STATE OF NEW MEXICO STATE ENGINEER OFFICE, Santa Fe, N. Mex., July 16, 1971. Mr. LEON G. BILLINGS, Mr. TOM JORLING, Minority Council, Subcommittee on Air and Water Pollution, U.S. Senate, Washington, D.C. GENTLEMEN: Your courtesy in furnishing me for comment, through Mr. Paul Bloom, a copy of the Committee Print on "Federal Water Pollution Control Amendments" is much appreciated. I am constrained by time limitations to address my comments to only the more fundamental issues raised by the draft legislation. The new guidelines that the legislation would impose for water quality standards and implementation plans would require complete revision of standards and plans already approved by the federal government; the result would be a massive diversion of money and talent from the real objective of water quality improvement and protection. It has not been demonstrated that this diversion is warranted at this time; the administrator has the authority under existing law to require revisions of standards and plans where there is a demonstrable need for such revision. Furthermore, the provisions of the draft [Section 302(a) (1)] allowing only three months for the Administrator to make a determination that revisions are required and allowing only three months for the states to make such revisions are completely unrealistic. The draft would establish both federal effluent regulations and a federal permit system. These two water quality control techniques are redundant with respect to each other; surely both are not needed. Furthermore, either of these federal systems would duplicate control systems already employed by the states. Thus, enactment of the draft would result in redundancy squared. Redundancy would be further compounded by giving the Administrator authority to establish and enforce "national uniform standards of performance for new sources". Such standards of performance would be in essence effluent standards or regulations. While the language would appear to apply these standards only to new sources, the definitions of Section 306 could bring most existing sources under the standards of performance within a few years, since any modification would make such existing sources new sources. The draft would extend federal authority to "intrastate waters". According to the draft, "The term 'intrastate waters' means all navigable waters or portions thereof and tributaries affecting such waters within such state other than interstate waters." I am advised that only water to which this definition could apply is the Great Salt Lake in Utah. There does not appear to be justification or legal foundation for the extension of federal authority to intrastate waters. The provisions of Section 304 (a)(2) (D) would seem to require state implementation plans that would prevent eutrophication and bring about de-eutrophication of fresh water lakes. Eutrophication is a natural process which probably cannot be prevented; highly undesirable effects on ecology could result from efforts to prevent or reverse eutrophication. Accelerated eutrophication as a result of man's activities could be avoided by effective administration of the exist ing provisions of the Federal Water Pollution Control Act. The implicit prohibition of any degradation of existing water quality contained in Section 303 (a) (1) (H) is perhaps the most objectionable feature of the draft from the standpoint of the State of New Mexico and most of the other western states. Interstate compacts and court decrees explicitly or implicitly apportion the beneficial consumptive use of the waters of western streams among the states. "Beneficial consumptive use" is defined as diversions from the streams less return flows thereto. This is a fair paraphrase of the definition used by the U.S. Supreme Court in its decision in Arizona v. California, et al. When water is diverted from a stream for the Irrigation of crops, for example, a portion of the water diverted is consumed, or evaporated, and the balance returns to the stream. That part which is evaporated is pure H.O. The part returned to the stream carries in it all of the dissolved solids in the water diverted. The result is that the concentration of dissolved solids in the remaining supply of the stream is increased and the quality of that remainder is degraded. This concentrating effect is present in virtually all consumptive uses in the West, including municipal and industrial uses and impoundments for recreational use. In general, there is no practical way for a state to make beneficial consumptive use of the water it is entitled to without increasing the concentration of dissolved solids in the water. An inescapable consequence of the beneficial consumptive use of water is the degradation of water quality by an increase in the concentration of dissolved solids in the remaning water. Even through the tonnage of dissolved solids remains the same, the amount of water in which it is carried is less and the concentration is increased. For example, New Mexico is entitled to make new consumptive uses totalling about 600,000 acre-feet per annum from three stream systems. About $140 million has already been spent on works under construction to implement these new consumptive uses. Enactment of the draft would preclude completion and operation of these works. There would be similar, and perhaps more severe, effects in other western states. Adoption of the non-degradation policy would be uneconomic, unrealistic and inequitable in the extreme. The effect of the non-degradation policy proposed would be seriously compounded by Section 307(a) of the draft. That section provides, "The discharge of any pollutant listed below, or pollutant subject to an appropriate promulgation by the Administrator pursuant to subsection (b), in concentration greater than that present in intake or receiving waters is prohibited." The list given includes a number of pollutants which occur in at least trace amounts in many, if not all, of our western streams. Because of the concentrating effect of beneficial consumptive use discussed above, enforcement of this provision of the draft would prohibit the beneficial consumptive use of a stream if any trace of any of the substances listed occurs in the stream. Most existing uses, as well as all proposed new uses, would be precluded. At three or four points, apparently to gloss over redundancies and the usurpation of state authority, the Administrator is authorized to delegate his enforcement powers to the states. However, the effect of these provisions is largely cosmetic; they serve only to make the state a tool of the Administrator. I submit that the need for federal effluent regulations or a federal permit system has not been demonstrated. The impact of the draft legislation would be to make a mockery of the policy of Congress to recognize, preserve and protect the primary responsibilities and rights of the states in preventing and controlling water pollution. Enlightened and aggressive exercise of the authority given the Administrator by the Federal Water Pollution Control Act in its present form would be adequate to protect the public interest; legislation such as the draft should not be enacted. Sincerely, S. E. REYNOLDS, STATE OF TEXAS TEXAS WATER QUALITY BOARD, Re State of Texas comments to Committee on Public Works on the Federal Water Pollution Control Amendments-working draft. Hon. LLOYD BENTSEN, The Senate of the United States, Old Senate Office Building, Washington, D.C. DEAR SENATOR BENTSEN: The State of Texas comments as set forth in this letter are the official comments of the Texas Water Quality Board, but also represent on a broader basis the views of many persons having significant interests outside of those of this agency. As far as possible, the comments are keyed to the paging and organization of the draft provided to us. However, speaking to the proposed amendments in brief summary, it appears that the powers of the Federal government are proposed to be greatly strengthened at the expense of the powers of State and local governments. We do not wish to raise the issue of states' rights in the old-fashioned sense, but we wish to state most strongly that the Federal government cannot also be the village government. There is simply a level of responsible decision making that must be left to the states and to the local governments within the states. To do otherwise will in the end weaken those governments closest to the people and closest to the problems so that they can no longer function actively. When that day comes, and I hope it never does, we will have a strong but poor and unresponsive Federal government. Current news articles indicate some of the serious problems created in the water pollution control field when a Federal agency seeks to do things on an overly detailed basis. These fits and starts of policy are most damaging to on-going programs. TITLE I Page 1, Section 3(b), lines 31 and 32. This agency generally opposes the extension of Federal powers over the intrastate waters within the State. The State of Texas has and will continue to administer these waters in a responsible and proper fashion. The Federal power can do nothing with regard to intrastate water quality that the State itself cannot do as well or cannot do more responsively to the people. The capability of the Federal government as a consultant and as an advisor would be most helpful and most welcome, but the Federal government should not be the decision maker. All reference to groundwaters should be striken. The entire body of State law with regard to groundwater would be called into question if the Federal government sought to express a legal interest in this subject. The State of Texas fully recognizes the interaction of surface waters and groundwaters, but any extension of Federal jurisdiction over groundwaters would be damaging to the long estab lished groundwater protection programs within the State, in addition to causing uncertainty with regard to long established groundwater rights and groundwater laws. Page 3, (m) (1), lines 34-47. The importance of solving the waste oil problem is not contested, but it is questionable whether a really mature evaluation of the problem can be accomplished within six months from the date of enactment of authority. Some authority should be given to the Administrator to extend this time should events prove an extension to be necessary and justified. Page 4, (7), lines 1-8. In any research program relative to agriculture, there should be a requirement that the United States Department of Agriculture be a full participant. For the Administrator to study agricultural problems, even those associated with water pollution, independently of the Department of Agriculture is likely to result in unworkable and unrealistic programs. Further. and as has been provided for in other sections, there should be a provision that this research be carried out jointly with the States. Page 4. Section 105.(b), lines 43–46. It is suggested that the Administrator be informed of research and other programs related to water pollution control, but that he not have the power of disapproval. Many Federal agencies will wish to engage in activities relating to water pollution control, in some cases, jointly with the State. This proposed language unduly suppresses the initiative of Federal agencies other than EPA. Page 6, (4), lines 35-47. It is undoubtedly the intention of this paragraph to force the enhancement of State programs through the use of Federal funds. Nevertheless, this procedure limits the rights of a legislature to determine for itself the size and activity of a State program and the manner in which State funds are to be expended. I doubt if nationwide there has been a falling off of State appropriations so that this requirement is justified. This could result in a wastage of funds where a state program is actually satisfactory. TITLE II Page 9, Section 201, line 33. The phrase "and other wastes of any kind or description" is not defined and there is no experience upon which to base an understanding. Although the language may appear to be clear, it is possible that attempts to treat wastes of some kinds or under some conditions would be deemed as not eligible or as not intended under the statute. Accordingly, some further explanation or definition would be most helpful. Page 9, Section 202, line 45. The phrase "by grant" may, in the future, appear to be unclear. If it is intended that a grant have no pay-back or recovery feature whatsoever, then it is suggested that some further language be added to prevent any future misunderstanding. Page 10, Section 204 (a) (1), line 14. There continues to be a need for interim river basin planning. In a large State, it is not possible to have up-to-date river basin plans for every area of the State in advance of the need for sewage treatment plant construction. However desirable advance planning may be, it cannot always be accomplished and there needs to be sufficient flexibility for actions to be taken before the full range of planning has been completed. Page 10, Section 204(2), line 16. The right of a State to change its own implementation plan should not be taken away. There is a tendency in requiring that works be accomplished pursuant to an implementation plan to cancel out changes in the plan that have become necessary. Page 10, Section 204(5), line 33. In the last analysis the design of treatment works is a responsibility of the state, although Federal guidelines and suggestions can be at times most helpful. However, in tailoring the kind of treatment and degree of treatment to the size of community and the water quality needs at the particular point, the decision should be a State decision and if we are not careful, the language proposed here might result in transferring decision making power to the Administrator. Page 10, Section 204(b), line 37. The attempt to put the industry within a sewerage system on a poorer footing than other customers of the same system seems not only unfair but unworkable, although some efforts along this line are presently being made. Please remember that there is no real definition of what constitutes an industry nor is there real separation between an industry and any commercial enterprise. Industries and commercial enterprises range from service stations, washaterias and restaurants, through a multitude of industries and commercial enterprises up to those of truly major size. Industries and other commercial enterprises pay property taxes and income taxes as do their owners and stockholders. They also pay sewerage service charges as do other sewer customers. The attempt to eliminate industry from normal participation within a sewerage system appears more anti-industry than pro-pollution control. It further seems that the engineering computations and bookkeeping and fiscal arrangements would be unnecessarily burdensome and complicated. Further, whatever the situation may be at the same time a grant is made, during the passing years the situation with regard to industry would inevitably change. We do not, so far as I know, make any undue attempt to recapture from industry the cost of highway construction and maintenance beyond the licensing of the vehicles. We have tax policies, tariff policies, subsidies and many arrangements aimed at benefitting industry. It seems strange to legislate against industry in this particular paragraph. As a matter of fact, the legislation might be more against the municipality in which the industry exists than against the industry. Page 11. Section 205(a), line 9. This section stipulates that grant assistance monies allotted to a State under this paragraph will be reallotted to some other State unless the funds are obligated within six months. The six months time limitation occurs in other contexts within this section. It has been found by experience in the administration of this program in the past that six months time period is simply not enough for all of the procedures to be carried out. There appears to be no reason why a full year should not be given. As a general comment, if a program such as this is to be carried out on a crash or panic basis as would be the implication of providing too short time periods, the quality of administration and decision making would necessarily suffer. Time is important, but time to do things right is also important. Page 13, Section 209(a), line 1, and, in fact, the whole section override the rights of a State or a group of States to determine the kinds of sewer systems and waste management systems deemed by those jurisdictions to be most suitable. There is no way that the Administrator, on a quality basis, can within 180 days make the determinations required of him by this section, nor is there any reason why the Administrator should have the power to make these determinations at all. If it is the intention of the Congress to take the States out of the business of governing their areas, this section goes a long way toward carrying out that wish. This State initiated several years ago the idea that regional waste treatment management would be necessary if the problems of the future were to be solved. We think we know more about the needs of the State, the ability of the State. and the time required to put ideas into practice than any Administrator could possibly know on a quick study basis. Admittedly, Federal funds and Federal assistance may be highly desirable and arrangements should be made for this assistance to be forthcoming, but this section as written should be stricken in its entirety as a damaging intrusion into an area which should be the responsibility of State government. Page 14, Section 210, beginning with line 39. The definition under this section have been considerably redrawn from definitions used in the past. In subparagraph (a), it appears that treatability studies and other laboratory or pilot plant studies necessary for the design of a treatment works may be included in the cost of construction. This would be desirable. If this interpretation is correct, it should be clearly so stated. If it is not correct, this also should be made clear. In subparagraph (b) on Page 15, beginning with line 1, there is an implication on line 10 that the costs of site acquisition may be included in construc tion costs if necessary for the disposal of residues from treatment. There is no implication that the cost of the site of the treatment works itself may be included as a cost of construction nor, in fact, is there any hint that right-ofway costs in general may now be included. In the past, land costs of all kinds were clearly excluded from the basis upon which a grant was made. If this view is altered, there should be a clear statement going to all land costs. Page 15, Section 301(b), beginning on line 41. This paragraph on the whole is a necessary and proper statement of Federal policy. Nevertheless, unless further restrictions are placed upon the Administrator, his interpretations under this power give him essentially total control of the size and design and ever the objectives of a State water quality management program. There should be room for differences of opinion with the Administrator. The Administrator should be required to approve State implementation plans regardless of his dislike of them if they do represent forward steps by the State, or if in manners of the state's own choosing, the state's implementation plan will bring about reasonable control of water quality. It is a matter of continuing concern to us that a nominal statement by the Congress that State activities of one kind or another be reviewed and approved by a Federal representative be interpreted by the Federal representative as giving him complete control of the State program content. TITLE III Page 16, (d), line 3. It is unlikely that any mature consideration can be given within a 90-day period to methods and needs regarding the amendment of water quality criteria. The States and the Federal government and other interested persons should engage in a continuing project aimed at improving the manner in which water quality standards are written, but any project that says this can be done within 90 days is not likely to result in mature and thoughtful decisions. It is unclear in this paragraph whether the criteria published by the Admin |