PORT AND HARBOR SAFETY TUESDAY, SEPTEMBER 15, 1970 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COAST GUARD, COAST AND GEODETIC SURVEY, AND NAVIGATION OF THE Washington, D.C. The subcommittee met, pursuant to adjournment, at 10:09 a.m., in room 1334, Longworth House Office Building, Hon. Alton Lennon presiding. Mr. LENNON. In the absence of the chairman of the subcommittee, the meeting is now called to order. I will read a statement prepared for the chairman of the subcommittee, the Honorable Frank M. Clark. The meeting will please come to order. Hearings by the Coast Guard Subcommittee on this important legislation were initiated on July 22 and 23 here in Washington. At this time, the subcommittee heard congressional and Government witnesses. On July 24, we went to Cape Charles, Va., in order to get testimony into the record on the incident in which the U.S.S. Yancey knocked out a portion of the Chesapeake Bay Bridge and tunnel complex. On July 29 and 30, we held hearings on the serious spills of oil and other hazardous substances into the Baltimore Harbor area. On August 10 and 11, the subcommittee conducted further hearings here in Washington, at which time various industry witnesses were heard. Several days before the August hearings, certain waterway organizations came to Mr. Clark and asked if they could testify at a later date because they were conducting extensive research into the impact of H.R. 17830 on industry and into such matters as the relationship of this bill to other environmental and pollution laws and into such matters as the overlapping of jurisdiction between the Coast Guard and various other agencies. Mr. Clark, of course, granted these organizations a delay in order for them to complete their work. Thus, it was necessary to have further hearings in Washington to gather testimony from these sources and from other sources such as the Lake Carriers' Association, which wishes to be heard. I understand that the work of the waterways organizations which I just mentioned has resulted in a 70-page report which will be summarized here today. I think it is important to note at this time that the administration, together with the Department of Transportation and the Coast Guard, has pretty well committed itself to some kind of legislation in this important area of safety and environmental quality in the ports, harbors, and navigable waters of the United States. common, however, is an interest in seeing that our natural resources are cared for and developed properly. The statement presented to this distinguished committee recently by William C. McNeal on behalf of the American Waterways Operators deals with the grave problems of conflicting jurisdiction and proliferation of regulation, with resulting wastes and frustration of legislative purposes, implicit in the proposed legislation. We fully endorse AWO's position in this regard. In its analysis, AWO gave particular attention to the possible overlap and conflict of jurisdiction between duties of the Secretary of the Army in regard to navigation in title 33 U.S.C., section 1, and the discretionary authority in this area which the pending bill would confer upon the Secretary of the Department in which the Coast Guard is operating, herein called the Secretary. We shall attempt to provide a similar analysis of the relationship between the pending bill and existing legislation in the field of water pollution control and environmental quality. Mr. LENNON. At that point, do you happen to have with you title 33 of the United States Code, section 1, in order that section 1 of title 33 United States Code relating to the duties of the Secretary of the Army could be put into the record at this point? Mr. HULL. Unfortunately, I did not bring it along. Mr. LENNON. I wonder if counsel could step back and see if he cannot put his hands on that, if we do not have it here. I am trying to refresh my memory as to the language of that section. We are talking about the act of what year? Mr. HULL. 1899. Mr. LENNON. That picture has been so perceptibly changed since 1899 with respect to the authority of the Secretary of the Army through the Corps of Engineers to issue any type of permit. It is subject now to Executive order of about 1967 which resulted in the compact between the Department of the Interior and the Secretary of the Army, that the Secretary cannot issue a permit until the regional directors of the Department of the Interior have reached some area of agreement. It provides for certain procedural aspects. The Corps of Engineers have made it crystal clear that they would not issue a permit under any circumstances or conditions if there was an objection on the part of the chief executive of the State. Is that not a fair statement? Mr. HULL. So far as I know, it is, Mr. Chairman. Mr. LENNON. So when you cite the authority of the Secretary of the Army relating to the 1899 act, the Secretary of the Army-and I have had experience in this myself from a personal standpoint a number of times in the last few years-with respect to the issuance of a permit for dredging navigable waters or waters that were not even navigable, where the States take the position that it is opposed to it because of the ecology or the environment. So I do not think we can say that the Secretary of the Army's authority is delegated to him by section 1 of title 33, United States Code has not already been eroded. What do you say about that? Mr. HULL. Mr. Chairman, I referred to this section primarily to call attention to the fact that that discussion had been presented by the American Waterway Operators and I had not really thought to put emphasis on it for the purposes of this statement. Mr. LENNON. I was not here that day. Had I been, I would have brought this up at that time. Mr. HULL. I am really not prepared to give you the kind of informative response I would like to on that issue. It was referred to here. simply to indicate that this was a matter discussed by the American Waterway Operators, whose primary concern is with regard to navigation and that we were going to attempt to give you an analysis which we hoped would be helpful with regard to other types of legislation in the environmental and pollution abatement field. Mr. LENNON. The point I was trying to make is that the alleged erosion of the jurisdiction and the conflict between the duties of the Secretary of the Army with regard to title 33, United States Code, section 1, and the discretionary authority in the pending bill upon the Secretary of the Department, presents what I think is a conflict. I would feel they would rather not have this burden imposed upon them to go to the Secretary of Interior and all the regional directors of the Department of Interior and back to the States to make a determination as to what was in the interest of the public, but they have to do it. Go ahead. We will talk about it later. Mr. HULL. I might just say one word more about it. We will be referring later to the memorandum of agreement which you mentioned as indicative of the kinds of administrative logjams that come about as a result of this type of overlapping jurisdiction. Mr. LENNON. The point I am making is that it could be done by Executive order as it was done in the case of the memorandum of understanding between the Department of Interior and the Corps of Engineers, implementation of which of course came from the Department of Interior. Mr. HULL. So far as I am concerned Mr. LENNON. Assuming that you do not have the definitive language in the bill that you are discussing, at some subsequent date there could be a memorandum of understanding between the Department of Transportation and the Secretary of the Army relating to an executive. order, just as happened with the Corps of Engineers and Department of Interior. Go right ahead, I did not mean to interrupt you. Mr. HULL. The first point, Mr. Chairman, is that the pending bill would federalize water pollution control, constituting a radical departure from the congressional policy declared in the Federal Water Pollution Control Act, as amended, "to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution." (Section 1(b).) Section 2(a) of the pending bill confers blanket authority on the Secretary to protect "the navigable waters, the resources therein and adjoining land areas" for the purpose of promoting "the safety and environmental quality of the ports, harbors, and navigable waters of the United States." The vast potential reach of this delegation of authority is readily apparent upon even a cursory examination. The purposes to be served are (a) safe and efficient maritime transportation, and (b) safety and environmental quality of ports, harbors, and navigable waters of the United States. To accomplish either of these ends, the Secretary may prescribe standards, procedures, regulations or other measures designed to prevent destruction or loss of vessels or structures or facilities on, or in such waters, or adjacent land and to protect the navigable waters, the resources therein and adjoining land areas. Protection is obviously intended to include prevention and control of pollution, whether industrial and municipal wastes, spills, and discharges, debris or refuse from vessels. With only inconsequential exceptions, the navigable waters of the United States include all rivers, canals, lakes, and other waterways not specifically determined by Congress to be nonnavigable. The term "adjoining land areas" has no defined limits. Does it include the States touching navigable waters? If not adjoining States, what limit is to be set on the meaning of adjoining land areas? One hundred miles? Fifty miles? We would note, moreover, the breadth of power implicit in section 2(b) (5): *To establish safety zones or otherwise control the use of or regulate access to vessels, structures, facilities, waters, waterfront and shoreline areas as may be necessary for their protection. This amounts in practical effect to zoning authority, to determine the location of plants and other structures and land use, utterly subverting State and local authority. It involves absolute life and death. power over industry and communities. Who can doubt that the power conferred would be sufficient to permit total control over water pollution activities, creating a new authority with jurisdiction of subject matter at least coextensive in regard to prevention and control, with that of the Secretary of the Interior and other agencies under the Federal Water Pollution Control Act, as amended? We have noted, of course, the comments of the President and Secretary of Transportation in regard to the purposes of this bill. In each case, we respectfully submit, the scope of delegated authority is seriously understated. Thus the President in his message of May 20, 1970, to the Congress setting forth recommendations for congressional action to reduce oil spills, referring to this bill, stated that: It would allow the Coast Guard to control vessel traffic in the inland waters and the territorial seas of the United States, to regulate the handling and storage of dangerous cargoes on the waterfront, to establish safety requirements for waterfront equipment and facilities, and to set up safety zones or other controlled access areas in and near U.S. ports and harbors. Mr. LENNON. What you are stating is that in his message of May 1970, to the Congress, setting forth the recommendations for congressional action, that he misstated or misrepresented to the Congress what ultimately the administration sent up here in the way of this bill that we are now considering? Mr. HULL. No, Mr. Chairman. Mr. LENNON. That is exactly the way I understand it. Mr. HULL. No. What I tried to say was that he understated the scope of the legislation that was being offered. The sweep of the delegation of authority in the legislation, in our judgment, is broader than the President indicated in his message. That is to impute no improper motives or designs to the President of the United States, obviously; it is only to say that it is much broader than he indicated. Mr. LENNON. That the Secretary of Transportation did not fairly represent to the President, in the preparation of his message on this subject matter? Mr. HULL. No, I would not suggest that at all. All I am saying is that there is an understatement of the sweep. I think what happened was that they had their minds fixed on certain objectives and that those objectives would be covered all right, but that the actual language of the bill goes further to a considerable degree. Mr. LENNON. I will tell you right now that I agree with you. That is exactly the reason that I was present and made the suggestions that I did, that the people ought to be put on notice, not after the fact, and given an opportunity to respond before the legislation finally came out of the committee. There was some feeling on the part of some members, however, that they should be notified in advance of what was about to happen after the fact, as a result of the letter which went out—and I had to give my approval of it--but I question whether or not we should do it. Should we not have the responsibility to see if we can reach a consensus? We ought to do it, if we can. Mr. HULL. Certainly. Mr. LENNON. Now you are making some strong charges here. I am concerned about the obligations or the assumptions of authority in the Federal Government, just how far down the line this authority goes, if we use the President's message as a basis for support of this legislation. Based upon what you have just recapitulated from his message of May 20, he limits it to the handling and storing of dangerous cargoes on the waterfront, establishing safety requirements for waterfront equipment and facilities, et cetera, et cetera, which, of course, as I understand it, is based upon the old philosophy of Executive determination of a national emergency which still exists. We are trying to find language that would make statutory certain aspects of that declaration of a national emergency by the President which is still now in being. Mr. Chairman, thank you for letting me proceed. Mr. CLARK. You may proceed. Mr. HULL. This statement would present the bill as reasonably limited to traffic control, cargo handling and storage, safety requirements for waterfront equipment and facilities, and controlled access areas in or near ports and harbors. While some of the provisions of the bill dealing with these matters raise serious questions, they do not begin to express its full reach, which we have shown is, among other things, plenary authority over water pollution throughout most of the United States. The Secretary of Transportation's letter of May 19, 1970, transmitting the draft bill to Congress, presents a similar picture of innocuous and localized police jurisdiction. Two pertinent paragraphs of the Secretary's letter are set forth in footnote 4 to our prepared statement. The stated purpose of the Federal Water Pollution Control Act is "to enhance the quality and value of our water resources and to estab |