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facilities which the Public Health Service now operates and will operate in immediate future. Otherwise disruption of the program for an undeteri_ period can be expected.
It is understood that this proposal is being advanced to elevate the c of the pollution control function and to satisfy the contention by certain nati groups that the program and policies are dominated by health-oriented ada. trators with a consequent disregard of conservation interests. Sound rean. can be advanced for a multiple-interest policymaking and administrative. for pollution control giving balanced representation to the interests of culture, recreation, fish and wildlife, industry and municipalities. Opporte for establishing a broad base of this nature is available in the compositi the Water Pollution Control Advisory Board under section 7 of the pre act. However, the Board now serves only in an advisory capacity and tbe retary is under no compulsion to accept or act on the Board's advice.
Two alternatives are recommended. The first and preferred alternatives proposed section 2 be deleted entirely leaving administration as it is constit in the existing act. In the event that a greater balance of all interests it policy and direction of the program is deemed essential, this aim (vuld be obtained by delegation of increased authority to the existing Water P tion Control Advisory Board, placing the Assistant Secretary under ou obligation to act upon the desires and decisions by the Board in the comprebe planning and enforcement activities conducted under the provisions of this This will require altering sections 2(a), 7(2), B (b), and 8 by inserting as priate wording that will subject the Secretary's decisions and policy [o approval of the Board.
SEC. 3.—Grants for construction of treatment works for an individual it munity would be increased from a maximum of $600,000 to $1,000,000 and ! multicommunity projects from $2,400,000 to $4,000,000; would also add provision authorizing grants for separation of combined sewers condio u upon approval by the Secretary and appropriate State agency of a coupet sive plan for drainage; $100,000,000 annual appropriation would be autboc? for separation projects.
The pollution problems associated with combined sewer systems have not but defined sufficiently at this time to warrant a limited scope program of this bar Proof is lacking that separating a combined system would accomplish the poses sought, namely: the prevention of "the discharge of untreated or ins quately treated sewage or other waste * * *.” Neither would the problem, if f. defined, be common to all communities since combined sewers are nonexisten: many areas. An element of inequity is thus introduced, that is not present is remainder of the grant program, by providing grants only for the special where separation is selected as a control measure. Further, the proposal ; sumes that the only solution to such problems as may be identified is thuc separation whereas other procedures exist which will produce results as wei. even better than a separate system. One of the recognized methods is stores the combined sewer. Another is retention of overflows in tanks providal ! the purpose with subsequent discharge of the retained flows to the interest for treatment at the municipal plant after the storm subsides. The specific ne ing of the amendment disqualifies these measures from receiving grant assistan Finally, attempts to legislate a specific engineering solution to a problem ** undesirable because they deprive municipalities of the benefits of engint... ingenuity in developing alternate solutions.
No objection need be taken to the proposed increase in the ceiling on grå for single or multimunicipal projects. Objections to the grant provisions : sewer separation can be resolved by rewording section 3(g) as follows:
“Sec. 3. (g) The Secretary is authorized to make grants to ans sa municipality, or intermunicipal or interstate agency for [separation of ne bined sewers which carry both storm water and sewage or other wastes 0 date of enactment of this subsection to prevent] the purpose of contra the discharge of untreated or inadequately treated sewage or other man from combined sewers into any waters and for the purpose of reports Pisos and specifications in connection therewith.
"Federal grants under this section shall be subject to the following tations: (1) No grant shall be made for any project pursuant to this sulaptis (unless a comprehensive plan for storm drainage in connection therewithd have been submitted by the applicant to the appropriate State water policy control agency or agencies and to the Secretary and] unless such proje
tall have been approved by such appropriate State water pollution control Lipgency or agencies and by the Secretary ; [and unless such project is included
a comprehensive program developed pursuant to this Act ;) (2) No grant all be made for any project in an amount exceeding 30 per centum of the itimated reasonable cost thereof as determined by the Secretary; (3) No ant shall be made for any project under this subsection until the applicant as made provision satisfactory to the Secretary for assuring proper and ef
cient operation and maintenance of the [separated sewers] works for contolling the discharge of untreated or inadequately treated sewage or wastes from
mbined sewers after completion of the construction thereof ; * * The remainder of section 3(g) would remain unchanged.
Section 4.-A new subsection would be added under the heading "enforceTrient measures against pollution of interstate or navigable waters." The Sec
tary would be authorized, after notice, hearings, and consultation with other ederal, State, and local agencies, to issue regulations (a) establishing standrds of quality for any interstate or navigable waters, and (b) limiting the
ype, volume, or strength of matter permitted to be discharged directly into 1: ich waters or reaching them after discharge to streams tributary thereto.
iolation of regulations would be subject to abatement procedures specified in iis section of the act.
The term, “navigable waters," is generally interpreted by the Federal authories, with legal support, to be broad enough to include virtually all surface aters, whether shared by two or more States or lying wholly within a State. he Secretary thus would have the power to impose standards of quality and estrict the waste discharges in most all waters now regulated by Michigan
This amendment further directs the Secretary to base standards of quality nd of matters discharged upon present and future uses of such waters. Acordingly, the Secretary can decide what uses are to be made of the State's waters. le would become the planner for economic and all other developments in the tate dependent upon water or significantly affected by its use.
This amendment, if enacted, will give to the Federal Government virtually omplete control over the administration and enforcement of local pollution conrol programs with the power to dictate the location of industry, recreation, water upply, fish and wildlife, and all other water-related developments and uses both within the State and throughout the country. This represents a substantially omplete preemption of authority and responsibility for a function which has lways been and is presently vested in our State. All decisionmaking with espect to water resource administration will be taken from the State and local government, and placed in the Secretary. This provision, again, represents a comlete reversal of the broad policy of recognizing, preserving, and protecting the primary responsibilities of the States as expressed in sections 1(a) and 1(b).
If there is any need for expansion of Federal jurisdiction in the direction of (uality standards and effluent restrictions it should be limited to interstate vaters only. The State should properly retain the responsibility and authority of keeping the tributary waters in a condition such as to maintain interstate vater quality at a level consistent with the primary purpose in the Federal act of preventing pollution which endangers “the health or welfare of persons in a state other than that in which the (waste) discharge or discharges originate is occurring."
The wording of the amendment in declaring that “alteration" of the physical, hemical, or biological properties of waters in violation of regulations to be a jublic nuisance, is incapable of interpretation. Water quality can be “altered" beneficially as well as detrimentally.
The wording of the proposed amendment should be changed to read as follows, in order to overcome the objections recited above:
“(i) In order to aid in preventing, controlling, and abating pollution of interstate (or navigable] waters in (or adjacent to] any State or States which will [or is likely to] endanger the health or welfare of any persons, (and to protect ndustries dependent on clean water such as the commercial shellfish and fishing industries,] the Secretary shall, after reasonable notice and public hearing and in consultation with the Secretary of the Interior and [with] Only after approval of the Water Pollution Control Advisory Board and other affected (Federal,] State C, and local] interests is obtained in writing, issue regulations setting forth (a) standards of quality to be applicable to such interstate (or navigable] waters, and (b) the type, volume, or strength of matter permitted to be dis
charged directly into interstate (or navigable waters or reaching such water after discharge into a tributary of such] waters. Such standards of quality and of matter discharged shall be based on present and future uses of interstate : navigable] waters for public water supplies, propagation of fish and aquatic lite and wildlife, recreational purposes, and agricultural, industrial, and other le gitimate uses. The alteration to the detriment of the physical, chemical, or bis logical properties of such interstate (or navigable] waters or the placing & matter in such waters in violation of regulations issued under this subsect. is hereby declared to be a public nuisance and after approval by the Water Pan lution Control Advisory Board and Governors of the two or more States in volved be subject to abatement under the provisions of this section. [Nothing is this subsection shall prevent the application of the provisions of this section to any case to which they would otherwise be applicable.]”
SUMMARY OF STATEMENT OF THE MICHIGAN WATER RESOURCES COMMISSION'S
POSITION ON THE PROVISIONS OF S. 649 Section 1(c): Unacceptable as written-recommended revisions drafted and presented.
Section 2: Deletion of section preferred. Alternative method advanced for achieving indicated purposes.
Section 3: No objection to increase in cealings on grants. Provisions for gratis for sewer separation unacceptable as written. Recommended revisions drafter and presented.
Section 4: Unacceptable as written-recommended revisions drafted and presented.
Senator MUSKIE. Did you hear the discussion we had this mornin: on this?
Mr. OEMING. Yes; I did, sir. And I understand from your statement that it was not intended that these standards apply to interstate waters, but intrastate waters. Maybe I misunderstood this B: can I point this out: I think there is confusion on this point, and I think-I know there is among our people and in the Attorney Geeral's Office, I discussed this with them—as to how they would apr.; this, and they said it applies to all the waters. And I think we as getting a little bit into trouble here in interpreting the act, once * are out of the picture, as to how far this goes.
And I have taken care of this, sir, by striking “intrastate" out of here and making it applicable to interstate waters, and leaving the “navigable" out.
Senator MUSKIE. I have observed the language of your proposed recommendation. It would eliminate the use of such standard: 'I navigable waters within a State where the Governor has invited the Federal agency to move in.
All I can say at this point is that we will look at this langs carefully in the light of the discussion we had this morning and I the light of your comments here, and make sure it is as precise as if can make it, and serving the purpose which I tried to state this morning.
Mr. OEMING. Yes, sir.
I would like to make one comment about your remarks, Senators. As you know, there are several alternate ways in which an enform ment proceedings can be run. One of them is on the initiative of the Secretary, acting on his own volition, acting on the basis of reports that he has.
Senator MUSKIE. On interstate waters.
Mr. OEMING. Yes, sir; on interstate waters. The other on naririble waters involves a request from the Governor of the State involved.
Now, it seems to me that, in order to make the enforcement provisions applicable with respect to standards, they ought to be limited to that portion, that kind of a problem in which the Secretary initi
ates his own action because if the Governor requests the Secretary on - a navigable water problem to come in on a navigable water problem,
certainly the provision for setting any standards is in that procedure already
Senator MUSKIE. You mean the Secretary would establish standards in that situation ?
Mr. OEMING. Certainly in my opinion an enforcement procedure involves first a conference, then it involves a study, and then a finding by the Secretary. And certainly, it is appropriate, as part of that finding, to set the water quality criteria or anything you want to call it.
Senator MUSKIE. So your argument is that—it is rather as to the method and the circumstances under which the Federal Government shall establish standards, not an objection to the establishment of standards by the Federal Government?
Mr. OEMING. Yes. I think that my position is this: The establishment of standards without the enforcement procedure—where there is no proceding involved-should be permitted under a Federal statute on interstate waters.
Senator MUSKIE. Well, let me ask you this: One of the functions of establishing standards would be for the purpose of identifying the criteria which ought to be applicable in bringing water up to a given quality for a particular use.
Mr. OEMING. That is correct, sir.
Senator MUSKIE. And you say those things can be anticipated in advance.
Mr. OEMING. Well, they can be anticipated
Senator MUSKIE. For example, suppose that you are concerned with the standard of quality which makes it possible for fish life to survive just to take one example. Now, is it possible to anticipate--to know that in advance, and provide objective, scientific, technological standards that will make it possible for you to say in advance what quality of water is needed to serve that use?
Mr. OEMING. Yes--for different species of fish, for different circumstances in the stream.
Senator MUSKIE. Would there be an objection to making that kind of determination in advance of any particular pollution problem?
Mr. OEMING. No, not in a specific case by case. We do that all the time, sir.
Senator MUSKIE. I do not mean case by case. But I assume whatever the case is, whatever it is you are trying to make possible, is the maintenance of fish life of a certain kind in the water, that the same standard would apply.
Mr. OEMING. Yes. I have no exception on that basis. I have the exception as to where it applies.
Senator MUSKIE. Is there any objection to establishing that kind of a standard or that kind of a criterion in advance by regulation?
Mr. OEMING. That is being done all the time. There is no objection o this. It is just the question of who establishes it, sir.
My question is, Does this establishment of these standards tie in with nforcement procedure or does it not? And my interpretation is-and
not only mine—but, as near as I can determine, it is exclusive of the enformement procedure. That is, anybody can come in and set standards. The Secretary could come in and set standards without initiating the enforcement procedure.
Senator Muskie. This point we have already covered. But now the question is different industrial uses, different recreation uses, different agriculture uses, different wild life uses of water, call for differen: standards of quality.
Mr. OEMING. That's correct.
Senator Muskie. Is it not possible to establish standards of quality applicable to these varying uses in advance by regulation under set tion 4?
Mr. OEMING. Yes.
Senator MUSKIE. To be applied once the Federal agency gets juridiction over a particular pollution problem?
Mr. OEMING. And once you know what the uses are. You have to determine the uses.
Senator MUSKIE. Yes, you have to determine the uses. But once you know what the uses are, can't you refer to these already establisheu standards, and isn't that of some usefulness?
Mr. OEMING. Yes, sir.
Senator MUSKIE. Í think that really you and I are talking abors the same thing.
Mr. OEMING. I think our only difference, sir, is where they would be established.
My position is that the Secretary ought to be given full authority to establish standards on interstate waters, but that the matter of intrastate waters should be left to the States to accomplish the purpose, the whole basic purpose of the Federal act, of preventing pollution that affects other States, and to comply with the objectives on interstate water problems. And as you know, sir, in Michigan we have a least two interstate waters—the Menominee River between Wisconsis and Michigan, and the St. Joseph River between Indiana and Michigan. In these circumstances, certainly there is this element of injur being created in one State which also injures another State. And these, I feel, are certainly within the prerogatives of Federal contro. I have no quarrel with this.
But I am concerned, sir, with how does Federal interest fit into a problem on a tributary of, let's say, the Grand River at Lansing, in a localized situation?
Senator MUSKIE. Well, let me put it this way. I think I understand what you are driving at, so I will try to comment on it.
In the first place, the Federal Government does not now and will not, if S. 649 is passed, have jurisdiction over navigable waters within your State unless requested by the Governor.
Now, if such request is made and the Federal Government comes in, then it must first determine what uses are being served by a givel. water source, and what uses should be served. This is a determination which I take it would be made after consultation with State officiais because of the fact that the agency is responding to a request by the Governor, which is certainly an invitation to and an acceptance by