Two respondents have urged that we change the scope of § 2.81 (a) by requiring detailed environment statements to accompany applications for minor project licenses. One respondent has advocated restricting the application of the rules to projects with 10,000 hp capacity or more. It is our determination that neither of these suggestions is appropriate or in the public interest and that pending evidence to the contrary we will require the submission of detailed environmental statements with respect to hydroelectric matters only in conjunction with the applications for major project licenses and activities specified in § 2.81(a). In any event, it should be noted that all our jurisdictional activities with respect to hydroelectric facilities are subject to the comprehensive planning standard of the Federal Power Act.

In adopting these regulations we have adhered as closely as possible to the Council on Environmental Quality's Interim Guidelines governing the preparation of detailed environmental statements. (35 F.R. 7390, May 12, 1970). Pending experience in implementing the regulations and in the event of revisions in the Guidelines or amendments to the National Environmental Policy Act, changes may be indicated at some future date.

These regulations, which are effective immediately, will be applied as fully as possible to appropriate cases now on file.

The Commission finds

(1) The notice and opportunity to participate in this proceeding with respect to the matters presently before the Commission are consistent and in accordance with all procedural requirements therefor as prescribed in 5 U.S.C. 553.

(2) The amendments to the Commission's regulations adopted herein are necessary and appropriate for carrying out the provisions of the Federal Power Act, the Natural Gas Act, and the National Environmental Policy Act.

The Commission acting pursuant to the provisions of the Federal Power Act, particularly sections 4, 10, 15, 307, 309, 311 and 312 (41 Stat. 1065, 1068, 1069, 1070, 1072, 1353, 46 Stat. 798, 49 Stat. 839, 842, 843, 844, 856, 858, 859, 61 Stat. 501, 82 Stat. 617; 16 U.S.C. 797, 803, 808, 825f, 825h, 825j, 825k), and the Natural Gas Act, particularly sections 7 and 16 (52 Stat. 824, 825, 830, 56 Stat. 83, 84, 61 Stat. 459; 15 U.S.C. 171f, 7170), and the National Enevironmental Policy Act of 1969, P.L. 91-190, approved January 1, 1970, particularly sections 102 and 103 (83 Stat. 853, 854) orders:

(A) Part 2, Subchapter A, Chapter I, Title 18, Code of Federal Regulations is amended by adding thereto the following:

(1) The table of contents at the beginning of Part 2-General Policy and Interpretations is amended by adding at the end thereof a new subdivision heading and section titles reading as follows:

STATEMENT OF GENERAL POLICY TO IMPLEMENT PROCEDURES FOR COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

2.80 Detailed Environmental Statement.

2.81 Compliance with the National Environmental Policy Act of 1969 under Part I of the Federal Power Act.

2.82 Compliance with the National Environmental Policy Act of 1969 under the Natural Gas Act.

(2) The text of Part 2 is amended by adding at the end thereof the following heading and new §§ 2.80 through 2.82 reading as follows:

STATEMENT OF GENERAL POLICY TO IMPLEMENT PROCEDURES FOR COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

§ 2.80 Detailed environmental statement

(a) It shall be the general policy of the Federal Power Commission to adopt and to adhere to the objectives and aims of the National Environmental Policy Act of 1969 (Act) in its regulation under the Federal Power Act and the Natural Gas Act. The National Environmental Policy Act of 1969 requires, among other things, a detailed environmental statement in all major Federal actions and in all reports and recommendations on environmental legislative proposals which will significantly affect the quality of the human environment.

Therefore, in compliance with the National Environmental Policy Act of 1969 we will make a detailed environmental statement when the regulatory action taken by us under the Federal Power Act and Natural Gas Act will have such an

55-360 0-71-pt. 1-7

environmental impact. A "detailed statement" prepared in compliance with the requirements of §§ 2.81 through 2.82 of this Part shall fully develop the five factors listed hereinafter in the context, among other relevant environmental factors, of such considerations as the proposed activity's direct and indirect effect on the ecology of the land, air and water environment of the project or natural gas pipeline facility, and on aquatic and wildlife, and established park and recreational areas as well as on sites of natural, historic, and scenic values and resources of the area, and the conformity of the proposed activity with all applicable environmental standards. Such statement should also deal with the justification of the proposed activity as compared to its alternatives. These factors are listed to merely illustrate the kinds of values that must be considered in the statement; in no respect is this listing to be construed as covering all relevant factors.

(1) The environmental impact of the proposed action,

(2) Any adverse environmental effects which cannot be avoided should the proposal be implemented,

(3) Alternatives to the proposed action,

(4) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(5) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

$ 2.81 Compliance with the National Environmental Policy Act of 1969 under part I of the Federal Power Act

(a) A notice of all applications for major projects (those in excess of 2,000 horsepower) or for reservoirs only providing regulatory flows to down-stream (major) hydroelectric projects under Part I of the Fedeal Power Act for license or relicense, or amendment to license proposing construction or operating change in project works will be transmitted by the Commission to the Council on Environmental Quality and to appropriate governmental bodies, Federal, regional, State and local with a request for comments on the environmental considerations listed in § 2.80 of this Part. Notice of all such applications shall also be made as prescribed by law.

(b) All applications covered by paragraph (a) of this section shall be accompanied by the applicant's detailed statement of the environmental factors specified in §2.80. The staff shall make an initial review of the applicant's statement and issue, if necessary, any deficiency letters as to sufficiency of form, and cause the applicant's statement, as revised, to be made available to all gov ernmental bodies given notice pursuant to paragraph (a) of this section. The ap plicant shall supply ten copies of the statement, as revised, to the Council on Environmental Quality.

(c) All interveners taking a position on environmental matters shall file with the Commission an explanation of their environmental position, specifying any differences with the applicant's detailed statement upon which intervener wishes to be heard and including therein a discussion of that position in the context of the factors enumerated in § 2.80, at a time specified by the Commission or the Presiding Examiner. All interveners shall be responsible for filing 10 copies of their filing with the Council on Environmental Quality at the time they file with the Commission and shall also supply a copy of such filing to all participants to the proceeding. Nothing herein shall preclude an intervener from filing a detailed environmental statement.

(d) The applicant, staff, and all interveners taking a position on environmental matters should offer evidence for the record in support of their environmental position, filed in compliance with the provisions of this section.

(e) In the case of each contested application the initial and reply briefs filed by the applicant, the staff, and all interveners taking a position on environmental matters should specifically analyze and evaluate the evidence in the light of the environmental criteria enumerated in §2.80. The views of the Council on Environmental Quality, if any, should be made in a written statement served upon the Commission staff and all parties of record at a time specified by the Presiding Examiner.

Furthermore, the Initial Decision of the Presiding Examiner in such cases should include an evaluation of the environmental factors enumerated in § 2.80 and the views expressed in conjunction therewith by the applicant and all those making formal comment pursuant to the provisions of this section. If the Commission grants the application, its final order shall include a detailed environmental statement as specified in § 2.80.

(f) In the case of non-contested applications the staff shall prepare a detailed statement as prescribed in § 2.80 based on its analysis of the application's environmental impact and all matters of record and shall serve such statement on the applicant. The Council on Environmental Quality shall be supplied with 10 copies of such statement, and other appropriate Federal and State agencies shall be supplied with 1 copy; each of them shall be afforded 30 days in which to submit any written comments they may care to offer. Within 10 days thereafter the applicant may file written responses to the staff's statement and the comments received thereon. The Commission will consider all comments submitted prior to acting on the application. If the Commission grants the application, its final order shall include a detailed environmental statement as specified in § 2.80.

(g) Ten copies of all comments from governmental bodies-Federal, regional, State and local-received pursuant to this section shall also be transmitted to the Council on Environmental Quality by the party filing such comments at the time of filing with the Commission.

§ 2.82 Compliance with the National Environmental Policy Act of 1969 Under the Natural Gas Act

(a) A notice of all certificate applications filed under Section 7(c) of the Natural Gas Act (15 U.S.C. 717f (c), except abbreviated applications filed pursuant to Section 157.7 (b), (c), (d) and (e) of the Commission's Regulations, will be transmitted by the Commission to the Council on Environmental Quality. Notice of all certificate applications will continue to be published as prescribed by law, and transmitted to other appropriate Federal and State governmental bodies.

(b) All applications within the scope of paragraph (a) of this section shall be accompanied by the information prescribed in paragraph 157.14 (6–d) of this Chapter and shall include an environmental analysis of the construction and operating program of the proposed project considered in its totality. If the Commission then concludes that a detailed statement will be required as part of the Commission's order, public notice will be given requiring the applicant to file a detailed statement as prescribed in § 2.80. The staff shall make an initial review of the applicant's statement and issue, if necessary, any deficiency letters as to sufficiency of form, and cause the applicant's statement, as revised, to be made available to all governmental bodies given notice pursuant to paragraph (a) of this section. The applicant shall supply ten copies of the statement, as revised, to the Council on Environmental Quality.

(e) All interveners taking a position on environmental matters shall file with the Commission an analysis of their environmental position, specifying any differences with the applicant's detailed statement upon which intervener wishes to be heard and including therein a discussion of that position in the context of the factors enumerated in § 2.80, at a time specified by the Commission or the Presiding Examiner. All interveners shall be responsible for filing 10 copies of their filing with the Council on Environmental Quality at the time they file with the Commission and shall also supply a copy of such filing to all participants to the proceeding. Nothing herein shall preclude an intervener from filing a detailed environmental statement.

(d) The applicant, staff, and all interveners taking a position on environmental matters should offer evidence for the record in support of their environmental position, filed in compliance with the provisions of this section.

(e) In the case of each contested application the initial and reply briefs filed by the applicant, the staff, and all interveners taking a position on environmental matters should specifically analyze and evaluate the evidence in the light of the environmental criteria enumerated in §2.80. The views of the Council on Environmental Quality, if any, should be made in a written statement served upon the Commission staff and all parties of record at a time specified by the Presiding Examiner.

Furthermore the Initial Decision of the Presiding Examiner in such cases should include an evaluation of the environmental factors enumerated in § 2.80 and the views expressed in conjunction therewith by the applicant and all those making formal comment pursuant to the provisions of this section. If the Commission grants the application, its final order shall include a detailed environmental statement as specified in § 2.80.

(f) When the Commission determines that its action on an application which is otherwise subject to the Commission's non-contested procedures will have a significant environmental effect, the staff shall prepare a detailed statement as prescribed in § 2.80 based on its analysis of the application's environmental

impact and all matters of record and shall serve such statement on the applicant. The Council on Environmental Quality shall be supplied with 10 copies of such statement, and other appropriate Federal and State agencies shall be supplied with 1 copy; each of them shall be afforded 30 days in which to submit any written comments they may care to offer. Within 10 days thereafter the applicant may file written responses to the staff's statement and the comments received thereon. The Commission will consider all comments submitted prior to acting on the application. If the Commission grants the application, its final order shall include a detailed environmental statement as specified in § 2.80.

(g) Ten copies of all comments from governmental bodies-Federal, regional, State and local-received pursuant to this section shall also be transmitted to the Council on Environmental Quality by the party filing such comments at the time of filing with the Commission.

(B) Section 4.40 in Part 4, Subchapter (B), Chapter I, Title 18, Code of Federal Regulations is amended by redesignating paragraph (1) as paragraph (m) and substituting a new paragraph (1) as follows:

§ 4.40 contents

(1) Those applications within the purview of § 2.81 (a) of Part 2 of Chapter 1 must be accompanied by a detailed statement of the environmental factors enumerated in § 2.80.

(C) Section 5.1 in Part 5, Subchapter (B), Chapter I, Title 18, Code of Federal Regulations is amended by inserting a new sentence between the first and second sentences. As amended this portion of section 5.1 will read as follows: 85.1 Amendment of license

Where a licensee desires to make a change in the physical features of the project or its boundary, and/or make an addition or betterment and/or abandonment or conversion, of such character as to constitute an alteration of the license, application for an amendment of the license shall be filed with the Commission, fully describing the changes licensee desires to make. Furthermore, the provisions of §2.81(a) of Chapter 1 shall apply to all applications for amendment of license as defined therein. If, after consideration of an application for amendment of the license, the Commission is of the opinion that the contemplated changes are of such character as to constitute a substantial alteration of the license, public notice of such application shall be given by an advertisement made at least 30 days prior to action upon the application. * * *

(D) Paragraph (a) of Section 157.14, in Subchapter E, Chapter I, Title 18, Code of Federal Regulations is amended by adding a new subparagraph (6–d) to read as follows:

(6-d) Exhibit F-IV-Statement by the Applicant concerning the requirements of the National Environmental Policy Act of 1969, Public Law 91–190, 83 Stat. 852, Title I, Section 102.

The applicant shall provide a brief statement concerning the following factors: (i) the environmental impact of the proposed actions,

(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 enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

(E) The amendments herein adopted shall become effective upon the issuance of this order.

(F) The Secretary shall cause prompt publication of this order to be made in the Federal Register.

By the Commission. [SEAL] GORDON M. GRANT, Secretary.

Mr. DINGELL. Under the 102 (C) statements, can you give us an idea of how many times agencies have failed to file statements of this kind? Have you any idea?

Mr. TRAIN. In the final analysis, I suppose I could say I do not know of any complete failure, because if we know of a case and if we feel that one is due, we have gone to bat to get it. I think in all cases, so far as I know, we have been successful.

Mr. DINGELL. That was a hard question. I could not figure out quite how to phrase it.

The question I would like now to bring to your attention concerns section 103. What can you tell us about agency compliance with section 103? This is a section which says:

All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this Act ***.

Mr. TRAIN. As I pointed out in my statement, we accelerated agency review of their statutory and regulatory authority, and we called for reports on this by the 1st of September. With only minor exceptions, we received reports from all agencies which we called for under section 103. The three that we have not heard from as of the 4th of December were the Department of Justice, the National Capital Planning Commission, and the Redevelopment Land Agency.

Mr. DINGELL. We have had a review made of this by the Library of Congress which I will direct the staff to make available to you. I'll ask the staff to review this document for possible inclusion in the record.

The Chair notes that the Department of Labor indicated no response under section 103. Am I correct in that?

Mr. TRAIN. Their response came in last week. That is my understanding.

Mr. DINGELL. Very good.

The Chair notes that OST says the act does not apply to their affairs. It also notes that the Citizens Commission on Environmental Quality says the act does not apply. The Housing and Home Loan Board or Bank indicates the statute does not apply, as does the ICC. The Bureau of the Budget and the Smithsonian made no response, and the Office of Emergency Planning indicated the statute does not apply to them. Am I correct in that? Perhaps you would like to make comment at a later time, Mr. Train.

Mr. TRAIN. The National Environmental Policy Act applies to all elements of the Federal Government. Whether the specific provisions of section 103 apply is something else.

Mr. DINGELL. The Chair notes that the only agencies that have suggested statutory changes have been Interior, Commerce, Agriculture, and the Federal Power Commission with regard to the siting of powerplants. Have you a comment on that?

Mr. TRAIN. As I stated in my prepared testimony, none of the agencies, to my knowledge, have stated that there were deficiencies or inconsistencies in their existing authority that would prevent them from complying with the National Environmental Policy Act. I think these agencies, as I understand it, have taken the occasion to impress upon