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AEC LEGAL MEMORANDUM CONCERNING THE RELATIONSHIP BETWEEN SECTION 21(b) OF FEDERAL WATER POLLUTION CONTROL ACT AND SECTION 102 OF THE NATIONAL ENVIRONMENTAL POLICY ACT

JUNE 5, 1970.

This legal memorandum addresses itself to the relationship between Section 21(b) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 466 (FWPCA), and Section 102 of the National Environmental Policy Act (NEPA), Public Law 91-190, enacted January 1, 1970. Section 21(b) was incorporated into the FWPCA by Section 103 of the Water Quality Improvement Act of 1970 (WQIA), Public Law 91-224, enacted April 3, 1970. The basic question involved can be simply put: for matters of water quality covered by FWPCA, do the requirements of Section 21 (b) of that Act supercede, pro tanto, the more general environmental requirements of NEPA, or must NEPA also be followed with regard to such matters?

For the reasons given below, it is concluded that for matters of water quality covered by the FWPCA, Section 21(b) of that Act applies exclusively. If, however, a particular water quality matter is not within the scope of Section 21 (b), the requirements of NEPA must be adhered to as respects consideration and treatment of that matter in AEC licensing proceedings.

1. INTRODUCTION

The relationship question can be placed in better perspective by first considering certain general background information concerning the purposes of the two Acts.

A. The stated purposes of NEPA are: to declare a national policy which will encourage productive 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 resources important to the Nation; and to establish a Council on Environmental Quality. Section 102 of NEPA authorizes and directs that, to the fullest extent practicable, the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in the Act. Further, all agencies of the Federal Government are required, among other things, to include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible agency official on certain specified environmental considerations. Prior to making the detailed statement, the responsible Federal official is required to consult with and obtain the comments of any Federal

agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.

B. Section 21(b) of the FWPCA, in substance, requires an applicant for a Federal license or permit for any facility the operation of which may result in a discharge into the navigable waters of the United States to provide the Federal licensing agency with certification from the location State or cognizant interstate water pollution control agency, or the Secretary of the Interior, as appropriate, that there is reasonable assurance, as determined by such certifying authority, that the activity will be conducted in a manner which will not violate applicable water quality standards. The Federal licensing agency would, generally, be prohibited from issuing any such license or permit without having received this certification. Provision is made for agency consideration and determination of water quality contentions asserted by non-location States which may be adversely affected by operation of the facility under licensing review.

To put the subject in further perspective, Section 21(b) of the FWPCA does not, in our opinion, alter the Commission's exclusive regulatory authority and responsibility for control of radiological health and safety matters as regards effluents from facilities which it licenses under the Atomic Energy Act.

A. Text

II. STATUTORY TEXT AND HISTORY

The starting point in the analysis of coverage of the subject two Acts with regard to water quality is Section 104 of NEPA, which states that:

"Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting upon the recommendations or certification of any other Federal or State agency."

Section 104 thus provides, inter alia, that the Section 102 requirements of NEPA will not affect the specific statutory obligations of any Federal agency to act or refrain from acting upon the recommendations or certification of any other Federal or State agency. The history of Section 104 demonstrates that this proviso was developed in the legislative process for specific purposes which included eliminating any uncertainty as respects the exclusive applicability of Section 21 (b) of the then pending FWPCA amendments (subsequently WQIA) to water quality matters covered therein.

B. History

The relationship between the provisions in the bills (S. 7 and H.R. 4148) subsequently enacted as WQIA and the bill (S. 1075) subsequently enacted as NEPA was discussed when S. 7 was being considered on the Senate floor (115 Cong. Rec. S12108-12147, (daily ed.) October 8, 1969). During this discussion, a revised version of S. 1075 was presented to the Senate and the Senate conferees were instructed to insist upon this version in the conference. (115 Cong. Rec. S12116, S12145, (daily ed.). October 8. 1969). The revised S. 1075 contained a new Section 103 which is substantially identical to Section 104 of

NEPA. Senator Jackson, the sponsor of S. 1075, explained the purpose of this new provision as follows (115 Cong. Rec. S12111 and S12114, (daily ed.), October 8, 1969):

"Mr. President, I fully agree with the purposes of section 16 (c) of S. 7 (now Section 21(b) of FWPCA). It is my understanding that there was never any conflict between this section and the provisions of S. 1075. If both bills were enacted in their present form, there would be a requirement for State certification, as well as a requirement that the licensing agency make environmental findings.

"The compromise worked out between the bills provides that the licensing agency will not have to make a detailed statement on water quality if the State or other appropriate agency has made a certification pursuant to section 16 (c) [now 21(b)].

"A new proposed section 103 in S. 1075 [now Section 104 in NEPA] would be added to make explicitly clear that section 102 does not in any way affect the specific statutory obligations of Federal agencies to comply with environmental standards, to coordinate their activities, or to condition their actions upon any State or Federal certifications now required by law or which may be required by law. The language of this section is designed to insure that the provisions of section 16, and particularly section 16 (c) of S. 7 are consistent with the requirements of section 102 of S. 1075. Section 16(c) of S. 7 would have the effect of exempting the Corps of Engineers, the Atomic Energy Commission, and some other agencies from the requirement in S. 1075 for a detailed statement on the environmental impact of proposed actions involving any discharge into the navigable waters of the United States. Under the terms of section 16 (c) of S. 7 as now drafted, the State or other appropriate organization would be charged with certifying that any discharge is in substantial compliance with appropriate water quality standards. This certification would be a condition precedent to obtaining any Federal license or permit required by law before making any discharges into the navigable waters of the United States."

Section 104 in NEPA, with a minor reference change, is identical to the language discussed and agreed to on the Senate floor on October 8, 1969 (115 Cong. Rec. S17453, (daily ed.), December 20, 1969) as a proposed Section 103 in the revised S. 1075 which was to go to conference.

The analysis of Section 104 presented to the Senate during its consideration of the conference report on S. 1075 (115 Cong. Rec. 17455, (daily ed.), December 20, 1969 also) addresses the subject point. The analysis states as follows in pertinent part:

"Section 104

"This section provides that nothing in sections 102 or 103 shall affect the specific statutory obligations of any Federal agency:

"(1) To comply with environmental quality standards and criteria,

"(2) To coordinate or consult with any other State or Federal agency, or

"(3) To act or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency. "There are existing statutes and there may in the future be new statutes which prescribe specific criteria or standards of quality for environmental indicators, or which prescribe certain procedures for coordination or consultation with State or other Federal agencies, or which require recommendations or certification of other Federal agencies as a prerequisite to certain actions. It is not the intent of sections 102 or 103 of this Act to substitute less specific requirements for those which are established concerning particular actions or agencies. It is the intention that where there is no more effective procedure already established, the procedure of this act will be followed. In any event, no agency may substitute the procedures outlined in this Act for more restrictive and specific procedures established by law governing its activities.

"Where an agency has such specific instructions governing only one aspect of its coordination activities, or where environmental quality standards and criteria are established for only one aspect of an agency's proposed activity, the agency is not relieved of its obligations to conform with the provisions of sections 102 and 103 which are beyond the sphere of the existing instructions, standards, or criteria.'

On March 24, 1970, in his Senate floor discussion of the conference report on H.R. 4148, Senator Muskie, one of the floor managers, said (116 Cong. Rec. S4401, (daily ed.), March 24, 1970):

"Mr. President, a question has been raised regarding the relationship between section 21(b) of the conference agreement and the provisions of sections 102 and 103 of the National Environmental Policy Act, Public Law 91-190, particularly with regard to the duties of Federal licensing and permitting agencies under the respective authorizations.

"It should be clear that nothing in subsection 21(b) should be interpreted as discharging Federal licensing or permitting agencies from complying with the provisions of Public Law 90-190 as far as they relate to any environmental impact not associated with water quality standards."

It is clear from the foregoing that Section 104 of NEPA (a) is designed to insure that provisions of law such as Section 21(b) of FWPCA are not affected by the requirements of Section 102 of NEPA, and (b) has the effect of exempting agencies subject to Section 21(b) from the requirements of Section 102 of NEPA as respects any discharge into the navigable waters of the United States. Thus, in the area of water quality, any proceeding which is subject to Section 21(b) of FWPCA, will not also be subject to the requirements of Section 102 of NEPA. This will insure that duplication of effort does not occur; that congressional directives to the executive branch in the two Acts are consistent; and that the two Acts are married into a "viable organizational structure." (115 Cong. Rec. S12112, S12114, and S12120, (daily ed.), October 8, 1969). NEPA would apply to any significant adverse environmental impact involved other than water quailty matters covered by Section 21(b) of the FWPCA. If a water quality matter were not covered by Section 21(b) (i.e., because the discharge was into other than "navigable

waters of the United States"), NEPA would apply to such matter. Nowhere in the text of NEPA, WQIA, or in their respective legislative histories, have we found a suggestion which would support any other conclusion regarding the relationship between Section 102 of NEPA and Section 21 (b) of FWPCA.1

It should be noted initially that, from the beginning of the legislative development of what is now Section 104 of NEPA, each of the bills (H.R. 4148 and S. 7) being considered to amend the FWPCA contained language substantially identical to Section 21(c). Thus, the language of Section 21(c) was in the pending FWPCA amendments when the Section 104 accommodation of NEPA of FWPCA requirements (see, infra) was agreed upon. As to the legislative history of Section 21(c), its language is explained in S. Rep. No. 91–351 on S. 7, as follows (p. 30):

"Subsection (d) makes it clear that none of the provisions of section 16 [Section 16(d) of S. 7 as reported is identical to Section 21(c) as enacted] should be interpreted as limiting any other provision of law relating to water quality. Thus, the provisions of the Fish and Wildlife Coordination Act, for instance, and administrative arrangements executed thereto are in no way limited by this section."

At this point, some comment is in order concerning the two "grandfather" clauses in Section 21(b) and their effect, if any, on the foregoing conclusions.

There is a three-year "grandfather clause" in Section 21(b) which applies where actual construction of a facility has been "lawfully commenced" prior to the date of WQIA enactment.2

For license applications pending on the date of enactment, and issued within one year of such date, there is a "grandfather clause" which provides that such license shall terminate at the end of one year, unless prior to that time a certificate is submitted.3

These provisions provide an orderly and complete mechanism for applying the Section 21 (b) certification procedures to facilities under construction and applications under consideration at the time of WQIA enactment. There is no suggestion in the language of NEPA, WQIA or their respective legislative histories that the objective of these "grandfather clauses" was to be negated by resort to some other procedure--such as under NEPA-in an attempt to deal with water quality matters during the grace periods provided.

1 This conclusion as to the relationship of NEPA requirements with those of Section 21(b) of the FWPCA is fully consonant with Section 21(c) of the later act. That section provides in part:

"Nothing in this section shall be construed to limit the authority of any department or agency pursuant to any other provision of law to require compliance with applicable water quality standards."