discussions between the Council on Environmental Quality, the Environmental Protection Agency, the Justice Department, and the corps over the program and the implementing regulations. These discussions culminated in the issuance of Executive Order 11574 by the President on December 23, 1970 (35 F.R. 19627) and proposed regulations by the corps on December 31, 1970 (35 F.R. 20005) and January 21, 1970 (36 F.R. 983).

I commend the President for his personal interest in directing that the corps and EPA get the program underway promptly. The program is based on the recommendations in the report issued on March 18, 1970, by the Committee on Government Operations (H. Rept. 91917) and prepared by the Subcommittee on Conservation and Natural Resources, entitled "Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution." Congress, in Public Law 91-665 of January 8, 1971, appropriated $2 million to the corps for this program.

When fully and properly implemented, this new program will significantly aid in reducing the pollution from industrial wastes discharged without adequate treatment into our Nation's waterways. I am concerned, however, about the adequacy of the regulations and accompanying material. I am most eager to see an effective program instituted. Our subcommittee has repeatedly urged this. We have been disappointed over its slow progress to date. We hope that in the next few weeks the corps and these other agencies will make appropriate changes in the proposed regulations and other documents consistent with existing law, that will eliminate the fears we have expressed to the Corps, EPA, and CEQ in the last few weeks.

I particularly hope that the revised Justice Department Guidelines on litigation under the 1899 Refuse Act will be revised even further to eliminate the requirement that, before a U.S. attorney

files "civil complaints, criminal information and the return of indictments in Refuse Act cases," he must first call Washington. If the U.S. attorney believes that a civil or criminal action, or both, should be instituted against a polluter, what possible reason is there for him to call Washington before he initiates it, unless it is to give Washington an opportunity to stop the U.S. attorney from filing the action on political or similar grounds?

I append the text of Executive Order 11574; the corps' regulations of December 31, 1970, and January 21, 1971; a corps-EPA memorandum of understanding of January 12, 1971; and an updated draft revision of the Justice Department guidelines.

I also append my letter of December 23, 1970, to Mr. Robert E. Jordan III, General Counsel of the Army, concerning the corps' regulations:

PROPOSED RULE MAKING (Department of Defense) DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS [33 CFR Part 209]

Permits for discharges or deposits into navigable waters-proposed policy, practice, and procedure

Notice is hereby given that the regulations set forth in tentative form below are proposed by the Secretary of the Army (acting through the Corps of Engineers). The proposed regulation 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 matter shall float or be washed into a navigable water (33 U.S.C. 407).

Prior to the adoption of the proposed regulation consideration will be given to any comments, suggestions, or objections thereto which are submitted in writing to the Office of the Chief of Engineers, Washington, D.C. 20314, Attention: ENGCW-ON, within a period of 45 days from the date of publication of this notice in the FEDERAL REGISTER. Dated: December 23, 1970.

F. P. KOISCH,
Major General, U.S. Army,
Director of Civil Works.

[p. 1754]

$209.131 Permits for discharges or deposits

into navigable waters.

(a) Purpose and scope. This regulation 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 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 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 with his application 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. Here

after, section 21(b) will be referred to as a section of the Water Quality Improvement Act of 1970.

(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 decision-making along with economic and technical considerations * * *."

(3) The concern of the Congress with the conservation and improvement of fish and wildlife resources is indicated in the Fish and Wildlife Coordination Act (16 U.S.C. 661-666c), wherein consultation with the Department of the Interior is required regarding activities affecting the course, depth, or modification of a navigable waterway.

(d) General policy. (1) Except as otherwise provided in the Refuse Act (33 U.S.C. 407), all discharges or deposits into navigable waters of the United States or tributaries thereof are, in the absence of an appropriate Department of the Army permit, unlawful. The fact that official objection may not have yet been raised with respect to past or continuing discharges or deposits should not be interpreted as authority to discharge or deposit in the absence of an appropriate permit, and will not preclude 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.

(2) The decision as to whether a permit authorizing a discharge or deposit will or will not be issued under the Refuse Act will be based on an evaluation of the impact of the discharge or deposit on (1) anchorage and navigation, (ii) water quality standards, which under the provisions of the Federal Water Pollution Control Act, were established "to protect the public health or welfare, enhance the quality of water and serve

the purposes" of that Act, with consideration of "their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses," and (iii) in cases where the Fish and Wildlife Coordination Act is applicable (where the discharge for which a permit is sought impounds, diverts, deepens the channel, or otherwise controls or similarly modified the stream or body of water into which the discharge is made), the impact of the proposed discharge or deposit on fish and wildlife resources which are not directly related to water quality standards.

(3) 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 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. Specifically, Regional Representatives of EPA will determine and advise District Engineers with respect to the following:

(i) The meaning and content of water quality standards which, under the provisions of the Federal Water Pollution Control Act, were established "to protect the public health or welfare, enhance the quality of water and serve the purposes" of that Act, with consideration of "their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses.";

(ii) The application of water quality standards to the proposed discharge or deposit, including the 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 water quality standards;

(iv) The permit conditions required to carry out the purposes of the Federal Water Pollution Control Act where no water quality standards are applicable;

(v) The interstate water quality effect of the proposed discharge or deposit.

(4) In any case where a District Engineer of the Corps has received notice that a State or other certifying agency has denied a certification prescribed by section 21(b) of the Federal Water Pollution Control Act or, except as provided in subparagraph (6) of this paragraph, where a Regional Representative has recommended that a permit be denied

because its issuance would be inconsistent with his determination or interpretation with respect to applicable water quality standards and related water quality considerations, the District Engineer, within 30 days of receipt of such notice, shall deny the permit and provide notice of such denial to the Regional Representative of EPA.

(5) In the absence of any objection by the Regional Representative to the issuance of a permit for a proposed discharge or deposit, District Engineers may take action denying a permit only if:

(i) Anchorage and navigation will be impaired; or

(ii) Where the discharge for which a permit is sought impounds, diverts, deepens the channel, or otherwise controls or similarly modifies the stream or body of water into which the discharge is made, and after the consultations required by the Fish and Wildlife Coordination Act, the District Engineer determines that the proposed discharge or deposit will have a significant adverse impact on fish or wildlife resources.

(6) In any case where the District Engineer believes that following the advice of the Regional Representative with respect to the issuance or denial of a permit would not be consistent with the purposes of the Refuse Act permit program, he shall, within 10 days of receiving such advice, forward the matter through channels to the Secretary of the Army to provide the Secretary with the opportunity to consult with the Administrator. Such consultation shall take place within 30 days of the date on which the Secretary receives the file from the District Engineer. Following such consultation, the Secretary shall accept the findings, determinations, and conclusions of the Administrator as to water quality standards and related water quality considerations and shall promptly forward the case to the District Engineer with instructions as to its disposition.

(7) No permit will be issued in cases where the applicant, pursuant to 21(b) (1) of the Water Quality Improvement Act of 1970, is required to obtain a State or other appropriate certification that the discharge or deposit would not violate applicable water quality standards and such certification was denied. No permit will be issued for discharges or deposits of harmful quantities of oil, as defined in section 11 of the Federal Water Pollution Control Act since primary permit and enforcement authority for all oil discharges is contained in that Act.

(e) Authority to issue permits. The Refuse Act provides that, "the Secretary of the Army, whenever in the judgment of the Chief of Engineers that anchorage and navigation will not be injured thereby, may permit the deposit of any material *** in navigable waters, within the limits to be de

fined and under conditions to be prescribed by him ***. The Chief of Engineers, in the exercise of his judgment under the Act, has made the general determination that anchorage and navigation will not be injured when the discharge or deposit permitted will cause no significant displacement of water or reduction in the navigable capacity of a waterway. Except as otherwise provided in this regulation, the Secretary of the Army has authorized the Chief of Engineers and his authorized representatives to issue per[p. 1755]

mits allowing discharges or deposits into navigable waters or tributaries thereof, if evaluation leads to the conclusion that (1), as determined by the Chief of Engineers, anchorage and navigation will not be injured thereby, and (2) issuance of a permit will not be inconsistent with the policy guidance prescribed in paragraph (d) of this section. Accordingly, within these limitations, District Engineers are authorized, except in cases which are to be referred to higher authority for decision (see paragraphs (d) (6) and (i) (7) of this section), to issue permits or to deny permit applications for discharges or deposits covered by the Refuse Act.

(f) Relationship to other corps permits. (1) Operators of facilities constructed in navigable waters under a valid construction permit issued pursuant to section 10 of the Rivers and Harbors Act approved March 3, 1899 (33 U.S.C. 403) must apply for and receive a new permit under the Refuse Act (33 U.S.C. 407) in order to lawfully discharge into or place deposits in navigable waters or tributaries thereof.

(2) Any person wishing to undertake work in navigable waters which may also result in a discharge or deposit into such navigable waters or tributaries thereof must apply for a permit under section 403 for such work and for a permit under section 407 to cover any proposed discharge or deposit. However, if the work proposed to be undertaken in navigable waters is limited to the construction of a minor outfall structure from which the proposed discharge or deposit will flow, District Engineers may, in their discretion and within the guidance provided in ER 1145-2303, require a single permit application under this regulation (ER 1145-2-321). If a single permit is issued authorizing both work in navigable waters and a discharge or deposit, the permit should cite both sections 403 and 407 as authority for its issuance.

(g) Information required with an application. (1) An applicant for a permit involving a discharge or deposit in navigable waters or tributaries thereof must file the required form with the District Engineer. Until the required form is printed and made available to District Offices, applicants should provide

a letter requesting that the permit be issued. The letter must bear the address of the applicant and the date, identify the waterway involved and the precise location of the proposed discharge or deposit and contain a statement as to whether the facility from which the proposed discharge or deposit will originate is within the corporate limits of a municipality. The applicant must also furnish information which will fully identify the character of the discharge or deposit and monitoring devices and procedures which will be used. Such information shall include, but need not be limited to, data pertaining to chemical content, water temperature differentials, toxins, sewage, amount and frequency of discharge or deposit and the type and quantity of solids involved, if any. If the discharge or deposit will include solids of any type, applicants must (i) identify the proposed method of instrumentation to determine the effect of the disposition of solids on the waterway, and (ii) either assume responsibility for the periodic removal of such solids by dredging or agree to reimburse the United States for costs associated with such dredging.

(2) An application submitted by a corporation must be signed by the principal executive officer of that corporation or by an official of the rank of corporate vice president or above who reports directly to such principal executive officer and who has been designated by the principal executive officer to make such applications on behalf of the corporation. In the case of a partnership or a sole proprietorship, the application must be signed by a general partner or the proprietor. Each application must contain a certification by the person signing the application that he is familiar with the information provided and that to the best of his knowledge and belief such information is complete and accurate.

(h) State certification. (1) Section 21 (b) (1) of the Water Quality Improvement Act of 1970 provides that "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 any discharge into the navigable waters of the United States, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that there is reasonable assurance, as determined by the State or interstate agency that such activity will be conducted in a manner which will not violate applicable water quality standards * No license or permit shall be granted until the certification required by