It was decided at that time that rather than propose legislation for the transfer of this authority to issue permits to the Environmental Protection Agency or any other agency, that we would attempt to initiate a program based on present law to insure that we achieved as smooth a transition into the program as possible.

The four agencies did agree, however, that within a year of the inauguration of the program, we would completely review the program to determine whether it was really working, to determine whether there was a need for legislative transfer of permit authority, but that in the meantime, pending the inauguration of that program, we were going to withhold any suggestion of legislative transfer.

We do believe that in the administration's enforcement proposal, there is language consistent with the permit program that will enable us to implement the program more smoothly. For example, expanding the applicability of water quality standards from interstate to intrastate waters would be more in keeping with the purpose of the Refuse Act of 1899, which applied to all navigable streams and their tributaries. Some of the criticism that has been leveled at the permit program relates to the fact that the program does not apply to intrastate waters. This criticism would be made invalid if S. 1014 is enacted and agreement is reached on its basic thrust among everyone who has introduced a bill in the Congress.

Senator BAKER. Just this final question, Mr. Chairman, if you will bear with me for one moment further.

Do you propose the issuance of any regulation or statements of redefinition in connection with your position vis-a-vis the Refuse Act at this time?

Mr. RUCKELSHAUS. There are four documents that provide useful background information on the permit program. One is the regulations of the Corps of Engineers pursuant to section 21(b) of the Federal Water Pollution Control Act that have been published for comment. The second is regulations published by the Environmental Protection Agency pursuant to our authority under 21(b) of that act. The third is the memorandum of understanding between the Environmental Protection Agency and the corps; and the fourth is revised guidelines of the Justice Department for implementation of the Refuse Act of 1899.

After these had been published for comment, there was considerable question about their workability and about whether they would really effectuate the program as announced. We have met with innumerable groups who objected to the regulations, memorandum of understanding, and guidelines as they were initially published.

We have attempted to take all of these objections into account in coming up with a final memorandum of understanding and regulations that will be published shortly. I am sure we will not have satisfied everybody.

Senator BAKER. I am sure that is not possible. I should note for this record that the Army general counsel, the Honorable Robert Jordan appeared, and testified before one of my subcommittees of the Commerce Committee and indicated that the Army was going to issue their regulations, hopefully during this month of March.

What I am really after is assurance that you are in coordination with the Office of the Army General Counsel and whether you think you can reach an accord on a program for effective implementation,

or do you think it will require further legislation or legislative redefinition?

Mr. RUCKELSHAUS. We are in close contact with the Army and with all of the executive agencies involved, and we are attempting to coordinate the regulations and the memorandum so that our program will work as smoothly as possible.

We have worked out all of the differences of opinion that we have received relating to these regulations and we believe that the program will work as presently devised. The question of whether it could be made more smoothly by legislation is one that we have constantly under review.

Senator BAKER. You might be interested to know, Mr. Chairman, that before the Commerce Committee the Army general counsel testified that he was in no position to make a policy recommendation in this respect but that personally he would not be averse to a legislative redefinition of these authorities.

Thank you, Mr. Chairman.

Senator MUSKIE. These four documents to which you referred were included in the record of our hearings in the early part of February. They have been revised since then?

Mr. RUCKELSHAUS. They have not been revised, as such. They will be revised considerably, and will be published as final documents Mr. Chairman. Hopefully, they will be revised for the better.

Senator MUSKIE. Are they in final form now? If not, when will they be in final form?

Mr. RUCKELSHAUS. The documents are in the final stages of review. We have not yet received final comments on our regulations under section 21(b).

Senator MUSKIE. As soon as you have the four documents in final form, we would very much appreciate having them to include them in the record.

Mr. RUCKELSHAUS. We will certainly make them available.

Senator MUSKIE. May I ask the staff to put them in the record at this point?

(Responding to Chairman Muskie's request Mr. Ruckelshaus subsequently provided the following:)

A copy of the Corps of Engineers regulations, promulgated on April 7, 1971, and a copy of the Justice Department Guidelines, as printed in the Congressional Record on February 4, 1971, follow. To date, EPA's 21(b) regulations and the Memorandum of Understanding have not yet been published in final form.

TITLE 33-NAVIGATION AND NAVIGABLE WATERS

Chapter II-Corps of Engineers, Department of the Army

PART 209-ADMINISTRATIVE PROCEDURE

Permits for Discharges or Deposits Into Navigable Waters

On December 31, 1970, notice of proposed rule making was published in the FEDERAL REGISTER (35 F.R. 20005) which set forth the text of regulations proposed as § 209.131 relating to the policy, practice and procedure in connection with applications for permits authorizing discharges or deposits into navigable waters of the United States or into any tributary from which discharged matter shall float or be washed into a navigable water (33 U.S.C. 407).

Pursuant to the above notice, a number of comments have been received from interested persons, and due considertion has been given to all relevant matter

presented. In light of the preceding, a number of revisions have been made in the rules as propoesd.

In accordance with the statement in the notice of proposed rule making, § 209.131, as set forth below, is hereby adopted effective on publication (4–7–71). § 209.131 Permits for discharges or deposits into navigable waters.

(a) Purpose and scope. This section prescribes the policy, practice, and procedure to be followed by all Corps of Engineers installations and activities in connection with applications for permits authorizing discharges or deposits into navigable waters of the United States or into any tributary from which discharged or deposited matter shall float or be washed into a navigable water.

(b) Law and Executive order authorizing permits. (1) Section 13 of the Act approved March 3, 1899 (33 U.S.C. 407), hereafter referred to as the "Refuse Act,' provides in part that it is unlawful "to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water * * * whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the U.S. officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above-mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful."

(2) Executive Order No. 11574 (dated December 23, 1970) directs the implementation of a permit program under the authority of the Refuse Act and provides for the cooperation of affected Federal agencies in the administration of the program.

(c) Related legislation. (1) Section 21(b) of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq.) (see particularly the Water Quality Improvement Act of 1970, Public Law 91-224, 84 Stat. 108), reflects the concern of the Congress with maintenance of applicable water quality standards and, subject to certain exceptions, requires any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities which may result in a discharge into the navigable waters of the United States to provide an appropriate certification that there is reasonable assurance that such activity will be conducted in a manner which will not violate applicable water quality standards.

(2) The concern of the Congress with the need to encourage the productive and enjoyable harmony between man and his environment and the need to promote efforts which will prevent or eliminate damage to the environment was manifested in the enactment of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347). Section 102 of that Act directs that

To the fullest extent possible: (1) The policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall—

*

(B) Identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations ***.

(3) The concern of Congress with the quality of the aquatic environment as it affects the conservation, improvement and enjoyment of fish and wildlife resources is indicated in the Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Migratory Marine Game-Fish Act (16 U.S.C. 760c-760g) and the Fish and Wildlife Coordination Act (16 U.S.C.`661–666c). The latter Act provides in part that:

[W]henever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the U.S. Fish and Wildlife Service, Department of the Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources * * *. (16 U.S.C. 662(a))

(See also Reorganization Plan No. 4 of 1970 which transferred certain functions from the Secretary of the Interior to the Secretary of Commerce.) As provided in paragraph (d)(6) of this section, advice as to the impact which a proposed discharge or deposit may or is likely to have on fish and wildlife resources is to be solicitated from the appropriate Regional Coordinator or Field Representative of the Department of the Interior and the appropriate Regional Director of the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

(4) As amended, the Act of June 29, 1888 (33 U.S.C. 441 et seq.) authorizes Corps of Engineers' officers supervising the harbors of New York, Hampton Roads, and Baltimore to enforce provisions making unlawful unauthorized discharges or deposits. Section 421 of Title 33 of the United States Code makes unlawful certain discharges or deposits into Lake Michigan.

(d) General policy. (1) The Refuse Act is considered to apply to all direct and indirect discharges or deposits (except those flowing from streets and sewers and passing therefrom in a liquid state) by any person, firm or other entity, including discharges or deposits from municipal, State, or Federal facilities or installations, into a navigable waterway or tributary or into a waste treatment system from which the same will flow into a navigable waterway or tributary. Discharges or deposits of water at a temperature different from that of the navigable waterway or tributary into which the same will flow are considered to be discharges or deposits to which the Refuse Act is applicable.

(2) The Refuse Act Permit Program is applicable to all discharges or deposits identified in subparagraph (1) of this paragraph except that the permit program is not applicable to:

(i) Discharges or deposits into a municipal or other public sewage treatment system;

(ii) Discharges or deposits from a municipal or other public sewage treatment system;

(iii) Discharges or deposits of storm water runoff flowing from public or private streets;

(iv) Discharges or deposits into a waste treatment system. (This exception does not apply to discharges or deposits from such a waste treatment system into a navigable waterway or tributary. Thus, for example, the operator (including, if applicable, agencies or instrumentalities of the Federal, State, or local governments) of a waste treatment system which receives industrial discharges and is not tied in with a municipal or other public sewage treatment system must apply for and receive a permit if the system discharges or deposits into a navigable waterway or tributary.)

(v) Discharges or deposits which are placed on the banks of a navigable waterway or tributary where the same shall be liable to be washed into such navigable water either by ordinary or high tides, or by storms or floods whereby navigation shall or may be impeded or obstructed; (This exception does not apply to discharges or deposits placed on banks which, because of gravity or the slope of the ground on which the discharge or deposit is placed, will flow into a navigable waterway or tributary. Such discharges or deposits will require a permit under the Refuse Act Permit Program.)

(vi) Discharges or deposits from ships or other watercraft into a navigable waterway or tributary.

The foregoing exceptions from the permit program shall not be deemed to affect the applicability of the Refuse Act itself to such discharges or deposits unless such discharges or deposits fall within the statutory exception for "that flowing from the streets and sewers and passing therefrom in a liquid state." In addition to these exceptions, the Refuse Act Permit Program is not applicable to public or private dredging or filling which shall continue to be subject to the permit progam instituted pursuant to 33 U.S.C. 403.

(3) Except as provided for in subparagraph (2) of this paragraph, all persons, firms, or other entities wishing to discharge or deposit into waters covered by the

Refuse Act must apply to the District Engineer in charge of the District where the proposed discharge or deposit is to occur for a permit under the Refuse Act Permit Program. Permits covering discharges from facilities which are now in existence but which were not in existence or lawfully under construction prior to April 3, 1970, must be applied for as soon as possible following the publication of this section in the FEDERAL REGISTER, but in no event later than July 1, 1971. All other persons, firms, or other entities wishing to discharge or deposit into waters covered by the Refuse Act are obligated to apply for a permit prior to July 1, 1971, except that persons, firms, or other entities wishing to commence discharges or deposits into waters covered by the Refuse Act on or after November 1, 1971, must file a completed application for a permit no less than 120 days in advance of the date on which it is desired to commence discharges or deposits.

(4) All discharges or deposits to which the Refuse Act is applicable (see subparagraph (1) of this paragraph) are unlawful unless authorized by an appropriate permit issued under the authority of the Secretary of the Army. The fact that official objection may not have been raised with respect to past or continuing discharges or deposits does not constitute authority to discharge or deposit or to continue to discharge or deposit in the absence of an appropriate permit. Any such discharges or deposits not authorized by an appropriate permit may result in the institution of legal proceedings in appropriate cases for violation of the provisions of the Refuse Act. Similarly, the mere filing of an application requesting permission to discharge or deposit into navigable waters or tributaries thereof will not preclude legal action in appropriate cases for Refuse Act violations. The institution of either a civil or criminal action by the Department of Justice under the Refuse Act will not preclude the acceptance or continued processing of a permit application. Where a civil action to restrain a discharge or deposit which is the subject of the permit application that has been filed, and that action is disposed of other than by the dismissal of the case by the court, any permit which is issued shall include any requirements embodied in the resolution of the case.

(5) The decision as to whether or on what conditions a permit authorizing a deposit which is the subject of the permit issued under the Refuse Act will be based on an evaluation of the impact which the discharge or deposit may have on (i) anchorage and navigation, (ii) applicable water quality standards and related water quality considerations, including environmental values reflected in water quality standards, and (iii) fish and wildlife values not reflected in or adequately protected by applicable water quality standards, if any.

(6) Recognizing that, at the Federal level, responsibility for the protection of fish and wildlife resources lies primarily with the Department of the Interior and with the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce, the appropriate Regional Director of the National Marine Fisheries Service of NOAA and the appropriate Regional Coordinator or Field Representative of the Department of the Interior will advise the appropriate District Engineer and the appropriate Regional Representative of EPA of the impact, if any, which a proposed discharge or deposit may or is likely to have on fish and wildlife resources and will, in appropriate cases, recommend conditions considered necessary to afford reasonable protection to such resources.

(7) Although the Refuse Act vests in the Secretary of the Army authority to determine whether or not a permit should or should not issue, it is recognized that responsibility for water quality improvement lies primarily with the States, or, in particular instances, with appropriate interstate agencies or river basin commissions, and, at the Federal level, with the Environmental Protection Agency (EPA). Accordingly, EPA shall advise the Corps with respect to the meaning, content and application of water quality standards applicable to a proposed discharge or deposit and as to the impact which the proposed discharge or deposit may or is likely to have on applicable water quality standards and related water quality considerations, including environmental values reflected in water quality standards. Specifically, the Regional Representative of EPA will, as appropriate, identify and advise the District Engineer with respect to the following:

(i) The meaning and content of applicable water quality standards;

(ii) The application of water quality standards to the proposed discharge or deposit, including the likely impact of the proposed discharge or deposit on such water quality standards and related water quality considerations;

(iii) The permit conditions required to comply with applicable water quality standards;

(iv) The permit conditions required to carry out the purposes of the Federal Water Pollution Control Act where water quality standards are not applicable in whole or in part;