portions of such waters, the Administrator shall consider the policy expressed in subsection 2(b) of this Act and the factors stated in subsections 5(a) (1) and 5(a) (2) of this Act. (c) (1) The provisions of subsection (a) shall not apply to actions taken before or after the effective date of this Act under the authority of the Rivers and Harbors Act of 1899.1 (2) Except as provided in subsection 11(e), nothing in this Act shall be construed as abrogating or negating any existing responsibility or authority contained in the Rivers and Harbors Act of 1899: Provided, That after the effective date of this Act, no Federal license or permit shall be issued under the authority of the Rivers and Harbors Act of 1899 to conduct any activity otherwise regulated by section 4 of this Act and the regulations issued hereunder, unless the Administrator has certified that the activity proposed to be conducted is in conformity with the provisions of this Act and with the regulations issued hereunder. (3) Where a license or permit to conduct an activity has been granted under the authority of subsections (c) (1) and (c) (2) of this section and of the Rivers and Harbors Act of 1899, no separate permit to conduct such activity shall be required under this Act. (d) Prior to issuing any permit under this Act, where it appears to the Administrator that the disposition of the material to be transported for dumping or to be dumped may affect navigation in the navigable waters of the United States or may create an artificial island on the Outer Continental Shelf, the Administrator shall consult with the Secretary of the Army and no permit shall be issued if the Secretary of the Army determines that navigation will be unreasonably impaired. (e) Nothing in this Act shall be construed as preempting any State, Federal Territory or Commonwealth, or subdivision thereof from imposing any requirement or liability. Section 8. Enforcement.-(a) The Administrator may, whenever appropriate, utilize by agreement, the personnel, services, and facilities of other Federal departments, agencies, and instrumentalities, or State agencies or instrumentalities, whether on a reimbursable or a nonreimbursable basis. (b) The Administrator may delegate responsibility and authority for reviewing and evaluating permit applications, including the decision as to whether a permit will be issued, to an officer of the Environmental Protection Agency, or he may delegate, by agreement, such responsibility and authority to the heads of other Federal departments or agencies, whether on a reimbursable or nonreimbursable basis. (c) The Secretary of the department in which the Coast Guard is operating shall conduct surveillance and other appropriate enforcement activity to prevent unlawful transportation of material for dumping or dumping. Section 9. Regulations.-In carrying out the responsibilities and authority conferred by this Act, the Administrator is authorized to issue such regulations as he may deem appropriate. Section 10. International Cooperation. The Secretary of State, in consultation with the Administrator, shall seek effective international action and cooperation to ensure protection of the marine 1 33 U.S.C. § 401 et. seq. environment, and may for this purpose, formulate, present, or support specific proposals in the United Nations and other competent international organizations for the development of appropriate international rules and regulations in support of the policy of this Act. Section 11. Repeal and Supersession. (a) The second proviso to the last paragraph of section 20 of the Act of March 3, 1899 (30 Stat. 1154), as amended,' is repealed. b) Sections 1, 2, 3, 4, 5, 6, and 7 of the Act of June 29, 1888 (25 Stat. 209), as amended, are repealed. (c) Section 2 of the Act of August 5, 1886 (24 Stat. 329),* is repealed. d) To the extent that it authorizes action regulated by this Act, section 4 of the Act of March 3, 1905 (33 Stat. 1147), is superseded. (e) Section 13 of the Rivers and Harbors Act of 1899 (30 Stat. 1152), as amended, is superseded insofar as it applies to dumping, as defined in subsection 3 (f) of this Act, of material in the waters covered by subsection 4(b) of this Act. Section 12. Effective Date and Savings Provision.-(a) This Act shall take effect six months after its enactment. (b) No legal action begun, or right of action accrued, prior to the effective date of this Act shall be affected by any provision of this Act. Section 13. Authorization for Appropriations.-There is hereby authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary for the purposes and administration of this Act. 233 U.S.C. § 418. $33 U.S.C. § 419. 33 U.S.C. § 407. ANALYSIS OF THE PROPOSED MARINE PROTECTION ACT OF 1971 The title of the proposed act is designated as the "Marine Protection. Act of 1971." Section 2, drawing on the report of the Council on Environmental Quality made public by the President October 7, 1970, makes a finding by the Congress that unregulated dumping of material in the oceans, coastal, and other waters endangers human health, welfare, and amenities, and the marine environment, ecological systems, and economic potentialities. It declares a federal policy of regulating dumping of all types of material in the relevant waters and of vigorously limiting the dumping of material which could have an unfavorable effect. Section 3 defines certain terms used in the proposal. Subsection 3(a) defines the responsible official for implementation of the legislation as the Administrator of the Environmental Protection Agency (EPA). Subsection 3(b) provides that the proposal applies to the oceans, to gulfs, bays, and other similar salt waters, other coastal areas where the tide ebbs and flows, and to the Great Lakes. Subsection 3(c) defines material, the transportation for dumping and dumping of which are regulated by the proposal, very broadly as "matter of any kind or description", and then, for illustrative purposes, but without limiting the comprehensive scope of this initial definition, lists specific materials which are included in the general definition. Oil and sewage from vessels, discharges of which are covered by the Federal Water Pollution Control Act, are excluded from the scope of this Act. Subsection 3(e) defines "person" in such a way that all Federal, State, and foreign governmental organizations, employees, and agents, along with private persons or entities, are included within the prohibition on transportation for dumping or dumping contained in Section 4. Federal organizations, employees, and agents, however, are excepted from the definition of "person" insofar as section 6, providing for penalties, is concerned. Thus, Federal organizations, employees, and agents must comply with the permit and standardsetting provisions of the Act, i.e., they would be required to obtain approval from the Administrator of EPA for the transportation for dumping or the dumping of materials in the relevant waters, but they are not liable for or subject to the penalty provisions. Subsection 3(f) defines dumping for purposes of the Act as "a disposition of material". Provisos make two important exceptions to this general rule of applicability. The first proviso excepts from the Act's coverage disposition of effluents from any outfall structure or routine discharges of effluents incidental to the propulsion of vessels Municipal sewage outfalls or industrial waste outfalls come within this proviso. Discharges of effluents other than sewage from outfall: come within the purview of standards set pursuant to the Federal Water Pollution Control Act and also will be subject to the proposed permit program under the Refuse Act (33 U.S.C. § 407). Municipal sewage outfalls also come under the Federal Water Pollution Control Act's standards and also are affected by that Act's assistance programs. The second proviso could be called the "lobsterpot" proviso. It excepts intentional placement of devices in the relevant waters or on the submerged lands beneath those waters. Several federal departments and agencies place testing, monitoring, sensing, or surveillance devices on the ocean floor. Under this provison, the placement of such items or their transportation for placement is not within the coverage of the proposal. Private activities similarly not within the proposal would include placing into the ocean and other pertinent waters lobster traps, off-shore drilling platforms, pipelines, or cables. The latter portion of the proviso ensures that any excepted placement of devices does not include placement of material to produce an effect attributable only to the physical presence of the material in the ocean or other relevant waters. Thus, if car bodies or other similar material were placed in the ocean to serve as a shelter for fish, the effect from placing the car bodies would be attributable only to the physical presence of the car bodies in the ocean, and the placement would constitute a dumping for which a permit would be required under the Act. Special note should also be made of the fact that "dumping" as defined in subsection 3(f) would not include an activity which has as its primary purpose a result other than "a disposition of material" but which involves the incidental depositing of some debris or other material in the relevant waters. For example, material from missiles and debris from gun projectiles and bombs ultimately come to rest in the protected waters. Such activities are not covered by this Act. Except where the Administrator has issued a permit for such activity, subsection 4(a) of the proposal prohibits transportation of material from the United States for the purpose of dumping it in the oceans, coastal, and other waters. Similarly, except where a permit has been granted, section 4(b) prohibits dumping of material in that part of such waters which is within the territorial jurisdiction of the United States, or in the Contiguous Zone of the United States when the dumping affects the territorial sea or territory of the United States. Section 5 places authority to grant transportation and dumping permits in the Administrator of EPA, provides standards for his use in acting on permit applications, and governs the nature of permits which may be issued. Section 5(a) allows issuance of a permit where the applicant presents information which indicates that the transportation or dumping or both will not unreasonably degrade or unreasonably endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. The Administrator is directed to establish and apply criteria for reviewing and evaluating permit applications. In establishing or revising the criteria, the Administrator is required to consider the likely impact of the proposed dumping along with alternative locations and methods of disposal, including those based on land, the probable impact of using such alternatives on considerations affecting the public interest, and the probable impact of issuing or denying permits on such considerations. In establishing or revising criteria, the Administrator is directed to consult with the heads of concerned departments and agencies. Subsection 5(b) authorizes the Administrator to establish and issue various categories of permits. If he deems such a step to be desirable, the Administrator could set different procedures for handling applications in the various categories. Subsection (b) (2) allows the Administrator to require applicants for permits to provide necessary information. The Administrator could require differing amounts and types of information according to category. Subsections 5(c) and 5(d) set out the requirements which may be incorporated into permits issued under the authority of subsection 5(a). They also allow the Administrator, as he deems appropriate, to state further requirements and actions, such as charges for permits or reporting on actions taken under a permit. Subsection 5(e) authorizes the Administrator to grant general permits for the transportation for dumping or dumping of quantities and types of materials which he determines will have a minimal effect on the ocean. This provides flexibility to give general permits for certain types of periodic or continuing activities where the amounts dumped are minimal. Subsection 5(f) authorizes the Administrator to limit or deny the issuance of permits involving specified substances where he finds that the substances cannot be dumped consistently with the provisions of and criteria established under subsection 5(a). In such cases the Administrator may also alter or revoke partially or entirely the terms of existing permits. Subsection 5(g) allows the Administrator to designate recommended sites for dumping specified materials. This would give guidance to applicants and facilitate the Administrator's implementation of the control programs. Subsection 5(h) establishes a very limited exemption from the prohibition on transportation for dumping or dumping where no permit has been granted. Such transportation or dumping is not prohibited where it is necessary in an emergency to safeguard human life. In such cases reports of the excepted emergency actions must be made to the Administrator. Section 6 provides for penalties. Under subsection 6(a) the Administrator could assess a civil penalty recoverable in federal district court, of up to $50,000 for each violation. Subsection 6(b) establishes, in addition, criminal sanctions for knowing and willful violations. The court could assess a fine of up to $50,000 or order imprisonment for a period of up to one year, or both. For those cases where violations are of a continuing nature, and for the purpose of imposing civil penalties and criminal fines but not imprisonment, subsection 6(c) makes each day of such a violation a separate offense. Under the provisions of subsection 6(d), the Attorney General is authorized to seek equitable relief to redress violations. Subsection 6(e) subjects vessels used in violations to in rem liability for any civil penalty assessed or criminal fine imposed. Public vessels within the meaning of subsection 13(a)(3) of the Federal Water Pollution Control Act and other public property of a similar nature would not be subject to the remedy authorized by this provision. Subsection 6(f) adds authority for the Administrator to revoke or suspend a permit issued under subsection 6(a) if the permit's provisions have been violated. Section 7 deals with the relationship of this legislation to other laws. Generally, except as provided in subsections 7(b) and 7(c), it |