands applied rather than NEPA.

I would be glad to supply you with a copy of that opinion.

Mr. PELLY. Thank you.

Mr. DINGELL. If the gentleman will yield, I think that would be most helpful, and the Chair will direct, without objection, that it go in the record at this particular point.

This is a matter that concerns both my good friend, Mr. Pelly, and also the present occupant of the chair.

(The information referred to follows:)

UNITED STATES DISTRICT COURT, DISTRICT OF NEW MEXICO

Abel Davis, et al. v. Rogers C. B. Morton, et al., No. 9190 Civil, December 21, 1971.

LAND

Federal, state, and local regulation-Special land uses-Construction (§ 8.413). Federal, state, and local regulation-Administrative agencies-In general (§ 8.601).

Interior Secretary's approval of Indian leases is not major federal action under National Environmental Policy Act and impact statement need not be filed. White, Gilbert, Koch, Kelly & McCarthy, Santa Fe. N. M.. for plaintiffs. Victor R. Ortega, U.S. attorney, and Richard J. Smith, assistant U.S. attorney, both of Albuquerque, N. M., for defendants.

BRATTON, J.:

FULL TEXT OF OPINION

This matter came on for evidentiary hearing on the application of the plaintiffs for a preliminary injunction, following which the parties have submitted extensive briefs. The issue for decision in this case is whether the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. §§ 4321 et seq. (Supp. 1971), applies to the Secretary of the Interior when he approves a lease of restricted Indian land under 25 U.S.C.A. § 415 (Supp. 1971). The material facts are not in dispute.

On April 17, 1970, a 99 year lease of restricted Indian lands was executed by the Pueblo of Tesuque as lessor and Sangre de Cristo Development Company, Inc., as lessee. The lease provides that Sangre de Cristo, a New Mexico corporation, shall develop the leased premises for residential, recreational and commercial purposes, beginning with a tract consisting of some 1300 acres (Tract I). The lease and accompanying master plan contemplate a small city, and accordingly the lease grants options to Sangre de Cristo on 4,100 acres in addition to Tract I. The residential lots of Tract I vary in size from acre to almost one acre, and the tract includes space for a gold course, tennis club, apartinent houses and condominiums.

The pueblo is authorized to lease its property by the provisions of 25 U.S.C.A. § 415. This section requires that the Secretary of the Interior approve all leases thereunder and provides a maximum term of 99 years. On May 24, 1970, the lease agreement here involved was approved by the Area Supervisor of the Bureau of Indian Affairs for the New Mexico District, acting on specific authorization of the Secretary of the Interior.

The plaintiffs herein, two individuals who reside near the border of the Tesuque reservation and two nonprofit environmental corporations, brought this suit asking that the Secretary's approval of the lease be declared invalid and that further development of the leased premises be enjoined on the grounds that the Secretary did not comply with the provisions of the NEPA. Specifically, the plaintiffs claim that the Secretary violated § 102(c) of the Act (42 U.S.C.A. 4332 (C)) because he approved the lease without first obtaining an environmental impact statement as required in that section.'

1 The pertinent portions of the NEPA are:

$ 4332. Cooperation of agencies, reports, availability of information, recommendations, International and national coordination of efforts:

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in