DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY, Washington, D.C., June 23, 1972. Hon. EDWARD A. GARMATZ, Chairman, Committee on Merchant Marine and Fisheries, U.S. House of Rep resentatives. DEAR MR. CHAIRMAN: This responds to your request of March 28, 1972, for the views and recommendations of the Department of Agriculture on H.R. 14103, a bill to amend the National Environmental Policy Act of 1969 to provide a temporary partial exemption from the requirements for the issuance of environmental impact statements. The bill would provide that the provisions of section 102(2)(C) of the National Environmental Policy Act, which requires an environmental impact statement, would not apply to the issuance of permits on or before December 31, 1975, under section 13 of the Act of March 3. 1899, or under section 402 of the Federal Water Pollution Control Act, as amended, by the Federal Water Pollution Control Act Amendments of 1972, or to any action taken by any Federal agency in connection with such issuance, in connection with discharges from a facility on which construction had commenced on or before April 1, 1972. Such permits would not remain in effect beyond December 31, 1977, unless the Administrator of the Environmental Protection Agency determines and publishes a determination that the issuance of any such permit does not constitute a major Federal action significantly affecting the quality of the human environment, or unless there has been compliance with section 102 of the National Environmental Policy Act. This Department has no objection to the enactment of the bill. The Office of Management and Budget advises that there is no objection to the presentation of this report from the standpoint of the Administration's program. Hon. EDWARD A. GARMATZ, J. PHIL CAMPBELL, Under Secretary. U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D.C., May 1, 1972. Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your request for the comments of this Department on H.R. 14103, a bill to amend the National Environmental Policy Act of 1969 to provide a temporary partial exemption from the requirements for the issuance of environmental impact statements. We recommend that the bill be enacted. H.R. 14103 would amend the National Environmental Policy Act of 1969 (83 Stat. 852) by adding a new section 106 which would provide that permits issued prior to December 31, 1975, under the Refuse Act or under section 402 of the Federal Water Pollution Control Act as amended in 1972 would not require an environmental impact statement. However, such permits would terminate on December 31, 1977, unless the Administrator of the Environmental Protection Agency issues an impact statement or determines that one is not required by section 102 of NEPA. The foregoing exemption does not apply to permits for a discharge from a facility from which construction commenced after April 1, 1972. This bill is an attempt to resolve a problem which has developed in the administration of the Refuse Act Permit Program. Since President Nixon initiated that program in 1970 as a major element in the national effort to control water pollution, the Corps of Engineers and the Environmental Protection Agency have received nearly 20,000 permit applications. The importance of a federally supervised permit program to a strong and efficient water pollution control program has been recognized by both Houses of Congress in the Federal Water Pollution Control Act Amendments of 1972 which is now in conference. Section 402 of that bill establishes a permit program similar to that now operating under the Refuse Act. The recent court decision in Kalur vs. Resor handed down December 21, 1971, by the U.S. District Court of the District of Columbia has impeded the adminis tration of the Refuse Act Permit Program by requiring that such permits were subject to the impact statement requirements of section 102 of NEPA. This holding was contrary to a Council on Environmental Quality guideline which construed NEPA as not requiring an impact statement for environmental protective regulatory actions incurred in or taken by the Environmental Protection Agency. Present procedures under the Refuse Act and those required under section 402 of the Federal Water Pollution Control Act are designed to insure that environmental concerns as to water quality are fully considered prior to issuance of the permit. To require, in addition, a NEPA environmental impact statement for facilities already in existence would create an administrative burden which might, in the short term, render the permit program unworkable, without significantly increasing the environmental safeguards. The Refuse Act Permit Program is a vital element in this country's fight against water pollution. This legislation will facilitate its operation. We support its rapid enactment. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program. Sincerely yours, JOHN W. LARSON, Assistant Secretary of the Interior. TENNESSEE VALLEY AUTHORITY, Hon. EDWARD A. GARMATZ, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. GARMATZ: This is in response to your letter of March 28 requesting our comments with respect to H.R. 14103, to amend the National Environmental Policy Act of 1969 to provide a temporary partial exemption from the requirements for the issuance of environmental impact statements. The bill would provide with respect to the granting of discharge permits under the Refuse Act and proposed new water quality control legislation a temporary exemption from the requirements of section 102 (2) (C) of the National Environmental Policy Act as to the filing of environmental impact statements. The bill is intended to provide temporary relief from the effects of a recent decision of one of the U.S. District Courts of the District of Columbia in the case of Kalur v. Resor, 335 F. Supp. 1 (1971). While TVA is not involved in the granting of such discharge permits, it appears to us as a general proposition that the temporary exemption provided in the bill is desirable. This would allow continuation of the permit program pending action on the appeal of the court decision in question and also pending a possible comprehensive review by the Congress of the operation and effects of NEPA. The Office of Management and Budget advises that it has no objection to the presentation of this report from the standpoint of the Administration's program. Sincerely yours, AUBREY J. WAGNER, Chairman. Mr. DINGELL. The Council on Environmental Quality and the Environmental Protection Agency have joined with the Corps in seeking early enactment of this bill. The committee also would like to have comments from our witnesses as to other legislation pending or as to other suggestions with regard to the National Environmental Policy Act. The Chair does observe that the committee intends to maintain an active and vigorous interest in the proper carrying out of the National Environmental Policy Act and the Chair wishes to state as a matter of personal concern that it is not his wish or his desire to see any substantive change in NEPA, and it would be the intention of the Chair to limit exceptions to NEPA to the carrying out of the essential Government business and also to limit requirements to time delays. as opposed to allowing substantive changes. On April 7, 1971, the Corps promulgated regulations governing the Refuse Act permit program-33 CFR 209.131. In regard to the 102 statements, those regulations-section 209.131 (b) (2)-state that CEQ has advised that such-statements--will not be required-for the 1899 permit program-where the only impact of proposed discharge or deposit will be on water quality and related water quality considerations because these matters are specifically addressed by the State certification requirements of section 21 (b) of the Federal Water Pollution Control Act. This advice of CEQ was challenged last year by two individuals, Jerome S. Kalur and Donald W. Large. Incidentally, Congressman Henry S. Reuss, Chairman of the House Subcommittee on Conservation and Natural Resources, in a letter to CEQ of February 26, 1971, which commented extensively on the proposed Corps' permit regulations, indicated that this advice of CEQ was not in accord with the plain words of NEPA. The Corps, however, accepted the advice of ĊEQ. On December 16, 1971, Judge Aubrey E. Robinson, Jr., of the District Court for the District of Columbia, in the case of Kalur v. Resor et al.-Civ. No. 1331-71-issued an order permanently enjoining the Corps of Engineers from issuing permits-under the 1899 Refuse Act to discharge refuse matter into the Nation's waterways until the Corps' permit regulations are amended to require environmental impact statements as specified by section 102 (2) (C) of the National Environmental Policy Act of 1969. The court, in that case, carefully analyzed NEPA, its legislative history, and recent court decisions interpreting NEPA. It concluded that the Corps' regulations clearly fly in the face of NEPA's mandate that all agencies of the Federal Government shall make such reports and include detailed statements. Last January 19, the Reuss subcommittee wrote to CEQ and urged that the administration should comply with the Kalur decision and not appeal the district court's ruling. Most importantly, that subcommittee noted that: * during this appeal period, no permits will be issued or denied. This means that polluters who have filed applications for permits and who are daily dis charging their pollution refuse into our waterways will be immune from the requirements of the Refuse Act. By such inaction, the Government will have effectively undercut the law. The administration however, disregarded this advice and, on February 3, 1972-nearly 2 months after the decision-filed a notice of appeal. The Justice Department is moving slowly on this appeal. As of a few days ago, the record has not yet been handed over to the court of appeals. One Justice Department official told the Reuss subcommittee that it is unlikely that briefs will be filed by the Government until June or July, or that a hearing will be held until September. I note that, in the case of the Three Sisters Bridge, the administration, at the President's direction, moved far faster on appealing an adverse court decision. As predicted, the Refuse Act permit program has come to a halt. Permits are not being issued because of the Kalur case. Enforcement under the Refuse Act has also slowed, particularly, in civil cases. General Clarke, in a letter of April 13, 1972, to the Reuss subcommittee said that it is not present Government policy to refer for prosecution those cases in which the discharger has applied for a permit under the Refuse Act permit program. That new policy effectively negates the Corps' own regulations which provide that the mere filing of permit applications will not preclude prosecution against the applicant in appropriate cases. We want to know why the administration has adopted this new policy, rather than follow the policy set forth in the regulations. Moreover, it is my understanding that few civil Refuse Act cases are being recommended for prosecution by the regional offices of the EPA. Incredible as it may seem, some regional offices in the West have only recently recommended their first civil Refuse Act case. In the meantime, the Corps has agreed to process permit applications through the notice stage, but will not hold hearings on those applications pending a resolution of Kalur. We would like to know why, since Kalur does not preclude such hearings. H.R. 1410 would confirm that Kalur is right. On the assumption that the present act requires environmental impact statements for all Refuse Act permits which have a significant environmental impact, the bill would temporarily eliminate the requirement that such 102 statements be filed before such permits may be issued. Such statements will, however, be required on renewal. However, the bill also recognizes that a blanket exemption of this sort may have severe and unexpected consequences on the environment. Therefore, the bill specifically declares that it will not apply to a discharge from a facility on which construction commenced after April 1, 1972. Such statements would still be required for facilities constructed after that date. EPA contends in a March 29, 1972, letter to me, that without this temporary relief EPA will be subject to intolerable delays in utilizing the Refuse Act permit program to clean up the Nation's waters. I have grave doubts about this statement. It is inconceivable to me that EPA and the Corps could issue any permit without first considering the very factors set forth in section 102 of NEPA. Environmental impact statements are intended as the mechanism to implement Government coordination and to help agencies make a comprehensive approach to environmental management. Making these impact statements requires Federal agencies to face the problems of pollution while they are still of manageable proportions and while alternative solutions are still available, rather than to persist in environmental decisionmaking wherein policy is established by default and inaction, the environment continues to be degraded in small but steady increments, and the mistakes of the past are perpetuated and not dealt with until they reach crisis proportions. Furthermore, the environmental impact statement provides at least some evidence that the agency has given consideration to environmental factors, and enables the public and the polluter to evaluate, and weigh them also. NEPA and the environmental impact statements thus make the decisionmaking more responsive and more responsible. EPA has received about 20,000 permit applications. EPA then implies that a 102 statement will be required in each case. We doubt that this is so. NEPA applies where there is involved major Federal actions significantly affecting the quality of the human environment. Quite probably, many of these 20,000 applications would not fall into this category. We understand that EPA has identified 2,500 major discharges from these 20,000 applications and has prepared draft permit conditions for about 500 companies which, according to EPA, are principally the major dischargers. If these are, in fact, the major dischargers, then possibly 102 statements would be required only for these and not for the other 17,500 applications. We expect EPA to discuss this possibility this week and to provide us with a list of the 2,500 dischargers and the 500 companies for the record. EPA has said that it takes EPA about a half a man-year for each 102 statement. We would like a breakdown of this estimate. Does this, for example, include the time provided for review and receipt of comments from other agencies and the public on the draft statements? While we are anxious to see the 1899 Refuse Act permit program succeed, we note that for many years polluters have discharged without a permit and degraded our waters. Now that the Government has begun to require a permit for these discharges, we do not want them issued hastily. We think a full environmental review is essential. While such a review may take longer than some persons anticipated before Kalur, we think such a review is desirable and necessary. And the Chair hopes that the witnesses today and throughout this proceeding will address themselves to that. Delaying that review more than 5 years may be a disservice not only to the public, but also to industries. EPA has asserted the theory of NEPA contemplated delays in developmental programs but not in programs designed to clean up the environment. We do not subscribe to that theory. On the contrary, we think NEPA is designed to require all agencies-whatever their mission to review all major actions to determine whether such actions are consistent with the national policy of protecting the environment which is prescribed in NEPA. The NEPA policy is intended to bring Government action into harmony with environmental protection. To accomplish that policy might, in some cases, result in delaying the proposed action. But NEPA recognized that possibility and chose to hew to the objective of protecting the environment. It has already demonstrated that policy. Moreover, when NEPA is properly complied with, little delay has resulted. In short, the committee must be shown why the administration. believes that this bill is essential to the national interest and that without this bill the Refuse Act program and the Government's water pollution abatement program will not succeed. The Chair notes we have with us three distinguished witnesses: Mr. John Quarles, Assistant Administrator for Enforcement and General Counsel of the Environmental Protection Agency: Col. John H. Cousins, Assistant Chief, Operations. Corps of Engineers; and Mr. Timothy Atkeson, General Counsel, Council on Environmental Quality. |