In the last session of Congress, this committee, under the leadership of Senator Muskie, wrote a bill, S. 649, the Clean Water Act of 1964, that made a start toward a more sensible handling of interstate pollution problems.

The bill passed the Senate but did not come to a vote in the House of Representatives.

The Clean Water Act provided that the Secretary of Health, Education, and Welfare would be able to hold a public hearing involving the users of a given body of water so as to arrive at a standard of water quality. The standard would be designed to protect the public health and welfare and to enhance the quality and value of the water resources. The Secretary was to take into consideration the value of the water for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural and industrial and other legitimate uses. The Secretary would promulgate the standards after giving the States reasonable time to adopt standards themselves. After the adoption of standards, the simple discharge of matter into the water, or onto the ice, which would reduce the water to below standard would be sufficient reason to initiate an enforcement action.

and

The objective of the standards would be to prevent pollution, to make abatement actions unnecessary, by putting water users on notice as to the standard of water quality that would be maintained. It would discourage anyone from contemplating any use of the water that would lower the standard.

It is my understanding that Senator Muskie will reintroduce this bill early in the coming session. It is our hope that this hearing will provide useful information to guide the Congress in its consideration of this problem.

We are opening the hearing this morning with testimony from Federal Government agency witnesses. Before I call on the Public Health Service which I believe has a representative here-I would like to summarize briefly and to enter in the record statements submitted by the following Federal agencies: The Federal Power Commission, the U.S. Army Corps of Engineers, and the U.S. Coast Guard.

The Federal Power Commission: Lawrence J. O'Connor, Sr., Acting Chairman of the FPC, states in his testimony that the Commission has no authority in this case.

FPC licensing is limited by law to hydroelectric powerplants.
In licensing hydroelectric plants, O'Connor states:

The Commission fully recognizes that there are occasions when the public is better served by retaining water resources in their natural state and foregoing water power development.

He cites, as an example, the FPC refusal to license a hydroelectric plant on the Namekagon River, a Wisconsin tributary of the St. Croix, "to avoid impairment of unique recreation resources."

The U.S. court of appeals upheld this ruling in a 1954 decision.

The U.S. Army Corps of Engineers: the Corps of Engineers reports that the Northern States Power Co. must receive a corps approval for any docking facilities they may need for coal barges. No application for such a permit had been received by the corps as of last week.

The proposed site is on the 9-foot-deep navigation channel the corps has maintained on the St. Croix as far as Stillwater since August 1938. A 3-foot channel is maintained to Taylors Falls.

Under the Oil Pollution Act of 1924 and under the Refuse Act provisions of the 1899 Rivers and Harbors Act, the corps testifies that it has responsibility for abating pollution and refuse dumping that interferes with navigation.

There is a statement also submitted by the Coast Guard, which I shall not read at this time, plus a statement submitted by Secretary Freeman of the Department of Agriculture.

Secretary Freeman states that the Department has no—

regulatory authorities or responsibilities directly pertaining to the water quality or any other aspect of the construction or operation of the proposed generating plant.

As Chairman of the Federal Interagency Recreation Advisory Council he expressed interest in the recreational value of the valley.

The Agriculture Department is working with the Interior Department on the wild rivers study. Freeman notes that the wild river task force, while concentrating on the St. Croix above Taylors Falls, had these comments to make on the lower river:

The St. Croix River below the study stretch is a recreational resource of outstanding quality, even though development precludes classifying it as a wild river. Appropriate measures should be taken to assure perpetration of this portion of the stream as a recreation resource of high quality.

Secretary Freeman urges that the recreational value of the St. Croix should be weighed against the cost involved in alternate site selections before a final decision is made on plant location.

The official statements made by the agencies just referred to will be inserted into the record at this place.

(There follows the letters from Federal agencies:)

Hon. EDMUND S. MUSKIE,

FEDERAL POWER COMMISSION, Washington, D.C., December 2, 1964.

Chairman, Special Subcommittee on Air and Water Pollution, Committee on Public Works, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your letter of November 24, 1964, requesting an outline of the responsibilities and authority of the Federal Power Commission, under existing law and practice, with respect to the effect on water quality of steam-electric powerplants constructed along interstate streams.

The Commission's existing licensing jurisdiction, under the Federal Power Act (41 Stat. 1063, 16 U.S.C. 791-823), has been consistently held to be limited to hydroelectric projects. Steamplants constructed along interstate streams; such as, the plant proposed along the St. Croix River, therefore, are not subject to licensing by the Federal Power Commission. However, a steamplant may often require a structure in the stream, along which it is located, to impound sufficient water to remove the excess heat from the powerplant and such a structure requires special authorizing legislation by Congress (33 U.S.C. 401). The plant proposed on the St. Croix is located on an existing reservoir formed by a Federal dam on the upper Mississippi River, and therefore, does not require such a structure.

Under existing law, the Commission's responsibility for water quality standards is, therefore, limited to problems arising in connection with hydroelectric projects subject to our licensing authority. The effect of a steamplant on water quality is different from the impact of a hydroelectric station. Water pollution problems associated with steam-electric plants are almost entirely limited to those that result from the temperature rise in surface water supplies that are used in cooling the steam condensers. Hydroelectric plants do not heat the water. Nevertheless, our experience and practice in this closely related activity may be of interest to the committee.

The Commission is authorized to license hydroelectric projects only to the extent that such projects "* * * will be best adapted to a comprehensive plan

for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water power development, and for other beneficial public uses, including recreational purposes (Federal Power Act, section 10(a)). This standard is broad enough to comprehend the avoidance or minimization of pollution and the Commission does, in fact, give consideration to this problem in passing upon license applications.

Before issuing a license for a hydroelectric project, the Commission takes steps to assure that proper consideration is given to the viewpoints of all affected interests and to the needs of all other uses of the water resources involved.

The Commission notifies Governors and State and local agencies of applications for preliminary permits and licenses for hydroelectric projects and gives them an opportunity to submit comments. In addition, notices of filings of applications are published in local newspapers and in the Federal Register. Before acting on an application, the Commission obtains the views and comments of the Department of Health, Education, and Welfare on the water quality and public health aspects of proposed projects. It also requests the Secretaries of the Army, Agriculture, and the Interior to comment on the project as it affects their interests. The comments of these agencies, together with those received from State and local agencies, are considered by the Commission in determining whether to issue a license and in framing appropriate conditions in licenses issued for both new and constructed projects to meet the statutory standard of the most comprehensive development of the waterway for beneficial public uses including conditions relating to pollution. Ordinarily, if there are protests, a public hearing is held to afford all interested parties an opportunity to present their case on the record.

The

We believe it is fair to state that the projects which the Commission has licensed have, in total, greatly contributed to the effectiveness of our rivers in solving pollution problems. Many streams in their natural state have periods of extremely low flow during which they all but disappear. Commission has taken specific action in the licensing of many projects to improve their usefulness in the interest of water quality control by including provisions in the license for minimum flow releases or other operating requirements. Storage reservoirs at hydroelectric projects are usually operated to regulate natural flows so as to supplement them during low-flow periods and thus increase the production of firm power. Such streamflow regulation frequently also will be beneficial to water quality control.

The Commission fully recognizes that there are occasions when the public is better served by retaining water resources in their natural state and foregoing waterpower development. An instance was the proposed power development on the Namekagon River in Wisconsin. Notwithstanding the power benefits, the Commission denied a license to avoid impairment of unique recreational resources. Its action was sustained by the U.S. court of appeals, Namekagon Hydro Company v. Federal Power Commission (216 F. 2d 509 (C.A. 7, 1954)). The court there said that "Congress was aware that conflicting interests would, in all likelihood, be encountered when it formulated the statutory guides to be found in section 10 (a) of the act."

I hope that the above information will prove helpful to the subcommittee. If you should desire further information, I shall be glad to furnish it. Sincerely,

LAWRENCE J. O'CONNOR, Jr.,

Acting Chairman.

STATEMENT OF THE CORPS OF ENGINEERS, U.S. ARMY, ON INTERSTATE ASPECTS OF A STEAM-GENERATING POWERPLANT ON THE ST. CROIX RIVER, MINN. This statement is in response to a request from Senator Edmund S. Muskie, chairman, Special Subcommittee on Air and Water Pollution, Senate Public Works Committee, to the Chief of Engineers, U.S. Army, for information concerning the role of the Corps of Engineers under existing law and practice and its responsibilities and authorities pertinent to the proposed construction of a steam-generating plant on the St. Croix River, Minn.

The St. Croix River navigation project was authorized by the act of August 30, 1935, pursuant to plans presented in the report of the Chief of Engineers published in House Document 184, 72d Congress. The existing project provides

for a channel 9 feet deep for a distance of 241⁄2 miles from the mouth at Prescott, Wis., to Stillwater, Minn.; a channel 3 feet deep between Stillwater and Taylor Falls, Minn.; and improvement of the harbor and waterfront at Stillwater. The extension to provide a 9-foot channel to Stillwater was completed on August 12, 1938, when full pool at lock and dam No. 3 of the Mississippi River canalization project was reached. The Corps of Engineers maintains the 9-foot channel to Stillwater with widths suitable for the needs of navigation. Should greater widths of channel be required, by reason of the development of additional commerce, such increased widths could be provided by dredging under the existing authorization.

It is understood that the Northern States Power Co. proposes to construct dock- or barge-terminal facilities and a proposed water intake and discharge system in the St. Croix River at Bayport, Minn., about 3 miles downstream from Stillwater, in connection with the proposed steam electric-generating plant. Prior approval by the Department of the Army of the proposed construction in the navigable waters of the St. Croix River is required under section 10 of the River and Harbor Act of March 3, 1899 (30 Stat. 1151; 33 U.S.C. 403). The Department's jurisdiction over such work is directed to such control as may be necessary to protect the public rights of navigation. In acting on applications for permits for construction in navigable waters, the Department's primary interest is to insure that there will be no unreasonable interference with navigation, although it also gives consideration to the overall general public interest. A permit issued by the Department of the Army does not give any property rights, either in real estate or material, or any exclusive privileges, and it does not authorize any injury to private property or invasion of public rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. It merely expresses the assent of the Federal Government so far as concerns the public rights of navigation (See Cummings v. Chicago, 180 U.S., 410).

Application for a permit for the construction of such facilities would be made to our district engineer, U.S. Army Engineer District, St. Paul, Minn. Formal application for such a permit has not been received.

Pollution of waters has become a problem of major concern. In this connection, the Natural Resources and Power Subcommittee of the Committee on Government Operations, House of Representatives, held extensive hearings on the problem during the 88th Congress. On June 12, 1963, the Chief of Engineers and members of his staff testified before the subcommittee on this subject.

From the standpoint of enforcement, the Department of the Army has general authority under two statutes which relate to the abatement of pollution. One is the Oil Pollution Act of 1924 (33 U.S.C. 432-437) which prohibits the discharge of oil from vessels into the coastal navigable waters of the United States. The other is the "Refuse Act" contained in the River and Harbor Act of March 3, 1899 (33 U.S.C. 407) which prohibits the discharge of refuse matter, other than that flowing from streets and sewers and passing therefrom in a liquid state, into the navigable waters of the United States. Since a primary purpose of these statutes is to protect navigation from obstruction and injury, enforcement has been concentrated on prevention of pollution, including oil, that will impede or injure navigation.

At the site of the proposed generating plant on the St. Croix River, the enforcement authority for the abatement of any pollution by oil and other refuse matter would be the "Refuse Act." The courts have held that oil is "refuse matter" within the meaning of the said section 13 (U.S. v. Alaska Southern Packing Co. (the La Merced case) (84 Fed. (2d) (444)).

The Corps of Engineers does not have any authorized reservoir projects in the St. Croix River Basin which could be considered for provision of storage for water quality control under the authority of section 2 of the Federal Water Pollution Control Act Amendments of 1961. As stated in Senate Report No. 353, 87th Congress, on this legislation, water stored and released at the proper time can do much toward reducing the temperature of water thus reducing the polluting effects of heat.

The opportunity which the committee has afforded to present this statement is appreciated.

TREASURY DEPARTMENT,

U.S. COAST GUARD,

Hon. EDMUND S. MUSKIE,

Washington, D.C., December 3, 1964.

Chairman, Special Subcommittee on Air and Water Pollution of the Committee on Public Works, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request of November 24, 1964, concerning the forthcoming public hearings to be held by your subcommittee in Stillwater, Minn., on the interstate aspects of the proposed construction of a powerplant on the St. Croix River.

The proposed powerplant may have some effect on the adjacent waters and the vessel traffic on the St. Croix River. Water pollution enforcement, boating safety, and merchant marine safety are some of the statutory responsibilities of the U.S. Coast Guard that may find application.

The Coast Guard is one of several Federal agencies responsible for the enforcement of water pollution laws that are applicable to the navigable waters of the United States. Coast Guard activities which deal, either directly or indirectly, with abatement of water pollution are: enforcement of water pollution laws in cooperation with other Federal agencies; control of the carriage of dangerous cargoes; inspection and certification of vessels; licensing and documenting merchant mariners for certain classes of commercial vessels; inspection of port facilities under the port security program; recreational boating safety and regulation of motorboats; and investigation of marine casualties.

Of these water pollution abatement activities listed, only one would have possible application to a shoreside powerplant constructed on navigable waters, this is the Refuse Act of 1899. The Oil Pollution Acts of 1924 and 1961 would have no application in the instant situation since both apply to certain vessels on navigable waters where the "tide ebbs and flows" and to international sea areas generally within 50 miles from land.

The Refuse Act of 1899 (33 U.S.C. 407) makes it unlawful to deposit refuse matter of any kind, other than that flowing from streets and sewers in a liquid state, into navigable waters of the United States or into tributaries where the material may be washed into the navigable waters; further it is unlawful to deposit on a bank material of any kind which may be washed into navigable waters and impedes or obstructs navigation. This act is administered by the Secretary of the Army, and the Coast Guard is one of the Federal agencies charged with its enforcement.

Violations of the Refuse Act which are observed by Coast Guard personnel are investigated and documented; a formal report with supporting evidence is submitted to the district engineer, Corps of Engineers, for review and action. Cases reported which are legally sufficient are transmitted by the district engineer to the appropriate U.S. attorney for prosecution.

Where the discharge of refuse is not involved, the Coast Guard would have no statutory responsibility with respect to changes in water quality, such as "heat pollution," which may be occasioned by the operation of the proposed powerplant.

The Coast Guard is charged with administering Federal laws relating to boating safety on the navigable waters of the United States under authority of the Motorboat Act of 1940, as amended (46 U.S.C. 526), and the Federal Boating Act of 1958 (46 U.S.C. 527). In addition, regattas and marine parades are regulated when the location or circumstances may introduce extra or unusual hazards to the navigable waters (46 U.S.C. 454).

The Coast Guard would be responsible for enforcement of navigation laws and investigation of marine casualties should fuel for the proposed powerplant be brought in by barge. Additionally, if such fuel were of a liquid or gaseous flammable nature, the manning and construction of the maritime carrier's vessels would be subject to Coast Guard jurisdiction.

Sincerely yours,

W. D. SHIELDS,

Vice Admiral, U.S. Coast Guard, Acting Commandant.