Under present conditions we would proceed using the best means available to us.

In other words, if the EPA standards were not fully developed we would proceed as at present. If they developed further we would modify our work.

Mr. DINGELL. Would you have any reason to believe that you would apply any lesser environmental safety standards before the enactment of this legislation than you would after?

General GROVES. I don't really think, sir, it makes much difference. We would use the best that we have. EPA is the source of those standards and that is where we would look to get them.

Mr. DINGELL. You would in any event get the standards on water pollution and so forth from EPA?

General GROVES. Yes, sir. This is inherent in the five point environmental statement if nothing else. We would have to coordinate it with the various governmental agencies.

We would solicit and I am sure we would obtain EPA's comments. We would certainly abide by them.

Mr. DINGELL. What you are saying is that really your behavior, either before or after the enactment of H.R. 4723 insofar as environmental protection, will be very little different.

General GROVES. I see no basic difference, except in the time necessary to adopt alternate methods.

General GROVES. Now if the law required that the dredged spoil be disposed of at some more distant location, perhaps in an enclosed location on land, say, in any case the cost of the project would undoubtedly go up. This can lead you to a number of possibilities

If we were to follow the one course that might be taken when you run a five-point environmental statement analysis through section 102 (c) of the act and you arrive at the point where you have certain irreconcilable conflicts and if at that point you decided you would invoke the provisions of section 102(d) which says, in effect, you reformulate and start over and you come up with a project that does have an adverse environment effect which, to eliminate would result in higher cost, the first question you have to answer is to whom do you charge these higher costs?

If you could charge it to mitigation of the environmental damage under our present understanding of the system, it would have no effect on the project economics. If, on the other hand, you had to pull them into the project cost and, in effect, charge them to navigation the cost of the project would go up, the benefits would remain constant. So, it is conceivable that the B-C ratio could become unacceptable. This is one possible outcome.

Another possible outcome, almost a certain outcome, is that if you had to go to sea and if you were going to have to do this on a large scale, we have only a limited hopper dredge capacity, which is already fully employed. It would take us about 5 years to build new dredges. If you went to the industry, using a scow and dipper, it would take them at least 2 years probably to react. So if this hits you throughout the Nation, the effect on Baltimore Harbor might be that the work would stop while we got a new capability.

This is one of the possible outcomes. It might become economically unfeasible. In any case, it might be delayed or stopped.

Mr. DINGELL. You have been referring to what would happen under existing law, General, or under a transfer to EPA or a compliance with section 102 (c) and (d)?

General GROVES. My understanding of the question was, sir, that it involved the assumption that we would have some requirement to haul the dredged spoil to some more distant location than we now put it.

Mr. DINGELL. Let me ask you a hard question here. Is it your assumption that the Environmental Protection Agency would behave strikingly different under the legislation in H.R. 4723 than you would under the existing law, your agreement with the Interior Department, and under the Environmental Protection Act? I am talking about issuing permits generally for the dumping of polluted dredgings.

Mr. DINGELL. Do you see any basic difference in terms of the cost of the project before and after the enactment by reason of the fact that you are going to have to get formal certification from EPA instead of having informal certification as you do at this particular time?

General GROVES. Here I think, sir, the main difference is one of timing. I think that if we were to apply the rule that we are applying in section 13 which is that EPA governs water quality standards, they

are the same.

Mr. DINGELL. They are the same?

General GROVES. They would be the same. If on the other hand we were to consider the total public interest it might be slightly different.

Mr. DINGELL. Thank you.

Mr. Everett?

Mr. EVERETT. General Groves, would the Corps be immediately capable of maintaining the harbors and channels at their authorized project depth if alternate disposal methods should become necessary as a result of this legislation?

General GROVES. Would you repeat the beginning of that, please, sir.

Mr. EVERETT. Would the Corps be immediately capable of maintaining the harbors and channels at their authorized project depth if alternate disposal methods should become necessary as a result of this legislation?

General GROVES. I think the answer to that is that we would be unable to maintain our total level of effort.

In other words, we would have to maintain a lesser amount initially for the reasons that I mentioned, that the available plant, both corps and contractor and especially the corps hopper dredge are fully employed.

If we went to diked land disposal, our experience leads us to believe that it would be several years before we would enter into the agreements necessary and get the funds necessary and to build the enclosures.

It would be quite a while, maybe a period of 5 years. If we went to scow and dipper type operation it would take industry or we or both several years to get the funds to build these things and put them in operation.

62-513 O 71 - 35

So, to answer your question, you are imposing a greater workload on a fixed capability and less is going to get done overall for a while. Mr. EVERETT. General Groves, there is still some ambiguity as to what the intent of section 11 is.

I wonder if you could provide us with a memo with respect to section 11(a), 11(b), 11(d) and 11 (e), on the effects of these reactions on existing law if the bill is enacted as recommended in H.R. 4723.

General GROVES. Do you want me to supply that for the record?
Mr. EVERETT. Yes.

General GROVES. I will be glad to.

Mr. EVERETT. Does the bill in any way change your method of operation or procedure under the Fish and Wildlife Coordination Act? General GROVES. No, indeed.

Mr. EVERETT. How about under the national Environmental Policy Act?

General GROVES. No.

Mr. EVERETT. That is all I have, Mr. Chairman.
Mr. DINGELL. Captain Heyward.

Mr. HEYWARD. General Groves, in connection with section 11 there were some discussions with other witnesses as to the effect of the EPA procedures for issuing permits.

There has been disagreement on the interpretation of exactly what supersession of corps permit authority is involved in this act.

May I ask you, can you tell me whether a particular section is used by the corps as authority for issuing permits to dispose of dredge spoil? Is that under 33 U.S.C. 403 or are you aware of the specific number? General GROVES. I am not aware of the code numbers. Essentially they derive from the supervisory act and from the 1905 act, section 4. Mr. HEYWARD. Section 4 of the 1905 act?

General GROVES. Yes, sir.

Mr. HEYWARD. That is not being touched in any of this repealing material, is that correct?

Yes, that is 33 U.S.C. 419, whch is being superseded. This is the question I was really getting to, whether or not the authority under section 10 of the Rivers and Harbors Act is utilized by the corps in connection with its permit for excavation and filling or whether you rely on section 4 of the act of 1905 which is being superseded here. General GROVES. Now we are talking about ocean dumping, are we not?

Mr. HEYWARD. We are talking about dumping in all these defined waters, yes, sir.

General GROVES. Section 10 of course applies to the territorial waters. It is used primarily for structures and dredge and fill type operations.

The subject of today's hearing, ocean dumping, is covered under the section 4 of the 1905 act.

Mr. HEYWARD. This is the problem that we face in discussing this because in section 7(c) (2) it says except as provided in subsection 11(e) nothing in the Rivers and Harbors Act is going to be superseded.

Now, if section 11 then turns around and superseded those elements of the Rivers and Harbors Act that you rely on there is nothing left for you to do in issuing the dredge spoil disposal permit.

This is the point I am sure Mr. Everett was getting to.

It would be very helpful for the committee to have a complete analysis of what you need to retain your permit authority consistent with the scheme envisioned here in 7(c) (2) which would not be adversely affected by any of the repealers in section 11.

General GROVES. All right, sír, we will be very happy to supply that for the record.

(The information requested follows:)

Subsections 11(a) and 11(b) repeal the Supervisory Harbors Act of 1888, as amended (33 U.S.C. §§ 441-451b), and the provision of the Rivers and Harbors Act of 1899 (33 U.S.C. § 418) which preserved the Supervisory Harbors Act from supersession by the 1899 Act. The Supervisory Harbors Act provides a special authority to control transit in and from the harbors of New York, Baltimore, and Hampton Roads, Virginia. This authority has been used to regulate ocean dumping. The proposed Marine Protection Act would replace that authority. A portion of the Act of August 5, 1888 (33 U.S.C. § 407a), which pertains to deposits of debris from mines and stamp works, and which is covered by the proposed Act or the Refuse Act, is also repealed. A provision contained in the Rivers and Harbors Act of 1905 (33 U.S.C. § 419), which has been used to buttress the Corps of Engineers' authority to regulate ocean dumping, is superseded, insofar as it authorizes action that would be regulated by the proposed Act. Lastly, Section 13 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 407), commonly known as the Refuse Act, is superseded, but only insofar as it applies to dumping of material in the waters covered by subsection 4(b) of the proposed Act. Except for the limited supersession found in subsection 11(e), the Rivers and Harbors Act authorities are not negated or abrogated, nor are existing licenses or permits issued under that Act terminated. Rather, in situations where the proposed Act and the Act of 1899 both apply to dumping of material in connection with a dredge, fill or other permit issued by the Corps of Engineers, issuance of the permit requires a certification by the Administrator of EPA that the activity is in conformity with this proposal and any regulations issued under it. The Administrator will not issue separate permits in such cases.

After the proposed Act becomes effective, the Department of the Army's permit program under the Refuse Act, which is administered in close cooperation with EPA on all water quality matters, will continue to regulate the disposition of any effluent covered by the Refuse Act from any outfall structure regardless of the waters into which this disposition occurs, in addition to regulating all depositing of material into other navigable waters of the United States not covered by subsection 4 (b) of this Act.

Mr. HEYWARD. There is one other question.

In 7(b) (2) there is provisional authority as the EPA certification comes only on permits issued after the effective date of the act, that is to the extent that it does not repeal something, in effect, any permits which you issued before the acts:

Would the Corps of Engineers in those cases where permits have already been issued but where disposal of the dredging had not been undertaken confer with the EPA consistent with the policy required in section 7 (c) (2) even if the statute does not specifically require it?

General GROVES. I would expect so, sir. In any case, these permits are for finite durations and when they came up for renewal, they would have to be considered again.

Mr. HEYWARD. Thank you, General.

Mr. DINGELL. Gentlemen, can you tell us about that impact of enactment of this bill on existing practices with regard to dredge and fill operations in the Great Lakes?

General GROVES. The dredge and fill operations in the Great Lakes, sir, if this were enacted, would, of course, have to be conducted under license from EPA, under permit from EPA.

Mr. DINGELL. As I read the requirements of section 7 they require that the permit be issued by the corps and that you carry out the requirements of EPA.

As I read section 7(c) (2) you would still continue to issue permits but you would have the added requirement that it would have to be certified that the activity to be conducted is in conformity with the provisions of the act and the regulations issued thereunder.

Captain Heyward and Mr. Everett were both inquiring as to this particular point.

General GROVES. Sir, I believe this is one of the points that probably requires some clarification. It would depend in part as to whether we were doing the dredging or one of our contractors.

Mr. DINGELL. If you were doing the dredging and your contractors were doing the dredging you would have the same situation.

EPA would have to certify that your permit was issued in conformity with the requirements of the law and in conformity with the regulations?

General GROVES. My question really dealt more with specifics.

Mr. DINGELL. I assume that in the Great Lakes you anticipate you will probably continue to be obligated to utilize dike disposal areas for pollutant spoil.

Am I correct on this?

General GROVES. Yes, sir.

The Rivers and Harbors Act of 1970 provided a means by which that can be accomplished.

We are certainly headed in that direction. I should point out though that the proviso that the local interests be excused from their 25 percent contribution if EPA certifies that they have an on-going acceptable program is making it rather difficult for us to come to grips with them so far.

Mr. DINGELL. Would you amplify that, please?

General GROVES. Yes, sir.

The initial reaction of any of these local interests that we go to is that they will go to EPA first and see if they can't be excused from their contribution.

Mr. DINGELL. What is the effect of that on your program?

Does it jump your cost?

General GROVES. It means that we are not making much progress toward getting these dike enclosures underway.

Mr. DINGELL. Are you telling us that EPA is excusing them from the requirement of using dike enclosures or simply paying the cost and shifting the cost to you?

General GROVES. Sir, a pattern has not really emerged yet.

Mr. DINGELL. Obviously, when they go to EPA to be excused from the 25 percent they either try to get out of the construction of the dike area in its entirety or they are expecting to shift the burden to someone else.

General GROVES. I think it is the latter.

Mr. DINGELL. Which is it, shift the burden to you?

General GROVES. We get that impression.

Mr. DINGELL. You then have to rush out and get more appropriations?

General GROVES. Yes, sir.