September 19, 1972
Page 31207
Mr. COOK. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with, and I will explain it.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COOK'S amendment is as follows:
On page 76, line 19, strike out all through line 16 on page 78 and insert in lieu thereof the following:
"(b) (1) methods of implementation for–
"(A) assuring that the use and development of land in areas of critical environmental concern within the State is not inconsistent with the State land use program;
"(B) assuring that the use of land in areas within the State which are or may be impacted by key facilities including the site location and the location of major improvement and major access features of key facilities is not inconsistent with the State land use program;
"(C) assuring that any large-scale subdivisions and other proposed large-scale development of and subsequent revisions in the local significance in its impact upon the environment is not inconsistent with the State land use program;
"(D) assuring that any source of air, water, noise, or other pollution in the areas or from the uses or activities listed in this clause (1) shall not be located where it would result in a violation of any applicable air, water, noise or other pollution standard or implementation plan;"
"(E) periodically revising and updating the State land use program to meet changing conditions; and
"(F) assuring dissemination of information to appropriate officials or representatives of local governments and members of the public and their participation in the development of and subsequent revisions in the State land use program and in the formulation of State guidelines, rules, and regulations for the development and administration of the program.
Mr. COOK. I yield to the Senator from Vermont.
Mr. AIKEN. Mr. President, I simply have one question to ask, probably of the Senator from Washington or the Senator from Idaho: Is there anything in this bill which would require a State which has reasonably strong land use programs or plans at the present time to weaken those programs, or in any way to alter the strong State program in order to qualify for Federal funds?
Mr. JACKSON. State programs on land use planning?
Mr. AIKEN. Yes.
Mr. JACKSON. No. The whole purpose of the bill is to provide the old carrot and stick approach. We do not have much left of the stick, we have a lot of carrot. We provide for grants-in-aid up to 90 percent to assist the States in land use planning, and it is to fund the efforts that are being made by all the States. Some States are way ahead. This, of course, will not denigrate what those States are already undertaking. It will help to assist them further in what they are doing.
Mr. AIKEN. And there is nothing at all in the bill, to the best of the Senator's knowledge, that would require my State of Vermont to weaken its present policies as to land use?
Mr. JACKSON. No. On the contrary, it would encourage the State of Vermont and all other States to improve the ability to deal with the land use program.
Mr. AIKEN. I am not sure how much further we can go with that improvement, but that is up to the Vermont Legislature.
Mr. JACKSON. I do not know. Am I correct in stating that Vermont has a statewide program?
Mr. AIKEN, Yes.
Mr. JACKSON. Well, Vermont sets a good example for the country, as I understand it.
Mr. AIKEN. This proposed legislation does not preempt the field, then?
Mr. JACKSON. No.
Mr. COOK. Mr. President, I almost offer the amendment with apology to the distinguished Senator from Maine (Mr. MUSKIE), because I intended to have a colloquy with him on his amendment No. 1522. When I found that he was not going to offer it, I took the liberty – and I apologize to him – of offering basically that amendment, with one change, and that is in regard to the language that appears in his amendment No. 1522 on page 2, item (d), the language which commences on page 11.
The reason for this amendment is that the language of the bill, starting on page 76, uses the words "exercising determinative State authority." I am not sure what that means. It also says that States can usurp, in essence, the authority of local planning commissions. It says, for example, that a State has the authority over the use of land in areas in the State which are or may be impacted by key facilities.
Further, the language provides that States can regulate large-scale subdivisions once a subdivision has been approved on a local level; and, more serious than anything else, it provides for State administrative review of land-use plans, regulations, and implementation thereof, of local governments, with full powers to approve or disapprove.
Mr. President, I can give the example of two major communities in my State. The Louisville and Jefferson County Planning Commission probably has three times the number of people and qualified staff working for them than does the State Planning Commission. The example I could give, that could be overturned by allowing the language presently in the bill to stay there, would be for the local planning commission in our community or the city of Lexington to authorize the expenditure of 1, 2, or 3 million dollars to a total in-depth plan over a period of 2 or 3 years, and come up with all the public hearings, all the meetings, all the discussion, all the expertise, to rearrange, to plan, to recommend zoning in a given area.
Then the State can say, "We're not going to accept it, because under this bill we have the power to approve or disapprove."
This would be nice if in fact the State had that potential. But I suggest that many States in the Union do not have that potential.
As a matter of fact, the bill uses the words "and implementation thereof, of a land use plan," which means that if, in fact, there was a recommendation at the local level on zoning which would be an implementation to change a land use plan, and if they expended time, energy, money, hearings, and everything else and the State was not satisfied with that, the State could ignore everything that had been done on the local level and just take it over and decide to do it for itself.
Let us take the river front in my community, which has been the subject of urban renewal, the subject of untold hours and weeks, and a public commitment on the part of the local government of many millions of dollars – not a dime from State government. Under the language of section (B) on page 76, "exercising determinative State authority over the use of land in areas within the State which are or may be impacted by key facilities," the State could take that whole program and disapprove it.
Under the terms of this bill, apparently the only recourse would be that if it carried enough land use change, it would then come under item (e) on page 83, where it would have to be submitted directly to the Secretary of the Interior; and, as I understand it, the Secretary of the Interior would make his determination to State government and say, "We like it" or, "We don't like it."
Therefore, the language that has been suggested is that, rather than use the phrase "determinative State authority," the language "not inconsistent with the State land use program" be used. I think this language was agreed to.
The only suggestion I had to the Senator from Maine was with respect to his language under (d), which said "assuring standards under the Federal Water standards under the Federal water Pollution Control Act and the Clean Air Act."
I was concerned about that language, because, if the Senator will read the preamble to section 303, that was a determination that was to be made by the Secretary, which meant that, in essence, we were doubling up with EPA and that, in essence, we may have been subverting EPA's authority to actually administer the Federal Water Pollution Control Act and the Clean Air Act; and I do not think it was the intention of the Senator from Maine to give the Secretary the authority over and above the authority that presently rests in EPA to make this determination.
Therefore, it was this Senator's intention to agree with the amendment of the Senator from Maine, with the exception of item (d) in amendment No. 1522, and to reinsert the language I have now reinserted in my amendment, which is the language in subsection (E) of section 303, on page 77.
Mr. MUSKIE. Mr. President, I think there was an agreement as to that language. I would still feel that that language would be an improvement in the bill, so I support the Senator's amendment. I did not offer it myself, because, after the disposition of my first three amendments, I found it impossible to support the bill, anyway, and did not want to mislead the Senate by trying to amend it further.
If the bill is enacted, I think it would be better to have the language of the Senator's amendment in the bill than out of the bill, so I would support it, if the floor manager continues to support it.
Mr. COOK. I thank the Senator. Again, I owe him an apology. I was prepared to amend his amendment, because I felt that his language was acceptable. Otherwise, we would have worked out some kind of language with our own staff to accomplish the same thing the Senator from Maine wished to accomplish.
Mr. MUSKIE. I thank the Senator for raising the matter. I certainly support the amendment.
Mr. JACKSON. Mr. President, I am very pleased to accept the amendment offered by the Senator from Kentucky. As I understand the amendment, it is compatible with an amendment I will offer very shortly which deals with the concerns expressed, as the Senator knows, by the League of Cities and the National Conference of Mayors. I am pleased to accept the amendment in behalf of the ranking minority member, the Senator from Idaho (Mr. JORDAN).
I yield back the remainder of my time.
Mr. COOK. I yield back the remainder of my time.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Kentucky.
The amendment was agreed to.