November 2, 1971
Page 38857
Mr. BAKER. Mr. President, I send to the desk an amendment and ask that it be read.
The PRESIDING OFFICER (Mr. NELSON). The amendment will be read.
The legislative clerk proceeded to read the amendment.
Mr. BAKER. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 183, line 2, insert the following new subsection:
"(d) The requirements of the National Environmental Policy Act of 1969 (83 Stat. 852) as to water quality considerations shall be deemed to be satisfied–
"(1) by certification pursuant to section 401 of this Act with respect to any federal license or permit for the construction of any activity which may result in any discharge into the navigable waters of the United States; and
"(2) by certification pursuant to section 401 of this Act and the issuance of a permit pursuant to section 13 of the Act of March 10, 1899, or section 402 of this Act with respect to any federal license or permit for the operation of any activity which may result in any discharge into the navigable waters of the United States.
Mr. PASTORE. Mr. President, may we have order?
The PRESIDING OFFICER (Mr. NELSON). The Senate will be in order. Will those Senators who wish to carry on conversations retire to the cloakroom? The Senate will be in order. We will not proceed until the Senate is in order.
The Senate is not in order. The Senate is still not in order.
The Senator from Tennessee will proceed.
Mr. BAKER. Mr. President, I must say that is the most "in order" I have ever heard in the Senate.
Mr. President, the purpose of this amendment is to clarify the relationship between the Federal Water Pollution Control Act, as this bill would amend it, and the National Environmental Policy Act of 1969.
Section 21(b) of the existing Federal Water Pollution Control Act provides that any Federal agency charged with the responsibility of issuing a Federal license or permit for the conduct of any activity which may result in any discharge into the navigable waters of the United States must, prior to the issuance of such license or permit, receive certification from the State in which such activity will be conducted that the activity will be conducted in a manner that will not violate water quality requirements. Section 21(b), with minor changes, appears as section 401 of the pending bill, S. 2770.
The National Environmental Policy Act of 1969 – Public Law 91-190 – vests in any Federal agency having jurisdiction over any action significantly affecting the quality of the human environment an affirmative duty to weigh environmental impact in determining whether a given action should proceed and, if so, how such an action can minimize its impact on the environment. The issuance of a license or permit by any Federal agency, when the activity licensed or permitted results in a discharge into the Nation's waters, is clearly one of the kinds of actions embraced by the National Environmental Policy Act – NEPA.
In July of this year the U.S. Court of Appeals for the District of Columbia handed down a far-reaching, and as yet unreported, decision in what has become known as the "Calvert Cliffs" case (U.S.C.A., D.C., F. 2d, July 23, 1971). In its opinion the Court said, in part:
NEPA mandates a case-by-case balancing judgment on the part of federal agencies. In each individual case, the particular economic and technical benefits of planned action must be assessed and then weighed against the environmental costs; alternatives must be considered which would affect the balance of values.
I wholly concur with the Court's view of the affirmative mandate imposed by NEPA.
It seems to me most desirable, however, that each Federal permitting and licensing agency not be required by the operation of NEPA to develop special expertise vested by the Congress in other agencies. It was, in fact, to avoid this kind of duplication that the Congress enacted section 21(b) of the Federal Water Pollution Control Act in 1970. As I said earlier, section 21(b), with some modification, appears as section 401 of the pending bill.
My amendment would make it clear that, for the purposes of making the kind of "balancing judgment" required by NEPA, each individual Federal permitting and licensing agency would not be required to develop its own special expertise with respect to water quality considerations. My amendment should not in any way be construed to mean that water quality considerations do not play a role in such a "balancing judgment." On the contrary, where pertinent, water quality considerations must be considered by any agency when it decides, under the NEPA mandate, whether it is in the public interest to grant a license or permit and, if so, under what conditions and stipulations.
However, my amendment would relieve any such permitting or licensing agency of the responsibility for determining on its own the standard of performance or effluent limitation that must be applied to the activity under consideration for a license or permit. That determination would be made by a State or by EPA pursuant to sections 401 and 402 of the pending bill.
Certification pursuant to section 401 or the issuance of a permit pursuant to section 402 would discharge a licensing or permitting agency from any further consideration as to what specific degree of effluent control was required with respect to water quality considerations for the activity under consideration.
Mr. President, if I may have the attention of the distinguished manager of the bill, I believe this is a matter that it is felt has its proper place in clarifying the decision in the Calvert Cliffs case. I believe it does no violence to the laudable purpose of the Calvert Cliffs case. I believe it is necessary if we are to avoid duplication which would inevitably occur. I would genuinely hope that the manager of the bill might consider accepting the amendment.
Mr. MUSKIE. Mr. President, as I understand it, the thrust of the amendment, which has been changed pursuant to my letter of October 27, 1971, is to preserve equally the authority to balance out the environmental protection. I believe we have an understanding as to the thrust of the amendment, and I have no objection to accepting it.
The PRESIDING OFFICER. Do Senators yield back the balance of their time?
Mr. BAKER. Mr. President, I yield back the balance of my time.
Mr. MUSKIE. Mr. President, I yield back the balance of my time.
The PRESIDING OFFICER. All time on the amendment having been yielded back, the question is on agreeing to the amendment of the Senator from Tennessee.
The amendment was agreed to.