III. THE FEDERAL WATER POLLUTION CONTROL ACT

Consideration of the relationship of NEPA procedures to water quality matters covered by Section 21(b) of FWPCA should not be limited to examination of that section and its legislative history. The FWPCA (in which, as earlier noted, Section 21(b) was incorporated on April 3, 1970, by WQIA) was first enacted in 1948 and provides a comprehensive system for Federal-State cooperation in preventing and controlling water pollution. Throughout the history of the FWPCA, the declared policy of the Congress has been "to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution." (33 USC § 466 (b)). See H. Rep. No. 1829, 80th Cong., 2d Sess. p. 1 (1948). Under the Water Quality Act of 1965 (which amended the FWPCA and, among other things, created the Federal Water Pollution Control Administration, now the Federal Water Quality Administration), the States were given the option of preparing water quality standards for their interstate streams, rivers, and lakes or having the Federal Government do it for them. All States have elected to draft their own water quality standards, which, under the FWPCA, must be approved by the Secretary of the Interior. Section 21 of the FWPCA provides for an integrated comprehensive program designed to require compliance with applicable water quality standards in all Federal activities and in Federally licensed and permitted activities. While incorporating some provisions necessary to accommodate special characteristics of certain Federal licensing and permitting procedures (e.g., dredging), Section 21 makes no exception from its operative principle of certification for any licensed or permitted activity. Furthermore, Section 21 is consistent with, and arises out of, the policy of the 1965 Water Quality Act that the primary responsibiliy for controlling water pollution rests with the States.

IV. SCOPE OF SECTION 21(b)

In view of the foregoing conclusion, that as respects water quality matters covered by Section 21(b) agencies subject to that section are exempt from the requirements of Section 102 of NEPA, some comment is in order on the scope of Section 21 (b).

A. Navigable Waters of the United States

One matter of importance in determining the scope of Section 21 (b) is the meaning of the term "navigable waters of the United States." The term is not defined in the Act or in the conference report. The summary of conference action printed in the Congressional Record (116 Cong. Rec., S4402, (daily ed.), March 24, 1970) includes the following:

"Based on the history of consideration of this legislation it is obvious that its provisions and the extent of application should be construed broadly. It is intended that this item include all water bodies, such as lakes, streams, and rivers, regarded as public navigable waters

4 Act of June 30, 1948, 62 Stat. 1155. Amended by: Public Law 660, 70 Stat. 498; Public Law 87-88, 75 Stat. 204; Public Law 89-234, 79 Stat. 903; Public Law 89-753, 80 Stat. 1246; and Public Law 91-224, 84 Stat. 91.

"Interstate waters" are defined in Section 23(e) of FWPCA to mean “all rivers, lakes, and other waters that flow across or form a part of State boundaries, including coastal waters.

in law which are navigable in fact. It is further intended that such water shall be considered to be navigable in fact when they form, in their ordinary condition by themselves or by uniting with other waters or other systems of transportation, such as highways or railroads, a continuing highway over which commerce is or may be carried on with other states or with foreign countries in the customary means of trade and travel in which commerce is conducted today. In such cases, the commerce on such waters would have a substantial effect on interstate commerce."

It should be noted that Federal water quality standards adopted pursuant to the FWPCA apply only to "interstate waters" (see, Section 10(c) (1), (2) and (5)). Section 21(b) applies to "discharges into the navigable waters of the United States". These provisions warrant the following comments: (1) it would appear that Section 21(b) certification would not have to be obtained for Federally licensed facilities involving discharges into non-navigable interstate or intrastate waters; and (2) certification under Section 21(b) would appear to be necessary for a Federally licensed facility entailing discharges into a navigable intrastate stream, even though the applicable water quality standards would be exclusively State standards and not Federally approved standards adopted under FWPCA procedures.

Numerous court decisions have established general concepts of navigability for purposes of determining the scope of the Federal Government's jurisdiction over the waters of this country. Under these cases, it has been held that the term includes waterways which, either in their natural or improved condition, are used or can be used for floating light boats or logs, even though the waterways may be obstructed by such things as falls, rapids, sand bars and currents, and even though the waterway has not been used for navigation for many years.

B. Lack of Applicable Water Quality Standards

Section 21(b) (9) (A) of FWPCA provides as follows:

"In the case of any activity which will affect water quality, but for which there are no applicable water quality standards, no certification shall be required under this subsection, except that the licensing or permitting agency shall impose, as a condition of any license or permit, à requirement that the licensee or permittee shall comply with the purposes of this Act."

The foregoing explicitly provides for a situation in which no certification shall be required. This raises the question whether NEPA procedures should be followed because there is no certification. In our opinion, Section 21 (b) of the FWPCA remains exclusively applicable. As indicated by the quoted language from Section 21(b) (9) (A), Section 21(b) provides for the procedure to be followed in the event there are no applicable water quality standards; and, as noted in the

See e.g., United States v. Appalachian Electric Power Company, 311 U.S. 377, 407-410, 416 (1940); Wisconsin Public Service Corporation v. Federal Power Commission, 147 F. 2d 743 (CA 7, 1945); cert. denied 325 U.S. 880; Wisconsin v. Federal Power Commission, 214 F. 2d 334 (CA 7, 1954), cert. denied 348 U.S. 883 (1954); Namekagon Hydro Company v. Federal Power Commission, 216 F. 2d 509 (CA 7, 1954); and Rochester Gas and Electric Corporation v. Federal Power Commission, 344 F. 2d 594 (CA 2, 1965).

68-699-72- -4

margin, Section 21(b) (9) (B) establishes requirements in the event applicable water quality standards are subsequently adopted."

The legislative history of this provision indicates that it was designed to take care of a very specific problem-where a particular water quality standard was known to be inadequate for a particular activity. According to the legislative history, although turbidity is included as a measure of water quality in existing water quality standards, such standards were not drawn to accommodate temporary turbidity resulting from dredging and disposal of dredgespoil. Under Section 21(b) (9) (A), during the interim period in which the States will be reviewing their water quality standards relative to dredging activity, no arbitrary or unreasonable restrictions would be imposed on dredging and the disposal of dredgespoil essential for the maintenance of interstate commerce. S. Rep. No. 91-351, 91st Cong., 1st Sess., pp. 26-27, 30, 75, August 7, 1969; 115 Cong. Rec. S12053-C12054, (daily ed.), October 7, 1969.

Of course, dredging is only an example of a situation in which there might not be water quality standards. As to other such situations, the cited section provides a procedure whereby Federal licensees and permittees can comply with water quality standards at the time applicable standards are adopted. S. Rep. No. 91–351, supra, at p. 30.

V. SUMMARY AND CONCLUSIONS

Summarizing the essential points covered and the conclusions reached above:

A. 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.

B. The only apparent limitation on the applicability of Section 21 (b) is that the discharge must be into "navigable waters of the United States". The limited "waiver" provisions in Section 21 (b), such as the "grandfather" clauses and the action to be taken in the event there are no applicable water quality standards, do not have the effect of requiring a licensing agency to follow NEPA's Section 102 procedures for such water quality matters.

C. The term "navigable waters of the United States" is not defined in the FWPCA. There are court decisions which indicate that the term extends to all waters that are or may reasonably be made to be navigable, without regard to their interstate or intrastate character.

"Upon notice from the State in which the discharge originates or, as appropriate, the interstate agency or the Secretary, that such licensee or permittee has been notified of the adoption of water quality standards applicable to such activity and has failed, after reasonable notice of not less thn 6 months, to comply with such standards, the license or permit shall be suspended until notification is received from such State or interstate agency or the Secretary that there is reasonable assurance that such activity will comply with applicable water quality standards.”

7

COUNCIL ON ENVIRONMENTAL QUALITY; STATEMENTS ON PROPOSED FEDERAL ACTIONS AFFECTING THE ENVIRONMENT; INTERIM GUIDELINES, APRIL 30, 1970*

1. Purpose. This memorandum provides interim guidelines to Federal departments, agencies and establishments for preparing detailed environmental statements on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, as required by section 102(2) (C) of the National Environmental Policy Act (Public Law 91-190) (hereafter "the Act"). Underlying the preparation of such environmental statements is the mandate of both the Act and Executive Order 11514 (35 F.R. 4247) of March 5, 1970, that all Federal agencies, to the fullest extent possible direct their policies, plans and programs so as to meet national environmental goals.

2. Policy. Before undertaking major action or recommending or making a favorable report on legislation that significantly affects the environment, Federal agencies will, in consultation with other appropriate Federal, State, and local agencies, assess in detail the potential environmental impact in order that adverse affects are avoided, and environmental quality is restored or enhanced, to the fullest extent practicable. In particular, alternative actions that will minimize adverse impact should be explored and both the long- and short-range implications to man, his physical and social surroundings, and to nature, should be evaluated in order to avoid to the fullest extent practicable undesirable consequences for the environment.

3. Agency and BOB procedures. (a) Pursuant to section 2(f) of Executive Order 11514, the heads of Federal agencies have been directed to proceed with measures required by section 102(2)(C) of the Act. Consequently, each agency will establish no later than June 1, 1970, its own formal procedures for (1) identifying those agency actions requiring environmental statements, (2) obtaining information required in their preparation, (3) designating the officials who are to be responsible for the statements, (4) consulting with and taking account of the comments of appropriate Federal, State and local agencies, and (5) meeting the requirements of section 2(b) of Executive Order 11514 for providing timely public information on Federal plans and programs with environmental impact. The procedures should be consonant with the guidelines contained herein. Each agency should file seven (7) copies of all such procedures with the Council on Environmental Quality, which will provide advice to agencies in the preparation of their procedures and guidance on the application and interpretation of the Council's guidelines.

*35 F.R. 7390, May 12, 1970.

(b) Each Federal agency should consult, with the assistance of the Council on Environmental Quality if desired, with other appropriate Federal agencies in the development of the above procedures so as to achieve consistency in dealing with similar activities and to assure effective coordination among agencies in their review of proposed activities.

(c) It is imperative that existing mechanisms for obtaining the views of Federal, State, and local agencies on proposed Federal actions be utilized to the extent practicable in dealing with environmental matters. The Bureau of the Budget will issue instructions, as necessary, to take full advantage of existing mechanisms (relating to procedures for handling legislation, preparation of budgetary material, new policies and procedures, water resource and other projects, etc.).

4. Federal agencies included. Section 102(2)(C) applies to all agencies of the Federal Government with respect to recommendations or reports on proposals for (i) legislation and (ii) other major Federal actions significantly affecting the quality of the human environment. The phrase "to the fullest extent possible" in section 102(2)(C) is meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible. (Section 105 of the Act provides that "The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.")

5. Actions included. The following criteria will be employed by agencies in deciding whether a proposed action requires the preparation of an environmental statement:

(a) “Actions" include but not limited to:

(i) Recommendations or reports relating to legislation and appropriations;

(ii) Projects and continuing activities;

-Directly undertaken by Federal agencies;

-Supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assist

ance;

-Involving a Federal lease, permit, license, certificate or other entitlement for use;

(iii) Policy and procedure-making.

(b) The statutory clause "major Federal actions significantly affecting the quality of the human environment" is to be construed by agencies with a view to the overall, cumulative impact of the action proposed (and of further actions contemplated). Such actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the statement is to be prepared. Proposed actions the environmental impact of which is likely to be highly controversial should be covered in all cases. In consideringwhat constitutes major action significantly affecting the environment,. agencies should bear in mind that the effect of many Federal decisions about a project or complex of projects can be individually limited but cumulatively considerable. This can occur when one or more agencies over a period of years puts into a project individually minor but collectively major resources, when one decision involving a limited