for 5 consecutive days in the local newspaper. If the local newspaper is not a daily, the public notice should be published in the local newspaper and for 5 consecutive days in a newspaper of general circulation in the area where the proposed discharge or deposit is to occur. If the notice is published in the newspaper (s), the applicant shall reimburse the District Engineer for the costs of publication.

(5) Water quality certifications pursuant to section 21(b) of the Federal Water Pollution Control Act, the comments of all governmental agencies on a permit application, and all information and data provided by an applicant or a permittee identifying the nature and frequency of a discharge or deposit shall be available for examination by the public in the Office of the District Engineer. All other information or data which may be submitted by an applicant in connection with a permit application or which may be furnished by a permittee in connection with required periodic reports shall also be available to the public unless the applicant or permittee specifically identifies and is able to demonstrate to the satisfaction of the Secretary of the Army or his authorized representative that the disclosure of such information or data to the general public would divulge methods or processes entitled to protection as trade secrets.

6) If notice of the permit application evokes substantial public interest a public bearing may be held. Policy with respect to the holding and conduct of public bearings is discussed in paragraph (k) of this section.

(7) District Engineers may, consistent with the policy guidance contained in paragraph (d) of this section, and, after considering all of the information developed with respect to the permit application, including written or oral infornation presented in response to a public notice or at a public hearing, issue s permit with or without conditions, or deny it, provided, however, that if a District Engineer determines that issuance of a permit with or without conditions appropriate but there is objection to the issuance of the proposed permit by he Regional Representative of EPA on grounds related to water quality, the matter must be forwarded to higher authority for resolution by the Secretary and the Administrator as provided for in paragraph (d) (10) of this section. If the Regional Representative of EPA does not object to the issuance of a permit and the District Engineer determines that issuance of a permit with or without con2tions is appropriate but there is continuing objection to the issuance of a permit by either the Regional Coordinator or Field Representative of the Department of the Interior or the Regional Director of the National Marine Fisheries Service af NOAA on the grounds that the discharge or deposit will have a significant and reasonable adverse impact on fish and wildlife resources, the District Engineer tall not proceed with the issuance of a permit if, immediately upon receipt of ture from the District Engineer that he intends to issue a permit, such Regional Coordinator, Field Representative or Regional Director indicates to the District Egneer in writing that he wishes to bring his concerns to the attention of higher

als in Washington. In such cases, the proposed permit may be issued at the expiration of 30 days from the date of receipt of the letter from the Regional Coordinator, Field Representative or Regional Director unless, prior to that time, a result of consultations in Washington, it is directed that the matter be forwarded to higher authority for resolution by the Secretary of the Army, the Administrator of EPA and, as appropriate, the Secretary of Commerce or the retary of Interior. Thereafter, a permit will be issued only pursuant to and in acordance with instructions from such higher authority. Every effort should be Tade to resolve differences at the District Engineer level before referring the satter to higher authority.

Public notice. (1) As required by paragraph (i) (4) of this section, a public will be issued after a permit application is determined to be in proper 17. In cases where the permit applied for pertains to a discharge or deposit and 1 Lot involve construction or other work in navigable waters, the notice shall mate the name and address of the applicant, (ii) identify the waterway involved 4 p.de a sketch showing the location of the proposed discharge or deposit, ily identify the character and frequency of the discharge or deposit, (iv) intato other information (such as the views of the State on the permit applicawhich may assist interested parties in evaluating the likely impact of the pred discharge or deposit, if any, (v) provide 30 days within which interested may express their views concerning the permit application. All public involving a proposed discharge or deposit shall contain the following

Cent:

The decision as to whether or on what conditions a permit authorizing a disra or deposit will or will not be issued under the Refuse Act will be based on eviation of the impact which the proposed discharge or deposit may have on acchorage and navigation, (ii) applicable water quality standards and related Water qality considerations, including environmental values reflected in water

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

In the event that individual states may, in connection with applicatio certifications required by subsection 21(b) (1) of the Federal Water Pollution trol Act, as amended, wish to enter into arrangements for joint public notic cerning proposed discharges or deposits, the Chief of Engineers may, afte sulting with the Environmental Protection Agency, approve mutually sa tory arrangements.

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

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

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

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

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

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

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

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

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

(4) The hearing will be conducted in a manner that permits of discussion of any issues involved. A transcript of the hearing, to copies of relevant documents, will become a part of the permit applica (5) In addition to the hearings which may be required by the pol in the preceding paragraphs, hearings are required under sections 2

21b)(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 or 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 be 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.

im 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 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 per mit will expire on April 2, 1973, and (ii) that it is conditioned so as to require an nual demonstration by the permittee that the discharge or deposit is in complianc with applicable water quality implementation schedules.

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

(0) (1) [Reserved]

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

(p) Violations of the Refuse Act or permit conditions. Discharges or deposi which are not authorized by an appropriate permit issued under the authority the Secretary of the Army are unlawful and may result in the institution of leg proceedings under the Refuse Act. When a permit has been issued discharges deposits must be consistent with the terms and conditions of such permit. D charges or deposits in violation of permit terms or conditions shall result in t institution of legal proceedings under the Refuse Act and/or the initiation 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. 301 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 PROGR In view of (a) the signing by the President of the attached Executive Or 11574 which establishes a permit program under the Refuse Act to regulate discharges of pollutants and other refuse matter into the navigable waters of United States or their tributaries, (b) the signing of the attached Memorand of Understanding between the Corps of Engineers and the Environmental H tection Agency with respect to the enforcement of the Refuse Act, and (c) the c solidation within the Land and Natural Resources Division pursuant to attached order of criminal as well as civil responsibility for the administration the Refuse Act, the Guidelines for Litigation Under the Refuse Act transmit to the United States Attorneys on June 13, 1970 are hereby withdrawn and following procedures are to be adhered to by all United States Attorneys:

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

2. All allegations of violations of the Refuse Act submitted to the United St Attorneys from sources other than the District Engineer of the Corps of Engin or the Regional Representative of the Environmental Protection Agency shal referred to the District Engineer of the Corps of Engineers and the Regi Representative of the Environmental Protection Agency for investigation recommendations, in accordance with the procedures set forth in the Memoran of Understanding between the Corps of Engineers and the Environmental tection 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 u the Refuse Act against vessels, which actions shall continue to be handled ir manner set forth in Departmental Memorandums 374 and 376, dated June 3, 1 4. All requests for instructions and guidance relating to the enforcement o Refuse Act, whether of a civil or criminal nature, or whether involving ve or shorebased sources of pollution, shall be referred to the Pollution Co Section of the Land and Natural Resources Division, Washington, D.C. 2 (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 the scientific, industrial, and technological information upon which fuent limitations must be based. Federal leadership must be pronded here so that the States, in setting effluent limitations, have a dear 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 or 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 er descriptions of effluent quantity and quality, will tell industries and municipalities in unambiguous terms exactly what must be done. o meet Federal requirements. We expect these limitations to be the ncipal basis for future enforcement actions.

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

i

ENFORCEMENT

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