quality standard, and (iii) fish and wildlife values not reflected in or adequately protected by applicable water quality standards, if any.'

In the event that individual states may, in connection with applications for certifications required by subsection 21(b)(1) of the Federal Water Pollution Control Act, as amended, wish to enter into arrangements for joint public notice concerning proposed discharges or deposits, the Chief of Engineers may, after consulting with the Environmental Protection Agency, approve mutually satisfactory arrangements.

(2) Comments received from interested parties within the period provided for in the public notice or within such extensions of time for filing such comments as may be granted by the District Engineer will be retained and will be considered in determining whether the permit applied for should be issued.

(3) In addition to advising the applicant in writing of the final action taken on his application, including the reasons therefor if the application is denied, the District or Division Engineer will provide a copy to any Member of Congress who has expressed an interest in the particular permit application. Other persons interested in the final action taken on an application may contact the District Engineer.

(4) When objections to the issuance of a permit are received in response to a public notice, the Division or District Engineer will furnish the applicant with copies of the objections and afford him the opportunity to rebut or resolve the objections.

(k) Public hearings. (1) It is the policy of the Corps of Engineers to conduct the civil works program in an atmosphere of public understanding, trust, and mutual cooperation and in a manner responsive to the public interest. To this end, a public hearing may be helpful and will be held in connection with an application for a permit involving a discharge or deposit in navigable waters or tributaries thereof whenever, in the opinion of the District Engineer, such a hearing is advisable. In considering whether or not a public hearing is advisable, consideration will be given to the degree of interest by the public in the permit application, requests by the applicant or responsible Federal, State, or local authorities, including Members of the Congress, that a hearing be held, and the likelihood that information will be presented at the hearing that will be of assistance in determining whether the permit applied for should be issued. In this connection, a public hearing will not generally be held if there has been a prior hearing (local, State, or Federal) addressing the proposed discharge unless it clearly appears likely that the holding of a new hearing may result in the presentation of significant new information concerning the impact of the proposed discharge or deposit. The need for a hearing will be reported to the Division Engineer and his concurrence obtained. In certain circumstances a public hearing may be mandatory (see subparagraph (5) of this paragraph).

(2) In cases where it is determined that a public hearing should be held and it appears that the impact of the proposed discharge or deposit on applicable water quality standards or related water quality considerations will be an issue which will be raised at the hearing, the hearing shall be jointly held by both the District Engineer and the Regional Representative of EPA.

(3) The success of a public hearing depends upon the degree to which all interests are aware of the hearing and understand the issues involved. The following steps will be taken for each hearing:

(i) A public notice will be prepared and issued in clear, concise, objective style. The notice shall state the purpose of the hearing, provide details of time and place, and fully identify the location, character, and frequency of the proposed discharge or deposit.

(ii) The public notice will be given at least 30 days in advance of the hearing in the same manner as the public notice required under paragraph (i) (4) of this section. In addition, copies of the public notice will be provided to news media within the geographical area, and appropriate specialized news media for reaching interested groups and organizations.

(iii) As appropriate, supplementary information matter, fact sheets, or more detailed news releases, will be distributed to the general or specialized news media. (iv) Notice will be given to interested members of the Congress and Governors of the States involved.

(4) The hearing will be conducted in a manner that permits open and full discussion of any issues involved. A transcript of the hearing, together with copies of relevant documents, will become a part of the permit application record. (5) In addition to the hearings which may be required by the policy specified in the preceding paragraphs, hearings are required under sections 21(b) (2) and

21(b) (4) of the Federal Water Pollution Control Act when (i) a State, other than the State of origin, objects to the issuance of a permit and requests a hearing on its objections or (ii) the Secretary of the Army proposes to suspend a Department of the Army permit upon notification by the certifying authority that applicable water quality standards will be violated. When a hearing is required pursuant to the Federal Water Pollution Control Act the matter should be reported to the Chief of Engineers, Attention: ENGGC-K. The Chief of Engineers will provide additional guidance with respect to holding of such hearings.

(6) In any case, when a District Engineer intends to schedule a public hearing he shall notify the Regional Representative of EPA not less than 10 days in advance of the deadline for the filing of comments by such Representative upon the permit application.

(1) Environmental impact statement. (1) Section 102(2)(C) of the National Environmental Policy Act of 1969 requires all Federal agencies, with respect to major Federal actions significantly affecting the quality of the human environment, to submit to the Council on Environmental Quality a detailed statement on: (1) The environmental impact of the proposed action,

(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.

(2) Section 102(2)(°C) statements will not be required in permit cases where it is likely that the proposed discharge will not have any significant impact on the human environment. Moreover, the Council on Environmental Quality has advised that such statements will not be required where the only impact of proposed discharge or deposit will be on water quality and related water quality considerations because these matters, are specifically addressed under subsections 21 (b) and (c), the Federal Water Pollution Control Act, as amended. However, such statements shall be required in connection with proposed discharges or deposits which may have a significant environmental impact unrelated to water quality. In cases in which a section 102(2)(C) statement may be required, the report of the District Engineer accompanying any case referred to higher authority (see paragraphs (d)(10) and (i) (7) of this section) will contain a separate section addressing the environmental impact of the proposed discharge or deposit, if any, and, if issuance of a permit is recommended, a draft section 102(2)(C) statement should be attached. In all other cases in which a section 102(2)(C) statement is required the District Engineer shall draft, consult with, and obtain the comments of any Federal, State, and local agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. In cases where the preparation of a 102(2)(C) statement is necessary, the District Engineer may require the applicant to furnish such information as he may consider necessary to prepare the required statement.

(m) Publicity. District Engineers will, in consultation with Regional Representatives, establish and maintain a program to assure that potential applicants for permits are informed of the requirements of this regulation and of the steps required to obtain permits for discharges into navigable waters. Whenever the District Engineer becomes aware of plans being developed by either private or public entities who will require permits in order to implement the plans, a letter will be sent to the potential permittee advising him of statutory requirements and the need to apply for a permit under this section.

(n) Duration of permits issued. (1) In cases where (i) certification pursuant to section 21(b) is required and has been received, (ii) certification is not required but the State has otherwise indicated that it has no objection to the issuance of a permit, or (iii) where certification or State views have not been received and the requirement for such certification or State views has been waived, but the Regional Representative of EPA has indicated that EPA has no objection to the issuance of a permit and issuance of such a permit is otherwise considered appropriate, a permit subject to revalidation at the expiration of 5 years may be issued: Provided, however, That a permit of longer duration and subject to such revalidation provisions as the District Engineer may consider appropriate may issue with the approval of the Administrator of EPA or his authorized representative.

(2) In cases involving a facility which was in existence or lawfully under construction prior to April 3, 1970, and it appears after evaluation that issuance of a Federal permit would be appropriate although certification pursuant to section

21(b) has not been provided, a permit may be issued, provided (i) that the permit will expire on April 2, 1973, and (ii) that it is conditioned so as to require annual demonstration by the permittee that the discharge or deposit is in compliance with applicable water quality implementation schedules.

(3) Permits of less than 5 years' duration may issue in appropriate cases and District Engineers shall give great weight to the advice of Regional Representatives of EPA on the appropriate duration for particular permits.

(0) (1) [Reserved]

(2) Permits shall include such special conditions as the Regional Representative of EPA may consider necessary or appropriate to insure compliance with applicable water quality standards and the purposes of the Federal Water Pollution Control Act. Permits shall also be subject to such special conditions as the District Engineer may, after consultation with State and local agencies, Interior, NOAA, and other appropriate Federal agencies, consider to be necessary or appropriate to insure that navigation and anchorage will not be injured, and to insure that the discharge or deposit will not have a significant and unreasonable adverse impact on fish and wildlife resources.

(p) Violations of the Refuse Act or permit conditions. Discharges or deposits which are not authorized by an appropriate permit issued under the authority of the Secretary of the Army are unlawful and may result in the institution of legal proceedings under the Refuse Act. When a permit has been issued discharges or deposits must be consistent with the terms and conditions of such permit. Discharges or deposits in violation of permit terms or conditions shall result in the institution of legal proceedings under the Refuse Act and/or the initiation of administrative proceedings to suspend or revoke the permit.

[Regs., Apr. 1, 1971, ENGOW-ON] (Sec. 7, 40 Stat. 266; 33 U.S.C. 1; sec. 3012, 70A Stat. 157; 10 U.S.C. 3012) For the Adjutant General.

EDWIN A. DAYTON,

LTC, AGC, Chief, Plans Office, TAGO.

[FR Doc. 71-4808 Filed 4-6-71; 8:49 am]

[Extract from Congressional Record, February 4, 1971]

DRAFT GUIDELINES FOR LITIGATION UNDER THE REFUSE ACT PERMIT PROGRAM In view of (a) the signing by the President of the attached Executive Order 11574 which establishes a permit program under the Refuse Act to regulate the discharges of pollutants and other refuse matter into the navigable waters of the United States or their tributaries, (b) the signing of the attached Memorandum of Understanding between the Corps of Engineers and the Environmental Protection Agency with respect to the enforcement of the Refuse Act, and (c) the consolidation within the Land and Natural Resources Division pursuant to the attached order of criminal as well as civil responsibility for the administration of the Refuse Act, the Guidelines for Litigation Under the Refuse Act transmitted to the United States Attorneys on June 13, 1970 are hereby withdrawn and the following procedures are to be adhered to by all United States Attorneys:

1. United States Attorneys are authorized to initiate any action, either_civil or criminal, referred to them for litigation by the District Engineer of the Corps of Engineers or the Regional Representative of the Environmental Protection Agency, pursuant to their Memorandum of Understanding.

2. All allegations of violations of the Refuse Act submitted to the United States Attorneys from sources other than the District Engineer of the Corps of Engineers or the Regional Representative of the Environmental Protection Agency shall be referred to the District Engineer of the Corps of Engineers and the Regional Representative of the Environmental Protection Agency for investigation and recommendations, in accordance with the procedures set forth in the Memorandum of Understanding between the Corps of Engineers and the Environmental Protection Agency, as to whether or not legal action should be initiated.

3. The provisions of paragraphs 1 and 2 above shall not apply to actions under the Refuse Act against vessels, which actions shall continue to be handled in the manner set forth in Departmental Memorandums 374 and 376, dated June 3, 1964. 4. All requests for instructions and guidance relating to the enforcement of the Refuse Act, whether of a civil or criminal nature, or whether involving vessels or shorebased sources of pollution, shall be referred to the Pollution Control Section of the Land and Natural Resources Division, Washington, D.C. 20530 (202-739-2707).

5. No criminal or civil action under the Refuse Act shall be dismissed or settled without the prior authorization of the Assistant Attorney General for the Land and Natural Resources Division.

6. Prior to the filing of civil complaints, criminal informations and the return of indictments in Refuse Act cases, the United States Attorney shall telephonically contact the Land and Natural Resources Division (202-739-2800).

7. The United States Attorneys shall supply the Pollution Control Section, Land and Natural Resources Division, copies of all pleadings, motions, memorandums, etc., filed in Refuse Act cases.

8. United States Attorneys shall, no later than the fifth day of each month, submit to the Pollution Control Section a report of Refuse Act activities for the previous month on a form to be provided by the Land and Natural Resources Division.

Mr. RUCKELSHAUS. We view the permit program as complementary to the water quality standards and enforcement measures we are proposing in S. 1014. The establishment of Federal-State water quality standards for all navigable waters will provide for a much stronger and more consistent enforcement of the Refuse Act permit authority. For this reason, the most expeditious enaction of S. 1014 is urged.

If we are to have a comprehensive national system of water quality standards, there is no valid reason to perpetuate the patchwork of jurisdiction we now have with standards only for interstate waters. Since the passage of the Water Quality Act of 1965, the States have taken many different approaches in developing water quality standards. The uncertainty and confusion which have resulted from this diversity of approach have often delayed the establishement of enforceable standards.

Our bill would require the administrator to provide guidance to the States by promulgating regulations establishing specifications for water use designations, water quality criteria, and effluent limitations in advance of State action.

We believe that such Federal guidance is especially important in the area of effluent limitations. This concept is new in the law. It would be difficult and needlessly duplicative for each State to gather all the scientific, industrial, and technological information upon which effluent limitations must be based. Federal leadership must be provided here so that the States, in setting effluent limitations, have a clear idea of the task. Our experience with the initial establishment of water quality standards by the States without the benefit of clear guidance, resulting in protracted delays, is the strongest argument for clear Federal direction at the outset of a new effort.

In our view, the importance of effluent limitations cannot be overestimated. It is our intention that these limitations, to consist of clear descriptions of effluent quantity and quality, will tell industries and municipalities in unambiguous terms exactly what must be done to meet Federal requirements. We expect these limitations to be the principal basis for future enforcement actions.

We also propose a new category of effluent limitations and prohibitions which would be federally imposed with respect to elements and compounds which have been identified as hazardous to human health or welfare. The control of such substances must be immediate and direct. We must never again be so unprepared as we were in the case of mercury.

ENFORCEMENT

Federal enforcement must now take full benefit of existing water quality standards and the more precise requirements we will have when effluent limitations are established.

In this new context, much of the work of the old enforcement conference will already have been accomplished through the standardsetting process.

We should be in a position to move effectively whenever we determine a violation of standards is occurring.

We propose an enforcement system that capitalizes on the administrative regulatory procedures which have matured in the American legal system.

Its key elements are:

Initial administrative determination of a violation followed by instructions for appropriate remedy.

Issuance of an administrative order and assessment of fines administratively.

Provision for administrative hearing at the option of the alleged violator.

All of this would be accomplished in a short time frame and action would be taken by those specially equipped and knowledgeable in this complex area.

We would be able to advance a long way toward achieving compliance at the administrative level, without any sacrifice of the equity and fair play and full hearing required by due process.

We would need to address the issues judicially only as a last resort, and then with a full hearing record which would be conclusive as to the facts.

Consistent with our proposal that water quality standards be extended to all navigable waters, whether interstate or intrastate, we propose that Federal enforcement authority be coextensive with the standard-setting authority and not limited to cases of interstate

effects.

Of course, the primary responsibility for enforcement remains with the States. Our proposals are in no way intended to diminish that role. But we must be able to act swiftly if the States fail to do so.

Again, Mr. Chairman, it appears that we are in basic agreement as to needed improvements of our Federal enforcement authority in the areas of information gathering, injunctions, and citizen suits.

The inability to secure adequate information and data concerning pollution has inhibited truly effective enforcement. We propose to give EPA broad authority to obtain information and data, to subpena witnesses and records, and to require monitoring and reporting, all consistent with the due process requirements of law.

We would authorize EPA to move immediately when an emergency presents an imminent and substantial danger to human health or welfare or to water quality, by seeking temporary or permanent injunctions in Federal court.

Citizen suits would be authorized to enable private groups and individuals to compel compliance with the law and to assure that governmental inertia need not be tolerated where the law provides a clear duty and remedy.

CONSTRUCTION GRANTS

In order to combat water pollution and enhance water quality, our program must have many elements-realistic criteria, practical plans, vigorous enforcement, and imaginative research. But of particular significance in the achievement of our objectives is the construction of