August 31, 1976
Page 28670
WATER POLLUTION AMENDMENT EXPLAINED
Mr. MUSKIE. Mr. President, the Public Works Committee amendment No. 2231 to the House-passed version of S. 2710 the pending water pollution measure, was printed in the CONGRESSIONAL RECORD for Friday, August 27, on page 28096. This amendment was approved by the Public Works Committee on August 26.
Because this proposal is a committee amendment there is no committee report to describe the committee's intent. At the same time Members have asked about the intent of this amendment. In order to respond to these requests and provide adequate legislative history for the committee amendment, I ask unanimous consent that a description of the amendment be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
DETAILED DESCRIPTION OF COMMITTEE AMENDMENT
AUTHORIZATIONS — SECTION 1
The Committee amendment includes authorizations for the extension of the water pollution control program through FY 1977. These same authorizations had previously been considered and reported by the Committee in the form of S. 3037.
A $5 billion authorization is provided for the grant program for construction of municipally owned waste treatment works. Other authorizations are continued at their currently authorized levels. These authorizations include State program grants, research and development grants, areawide planning grants and other operating programs. Following is a breakdown of the authorizations provided in this Committee amendment :
Section 104 $10,000,000
Section 106 75,000,000
Section 112 25,000,000
Section 207 5,000,000,000
Section 208 150,000,000
Section 314 150,000,000
Section 517 350,000,000
While there is currently $8 billion remaining in obligational authority for the construction grant program, information provided by both EPA and the National Governors Conference indicates that about half the States will run out of funds if a new authorization for FY 1977 is not provided. An authorization of $5 billion will be sufficient to carry all the States which would otherwise run out of funds. The Environmental Protection Agency indicates that approximately $1.5 billion can actually be obligated to specific projects next year but a total authorization of $5 billion is required to insure that each State capable of using its full allotment has sufficient funds made available. EPA estimates minimal fiscal year 1977 outlays, approximately $50 million, pursuant to the obligation of the $1.5 billion.
GRANTS FOR TRAINING FACILITIES — SECTION 2
The Committee amendment includes a proposal offered by Senator Culver which would raise the ceiling on individual grants for training facilities from $250,000 to $500,000. Experience to date indicates that the $500,000 ceiling would be more in line with current needs. This provision does not increase the overall authorization in the Act since these grants come out of the State's allotment of construction grant program.
REALLOTMENT — SECTION3
The Committee approved an Administration amendment to extend by one year the date by which currently authorized funds must be obligated. There is approximately $8 billion currently outstanding in the construction grant progam. The States must obligate all of their current allotment by September 30, 1977, if they are to avoid losing those funds to reallotment. While some States will have no difficulty in obligating their total allotment, other States may find themselves in the position of losing funds on September 30, 1977. The Committee is concerned that funds are being misused by the States to avoid reallotment. Therefore, the Committee extended the reallotment date by one year, thereby making the currently allotted funds available to the States through September 30, 1978.
ALLOTMENT — SECTION 4
The Committee amendment also includes a formula for the distribution of the construction grant funds authorized for FY 1977. The formula distributes the funds on the following basis: 50% on the basis of partial needs (needs expressed by the States in the 1975 Needs Survey for secondary treatment, compliance with water quality standards, and interceptor sewers), 25% on the basis of total needs (needs expressed by the States in the 1975 Needs Survey for partial needs plus collector sewers, combined sewers, and infiltration/inflow), and 25% on the basis of 1975 population. This formula does not utilize any estimates of needs of treatment of stormwater.
The table below shows the percentage each State would receiveof the appropriated funds under the construction grant program and the dollar amount each State would receive if the $5 billion were fully appropriated:
Alabama .0110 55,000,000
Alaska .0048 24,000,000
Arizona .0064 32,000,000
Arkansas .0109 54,500,000
California .0831 415,500,000
Colorado .0081 40,500,000
Connecticut .0123 61,500,000
Delaware .0040 20,000,000
District of Columbia .0040 20,000,000
Florida .0361 180,500,000
Georgia .0201 100,500,000
Hawaii .0070 35,000,000
Idaho .0041 20,500,000
Illinois .0526 263,000,000
Indiana .0219 109,500,000
Iowa .0111 55,500,000
Kansas .0123 61,500,000
Kentucky .0151 75,500,000
Louisiana .0126 63,000,000
Maine .0055 27,500,000
Maryland .0382 191,000,000
Massachusetts .0279 139,500,000
Michigan .0473 236,500,000
Minnesota .0152 76,000,000
Mississippi .0076 38,000,000
Missouri .0200 100,000,000
Montana .0020 10,000,000
Nebraska .0062 31,000,000
Nevada .0030 15,000,000
New Hampshire .0068 34,000,000
New Jersey .0480 240,000,000
New Mexico .0026 13,000,000
New York .1062 531,000,000
North Carolina .0209 104,500,000
North Dakota .0019 9,500,000
Ohio .0560 280,000,000
Oklahoma .0136 68,000,000
Oregon .0084 42,000,000
Pennsylvania .0471 235,500,000
Rhode Island .0040 20,000,000
South Carolina .0132 66,000,000
South Dakota .0016 8,000,000
Tennessee .0150 75,000,000
Texas .0434 217,000,000
Utah .0051 25,500,000
Vermont .0022 11,000,000
Virginia .0222 111,000,000
Washington .0155 77,500,000
West Virginia .0218 109,000,000
Wisconsin .0201 100,500,000
Wyoming .0012 6,000,000
Virgin Islands .0005 2,500,000
Puerto Rico .0090 45,000,000
American Samoa .0003 1,500,000
Trust Territories .0020 10,000,000
Guam .0010 5,000,000
1.0000 $5,000,000,000
AREAWIDE PLANNING — SECTION 5
The Committee addressed two issues that have resulted from the extremely slow implementation of Sec. 208. The Congress had intended — and provided adequate funds — for the 208 plans to be completed by 1976 or 1977.
Firstly, the Committee amendment contains language which provides that, for the first two years of operation of any agency designated to conduct an areawide waste treatment management planning process under section 208, the amount of the Federal grant shall be 100 percent of the costs. The purpose of this amendment is to provide new designations equity with those agencies which were designated before June 30, 1975. Under the terms of the existing law, new designations are only eligible for 75 percent grants for the first two years planning costs.
Secondly, the Committee amendment assures that each Sec. 208 agency shall have a full three years, as provided in the original statute, to complete its initial plans.
LOAN GUARANTEES — SECTION 6
The Committee amendment includes a proposal offered by Senator Buckley to provide loan guarantees for grantees otherwise unable to raise the local share for construction of a sewage treatment facility. This provision provides the Administrator of the Environmental Protection Agency the authority to guarantee loans made by the Federal Financing Bank (by purchasing obligations issued by the grantee) for the non-Federal share of construction costs if the grantee is unable to finance its share at a reasonable rate.
In order for a grantee to be eligible to sell its bonds to the Federal Financing Bank, EPA would certify that the grantee is unable to obtain the necessary credit on reasonable terms and that there is reasonable assurance that the loan would be repaid. Such reasonable assurance would imply the adoption by the grantee of some system of user fees to assure repayment. Also, in the case of a default, any future reimbursement funds paid to the grantee would be available for repayment of the loan.
MUNICIPAL TIME EXTENSIONS — SECTION 7
The Committee recognizes that many municipalities, through no fault of their own, will violate the deadlines of achieving secondary treatment unless the law is amended. And the Committee recognizes that many industries have, in good faith, made commitments to join in municipal treatment systems. These industries would also find themselves in violation of the law through no fault of their own. The Committee has provided an extension on a case-by-case basis of the Act's time requirements to July 1, 1980 for municipalities to achieve secondary treatment effluent limits. The same time extension will be available to industries who have committed themselves to those municipalities so long as applicable pretreatment requirements are met.
The provision is consistent with the overall regulatory requirements of the Act for municipalities and industries. It will assure that municipalities who have not used their funds wisely and industries who have been avoiding compliance with the law are faced with enforcement actions.
For municipalities it requires assurance by the State that it is spending its money on essential projects designed to meet the Act's regulatory requirements. The State is the applicant for the extension. Lack of Federal funds or inability to finance the local share are certainly justifications for an exemption. Misuse or diversion of funds from the basic enforcement requirements of secondary treatment by 1977-78 are not.
For industries the provision requires either a permit, issued on or before January 1, 1975 (the Act's final date for permit issuance), or an enforceable contract, on or before that same date, which stipulates the source's intention to discharge into a municipal system to which an extension is being granted. This was included to assure that industries which have deliberately not complied with their treatment requirements are not eligible for time extensions.
The Committee amendment: (1) authorizes the Administrator, upon application by the State, to provide case-by-case extensions to the 1977-78 requirements of the law;
(2) provides that no time extension shall extend beyond July 1, 1980;
(3) allows the exemption for municipalities where Federal financial assistance has not been available for sufficient time, or inflation or other factors beyond the control of the community have made it impossible for them to raise their local share even though Federal funds are available;
(4) authorizes industrial sources an extension if the industry has previously committed to join the municipal system;
(5) requires industry to meet all applicable pretreatment requirements; and
(6) excludes Federally-owned treatment works from the extension provision.
The Committee is anxious to be fair and assure that municipalities and industries are not penalized for action they cannot control. We are equally anxious to be fair and not penalize the good citizens who are complying with the Act's requirements by allowing wholesale violation of the Act's deadlines by those communities which have been recalcitrant. For the first reason, we have provided an exemption with some discretion. For the second reason, we have limited the discretion to specific criteria.
In so doing we have attempted to create a balanced and fair exemption procedure.
PERMITS FOR DREDGE AND FILL MATERIAL — SECTION 8
This section of the Committee amendment modifies Section 404 of the Federal Water Pollution Control Act, P. L. 92-500 which provides regulation of discharge of dredged and fill material.
This program was established as an exception to the Section 402 permit authority and was added to P. L. 92-500 in Conference with the House and derives from a provision in the House bill.
On July 25, 1975, the Corps of Engineers promulgated regulations for implementation of this authority. Those regulations are in effect for coastal waters and coastal wetlands contiguous or adjacent thereto and inland waters used for navigation together with contiguous and adjacent wetlands (described as Phase I waters in those regulations). Regulations applicable to the discharge of dredge and fill material into primary tributaries, lakes and adjacent wetlands (so-called Phase II waters) were scheduled to go into effect July 1, 1976, but have been delayed by Presidential Order to provide Congress an opportunity to review the issue. Discharges of dredge and fill material into the remainder of the navigable waters (Phase III waters) would be subject to regulation on July 1, 1977.
The Public Works Committee held oversight hearings on the Corps regulations on July 27 and 28, 1976 to determine the basis for the regulations and examine the controversy generated thereby.
The issues divide into five main categories:
1. Jurisdiction: intrusion of the Corps into regulation of waters beyond the scope of its navigation authorities;
2. The scope of review: the extent to which permit applications must be reviewed by other than the administering agency;
3. State Programs: the extent to which the States will be authorized to administer the program;
4. Exempt Activities: Regulation of activities which are administratively inappropriate, such as nonpoint source discharges resulting from farming, ranching and silviculture;
5. General Permits: regulation of routine activities of minimal environmental significance.
Each of these issues is dealt with in the Committee amendment.
SECTION 404 JURISDICTION
The initial issue in consideration of the Section 404 controversy was the extent of the waters in which discharges of dredged spoil and fill material will be regulated.
The 1972 Federal Water Pollution Control Act established comprehensive jurisdiction over the Nation's waters. This decision was the result of extensive and careful study and debate. In its report on that legislation, the Senate Public Works committee stated "waters move in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries."
It is the objective of the 1972 Act to protect the physical, chemical and biological integrity of the Nation's waters. Extension of jurisdiction narrowly to waters used or susceptible to use for navigation would not accomplish this purpose. Discharges of dredge or fill material into tributaries of these waters, toxic pollutants for example, which would disrupt the chemical biological integrity of the waters will directly and adversely affect their quality. To so limit the jurisdiction of the Federal Water Pollution Control Act with reference to discharges of the pollutants dredged or fill material would not achieve the Act's objectives.
The Committee amendment rejects the redefinition of navigable waters. It limits only the jurisdiction of the Corps of Engineers for control of those pollutants to waters regulated under the Corps' authority through Section 10 of the Rivers and Harbors Act of 1899 (and all contiguous and adjacent wetlands). Under the Committee amendment, the Corps retains this jurisdiction over the permit program until the approval of a State program.
The Committee also rejected the mean high water mark boundary for Phase I waters. Such a division is neither environmentally or administratively sound.
This mean high water line is an artificial boundary from an ecological standpoint since aquatic areas above and below the line are inextricably interrelated and interdependent.
From the administrative standpoint, the line is not ascertainable from the biological or physical character of the waters but must be determined by engineering surveys which have proved to be unreliable and expensive.
SCOPE OF REVIEW
Implementation of the Section 404 authority of the Corps of Engineers is complicated by application of the National Environmental Policy Act which requires a detailed review in addition to that contemplated by P. L. 92-500. This requirement expands the scope of review for issuance of permits to environmental considerations beyond the intent of the authority. Under Section 404, the Corps of Engineers must include a permit review in addition to water quality concerns, potential secondary impacts upon land, air and economic factors extraneous to the purpose of P. L. 92-500.
The Committee believes that administratively the breadth of review of the current program imposes an impossible burden on the permitting authority. The transfer of authority for permit control of discharges of dredged and fill material to Section 402 initially for Phase II and III waters but upon approval of State permit programs for all waters will streamline permit review and expedite issuances.
The Environmental Protection Agency and State permit programs under the Committee amendment would apply the criteria and guidelines of Section 404(b) (1). However, the scope of review would be water quality focused, since permit issuances under Section 402 authority are not subjected to NEPA review. For example, under Section 402 permit requirement, the 403(c) (1) (C) economic test applicable under the present program and included in EPA guidelines under the Committee amendment would be focused specifically on these economic impacts associated with fishing and other mater-related commercial activities deriving directly from the effects of disposal of the controlled pollutants. For permits issued under Section 404 authority, these economic considerations may include the effects of future development due to permitted activities on the local tax base, labor market, etc.
STATE PROGRAMS
The Committee amendment is in accord with the stated policy of P. L. 92-500 of "preserving and protecting the primary responsibilities and rights of States to prevent, reduce and eliminate pollution." It provides for assumption of the permit authority by States with approved programs for control of discharges of dredged and fill material in accord with the criteria and with guidelines comparable to those contained in 402(b), 404 (b) (1) and404(c)).
By using the established mechanism in Section 402 of P. L. 92-500, the Committee anticipates that authorization of State management of the permit program will be substantially expedited. At least twenty-eight State entities which have already obtained approval of the National Pollutant Discharge Elimination System under that section should be able to assume the program immediately.
The use of this mechanism will also expedite State authorization because the Administrator only has to amend guidelines under Section 304(h) (2) of the Act to establish the exact procedures and other requirements that a State must meet to achieve approval of its program.
Under the amendment, a State may elect to seek approval of a dredge and fill permit program independent of any application for approval of a National Pollutant Discharge Elimination System program. This will prevent any delay in processing applications for the National Pollutant Discharge Elimination System.
The amendment also provides that a State may elect to administer its dredge and fill permit program independent of the National Pollutant Discharge Elimination System program. Several States have already established separate State agencies to control discharges of dredge and fill materials. These agencies need not be the same as the National Pollutant Discharge Elimination System agency. The Committee expects the Administrator to insist that any designation of a non-National Pollutant Discharge Elimination System agency be accompanied by a demonstration of full capability to adequately administer this program.
Although discretion is granted to establish separate administration for a State permit program, the authority of the Administrator to assure compliance with guidelines in the issuance and enforcement of permits and in the specification of disposal sites which is provided in sections 402(c) through (k) and 404(c) is in no way diminished or compromised.
The authority for control of discharges of dredged and fill material granted to a State through the approval of a program pertains solely to the environmental concerns reflected in the specific guidelines set forth in the amendment, and the responsibility of the Corps of Engineers under the Rivers and Harbors Act of 1899 to protect navigation is not affected or altered by this amendment.
EXEMPT ACTIVITIES
The Committee amendment utilizes the point source and nonpoint source distinction in the Act to clarify the control requirements for farming, silviculture and ranching.
While these nonpoint source activities are specifically exempted from the permit requirements relating to dredge and fill discharges, existing authorities in the Act for control of these activities are not abridged.
In addition to normal farming and silvicultural activities, the construction of farm and forest roads is exempted. The Committee feels that permit issuances for such activities would delay and interfere with timely construction of access for cultivation and harvesting of crops and trees with no countervailing environmental benefit. The guidelines for construction of exempt roads require that the construction, use, and maintenance of the roads not significantly alter the biological character or the flow and circulation of affected waters.
During the Committee's consideration of the existing Corps' program, the Department of Agriculture compiled an inventory and anticipated permit applications for farming activities. This exemption will allow a farmer or rancher to rotate lands in intensive agricultural use from one crop to another. For example, the "normal farming" exemption would preserve the opportunity to convert a field in alfalfa into a row crop without applying for a dredge or fill permit. Another example of "normal farming" activity would be the placement of fill for erection of farm buildings or tile lining a field in intensive agricultural use to enhance drainage.
Sediment retention reservoirs and other such structures installed as a part of a Section 208 program to prevent the release of silt or other pollutants into navigable waters would not require a permit under this legislation. This would assure that important erosion control practices will continue to be applied by the farmer or rancher to conserve his soil and water resources, without the duplication of regulation which would otherwise occur if both Section 208 and this section were applicable.
During the Committee's consideration of the existing Corps program, the Department of Agriculture provided a list of anticipated permit applications for farming activities. Over 80% of the permits needed according to that survey are for construction of maintenance of farm ponds.
The Committee amendment specifically exempts these activities as well as construction and maintenance of agricultural irrigation ditches and the maintenance of agricultural drainage ditches. This exception does not in any way affect the Section 301 requirements regarding discharges from irrigation return flows.
During the committee oversight of the Corps program testimony was received regarding potential disruption of mining operations due to delays resulting from permit review of routine filling activities. The Committee amendment excludes the construction of temporary mining roads for the movement of equipment from regulation. These roads must not only be designed and constructed in accord with the requirements for protection of the navigable waters applicable to roads, they must be removed in a manner consistent with those requirements.
This type of activity should have only a minor impact on water quality if performed in a manner that will not impair the flow and circulation patterns and the chemical and biological characteristics of the affected water body, and that will not reduce the reach of the affected water body.
The construction or maintenance of silt or sediment control impoundments associated with mining operations is also exempt since these structures are designed to protect water quality through management practices that get to pollution at its source. Construction and maintenance of these impoundments are best treated under section 208 as are those other activities that have been excluded from permit requirements by this amendment. The discharge of pollutants from these impoundments continues to be regulated as a point source under Sections 301 and 402.
The amendment codifies the permit exemption in the Corps of Engineers regulations for the maintenance and emergency reconstruction such as highways, bridge approaches, dikes, dams, and levees of currently serviceable structures. This exemption from a permit requirement is not intended to include maintenance activities that change the character, scope or size of the original structure. Emergency reconstruction must occur within a reasonable period of time after destruction of the previously serviceable structures to be eligible for this exemption.
The Committee amendment exempts discharges of dredge spoil resulting from maintenance dredging in Federal navigation channels and non-Federal access channels which directly intersect such channels when that dredged material is discharged into confined disposal areas specified under an approved State program. Disposal sites must be located landward of the mean high water mark.
An exemption does not become available until approval of a State program. The exemption under the State law may apply only to dredge spoil resulting from maintenance dredging and not from alteration, improvement or repair of channels. The Administrator is authorized to restrict or deny the designation of a disposal site, as under the existing program.
The disposal site must be confined and must be constructed and operated to prevent migration of pollutants that could cause water pollution or other environmental damage. Thus, if pollutants deposited in the confined area would be carried beyond the site by physical, chemical or biological means the State would be prevented from designating the area eligible for the exemption.
All exempt activities will be required to have permits if the activity results in the introduction of toxic materials into the navigable waters. For this purpose, toxic materials shall include those substances for which, because of their harmful properties, EPA is developing effluent limitation standards or guidelines pursuant to Section 301 or 307, and those substances which are listed, also because of their harmful properties, in the current Section 403(c) guidelines, and other substances which the Administrator determines may be appropriate.
The Committee amendment specifically requires a permit for any placement or discharge of dredged or fill material for the purpose of modifying the use of an area of the navigable waters if the flow, circulation or reach of the waters will be significantly affected. A permit would be required for instance for the conversion of a hardwood swamp to full scale timber production through construction of dikes or drainage. However, where an area of the navigable waters has been placed in intensive agricultural use, prior to enactment of this provision, improvements to drainage to enhance the productivity of that use would not be covered by this specific requirement and would be exempt under subsection (3) (A) of the amendment.
GENERAL PERMITS
The Committee amendment authorizes the issuance of general permits by EPA, the Corps and States with approved programs for classes or categories of activities which cause, individually or cumulatively, only minimal environmental impact.
The general permits mechanism is derived from the Corps of Engineers regulations. The Corps during the first year of administering the Section 404 program has issued general permits for approximately 100 classes of activity involving the discharge or disposal of dredged or fill material. These include stream bank protection, stream alterations, backfill for bridges, erosion control, and, in at least one instance, a general permit for road fill and culverting on a statewide basis. For general construction activities, general permits issued on a statewide or region wide basis will greatly reduce administrative paperwork and delay.
Under the authority of Section 404, the Corps of Engineers, in consultation with the Environmental Protection Agency, has sought to eliminate many farming and silvicultural activities from the program and to establish a mechanism for removing activities with minimal environmental impacts from the individual permit requirement. Where these activities are not exempt, they should be subject to general permits.