We have enforcement jurisdiction over interstate waters, that is, waters forming a part of, or flowing across, the boundaries of two or more States, and navigable waters.

There are two types of situations:

One, where the pollution endangers health or welfare of persons in a State other than that in which the pollution originates.

In this type of situation, we must take action, if we are requested to do so by the Governor of a State or by the State Water Pollution Control Agency of any State. We may take action in such a case of interstate pollution on our own initiative, when, on the basis of re ports, surveys or studies, the Secretary of Health, Education, and Welfare has reason to believe that pollution subject to abatement under this provision exists, that is, pollution originating from discharges in one State endangers health or welfare persons in another State.

In the other type of situation, where the effects of pollution are purely intrastate in nature, we may only enter the case upon invitation of the Governor. The procedure is the same in all these situations: conference, hearing, and court action.

However, in the case of an intrastate situation, before going to court, we must again receive permission from the Governor of the State.

Also, the Secretary is given the option of not instituting an enforcement action in an intrastate case if, in his judgment, the case is not significant enough to warrant Federal action. And in the latest amendments to the act, the 1961 amendments, discharges from Federal installations are included in the conference and hearing stages of the enforcement action.

Up to this point we have had 20 enforcement actions, 10 of them requested by the States and 10 on our own initiative. These cases have involved 28 States and the District of Columbia. They have covered some 4,000 miles of stream. Remedial facilities at an estimated cost of a half billion dollars resulting from schedules established by these enforcement actions are presently in various stages of planning, construction, and operation. These figures do not include several major cases underway. The communities and industries have varied from small towns and small industries to some of the largest cities in the country and the largest industries in the country.

Senator RANDOLPH. Mr. Chairman, could I make an inquiry?
Senator MUSKIE. Senator Randolph.

Senator RANDOLPH. How long have you been the chief enforcement officer, Mr. Stein?

Mr. STEIN. Since the inception of the job, Senator. This started in 1955 and 1956, when the 1956 amendments were passed.

Senator RANDOLPH. I asked the question, Mr. Chairman, to elicit from Mr. Stein whether in his experience now of some 7 years he has found that, let us say, communities and industries regardless of size are more desirous of complying and are attempting to be more knowledgeable as to the provisions of the law.

Mr. STEIN. Yes, they are. That is entirely correct. I think as the program proceeds we are finding more and more awareness of the provisions of the law and a spirit of compliance of industry and municipalities.

Senator MUSKIE. The fact that you have had to go to court in only 1 of 20 actions suggests that that is true. What does it suggest with respect to the Department's attitude on its enforcement responsibilities?

Mr. STEIN. Well, we have proceeded with our cases through the Department and whenever a case has been sent up, of course, the Department has proceeded to process it for action.

Senator RANDOLPH. Mr. Chairman, could I ask just one further question on this point? As you identify and gather this information on interstate pollution problems, I wonder if the enforcement agency of which you are the chief officer works in a coordinated and cooperative way with the responsible State agencies. I only want that for the record.

Mr. STEIN. In our view we certainly do. As a matter of fact, I would say a good deal of the information we have is based on State records and the State agencies are our first point of contact in getting such information. All information that we have gathered and analyzed is made available to the State agencies for comment and review before we mimeograph it and put it in final form.

Senator RANDOLPH. Mr. Chairman, there is a recurring charge in some quarters not only in this area but in many areas where the Federal Government is involved that the agency and the representatives of the agency move in and in a sense take over. You do not believe in such a practice. You do not practice such a program. Is that true?

Mr. STEIN. That is true, sir. I would say that we have had that same charge made to us, against us, in our activities. We do not believe it and we do not do it. As a matter of fact, invariably after the conference procedure, the Secretary, whatever Secretary we have had, has indicated that a schedule adopted for remedial action should be accomplished under State and local law and has referred the case back to the State. Once a schedule has been adopted for remedial action, which we believe will achieve abatement of pollution, our sole purpose is to disengage from the enforcement procedures as rapidly as possible, allow the State and the localities to handle that themselves, and to move on to something else.

I also might say that in all cases the approval of plans, the issuance of permits, and the day-to-day operations can only be handled, in my opinion, on a State and local level and that is an area that the Federal Government has no business in at all.

Senator MUSKIE. Senator Boggs?

Senator BOGGS. Just one question regarding the one case that went to court. Did it actually go to trial and final order?

Mr. STEIN. No, sir. There is a final court order-consent order, which was agreed to at the pretrial conference. Now, the reason for that, sir, is that the municipality involved, required a two-thirds vote, to pass a general obligation bond ssue. This went up to vote twice and was twice defeated. At one time a majority of the people voted for the bond issue but they did not get the required two-thirds. As can be appreciated, when something is controversial, to get 66% percent of the people to vote for something under our system of Government sometimes gets rather difficult. However, in light of Senator Randolph's statement, I think we might point out that the continuing

awareness created by this court case, contributed to successful votes for municipal waste treatment financing in St. Louis, and Kansas City. Both were very large bond issues. St. Louis was for $95 million, the largest bond issue ever passed for municipal sewage treatment purposes at one time. In Kansas City, a $75 million bond issue was passed; $15 million for Kansas City, Kans., and $7 million for North Kansas City, with the same requirement of two-thirds vote. In St. Louis the bond issue passed by better than 5 to 1, and in Kansas City by almost 5 to 1.

So I think, Senator, this demonstrates the awareness of the people in these communities for sewage treatment.

I think the thing that moves people to spend this kind of money whether private or municipal, is a rather detailed factual objective analysis presented to all the people and an opportunity to give all interested parties, proponents and opponents, industrialists, conservationists, League of Women Voters, and so on, an opportunity to comment on that in some kind of form to do that so that a community spirit will evolve. As we see it, water pollution situations can be set forth as a description of physical facts and in a very real sense these facts can be measured. I think when we put these before the public, all reasonable men can agree on what the situation is. Once we do get this agreement, I think the solution presents itself and the community moves forward.

Senator BOGGS. Thank you.

Senator MUSKIE. Senator Bayh?

Senator BAYH. Please, Mr. Stein, a couple of questions aimed at the jurisdictional problem from the practical standpoint. In the administration and enforcement of the act, how do you define navigable waters and what are the limitations on the enforcement of pollution in interstate streams? How about the tributaries? Can you go to the immediate tributaries of interstate streams?

Mr. STEIN. Yes. The act provides that we can provide for the abatement of this pollution on the tributaries. As a matter of fact, the present act specifically provides that if the pollution is caused by a discharge directly into the streams or a tributary thereof, it is subject to abatement. However, in an interstate case, of course, the effect of that discharge from the tributary must be felt in another State. In other words, if tributary A flows into tributary B and tributary C, say, and that gets, say, into the Missouri River, we in an interstate case would have to find the effect of that down in the Missouri River, say, in Missouri. We would find that effect in Illinois before we could proceed against that in jurisdiction in an interstate case. Of course, we could have jurisdiction over these tributary if invited in by the Governor if it were navigable.

Now, on the point of definition of a navigable stream, we use the definition as we understand it as developed by the Federal courts. And by the way, we have not yet gotten into any dispute as to navigability as generally the acute pollution cases that we enter are where the large industries and the cities are. These usually are on portions of streams pretty generally conceded to be navigable.

According to the Appalachian Coal decision and other decisions, a stream is navigable when either it is navigable in fact or has once been navigable or by the reasonable expenditure of funds can be made

navigable, and being navigable means carrying some kind of commercial traffic which possibly would mean a loaded canoe.

I think in view of the scope of the court decisions, that as we look at our work we are well within the constitutional limitations of navigability in almost all the cases where we are finding that we may have pollution problems.

Senator MUSKIE. Senator Miller?

Senator MILLER. Did I understand you to say that you have had just 20 cases that have gone to the conference stage?

Mr. STEIN. Yes, sir.

Senator MILLER. How many cases have you had altogether?
Mr. STEIN. Twenty. The conference is the first stage.

Senator MILLER. Well, may I just express amazement that there haven't been a lot more.

Now, do you do any, let us say, missionary work out in the States so that these conferences don't have to come about?

Mr. STEIN. Yes, sir. There are other aspects of the program. There is a research aspect and we have a State grant program and technical services to the State and comprehensive programs where we give grants to municipal sewage treatment works for construction which help to bring about solutions.

I might indicate that the indication of 20, while it may be considered to be relatively low, should be looked at with some kind of perspective because the cases vary from small ones to large ones.

For example, one case involves the Colorado River and 60 tributaries. That is 1,400 miles of main stream, 60 tributaries in 7 States. Of course, that is by far the largest case in terms of area. But that still is 1 of the 20.

Senator MILLER. May I say I recognize that some of these cases may be much more far reaching than just the number indicates, but it seems to me that there must be literally hundreds of areas having problems in his field, some of which need clarification and encouragement.. Would I detect from the low number of cases as cases that have actually come to the conference stage that the State and the Federal Government have been cooperating pretty well with each other so that we may expect that here will not be a great many of these cases in the future?

Mr. STEIN. I think the States and Federal Government have been cooperating very closely with each other. I don't know that the State administrators are too enthusiastic about having Federal enforcement. And this may be one of the reasons. They very well may prefer to use the other devices. And I think the reasons for that are understandable-of course, the State administrators can speak for themselves. Aside from the philosophic notion that they possibly might think this is a State and local matter that can be handled without the Federal Government. Some of them may think that this is a reflection on the administration of the State program.

This is by no means universal. A lot of State administrators do not think that, and the other thing they possibly may think is that when the conference is over in accordance with the principles I have enunciated before, this matter is turned back to the State and local agencies because we conceive our role as encouraging and moving the State and local agencies, that again they do the work and the Federal

Government gets a considerable amount of the credit for the cleanup of pollution. And from our point of view I don't think we are very much interested in where the credit goes. We want the pollution cleaned

up.

Senator MILLER. Thank you. I think that is a very fair statement. Let me ask you one final question. You have had 20 cases now that have gone to the conference stage in about 6 years. Would it be your estimate that we would have any more than that in the next 6

years? Mr. STEIN. Well, this I think would depend on the policy, sir. In order to carry out our job, we keep every major interstate area, water area, under surveillance, and by this we try to have a fairly detailed list of sources of pollution and possible sources of pollution. Now, we through our regional offices keep up-to-date reports on about 220 major water areas. We would estimate that about 90 of these areas really need some looking into right now, and on the basis of our information, about a dozen of them seem to indicate that they very well may have fairly evident acute interstate pollution problems. Senator MILLER. Thank you very much.

Senator MUSKIE. May I ask one question there before I turn the questioning over to Senator Nelson. You say you have some 220 studies underway or completed in your surveillance program?

Mr. STEIN. Summaries or dockets, as we call them, that we keep under continuous surveillance.

Senator MUSKIE. To what extent does this cover the areas where you have direct responsibility over interstate rivers?

Mr. STEIN. This completely covers it, sir. We try to identify every major water area over which we can initiate an enforcement action ourselves.

Senator MUSKIE. Are these just the category of interstate waters or does it also include some of the other two categories?

Mr. STEIN. No, sir. Just interstate waters. By the way, there are about 4,000 interstate waters that we keep our eye on kind of casually. A lot of these are very small streams and except on a complaint, I don't think it would warrant possibly the expenditure of Federal funds for surveillance. A lot of them are mountain streams, highlevel streams, and seem pretty obviously not to be polluted.

Senator MUSKIE. How did you narrow those down to the 220! Mr. STEIN. Because they are the major water areas where we have identified significant municipal and industrial activity. To get into the intrastate situations we have estimated we would have to maintain about 28,000 of these files. We do not have jurisdiction on most of these unless the Governors ask us in. This, of course, depends on someone else's actions other than ours.

Senator MUSKIE. So that the enforcement responsibility really with respect to 28,000 has been left to the States

Mr. STEIN. Yes, sir.

Senator MUSKIE (continuing). Primarily, and there it rests and you can't move in there except upon request of the Governor.

Mr. STEIN. That is correct, sir.

Senator MUSKIE. Now, by contrast there may be 4,200 or so in the interstate category of which you have identified 220 as areas that need watching, and it is this number which have generated the enforcement actions you have taken to date.