# Petition — Lake Erie Alliance for the Protection of the Coastal Corridor, Inc. v. United States Army Corps of Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0139%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 915 ## Text ALEXANDER L. STEVAS Case No.: CLERK In The Supreme Court Of The United States OCTOBER TERM, 1982 LAKE ERIE 4ULIANCE FOR THE PROTE [ION OF THE COASTAL CORRIDOR, INC., et al. Petitioners VS. UNITED STATES ARMY CORPS OF ENGINEERS, et al. Respondents APPEAL FROM THE UNITED STATES Court OF APPEALS For THE THIRD CIRCUIT PETITION FOR WRIT OF CERTIORARI BRENT L. ENGLISH 611 Park Building 140 Euclid Avenue Cleveland, Ohio 44114 (216) 781-9917 JEROME F Weiss Weiss, Neiditz, Petrey & Mandel National City E. 6th Bidg. Cleveland, Ohio 44114 (216) 589-9993 Attorneys for Petitioners Lake Erie Alliance for the Protection of the Coastal Corridor, Inc., Concerned Citizens of Conneaut, Downwind Neighbors, Inc., Earl Weaver, Tom Meara, Gerald Specht and Charles Gaukel (Other Counsel on Inside Cover) Rex E. Lee, Esq. Solicitor General of the United States of America 10th & Constitution Avenues, N.W. Washington D.C. 20530 (202) 633-2000 Attorney for Respondents United States Army Corps of Engineers, Clifford L. Alexander, Jr., Lt. Gen. John Morris, Daniel D. Ludwig, George P. Johnson and Paul G. Leutner THOMAS R. WRIGHT Eric A. SCHAFFER Bair S. MCMILLIN REED, SmiTH, SHAw & McCay Union Trust Building P.O. Box 2009 Pittsburgh, Pennsylvania 15230 (412) 288-3131 Attorneys for Respondent United States Steel Corporation STAUGHTON LyND JAMES CALLEN NorTHEAST On10 LEGAL SERVICES 804 Metropolitan Tower Youngstown, Ohio 44503 (216) 744-3196 Attorneys for Respondent Tri-State Conference on the Impact of Steel in Ohio, West Virginia and Pennsylvania James DENNY 1201 Realty Building Youngstown, Ohio 44503 (216) 747-6718 Attorney for Respondent Local 1397, United Steel Workers of America Micnuaet J HEALY 1906 Law & Finance Building Pittsburgh, Pennsylvania (412) 391-7707 for Re Local 1397, United Steel Worker: of America (Homestead, Pa.) QUESTIONS PRESENTED FOR REVIEW Whether a party challenging the sufficiency of an environmental impact statement may present evidence outside of the administrative record to show thac the agency did not have adequate information to make a reasoned decision? Whether the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., circumscribes an agency's right to make decisions which are contrary to the goals and policies set forth in the Act? Whether summary judgment is proper in. a case challenging the adequacy of an | environmental impact statement where the agency moves for judgment based solely on the administrative record and where the party challenging the statement demonstrates the proba- bility of significant deficiencies in the EIS? Whether by failing to comply with the procedural safeguards in Section 401 of the Federal Water Pollution Control Amendments of 1972, 33 U.S.C. § 1341, the permit issued by the Corps was rendered invalid? Whether by failing to comply with the requirements of the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 et seq., the permit issued by the Corps was rendered invalid? ii PARTIES TO PROCEEDING BELOW In addition to the within Petitioners, the following were Plaintiffs - Appel- lants before the U.S. Court of Appeals for the Third Circuit: ° Tri-State Conference on the Impact of Steel In Ohio, West Virginia & Pennsylvania ° Local 1397, United Steel Workers of America, Homestead, Pennsylvania The following parties were Defendants- Appellees before the U.S. Court of Appeals for the Third Circuit: ° United States Army Corps of Engineers ° Clifford L. Alexander, Jr. ° Lt. Gen. John Morris iii Daniel D. Ludwig George P. Johnson Paul G. Leutner United States Steel Corporation iv TABLE OF CONTENTS AND AUTHORITIES Questions Presented for Review Parties to Proceeding Below Table of Contents & Authorities Reference to Official or Unofficial Reports Jurisdiction Statutes, Treaties & Regulations Statement of the Case Reasons for Certiorari I. The Petition For A Writ of Certiorari Should Be Granted to Resolve a Conflict Among the Circuits on the Role of the Judiciary in Evaluating Compli- ance with the National Environ- mental Policy Act's Substantive and Procedural Requirements and to Clear Up Confusion as to when pioagecse! 4 Judgment Is Appropriate in suc cases — 1. Petitioners Were Unlaw- fully Denied an Opportunity to Chaiienns the Adequacy of the EIS Prepared by the Corps. male 2. Summary Judgment Was Improper Because there were Genuine Issues of Material Fact in Dispute Regarding iii 10 10 10 the Adequacy of the EIS and Regarding Whether the Corps Acted in Good Faith in Preparing it. aa 3. The Petition For A Writ Of Certiorari Should Be Granted so that the Question of Whether and to What Extent NEPA Imposes Sub- stantive Limits on the Choices Available to a Decision-Maker Can Be Considered Definitively. wee II. Petitioners' Request for a Writ of Certiorari Should Be Granted so that the Corps' Compliance with Certain Specific Requirements of NEPA, the Federal Water Pollution Control Amendments Of 1972, and of the Fish and Wildlife Coordination Act Can Be Reviewed. ue 1. The Corps Violated NEPA By Failing To Consider Costs, Partial Alternatives, the Great Lakes Water Quality Agreement of 1978, and a Number of Environ- mental Impacts. __. 38 2. The Permit Issued by the Corps Is Invalid Because It Did Not Comply With the Procedural Safeguards in Section 401 of The Federal Water Pollution Control Act, 33 U.S.C. § 1341. __ 46 vi 3. The Permit Issued by the Corps Is Invalid Because the Corps Failed to Comply With the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 et seq. _ 53 Conclusion __57 Certificate of Service _. $9! Appendix _ 61ff. CASES Cape Henry Bird Club. v. Laird, 359 F. ree 404 (W.D. Va.), F, aff'd, 48 2d 453 (4th Cir. (1973) — Calvert Cliffs Coordinating Commit- tee v. U.S. Atomic Ener ommission ; (D.C. Cir. 1971) __17,23,28, 29,39 County of Suffolk v. Secretary of Interior, 562 F.2d 1368(2d Cir. | 1977) oun bh A 4,hee 16, 23 Columbia Basin Land Protection Association v. Schlesinger, 643 F. 20 585 (Sth Cir. T5ST) | Environmental Defense Fund, Inc. v. Froehlke, 473 F. 2d 346 (Sth Cir. _. $8) Feliciano v. Laird, 426 F. 2d 424 (2d Cir. 1970) _. 56 | First National Bank of Arizona v. ties Service Co., a (1916) ps vii Fountain v. Filson oe 1956) cadena G.C. Merriam Co. v. Saafield, .S. _ 49 Green County Planning Board v. Federal Power Commission, 455 F. 2d 412 (2d Cir. 1972), cert. denied, 409 U.S. 899 (1973) an ee Hayman Cash Register Co. v. Sarodin, 669 F. 2d te? (3d Cir. 1982) 41 Karlen v. Harris, 590 F. 2d 39 (2d Cir. 1979), rev'd sub nom, Stryker's Ba Neighborhood Council v. Karlen, 444 U.S. 233 (1980) 34 Kleppe v. Sierra Club, ivy, U.S. 233 (1980) wae? Natural Resources Defense Council v. Administrator, ERDA, 451 F. Supp. 1245 (D.D.C. 1978) —m 40 Natural Resources Defense Council v. Calloway, 524 F. 2d 79 (2d Cir. — Natural Resources Defense Council v. orton, ; sGe Ze —— Poller v. Columbia Broadcasting System, 368 U.S. 464 (1961) a Sierra Club v. Morton, th Cir. 1975) a Stryker's Bay Neighborhood Council v. Karlen, Lif U.S. 2335 (1980) aan bDeeesne 33,36! viii Todd & Co., Inc. v. §.E.C., 63/ F. 2d 154 (3d Cir. 1980) Udall v. Federal Power Commission, 378 U.S. 428 (1967) Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense ouncil, Statutes National Environmental Policy Act, 42 U.S.C. §§4321 et seq 42 U.S.C. §4331 42 U.S.C. §4332 Federal Water Pollution Control Amendments of 1972, 33 U.S.C. §§1251 et seq 33 U.S.C. §1341 33 U.S.C. §1344 Fish and Wildlife Coordination Act of 1934, a 16 U.S.C. §§ et se 16 U.S.C. §662 = Rivers and Harbors Act of 1899, 33 U.S.C. §410 Title 28, §1254(1) Title 28, §2101 Great Lakes Water Quality Agreement of 1978 Rules Sup. Ct. R. 17(c) ix ms woe = 1,2,/4 ne onmm, Fee 24,28 ome b4,29% — 46,50-53 Pe 5 am 2500" 42,43 am && Sup. Ct. R. 21 (f£) Fed. R. Civ. Proc. 56 Regulations 33 C.F.R. §209.410(i) (7) (iii) (1978) 33 C.F.R. §320.4(b) (1980) 40 C.F.R. §121.2 (1981) 40 C.F.R. §1500.2(b) (1981) 40 C.F.R..§1500.8(c) (4) (1978) Miscellaneous 10 Wright and Miller, Federal Practice and Procedure, §§2711 et seq. Liebsman, The Council on Environ- mental Quality’s Regulations to Implement the National Environ- mental Policy Act - Will They Further NEPA’s Substantive Mandate? I0 Env. L. Rptr. 50039 (1980) Note, The Least Adverse Alternative Approach to Substantive Review Onter NEPA 88 Harv. L. Rev. 735 =~ 359,408 am» SA REFERENCES TO OR UNOFFICIAL REPORTS BELOW 1. An interlocutory order regarding standing may be found at 486 F. Supp. 707 (W.D. Pa. 1980)(J. Knox). 2. The District Court's Memorandum Opinion dated November 23, 1981 has not been published. 3. The U.S. Court of Appeals for the Third Circuit did not write an opinion. JURISDICTION The U.S. Court of Appeals for the Third Circuit initially entered judgment for the Respondents on January 25, 1983. The judgment was suspended on January 31, 1983 but was reinstated on February 16, 1983. A timely request for reconsidera- tion was filed but was denied on March 11, 1983. There was no request filed for an extension of time to petition for certiorari. The statutory provisions conferring jurisdiction on this Court to entertain the within Petition for Certi- orari are 28 U.S.C. §2101 and 28 U.S.C. §1254(1). STATUTES, TREATIES & REGULATIONS Because of the length of such pro- visions, they are only cited here but are set out in full in the Appendix pursuant to Sup. Ct. R. 21(f): 1. National Environment Policy Act, 42 U.S.C. §§4321 et seq. 2. Federal Water Pollution Control Amendments of 1972, 33 U.S.C. §§1251 et seq. 3. Fish & Wildlife Coordination Act of 1934, 16 U.S.C. §§661 et seq. 4. Great Lakes Water Quality Agree- ment of 1978 5. Fed R. Civ. Proc. 56 6. 33 C.F.R. §320.4(b) (1980) 7. 40 C.F.R. §121.2(1981) STATEMENT OF THE CASE On June 29, 1979, the U.S. Army Corps of Engineers issued a permit to United States Steel which allowed construction of one of the world's largest steel mills to commence. + Shortly after the permit lpiant construction has not actually begun due to economic conditions in the was issued, Petitioners - the Lake Erie Alliance, Concerned Citizens of Conneaut, and Downwind Neighbors, all environmental groups, along with certain individuals and labor organizations, filed suit challenging the permit. Inter alia, the Petitioners and other plaintiffs con- tended that the Corps violated the substantive and procedural duties imposed by the National Environmental Policy Act, 42 U.S.C. §§4321 et seq. They also contended that the Corps issued the permit in violation of certain procedural safeguards in the Federal Water Pollution Control Amendments of 1972, 33 U.S.C. §§1251, and that insufficient weight was given to the consultation requirements in | the Fish and Wildlife Coordination Act, 16 U.S.C. §§661 et seg. [footnote 1 continued] domestic steel 31 ise8. The permit expires on December After discovery proceedings had commenced, several of the labor organiza- tion plaintiffs filed a motion for partial summary judgment on the basis that the Corps failed to consider partial alternatives to the proposed plant. This motion was ultimately denied. In March, 1981, Respondents filed a consolidated motion for summary judgment. Petitioners and the other plaintiffs responded with a brief in opposition pointing out why a trial to decide the disputed factual issues was necessary. On six selected issues, Petitioners sought summary judgment inasmuch as there were no factual disputes and the applic- able law was clear. District Judge William Knox heard oral argument on July 1, 1981 on the motions for summary judgment. Unfor- tunately, he unexpectedly passed away before rendering a decision on those motions. The case was then reassigned to Senior District Judge Gerald Weber who granted Respondents' motion barely two months later. Petitioners timely appealed to the U.S. Court of Appeals for the Third Circuit. The case was fully briefed in the Court of Appeals and oral argument was heard on January 24, 1983. A Judgment Order affirming the District Court's judgment was entered on January 25, 1983 but was thereafter suspended sua sponte. The Judgment Order affirming the District Court was reinstated on February 16, 1983. A timely petition for a rehearing en banc was filed but was denied on March 11, 1983. Im accordance with 28 U.S.C. §210l(c), Petitioners hereby seek review in this Court and urge that the within Petition for a Writ of Certiorari be granted, The permit which is the subject of this case was first applied for in 1977. Because the Corps had statutory jurisdic- tion over activities in Lake Erie, 33 U.S.C. § 410, and because U.S. Steel wanted to fill in an important stretch of one of Ohio's few remaining cold water streams, an activity which also needed a Corps permit, 33 U.S.C. § 1344, U.S. Steel applied to the Corps before seeking the myriad of other permits necessary. The Corps determined that the project was a “major federal action" under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and thus became obliged to prepare an environmental impact statement. This statement was to serve as a primary source of information about environmental impacts and alternatives to the proposed plant. The manner in which the Corps pre- pared the EIS and the quality of the finished product is the gravamen of Petitioners' case. Instead of objec- tively studying the impacts, the Corps relied excessively and unlawfully on U.S. Steel. Instead of confronting the tough questions and demanding data, the Corps capitulated. The Corps deferred considera- tion of impacts to others at later times. It failed outright to study or evaluate certain critical effects. And finally, it made no effort to apply NEPA's substan- tive goals and policies to the decision it ultimately made. Throughout this litigation, Petition- ers have sought merely the right to adduce evidence demonstrating that the EIS is inadequate and was prepared in bad faith. Despite the standards in Fed. R. Civ. Proc. 56 and the presence of genuine issues of material fact, Petitioners have been rebuked. The District Court con- cluded that NEPA merely required "consid- eration" of environmental impacts and, if such consideration was evident, Petition- ers were not free to challenge its adequacy, validity, or methodology. By affirming per curiam, the Third Circuit apparently agreed with this view. Unless reversed, the decisions below will have gone very far toward reducing NEPA to an almost meaningless role. REASONS FOR CERTIORARI I, THE PETITION FOR A WRIT OF CERTI- ORARI SHOULD BE GRANTED TO RESOLVE A CONFLICT AMONG THE CIRCUITS ON THE ROLE OF THE JUDICIARY IN EVALUATING COMPLIANCE WITH NEPA'S SUBSTANTIVE AND PROCEDURAL REQUIREMENTS AND TO CLEAR UP CONFUSION AS TO WHEN SUMMARY JUDGMENT IS APPROPRIATE IN SUCH CASES. 1. Petitioners Were Unlawfully Denied An Opportunity to Challenge the Adequacy of the EIS Prepared by the Corps. The District Court's decision to grant summary judgment for the Respon- dents --- and the Third Circuit's per curiam decision affirming it -- effec- tively denied Petitioners an opportunity to demonstrate that the EIS inadequately 10 addressed environmental impacts and alternatives and was prepared in bad faith. The lower courts based their decision on the view that NEPA merely requires some degree of "consideration" of environmental impacts and alterna- tives. The courts reasoned that as long as some "consideration" is apparent, those who seek to challenge either the basis for or the actual decision itself are without any rights at all. It is well settled that an EIS should provide the decision-maker with sufficient information about the environmental risks and alternatives of a project so that a reasoned decision consistent with NEPA's policies can be made. County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2d Cir. | 1977); Sierra Club v. Morton, 510 F. 2d 11 813, 819 (5th Cir. 1975); Kleppe v. Sierra Club, 427 U.S. 390 (1976). Prior to the decision in the case at har, no federal court had held that an agency merely needed to "consider" environmental impacts’ and alternatives and that proof of some degree of consideration - no matter how cursory or inept -- entitled the agency to, a fortiori, summary judgment. This Court's decisions in Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519 (1978) and in Stryker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980) (per curiam) certainly do not so hold. In Vermont Yankee, this Court noted that the duties imposed by Section 102(2)(c) of NEPA, 42 U.S.C. § 4332(2)(c) were “essentially procedural," Id. at 558, but it nowhere said that courts 12 should merely look to see if an issue was "considered" and, if so, conclude as a matter of law that NEPA's duties were met. Similarly, in Stryker's Bay Neighbor- hood Council v. Karlen, this Court, while perhaps in somewhat overbroad language, held only that a court was not free to substitute its judgment for that of the agency. As Justice Marshall noted in dissent, if the courts are reduced to the “essentially mindless task of determining whether an agency ‘considered’ environ- mental factors in reaching its decision," the salutary purposes of NEPA will have been completely eviscerated. Id. at 231. The role of the judiciary in evaluat- ing an agency's compliance with NEPA is a recurring theme throughout the many decisions interpreting and applying this important statute. The case at bar i3 presents an ideal vehicle to clarify definitively what the role of the judiciary is and how it should be carried out. In:addition, the decision in the case at bar which precluded Petitioners from challenging the adequacy of the EIS and the good faith of the Corps is in direct conflict with a decision in at least one other circuit. Sup. Ct. R. 17(c) recognizes that such a conflict is one of the factors relevant to a decision on whether to grant certiorari. In County of Suffolk v. Secretary of Interior, 562 F. 2d 1368 (2d Cir 1977), cert. denied, 434 U.S. 1064 (1978), the Court con- sidered whether a party challenging the adequacy of an environmental impact Statement was limited to the administra- tive record produced by the agency or whether additional testimony designed to 14 shed light on the adequacy of that record was permissible. The Court correctly concluded that {a]lthough the focus on judicial inquiry in the ordinary suit chal- lenging nonadjudicatory, nonrulemak- ing agency action is whether, given the information available to the decision-maker at the time, his decision was arbitrary or capricious, and for this purpose ‘the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138 [alterna- tive citations and footnote 8 omit- ted]. In NEPA cases, by contrast, a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives [citations omitted] which can sometimes be determined only by looking outside of the administrative record to see what the agency may have ignored [emphasis in original] 562 F. 2d 1368, 1384. The Court in County of Suffolk went on to explain that 15 [a] suit under NEPA challenges the adequacy of the administrative record itself - the EIS. Glaring sins of omission may be evident on the face of the statement. See, egs. Chelsea Neighborhood Associations v. Unite States Postal Service, 516 F.2d 378 (2d Cir. 1975); Silva v. Lynn, 482 F. 2d 1282, 1283 (lst Cir. 15935" Other defects may become apparent when the statement is compared with different parts of the administrative record. [footnote 9 omitted]. See, e.g., I-291 Why? Association v. Burns, 372 F. Supp. 223 (D. Conn. 1974), Aff'd er curiam, 517 F.2d 1077 (2d Cir. IST55- Generally, however, allega- tions that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept ‘stubborn problenis or serious criticism...under the rug, Silva v. Lynn, 482 F.2d at 1255, raise issues sufficiently important to permit the introduction of new evidence in the district court, including expert testimony with respect to technical matters... in challenges to the sufficiency of — an environmental impact statement... {Emphasis supplied}. » at 1385. In contrast to the Second Circuit's treatment of allegations challenging the adequacy of an EIS, the District Court 16 and the Third Circuit, by its per curiam affirmation of the lower court's decision, totally precluded Petitioners from demonstrating that the EIS for the Lakefront Plant did not adequately address the serious environmental conse- quences of building the plant and the reasonable alternatives available which could avoid or at least minimize those consequences. The District Court, despite being presented with evidence that the EIS was woefully inadequate in a number of critical areas, merely counted up the pages of the EIS devoted to a given topic and summarily declared the Corps' consideration sufficient. It thus granted Respondents’ motion for summary judgment since it believed as a matter of law that NEPA required only "considera- tion" of environmental impacts and alternatives and that no evidence showing 17 how poor this "consideration" was would disturb this conclusion. If NEPA requires only that an agency give some modicum of "consideration" to envirormental impacts, and the quality and adequacy of that "consideration" is not subject to judicial review other than that which was undertaken in the case at bar, then this salutary statute designed by Congress to make “environmental protection part of the mandate of every federal agency" Calvert Cliffs Coordinat- ing Committee v. U.S. Atomic Energy Commission, 449 F. 2d 109, 112 (D.D.C. 1971) has been judicially eviscerated. If those who are aggrieved and adversely affected by a decision based on an EIS which does not meaningfully, accurately, or in good faith consider environmental impacts and alternatives have no right to | 18 demonstrate that the EIS is inadequate, then the statutory goals and policies of NEPA are of no importance. If this decision stands, NEPA's role in environ- mental protection will be destroyed. 2. Summary Judyment Was Improper Because There Were Genuine Issues of Material Fact In Dispute Regarding the Adequacy of the EIS and Regarding Whether the Corps Acted In Good Faith In Prepar- ing It. A second and even more elementary reason for granting the within Petition for Certiorari is that the District Court and the U.S. Court of Appeals for the Third Circuit ignored Rule 56 of the Federal Rules of Civil Procedure and a well-established body of case law holding that summary judgment is never appropri- 19 ate where there are genuine issues of material fact ii. dispute and where the movant fails to demonstrate entitlement to judgment as a matter of law. Fountain v. Filson, 336 U.S. 681 (1956); Poller v. Columbia Broadcasting System, 368 U.S. 464 (1961); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1969); See, 10 Wright & Miller, | Federal Practice & Procedure §§ 2711 et seq. Unless, as discussed above, NEPA requires no more than "consideration" of environmental impacts and alternatives, which consideration is unreviewable, the lower courts committed reversible error by granting summary judgment in the face of numerous serious questions of fact regarding the adequacy of the EIS. In particular, Petitioners showed that the adequacy of the Corps' 20 consideration of air pollution impacts, water pollution effects, solid and hazardous waste generation, and socio- economic impacts, among others, was very questionable. Petitioners showed why the data relied on by the Corps were insuffic- ient and how the Corps had relied blindly on U.S. Steel's data and analysis. They also showed how stubborn problems such as how air and water quality standards could be met when the Corps did not have sufficient design information, were swept under the rug. And they showed how incorrect assumptions about population growth would have major adverse consequen- ces to the entire region. Respondents denied the allegations and claimed that the "consideration" given was adequate. Therefore, on each of these as well as on other points, Petitioners sought merely an opportunity to have the District Court 21 resolve the factual disputes and, on the basis of the record as supplemented by expert testimony, make an informed decision. Sup. *Ct. R. 17(c) provides that one decisional factor in considering whether to grant a Petition for Certiorari is whether the decision below conflicts with applicable decisions of this Court. Petitioners submit that the District Court violated the clear dictates of Fed. R. Civ. Proc. 56 by granting summary judgment in the face of obvious factual conflicts as did the Third Circuit Court of Appeals by affirming the District Court's erroneous judgment. Accordingly, Petitioners respectfully request that their Petition be granted to correct this serious error. 22 In addition to the existence and demonstration of factual disputes regard- ing the adequacy of the environmental assessment, Petitioners also demonstrated that there was a genuine issue of fact regarding whether the Corps acted objec- tively and in good faith in compiling the EIS. Good faith is a well-recognized and certainly necessary requirement in compiling an EIS. County of Suffolk v. Secretary of Interior, 562 F. 2d 1368,1375 (2d Cir. 1977), cert. denied, 434 U.S. | 1064 (1978; Calvert Cliffs Coordinating | Committee v. United States Atomic Energy | Commission, 449 F. 2d 1109 (D.C. Cir. 1971). Petitioners demonstrated to the lower courts two factual bases for the assertion that the Corps acted in bad faith. First, they showed that, although U.S. Steel and the Corps denied the existence of plans to expand the capacity 23 of proposed plant from 7.5 million metric tons of liquid steel per year, such plans actually existed and that the eventual size of the plant would be 15 million liquid tons. All of the environmental impact projections were premised on the lower figure which means that these impacts are severly understated. The second factual basis showing evidence of bad faith is misrepresenta- tion of authorship and abrogation of responsibility for the EIS. NEPA expressly required the Corps to remain responsible for the scope, objectivity and content of the statement. 42 U.S.C. § 4332. See, Green County Planning Board v. Federal Power Commission, 455 F. 2d 412 (2d Cir. 1972) cert. denied, 409 U.S. 849 (1973). However, Petitioners un- covered and presented evidence showing 24 that a vast majority of the EIS was actually written by U.S. Steel - to wit: 71.7% of the paragraphs in the EIS were the same or substantially the same as those in U.S. Steel's Environmental Impact Assessment (EIA), a document which U.S. Steel produced as "input" for the EIS. Moreover, 88.9% of the tables and 87.9% of the figures in the final EIS were the same as those in the EIA. Nowhere in the EIS were these facts revealed. What's more, Petitioners uncovered and presented to the courts below the fact that as the EIA was finished it was sent to the Corps on Magnetic tape so that the EIA could be easily edited and reproduced in a differ- ent typeface as the work of the Corps! Despite this evidence and the existence of a genuine factual dispute over whether the Corps acted in bad faith by allowing 25 U.S. Steel to write most of the EIS, the lower courts upheld summary judgment. 3. The Petition for a Writ of Certiorari Should Be Granted So That The Question of Whether and to What Extent NEPA Imposes Substantive Limits On the Choices Avail- able to a Decision-Maker Can be Con- sidered Definitively. One of the most perplexing and diffi- cult issues involving NEPA is whether it has a substantive component which in some way circumscribes the decision-making prerogatives of those subject to it. Petitioners argued below that NEPA imposes substantive limits. Respondents | disputed this claim mostly on the strength of obiter dictum from Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519 (1978) and Stryker's Bay Neighborhood 26 Council v. Karlen, 444 U.S. 223 (1980) (per curiam). Petitioners contend that the substantive goals and policies of 2 NEPA” are part of the mandate of every 2 among other things, Congress therein recognized the profound impact of man's activity on the interrelations of all components of the natural environ- ment, particularly the profound influences of "... industrial expansion [and] resource exploitation" and declared it to be "the continuing policy of the Federal Government... to use all practical means and measures... to create and maintain conditions under which man and nature can exist in productive harmony." 42 U.S.C. § 4331(a). In Section 101(b), 42 U.S.C. § 4331(b), Congress more specifically stated the objectives of the Act including (1)fulfill[ing] the responsibilities of each generation as trustee of the new environment for succeeding generations [and] the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences. These policies and goals are given the force of law in section 102(1) as follows: The Congress authorizes and directs that, to the fullest extent possible: (1) The policies, regulations and 27 federal agency and circumscribe its ability to make decisions contrary to those goals and objectives. Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission, 449 F. 2d 1109, 1i12 (D.C. Cir. 1971). The substantive goals and policies of NEPA gain the force of law and thereby affect an agency's power to make decisions contra to those goals by virtue of Section 102 of the Act: ...to the fullest extent possible ...({t]he policies, regulations and public laws of the United States shall be interpreted in accordance with the policies set forth in this Act. 42 U.S.C. § 4332(1) (emphasis supplied). Thus, the plain meaning of Section 102 is [footnote 2 continued] public laws of the United States shall be interpreted in accordance with the policies set forth in this Act... 42 U.S.C. § 4332(a) (emphasis supplied). 28 that agencies are limited in their decision-making. While NEPA is assuredly more than merely an environmental disclosure statute, there is significant confusion over the extent to which the policies and goals of NEPA limit decision-makers. A number of courts have construed the Act as requiring a cost-benefit analysis. For example, in Calvert Cliffs Coordinat- ing Committee v. United States Atomic Energy Commission, 449 F. 2d 1109, 1113 (1971), (D.C. Cir. 1971), the Court said that {in] order to include all possible environmental factors in the deci- sional equation, agencies must identify and develop methods and procedures *** which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision- making along with economic and 29 technical considerations. To ‘'con- sider' the former ‘along with' the latter must involve a balancing process. In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned — and ‘systematic’ balancing analysis in each instance. (Emphasis supplied. ) However, such analyses necessarily involve valuing environmental costs and benefits and have often resulted in intractable disputes between experts on the value of environmental amenities. An alternative is emerging which avoids the practical evidentiary problems of valuing environmental amenities and which is more in harmony with the statu- tory language. This alternative is to view NEPA's substantive command to be that an agency, based on the results of the EIS, select the least environmentally adverse alternative unless other essential 30 considerations of national policy dictate that a more environmentally adverse alternative be selected. See Note, The Least Adverse Alternative Approach to Substantive Review Under NEPA, 88 Harv. L. Rev. 735 (1974); Liebsman, The Council on Environmental Quality's Regulations To Implement the National Environmental Policy Act - Will They Further NEPA's Substantive Mandate? 10 Env. L. Rev. 50039 (1980). This standard insures that an agency has taken seriously its obliga- tion under NEPA to use all practical means consistent with other essential considerations of national policy to achieve the environmental goals in Section 101 while nevertheless giving agencies necessary discretion to select among alternatives provided their selec- tion is justified. 31 The least-adverse alternative stand- ard is supported fully by NEPA's legisla- tive history. As one commentator has noted, [o]n close examination, the mandate to ‘use all practicable means, consistent with other essential considerations of national policy' requires more than just a good faith balancing of environmental costs and benefits. In fact, Senator Jackson stated during debate on NEPA that ‘any adverse effects which cannot be avoided...[must be] justified by some other stated consideration of national policy.' This requirement of 'justifi- cation' implies that federal agencies must either select the least-adverse alternative or that a careful evalua- tion of national policy considerations be made to support another choice... [t]his formulation would appear to require the imposition of the strong- est possible mitigation to minimize impact, insuring that the original intent of Congress under § 101 will be met. Liebsman, supra, at 50043 (footnotes and citations omitted). 32 This Court has yet to address squarely the extent to which the policies and objectives of NEPA circumscribe an agency's choices in decision-making. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978), conflicting messages were given. While characterizing in dicta NEPA's duties as "essentially procedural," Id. at 558, this Court nevertheless recognized that "{a]dministrative decisions should be set aside in [the NEPA context] as in every other, only for procedural or substantive reasons as mandated by statute." Ibid. (Emphasis supplied). Justice Marshall has wisely cautioned that the remark about NEPA's duties being “essentially procedural" must be considered in context and does not permit the conclusion that there is no substantive component of 33 NEPA. Stryker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 230 (1980). Similarly, this Court's decision in Stryker's Bay Neighborhood Council v. Karlen; 444 U.S. 223 (1980) (per curiam) does not gainsay the conclusion that NEPA | imposes limits on the ability of an agency to take actions contrary to the letter and spirit of Section 101 of the Act. This Court said that it was error for a court to require a federal agency to give dispositive weight to social environmental factors such as overcrowd- ing to the exclusion of other reasonable, but countervailing factors, in deciding whether to proceed with construction of a low-income housing project in New York City. See, also, Karlen v. Harris, 590 F, 2d 39, 44-45 (2d Cir. 1978). Although the Court briefly discussed whether 34 environmental considerations could be elevated arbitrarily above all others in making a decision subject to NEPA and concluded that they could not, 444 U.S. at 227-28, the focus of the opinion and the holding of the case is that a court may not substitute its judgment for that of the agency where there are valid choices to be made and the agency has justified its choice. Justice Marshall dissented from what he said were overbroad statements about NEPA. He correctly pointed out that substantive review is essential to insure that environmental consequences, once identified through NEPA's procedural requirements, are not ignored. He characterized the question of whether an agency could elevate environmental matters above all others as 35 ...essentially a restatement of the question whether HUD in considering the environmental consequences gave them a hard look which is poe, the proper question for the reviewing court to ask... I do not subscribe to the Court's apparent suggestion that Vermont Yankee limits the reviewing court to the essentially mindless task of determining whether an agency considered environmental factors even if that agency may have effectively decided to ignore those factors in reaching its decision. Indeed, I cannot believe that the Court would adhere to that position in a different factual setting. Stryker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 231 (1980). The case at bar is indeed a dramatic- ally different setting. The lower courts concluded that NEPA has no substantive component at all and that summary judg- ment was therefore proper because some "consideration" had been given. NEPA is meaningless unless the procedural com- ponent which requires information gather- ing is not co-joined with substantive 36 limits. If NEPA has a substantive component, then this Court should declare and define it for the large number of Federal courts which continue to struggle with this question. II PETITIONERS' REQUEST FOR A WRIT OF CERTIORARI SHOULD BE GRANTED SO THAT THE CORPS' COMPLIANCE WITH CERTAIN SPECIFIC REQUIREMENTS OF NEPA, THE FEDERAL WATER POLLUTION CONTROL AMENDMENTS OF 1972 AND - THE FISH AND WILDLIFE COORDINATION ACT CAN BE REVIEWED. Allowance of the Writ would permit review to determine whether the principles applicable to summary judgment set forth in Fed. R. Civ. Proc. 56 were properly applied in several unique factual and 37 legal contexts. As noted above, the District Court entered and the U.S. Court of Appeals for the Third Circuit affirmed summary judgment for the Respondents on all issues. On certain issues the lower courts .strayed very far from the principles underlying summary judgment. Instead of granting Respondents' motion, the lower courts should have granted Petitioners’ Motion since there were no genuine issues of material fact in dispute and since Petitioners demonstrated their entitle- ment to judgment as a matter of law. 1. The Corps Violated NEPA by Failiug to Consider Costs, Partial Alternatives, The Great Lakes Water Quality Agreement of 1978, and a Number of Environmental Impacts. 38 The first issue on which summary judgment should have been entered for the Petitioners concerned the Corps' failure to consider either partial alternatives or cost data in assessing alternatives to the proposed plant. The relevant case law and applicable regulations impose a burden on the Corps to consider both cost 3 Unfor- data and partial alternatives. tunately, the lower courts avoided these issues and in one case did so in direct contravention of the well-established law of the case doctrine. The District Court's treatment of Peticioners' argument that partial alternatives were not considered centered on the factual assertion -- totally 30n the duty to consider cost data see: Calvert Cliffs Coordinating Committee v. U.S. Atomic Ener Commission, 449 F. 2d II09 (D.C. Cir OF Columbia Basin Land Protection Association v. 39 rebutted in the Record -- that Petition- ers failed forcefully to bring partial alternatives to the Corps' attention. As was pointed out to both lower courts, Petitioners were especially forceful and direct in noting and urging consideration of a number of partial alternatives that would minimize the human and physical environmental trauma that would be caused by construction and operation of the proposed plant. {footnote 3 continued] Schlesinger, 643 F. 2d 586, 594 (9th Cir. I98I); CEQ Guidelines: 40 C.F.R. Section isoo, "sh (4) (1978); dl Regulations: 33 C.F.R. Section 209.410 (1)(7)(iii) (1978). As to partial alternatives, see: Natural Resources Defense Council, Inc. v. Morton, 458 F. 2d 824 (D. om Cir. 1972); paturas Resources Defense Council ae Administrator, ERDA, 451 F. Supp. 1245 oF D.c. 1978); CEO Guidelines: 4Or : .F. R. Section 1500. 2(b) (1981) ; 40 C.F.R. Section 1500.8(a)(4) (1978). 40 Moreover, the District Court and by virtue of its affirmance, the Third Circuit, ignored the fact that Judge Knox had, prior to his death, expressly ruled that partial alternatives had been presented by the Petitioners to the Corps. See, Memorandum Opinion, September 9, 1980 at 4. Thus, Judge Weber, the successor judge, was bound by this determination by virtue of the long- recognized and well-advised doctrine of the law of the case. See, Hayman Cash Register Co. v. Sarodin, 669 F. 2d 162, 165 (3d Cir., 1982); Todd and Co., Inc. v. S.E.C., 637 F. 2d 154, 156 (3d Cir. 1980). The District Court and the Third Circuit simply ignored the contention that cost data should have been, indeed 41 were required to be, considered and evaluated in the final EIS. Petitioners demonstrated why such cost data were crucial in evaluating this project and showed that even the Corps' own consul- tant was deeply disturbed by the absence of such data and analysis. The second contention on which Petitioners were entitled to summary judgment concerned the Corps' failure to give any consideration to a vital part of the Great Lakes Water Quality Agreement of 1978. The only consideration given to the entire Agreement, which obliges the United States and Canada to take a number of steps to reduce discharge of water pollutants into the Great Lakes system, is a notation that the Agreement exists in response to a comment on the draft 42 EIS. Critically, this notation included no discussion or even recognition that the Agreement commits the signatories to “virtually eliminate" discharges of persistent toxic substances by the end of 1983. By failing to note, much less explain, the irony of permitting U.S. Steel to discharge many persistent toxic substances at the same time as implement- ing a policy to virtually eliminate such discharges, the Corps breached its duty under NEPA. Summary judgment in favor of Petition- ers should also have been granted on the Corps' failure to consider certain environmental impacts. For example, U.S. Steel owns a company called the Pittsburgh & Conneaut Dock Company which owns and Operates raw material handling and 43 storage facilities in and around Conneaut harbor. After the proposed plant was announced, these raw material facilities, including rail facilities, were greatly expanded in anticipation of the needs of the proposed plant. The Corps failed to take the environmental impacts of this expansion into account. Recognizing this, Respondents argued that the expan- sion was "unrelated" to the proposed mill. The District Court could not countenance this argument but it did accept Respondents' argument that these efforts were considered when it was plain from the record that they were not. Other environmental impacts which the Corps did not consider included the biological effects of air pollutants on the economically important grape and 44 nursery industries which have thrived in the area because of the unique microclimate created by shallow Lake Erie. The Corps likewise failed to assess the long-term impacts of contam- inated effluent on aquatic species in the Lake. Further, the Corps failed to obtain or even demand of U.S. Steel that it provide detailed design information on which reasoned engineering judgments could be made. Thus, the computations of air and water pollutants likely to be emitted from the plant are at best very crude estimates which in all likelihood will not come close to conforming to what may actually occur if the plant is built. On each of these issues, Petitioners were entitled to summary judgment since there were no issues of fact in dispute 45 and since as a matter of law NEPA required that they be competently, objectively and adequately addressed in the EIS. 2. The Permit Issued by the Corps Is Invalid Because It Did Not Comply With the Procedural Safeguards In Section 401 of the Federal Water Pollution Control Act, 33 U.S.C. § 1341. The fourth group of issues on which Petitioners were entitled to summary judgment concerned U.S. Steel's and the Corps' failure to comply with the certification and referral requirements in Section 401 of the Federal Water Pollution Control Act, 33 U.S.C. § 1341. That Section requires any applicant for a Federal license for an activity which may result in discharges into navigable 46 waterways to first obtain a certificate from the state in which the discharge originates showing that such discharges will comply with other sections of the Federal Water Pollution Control Act. The Section expressly forbids issuance of any Federal license until such a certification is obtained. U.S. Steel failed to obtain a valid Ohio certification and made no attempt to obtain one from the Common- wealth of Pennsylvania even though some of the discharges from the plant would originate in Pennsylvania. With regard to the Ohio certifica- tion, U.S. Steel applied for and received a document purporting to be a certifica- tion but it was invalid for two reasons. First, it did not comply with U.S. EPA's regulations relating to state certifica- tions in that it did not contain a 47 statement that "there is a reasonable assurance that the activity will be conducted in a manner that will not violate water quality standards." 40 C.F.R. § 121.2(1981). The Ohio certifica- tion did not and could not contain such an assurance because the EIS - despite its other shortcomings - revealed that the plant would seriously violate Ohio's water quality standards. The other reason why the certification was invalid was that the Act and the Corps' own regulations, 33 C.F.R. § 320.4(b)(1980), require that the state certification apply to both construction and operation. The Ohio certificate - again because of the inability of U.S. Steel to meet Ohio water quality standards - applied only to construction. 48 The District Court and the Third Circuit avoided these issues by deter- mining that the doctrine of res judicata precluded Petitioners from raising these issues. This determination was based on the fact that one Petitioner - the Lake Erie Alliance - raised these questions before an Ohio agency called the Environ- mental Board of Review. That agency found the Ohio certification to be valid. The lower courts, however, incorrectly applied the doctrine of res judicata to all other Petitioners who were neither in privity with the Alliance nor had standing to sue since they were and are Pennsylvania citizens. G.C. Merriam Co. v. Saafield, 241 U.S. 22(1916). U.S. Steel's failure to obtain a Pennsylvania certification was even more 49 glaring. Although the plant will be partly located in Pennsylvania and although some of the watercourses into which U.S. Steel will discharge - either during plant construction or operation - are located in whole or in part in Pennsylvania, no application for certifica- tion was ever made. On its face, there- fore, the Corps' permit is invalid because U.S. Steel did not acquire the necessary certification from Pennsylvania. Finally, the Corps violated the referral procedure set out in Section 401(a)(2), 33 U.S.C. § 1341(a)(2). That procedure requires the Corps, once it receives one or more valid state certi- fications, to immediately notify the Administrator of the U.S. Environmental Protection Agency. The Administrator is 50 required to make a determination within thirty days whether the "quality of the waters of any other State [may be affected by issuance of the certification]" and, if so, notification is to be given to such other state(s), to the applicant, and to the permitting agency. 33 U.S.C. §1341(a)(2). The affected state is then to have an opportunity to request a hearing at which the public would be permitted to testify. Section 401(a) (2) expressly precludes issuance of a permit where, as a result of this hearing, "imposition of conditions cannot insure...compliance [with applicable water quality requirements]." Id. It is undisputed that the Corps did not formally notify U.S. EPA that it had received the purported Section 401 certificate from Ohio. Respondents' lame 51 excuse for not having done so is that "[Rlepresentatives of EPA, Regions III and V, and members of the Technical team, were fully informed of Ohio's action." [Respondents' Brief in Support of Summary Judgment, at 66). The District Court improperly accepted this excuse adding that the "record is replete with refer- ences to the exchange of information between federal and state representa- tives.'' Memorandum Opinion, November 23, 1981, at 23. The U.S. Court of Appeals for the Third Circuit apparently agreed. However, neither of the lower courts nor the Respondents cited any evidence that either U.S. EPA or the Commonwealth of Pennsylvania had even constructive notice of Ohio's action. Section 401(a)(2)'s requirements are the law of the land. They do not apply 52 differentially. They come into force whenever and wherever an applicant for a Federal license or permit seeks authori- zation to conduct any activity including construction or operation of facilities which could result in discharges to the navigable waters of the United States. Clearly, U.S. Steel seeks to discharge pollutants into the navigable waters of the United States during construction and operation and into watercourses in both states. Thus, Section 40l(a)(2)'s referral requirements are applicable and must be complied with. 3. The Permit Issued By the Corps Is Invalid Because the Corps Failed to Comply with the Fish & Wildlife Coordina- tion Act, 16 U.S.C. §§ 661 et seq. 53 Petitioners contend that Corps violated both the letter and spirit of the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. §§ 661 et seq. That Act requires full consultation with Federal and state wildlife agencies whenever the waters of any stream or other body of water are proposed to be diverted, channelled, or otherwise modified. 16 U.S.C. § 662. The statute contemplates that such consultation will conserve wildlife resources by preventing loss of and damage to such waterways. Id. at 662(a). To ensure full consultation, the Act requires reports of the wildlife agencies to become an integral part of any report prepared . by an agency of the Federal Government... when such reports are presented to... any agency or person [empowered] to... authorize... construction of water-resource development projects." 54 Id. at 662(b). These requirements estab- lish a national policy requiring that the wildlife conservation aspects of any project be explored and evaluated. Udall v. Federal Power Commission, 378 U.S. 428, 443-444 (1967). Failure to consider adequately wildlife implications of a proposed action is both a violation of the Fish and Wildlife Coordination Act and NEPA. Cape Henry Bird Club v. Laird, 359 F. Supp. 404 (W.D. Va.), aff'd, 484 F. 2d 453 (4th Cir. 1973); Environmental Defense Fund, Inc. v. Froehlke, 73 F. 2d 346 (8th Cir. 1972). The Fish and Wildlife Coordination Act, and the Corps' regulations imple- menting it, require that active and full consideration be given to the views of appropriate wildlife agencies. Thus, Section 661 of the Act requires 55 [t}he reporting officers in project reports...[to] give full considera- tion to the report and recommenda- tions of the Secretary of the Interior and to any report of the State agency on the wildlife aspects of [a] project [], and the project shall include justifiable means and measures for wildlife purposes as the reporting agency finds should be adopted to obtain maximum overall project benefits (emphasis supplied). Id. at 662(b). Likewise, the Corps' own regulations specifically require deci- sion-makers to give great weight to [the views of wildlife agencies] on fish and wild- life considerations in evaluating the application. The applicant will be urged to modify his proposal to eliminate or mitigate any damage to such resources, and in appropriate cases the permit may be conditioned to accomplish this purpose (emphasis supplied). An agency is obligated to comply with its own regulations. Feliciano v. Laird, 425 F, 2d 424, 429 (2d Cir. 1970); Natural Resources Defense Council, Inc. v. Callaway, 524 F. 2d 79, 96 (2d Cir. 56 1975). Petitioners brought forth evidence in response to Respondents’ motion for summary judgment showing that numerous agencies felt that very little serious consultation had been done and even less weight given to their views in the entire ELS process. However, instead of waiting to hear from the agencies themselves, the District Court decided all inferences favorably to U.S. Steel and the Third Circuit affirmed. This is impermissible and must be reversed. CONCLUSION For all of the foregoing reasons, Petitioners respectfully request that a Writ of Certiorari be granted. 57 Respectfully submitted, 611 Park Build np 140 Euclid Avenue Cleveland, OH 44117 (216) 781-9917 Jerome F. Weiss Weiss, Neiditz, Petrey, & Mandel National City Bank Bldg., 10th Floor East 6th Street Cleveland, OH 44114 (216) 589-9993 Attorneys for Petitioners. 58 Certificate of Service I hereby certify that a true and complete copy of the foregoing Petition for Writ of Certiorari was mailed by regular U.S. Mail, postage prepaid, to the following individuals on this day of July, 1983: Rex E. Lee, Esq. Solicitor General of the United States 10th and Constitution Avenues, N. W. Washington, D.C. 20530 Attorney for all Federal Respondents. Thomas R. Wright, Esq. Eric A. Schaffer, Esq. Blair S. McMillin, Esq. Reed, Smith, Shaw and McClay Union Trust Building P. O. Box 2009 Pittsburgh, Pennsylvania 15230 Attorneys for U.S. Steel Corporation. Staughton Lynd James Callen Northeast Ohio Legal Services 804 Metropolitan Tower Youngstonw, Ohio 44503 (216) 744-3196 Attorneys for Respondent Tri-State Conference on the Impact of Steel in Ohio, West Virginia and Pennsylvania 59 James Denny 1201 Realty Building Youngstown, Ohio 44503 (216) 747-6718 Attorney for Respondent Local 1397 United Steel Workers of America Michael J. Healy 1906 Law and Finance Building cee nt Pennsylvania (412) 391-7707 Attorney for Respondent Local 1397 United Steel Workers of America (Homestead, Pennsylvania) BRENT L. EN&LISH One of t torneys for Petitioners. 60 Appendices National Environmental Policy Act, 42 U.S.C. §§4321 et seq. . Relevant Sections of the Federal Water Pollution Control Amendments of 1972, 33 U.S.C. §§1251 et seq. . Relevant Sections of the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. §§661 et seq. . Great Lakes Water Quality Agreement of 1978. . Regulations of the U.S. Army Corps of Engineers related to the Fish and Wildlife Coordination Act, 33 C.F.R. §320.4(b) (1980) . Regulations of the U.S. Environmental Protection Agency related to certi- fication by states pursuant to 33 U.S.C. §1340; 40 C.F.R. §121.2(1981). . All docket entries made by the United States Court of Appeals for the Third Circuit in Case No. 82-5156 including the initial per curiam decision rendered on January 25, 1983, the subsequent order suspending the January 25, 1983 order, the subsequent order of February 16, 1983 reinstating the initial decision, and the March 11, 1983 decision declining rehearing en banc. Copy of the Hon. Judge Weber's decision granting Respondents' 61 Consolidated Motion for Summary Judgment dated November 23, 1982. 9. Copy of the Hon. Judge Wm. Knox' order of September 7, 1981 on cross-motions for partial summary judgment. se RF 62 Page Missing from Filming Copy CHAPTER 55—NATIONAL ENVIRONMENTAL POLICY Sec $321. Congressional declaration of purpose SUBCIIAPTER I—POLICIES AND GOALS 4491. Congressional declaration of national environmental policy. (a) Creation and maintenance of conditions under which man and nature can exist in productive harmony. (b) Continuing responsibility of Federal Gov. snment to use all practicable means to improve aud coordinate Federal plans, functions, programs, and resources. (c) Responsibility of each person to contribute to preser- vation and enhancement of environment. at... Cooperation of agencies; reports; availability of informa- tion; recommendations; international and national coor dination of efforts. iat, Conformity of administrative procedures to national environ- mental policy. toh Othe. statulory obligations of agencies. 435. Effeccs supplemental to existing authorizations. SUBCHAPTER II—COUNCIL ON ENVIRONMENTAL QUALITY i341, Reports to Congress; recommendations for Icgislation, 4342. Establishment; membership; Chairman; appointments. 443. Employment of personnel, experts and consultants. i444. Duties and functions, 4345. Consultation with Citizen's Advisory Committee on FEnviron- mental Quality and other representatives. 4346. Tenure and compensation of members. 4346a, Travel reimbursement by private organizations and Federal, State, and local governments. 4346b. Expenditures in support of international activities. 4347. Authorization of appropriations. SUBCHAPTER III—MISCELLANEOUS PROVISIONS 4361. Plan for research, development and demonstration. § 4321. Congressional declaration of purpose The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or elimi- Rate damage to the environment and biosphere and stimulate the heuith and welfare of man; to enrich the understanding of the ecolog- $23 A-74 42 § 4321 PUBLIC HEALTH AND WELFARE Ch. a3 ical systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. Pub.L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852. Histerical Nete Short Title. Section 1 of I’'ub.L. 91-100 Providet: “That this Act (eaacting this chapter) may he cited as the ‘National Eaviroamental Policy Act «4 1960'.~ ¥ of VR, W783, set out an « mute under nec. thee 4331 of this tithe, provides fur the preveutive, cuatrul, and alatement of on vireoments! pollution at federal facilitic. Admiai. Transfer of Veartions. ¥ the Kaviroamesta! Irevectioa Agency aad the offwers and componeats therevt os of Mefase Art Fermi Admiai ‘ of Refuse At permit pregream te regulate discharge uf and other refuse meatier intq relate to of are vtilieed te with but mot as- navigable waters of United States - thete tri see = Ex.00d No.1157 ertement of mositoriag fee 1 y purpoces, of alternative automotive puwer syetema, t(raasferred to and vesied ia the Administrator, Keergy Meseercrh aad De- sce = eectivea sI4(a) of this tithe __ Prevention, Comet, end Abatement of Vederal Yo- ities, Mx.Oré.No. 11752, Dee. i, 1973, 38 REORGANIZATION Dee. 22, 1970, SG VR. OGET, eet aut on sete wander section 407 of Title 33, Navi. gation and Nevigahie Waters. Leglelative Hictery. For lexisiative history and perpose of Pub.L. 01-100, nee 1D UACede Cog. and Adm News, » TiSl. FLAN NO. 3 OF 1070 Eft. Dec. 2, 1970, 35 FR. 15623, B44 Stet. Sous Prepered uy = Poesidest = trasemitted to the Senate and the Mouse of Mey-re scombied, July 8. 1970, pursuant to the provisions 4 cpus 6 uf tate hoffe Gane Gas Gas ten en of Tithe 5) ENVIRONMENTA!. PROTECTION AGENCY Section 1. Ketablichment of Agency. (a) There 2 hereby ectabliohed | the Kavi- or disability of the Admiaistrator of wm the event of @ vacancy ia the uffie Agency, b referred to ee the “Ageacy.” (b) There shall be at the head of the Ameacy the Administrator of the Kevi- Schedule Pay Rates (5 USC. 5313 (sec- toe 5313 of Title 5}). (e) There shall be fa the hereafter for Level 111 of the Executive Schedule Pay Rates (3 U.S.C. 5314 (eection $314 of Title 54). -_ The Dep- wty Admisistrater eball p euch (4d) There shall be ia the Agency a te exceed five Assistant Administrator: of the Kavirvameatal rutection Agen: whe shall be eppeisted by the I’resilen by eed with the advice and consent 4 the Senate, and shell Le compenssted ai the rate sow er hereafter provided f+ Level IV of the Executive Schedule Iss Kates (5 U.S.C. 3315 (section S315 of Title 5)). Keck t Admisist what perform such Seautons ae the Adwisw (rater shall frum time te time assige of Ser, 2% Tramefers te Kavirenmeatel Protection Agency. (0) There are hercl ed tu the Ad ‘ : (1) All Cuuctloas vested by law in ite Secretary of the laterior aad the lepert ment of the laterior which are adieu tered through the Federal Water Queir'' fuactions ac the Adainictrater shall from time to time aesign or delegate, ead shall ect a6 Administrator duriag the atecace 8, all fumiions which #ere tremsferred to the Secretary of tue lute or by Nevrgasization Piaa No. 2 uf i leet out ia the Appendix te Title 3) +* 524 ch. a3 Ws tee of off-road vehicles of public lands je designating as officially open te treed vehicle une att land met other ere festricted of closet, Mevretary ol jepartment of Laterine and other defend. sete Vieleted CEPTess requirements wf vert Ne 116+, § Jiel, set out af 8 te weet thin eevtion, requiring that all egeativts be based apes criteria set tarth thetrin ead that criteria tr epphed te desvignations of both ae sed sonune we ot reed vehicles Nathonal Wildlife tatieraten ¥ Merton, PC .1.C.1075, me Psapp Me Where by designeting all otherwise ea- rewitated land open foe use by off-rved vcew les the Nureew of Land Masaegement retre tet (ature public participation tn teugnation process to question whether tates of specific eres of (rall should he chaser! from “open” te “restricted” of thet”, adequate opportunity fer public 45 ENVIRONMENTAL POLICY 42 $4331 1% Precedersl of sebstantive metere of rights created This chapter creetes caly procedural sud ant substantive riatt. Merrie © Teneesere Val. Authority, 16 ( Ala 1972. 5 PF Sepp. 2 1). Private right of action I'rivate parties are allewed to euferre this chapter an private attorneys geuerel. Recker © Wilts, 1.C.N C1872, Oe FP Mapp. 403. This chapter ders at create any sul SMentive privete rich? Virginiens fur lhetios . Veipe, 1.0 Ve 197TD, HA FF Sepp S72, offirmed ia part, reversed in part oo other grounds S41 24 442. This chapter gives rine to se private couse of action sgainat private corpers- tiene which aliegediy polluted the sir Tenner © Armee Meet Corp. 1C. Tes. 1072, 30 F Sepp. DD pertepation in designation of areas end tras, an Coquiced by Ka Ord No llehH, § bet thi, = ewt an « fete anter this teem, wan denied. Id. SUBCHAPTER I—POLICIES AND GOALS § 4331. Congressional declaration of nationa’ environ- mental policy dies. of weder which men and nature cam exint ia productive harmeny Creation and mot (a) The Congress, recognizing the profound impact of man’s activi- ty on the interrelations of all components of the natural environment, farticularly the profound influences of population growth, high-densi- ty urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the crit- «al importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the con- tinuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organi- tations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, fconomic, and other requirements of present and future generations of Americans. 547 42 § 4331 c ‘ PUBLIC HEALTH AND WELFARE Ch. ibility of Federal Government te use all practicable qcane te improve and coordinate Kederal plana, functions, ereanrama, and resources (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of na. tional policy, to improve and coordinate Federal plans, functions, pro. grams, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustce of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and e«- thetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environ. ment without degradation, risk to health or safety, or other unde- sirable and unintended consequences ; (4) preserve important historic, cultural, and natural aspects uf our national heritage, and maintain, wherever possible, an en\.- ronment which supports diversity and variety of individu! choice ; 43 (5) achieve a balance between populution and resource u~ which will permit high standards of living and a wide sharing ot life’s amenities; and (6) enhance the quality of renewable resources and approuwt the maximum attainable recycling of depletable resources. Responsibility of cach pervon te contribute to preservation ead cab mt of (c) The Congress recognizes that each person should enjoy a healt’ ful environment and that cach person has a responsibility to contri! ute to the preservation and enhancement of the environment. Pub.L. 91-190, Title I, § 101, Jan. 1, 1970, 83 Stat. 852. Historical Nete allowed « lesser somber te cvmduet beat Cc tees Pee Growth aad (me American y Pm Pod.l. 01-212, 1-9, Mar. 1@, 1970, ba Mat. @-@, estab: the Lied -— tage, members wf the Commissions, teue lished the C wa Pep Grewth end the Ameriraa Future te con- dust and spenene ouch studies end ce the © te ewadart «se inte certain preecrived aspects of re! tee arowth te the Caned Btates an) etal search cad make such ae might be mecessary to preville infer. mative and educative te all levels of guv- ernment in the United Mates, sad to our people regarding a broad raage of prob- jews ateeciated with pepeletion growth and their implications for America’s (u- ture; prescribed the cumpesiiion of the Commission; provided for the appeint- ment of ite members, and the designation of a Chairman aad Vice Chairman; re- quired @ majerity of the members of the Commission to constitute @ quorum, Wet deems necessary to carry out i> for the appointment at an Virevter sad ether pereoanct scribed their cumpensative. ; oe.” auth far os the Commission te cater tate cowl” with public agencies, private firm tuttoas, and ladividesia fue the «'* of reerarch and surveys, the prrie'* of reports, and other activities were” te the diecharwe of its duties an4 quest from ony Federsi depart’ Savery any information and asenieh" ‘ 548 ENVINONMEN 53 r jodh eal Conclasions contrary te pelt 7 wet event Cofelastene ahah patti ipetrem on frustrae an sivnal poly with teperd + ehepter Thompeen © Pugate 0a 1952 307 PB Sapp tu reeveation, ete, ef pelletion at feder- oe fecuitios Yotied Ne UTS, set wut ase mete wn thus mer tiet, efating pelley of federet efoment (6 oleerve applicalle stew 4 fet preveetion, ewattel end ebate- at of environmental pollution ta comp. om erth state and lal guveraments fel net suthorine blanket exemption of Scone faciiities from specified re SSS YE Se aye ¥ pormuts fot operation of equipment 42 §$ 4332 fausime Gif Pollution Stete of Ale Seeter © A Ale 1974 WR PD tas tenet ed on othet grounds WENCH MD TAL POLICY ‘ & = Vretection ef quality ef erhen tile The environmental pelicy expressed on thie chaptet ts a0 treed as the mind san Couceive end neressariiy inciudes «oncern for the quality of wrben life: easton mental probleme of the city ere fet as readily) wleatifiatic a« clean eit end clean water Nucleus of Chirage Ilomeow ners Ase © Lyon, CAT I0TR, Se PF du M5. vertiorart @enied OO ACH ited 42) US O67, 47 1. Ma 2a T3 Thies chapter must be construe! to te clude protection of quality of life for city fesidents First Nat Nenk of Chicage © Michardsen, C ATL 1073, 484 F 2d Law treats of the stetes fer preurement 4332. Cooperation of agencies; reports; availability of in- formation; r dations; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possi- vie (1) the policies, regulations, and public laws of the United States teall be interpreted and administered in accordance with the policies wt forth in this chapter, and (2) all agencies of the Federal Govern- rent shall— (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment; (B) identify and develop methods and procedures, in consulta- tion with the Council on Environmental Quality established by sutchapter II of this chapter, which will insure that presently un- quentified environmental amenities and values may be given ap- Propriate consideration in decisionmaking along with economic end technical considerations ; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iti) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and 553 42 $4332 puniic HEALTH AND WELFARE Ch. 35 (v) any irreversible and irretrievable commitments of i sources which would be invulved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Feders| official shall consult with and obtain the comments of any Feveral agency which has jurisdiction by law or special expertise with spect to any environmental impact involved. Copies of such sta ment and the comments and views of the appropriate Federal State, and local agencies, which are authorized to develop and en. force environmental standards, shall be made available to the President, the Council on Environmental Quality and to the publi as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes ; (D) Any detailed statement required under subparagraph \() after January 1, 1970, for any majer Federal action funded under a program of grants to States shail not be deenied to be legully sufficient solely by reason of having been prepared by a Stats agency or official, if: (i) the State agency o¢ efficial has statewide jurisdiuti and has the responsibility for such action, (ii) the respensible Federal official furnishes guidaun: aad parucipates ia such preperation, (iii) the eumpensible Federal official independently cvale ates such statement prior to its approval and adoption, a: (iv) after January 1, 1976, the responsible Federal offi. provides carty notification to, and solicits the views of, «!. ether State or any Federal land management entity of am action or any alternative thereto which may have significan' impacts upon such State or affected Federal land manays ment entity and, if there is any disagreement on such i” pacts, prepares a written assessment of such impacts +! views for incorporation into such detailed statement. The procedures in this subparagraph shall nut relieve the Feder. official of his responsibilities for the scope, ubjectivity, and ow tent of the entire statement or of any other responsibility wi’ this chapter; and further, this subparagraph docs not affect |! legal sufficieney of statements prepared by State agencies “il: less than statewide jurisdiction. (E) study, develop, and describe appropriate alternatives © recommended courses of action in any proposal which invol\«> = resolved conflicts concerning alternative uses of available | sources ; (F) recognize the worldwide and long-range character of +! ronmental problems and, where consistent with the foreign [**" of the United States, lend appropriate support to initiatives. ' 554 - 53 ENVIRONMENTAL PoLicy 42 § 4332 a2 jutions, and programs designed to maximize international cooper- ation in anticipating and preventing a decline in the quality of mankind's world environment, (G) make available to States, counties, municipalities, institu- tions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and (1) assist the Council on Environmental Quality established by subchapter II of this chapter. ‘Pub.L. 91-190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853; Pub.L. 94-83, ‘Avg. 9, 1975, 89 Stat. 424. , Ste erigiveal. : Historical Nete | itd Amendment. Nubpar. (1) Vel. legisiative Mistery, For legislative HN edded subpar. (1) Former salper history aed purpose of Pub L. 01-190, see redewaneted (E) 1970 US Code Cone and Adm News. & TT3). See, olee, Publ. 0443 1975 US sulpere, (E) te (1). Publ. 0-40 re Q-vgnated former eubpars. (1) to (HD as Cade Cong. 00 Adm.Xews, p 60 Cu to ilh West's Federal Forms plaint for injunction tue failure te comply, see le Pee tral erder, see § 2807.12. Code of Federal Regulations b+ cotements, standards ete, Agency for Luternational Develupment, see 22 CYR T2161 et sey Aerivviturel Stabilizetivm aad Conservation Service, cee T CFR TOOL et seq Worees of Land Management, see 42 CHK 2000 et eq, e200 2 et em Cuil Aeronautics Board, see 14 CFR 201.1 et seq, 2811 et sey, DID 1 et seq. Wel et seq Coast Guard, see 46 CPIt 1001-1 et seq.. 12.01 et seq. DiLOl-1 et seq. TLOL-1 et seq DL Ol-t et seq. 101-1 et seq. 1760-1 et sey, IT Ol-1 et req. 190.01-1 ot sey Committee foe Purchase from the Dilnad aad Other Severely Heanduapped see 41 CFR SI-41 et coq Coancit on Environmental Quality, see 40 CPE 1001 et seq. 1510.1 et seq Defense Lepartment, see 72 CHR 2141 et oy heergy Research and Lerelap Ad retion, eee 10 CYR TILL et seq Earireamental Protection Ageacy, ee 0 CHK Ch I Federal Aviation Administration, see 14 CFR 21.1 et seq. 26! ef seq. Ll et sey Vederat Highway Artministration, see 23 CF 420.10) et seq, TITIOL et sey. TSLL et seq. TIO DU et sey. TTL et mew, TDL ot seq Peteral Trade Commission, see 16 CFK 1 1 et seq Vent and leug Administration, see 21 CHK Zl et sen National Aeronautics and Space Administration, are 14 C National Highway Traffic Mefety Admintatration, see *crn Sol National Merune Fisheries Serview, sce Jo CRM S511 ef sey. Nectese Reeulatoes Commission, see 10 CRI 21 et seq, St! ‘meupational Safety and Health Administration, see TCH WOO 1 et sem Office of Educative, see CRE 10m 1S, low ~ Sell Couservation Service, ee T CRI GAL et seq Tennessee Valley Authority. see IS CRE JAG et sey Urhan Mass Transpettation Administrative, see 49 CFR 613.100 et sey 555 A-80 42 § 4332 Note 516 court believed (het pleiatiffe weeld pre vail (a (hott Coutention that, even if (here wae din tetioe te determine whether cart. fotmental statement showld be prepared, perth alter exercise of claimed discretion PUBLIC HEALTH AND WELFAKE Ch, 35 wee arbilrery #e@ UAreavenetie mote for ardlet suspending preliminary iajom thee eg@einet comeirmetiv® Wte dete Sehere ©. Volpe, 1h Wie 1971, 296 PF tap ~ \n determing net te prepere statement § 4333. Conformity of administrative procedures to nation. al environmental policy All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter. Pub.L. 91-190, Title I, § 103, Jan. 1, 1970, 83 Stat. 854. Mieterieal Nete Leaicietive Mistery. history and perpece of I’'eb.L. 91-180, are Netes of - j : H i, i i | 3 i | | | b Bi em USB Cade Come and Adm News, » 2751. Decisions 2% Meartece This chapter dues aot require exten-¢ adminiatretive proceedings, aseither the Admistetrative Uroredure Act, sertive SB et coq. and 701 et seq. of Title 3. ow this chapter compe! egeacy [4 apperrnt ov examiner ond conduct hearings. Naters: Rewurces Defense Council, lee rt * Cc Ca: Be long a0 cach final derision in +a major federal ection. ladividual of ceuet ie, comperte with requirements of thir ehapter aad ether regulativas require’ by Atomic Energy Act of 1834, sete 2201 ot seq. of thie tithe. aad the Enerey Reorganisation Act of 1074, section 5+! et cng. of thie title, it dees not metirr thet Xuctear Regul y Commi a dresses certain iseues in bread eele it quiry end others in limited jadividue! preceediags. Id. - 3 4334. Other statutory obligations of agencies Nothing in section 4332 or 4333 of this title shall in any way affect the specific statutory obligations of any Federal agency (1) to comp!’ with criteria or standards of environmental quality, (2) to coordinate 756 ch. 33 ENVIRONMENTAL PoLicy 42 § 4341 - onsult with any other Federal or State agency, or (3) to act, or re ‘sin from acting contingent upon the recommendations or certifica- » of any other Federal or State agency. >.) L. 91-190, Title 1, § 104, Jan. 1, 1970, 83 Stat. 854. Histerical Nete Leewiotive Mistery, Por legisiative 160 USCode Come sad Adm News, » ~ or and purpose of ut 1. 01-100, see 2751 Netes of Decisions worrally 8 pprmenled with other lowe 1 tification, Calvert Cliffs’ Coordioatiag Committee, Ine + U. SB. Atomuc Eoergy — Commission, 1071, 449 F.2d 1100, We US Appic we Cenctrertion with ether lowe edume te water quality certifica, % Generetty wade tiem UITL of Tithe 33. te This chapter dees wot limit authority toate dusive with procedures of ony guvernmental agency ie aay per her thy _/) end does ant preclude manent of conclusive manner, but doer of tae laties weder thie chapter, mandate that action be taken only in + ertifieations essentially establah complete awareness of part of actor of oom conditvees for great of lieense, ene ' ] wf bie ection » boerey Commission con conduct end (hat be first take atepe requiret ty eee aealpete of enviroemental ef (hie chapter National Hethum Corp + + of ptopened action @espite privet cer Merton. C A Kea 1071, 4 Fld 60 : 4335. Efforts supplemental to existing authorizations The policies and goals set forth in this chapter are supplementary to ‘sone set forth in existing authorizations of Federal agencies. +L 91-190, Title I, § 105, Jan. 1, 1970, 83 Stat. 854. Historical Note lrauietive Mistery, For legislative 1008 UN Code Coma and Adm News, p ty aed purpose of Pub L. 01-190. see 2751 SUBCHAPTER I1—COUNCIL ON ENVIRONMENTAL QUALITY 3 4341. Reports to Congress; recommendations for legisla- tion The President shall tranamit to the Congress annually beginning ily 1, 1970, an Environmental Quality Report (hereinafter referred “+ a» the “report”) which shall set forth (1) the status and condition ‘the major natural, manmade, or altered environmental classes of the Nation, including, but not limited to, the air, the aquatic, including “arine, estuarine, and fresh water, and the terrestrial environment, “cluding, ut not limited to, the forest, dryland, wetland, range, ur- “". suburban, and rural environment; (2) current and foreseeable 757 A-82 A 4 ae rer ee yan NOP MED BMT. MT) tone ee bi gy Ire a i] at +e oe " ee ae Ss + + WS Dh ad ie as mn n ; , ‘ Page Missing from Filming Copy 33 § 1328 ture project may do so if upon submission of such program the Ad- ministrator determines such program ix adequate to carry out the objective of this chapter. June 30, 1948, ¢. 758, Title LIL, § 318, as added Ovt. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 877, and amended Dee. 27, 1977, Pub.L. 95-217, § 63, 91 Stat. 1599. NAVIGABLE WATERS Ch. 26 Historical Nete 101T Amendment, Muliaee. (a), Pall. ment apylivetie to a permit tesued wader ( 21T aided “pursuant to section 1362 of thin tithe” followleg “Pederal of Mate au pervisioa”. Mulnee. Vell, 06-217 atreack out * et later than Jampery 1, 1974," tot. lowing “The Admintatrator shall by rex viation” le exietiag provisions aad added proviniems that (he regulations required the application te (he discharge of each eriterion, factor, provedare, aad require wevtiom [202 of thin title, ae the Adutiaie tratee determines Gerwesary te certy @wt the objectives of (hie chapter, Mute te). Veh. St added wubeer, (ec). ivateletive Mistery. Pee legislative history and purpose of ul lL. Slam, see wis UK Cede Come ead Adm News, p MN Mee, lee, Mal b. 05.297, TT Us Cole Comme and Adm News, p. (328 Code of Federal Regulations Vrocedare for discharge, we 40 CRA MGT ot neq, SUBCHAPTER IV—PERMITS AND LICENSES Certification with applicable requ + apoticatt ° Hernne sunpension (a)(1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable wa- ters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency hav- ing jurisdiction over the navigable waters at the point where the dis- charge originates or will originate, that any such discharge will com- ply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limitation or other limitation under sections 1311(b) and 1312 of this title, and there is not an applicable standard under sections 1316 and 1317 of this title, the State xhall so certify, except that any such certification shall not be deemed to satis- fy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent it deems aj ropriate, prowedures for public hearings in connection with specific applications, In any cause where a State or interstate ayency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may bx. fails or refuses to act on a request for certification, within a reason- 212 § 1341. C, mm" A-84 Ch. 26 POLLUTION PREVENTION 33 § 1341 able period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application, No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sen- tence, No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be, (2) Upon receipt of such application and certification the licensing or permitting agency shall immediately notify the Administrator of such application and certification, Whenever such a discharge may affect, as determined by the Administrator, the quality of the waters of any other State, the Administrator within thirty days of the date of notice of application for such Federal license or permit shall so no- tify such other State, the licensing or permitting agency, and the ap- plicant, If, within sixty days after receipt of such notification, such other State determines that such discharge will affect the quality of its waters so as to violate any water quality requirement in such State, and within such sixty-day period notifies the Administrator and the licensing or permitting agency in writing of its objection to the is- suance of such license or permit and requtsts & poblic hearrg on foc oly Con, the licensing of permitting agency shall hold such a hearing. The Administrator shall at such hearing submit his evaluation and recommendations with respect to any such objection to the licensing or permitting agency. Such agency, based upon the recommendations of such State, the Administrator, and upon any additional evidence, if any, presented to the agency at the hearing, shall condition such license or permit in such manner as may be necessary to insure compliance with applicable water quality requirements. If the imposition of con- ditions cannot insure such compliance such agency shall not issue such license or permit. (3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after notice to the certifying State, agency, or Administrator, as the case may be, which shall be given by the Federal agency to whom application is made for such operating |i- vense or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies such agency within sixty days after receipt of such notice that there is no longer reasonable assurance that there will Le compliance with the applicable provisions of sections 1311, 1112, 1318, 1316, and 1317 of this title because of changes since the ‘onstruction license or permit certification was issued in (A) the con- “truction or operation of the facility, (B) the characteristics of the waters into whieh such discharge is made, (C) the water quality cri- teria applicable to such waters or (DL) applicable effluent limitations other requirements, This paragraph shall be inapplicable in any ‘ase where the upplicant for such operating license or permit has tailed to provide the certifying State, or, if appropriate, the inter. 213 85 > ' 33 § 1341 NAVIGANLE WATERS Ch. 26 state axeney or the Administrator, with notice of any proposed changes in the construction or yperation of the facility with respect to which a construction license or permit: has been granted, which changes may result in violation of section 1311, 1512, LI1S, 1316, of 1317 of this title, (4) Prior to the initial operation of any federally licensed or per- mitted facility or activity which may result in any discharge into the navigable waters and with respect to which a certification has been obtained pursuant to paragraph (1) of this subsection, which facility or activity is not subject to a Federal operating license or permit, the livenswe or permittee shall provide an opportunity for such certifying State, or, if appropriate, the interstate agency or the Administrator to review the manner in which the facility or activity shall be operated or conducted for the purposes of assuring that applicable effluent limi- tations or other limitations or other applicable water quality require: ments will nut be violated. Upon notification by the certifying State, or if appropriate, the interstate agency or the Administrator that the operation of any such federally licensed or permitted facility or activi- ty will violate applicable effluent limitations or other limitations or other water quality requirements such Federal agency may, after pub- lic hearing, suspend such license or permit. If such license or permit is suspended, it shall remain suspended until notification is received from the certifying State, agency, or Administrator, as the case may be, that there is reasonable assurance that such facility or activity will not violate the applicable provisions of section 1511, 1312, 1515, 1318, or 1317 of this title, (5) Any Federal license or permit with respect to which a certifica- tion has been obtained under paragraph (1) of this subsection may be suspended or revoked by the Federal agency issuing such license or permit upon the entering of a judgment under this chapter that such facility or activity has been operated in violation of the applicable pro- visions of section 1311, 1312, 1313, 1316, or 1317 of this title, (6) Except with respect to a permit issued under section 1342 of this title, in any case where actual construction of a facility has been lawfully commenced prior to April 3, 1970, no certification shall be re- quired under this subsection for a license or permit issued after April 3, 1970, to operate such facility, except that any such license or permit issued without certification shall terminate April 3, 1975, unless prior to such termination date the person having such license or permit sub- mits to the Federal agency which issued such license or permit a cer tification and otherwise meets the requirements of this section, Comptiance with ether provisions of lew ertiing water quality requirements (b) Nothing in this section shall be construed to limit the authority of any department or agency pursuant to uny other provision of law to require compliance with any applicable water quality requirements The Administrator shall, upon the request of any Federal department or agency, or State or interstate agency, or applicant, provide, for the purpose of this section, any relevant information on applicable ef 214 Ch. 26 VOLLUTION PREVENTION 33 § 1341 fluent imitations, or other limitations, standards, reyulations, or re- quirements, or water quality criteria, and shall, when requested by any such department or agency or State or interstate agency, or appli- cant, comment on any methods to comply with such limitations, stan- darda, regulations, requirements, or criteria. Auth re ery of Army te permit ene of spell dixpesat erves by Kederat or perm (ce) In order to implement the provisions of this section, the See- retary of the Army, acting through the Chief of Engineers, is au- thorized, if he deems it to be in the public interest, to permit the use of spoil disposal areas under his jurisdiction by Federal licensees or permittees, and to make an appropriate charge for such use. Mon- eys received from such licensees or permittees shall be deposited in the Treasury as miscellaneous receipts. La aad ry oa * of 1n (d) Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring require- ments necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard of per- formance under section 1316 of this title, o. prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section. June 30, 1948, ¢. 758, Title IV, § 401, an added Oct. 18, 1972, Pub.L. 92-500, § 2, 86 Stat. 477, and amended Dec, 27, 1977, Pub.L. 95-217, tf 61(b), 64, 91 Stat. 1598, 1599. Misterteal Nete Wil Amendment, Mubeee. (6), I'wb.l. pollmtante ead ether refuse matter late “TIT added reference to section [212 of naviaahle waters af the United Mates oF thie Hithe fe perm C1), 00, CO), od (5), thele tribeterten, eee Ka.Ord. No. 115T4, “rek out par, (6) which had provided thee, 23 1970, 25 FM. METT, wet ont ano that ne Pederel agency be deemed o0 ap sete wader sertion 407 of thie title hie ent for the purposes ef this subeer tes teatetative Mistery. Yor Wweleletive —~p om revlewiqnated former par. (T) an Distery cad perpese of Mutat. t¢-2uu, ese WTS UA Cote Come, aed Adm News, p. Ndministration of Mefese Art Permit 3M Mew, alee, Malet. BO-TIT, ITT UUs. Frearmm. Admiminttation of Hefuse Act Cute Comm, and Adu News, p 1m Vermit Mrowrem te reewlete dimharae of Library References Naviteble Waters Coal. CIS. Navignhie Waters 111 Notes ef Decisions \vilirwnts for rertifiention ¢ dariedictien @ | ouditions of vertifiration @ Leret laws 8 fonstruction with ether laws # Meview te ee prewens 7 Mate standards (11004 of cortifiention & Rebstemtial eidemes © 215 A-87 16 § 661 PROTECTION OF WILDLIFE Ch. 5A Sec. 668ff, San Francisco Bay National Wildlife Refuge; establishment and designation, 668g. Same; description, G68hh. Same; establishment of area; publication in Federal Regis- ter; corrections in boundaries; maximum’ area; admin- istration by Secretary. G68ii. Same; acquisition by Secretary of lands and waters or inter- ests thercin, 668jj. Same; authorization of appropriations, GAME, FUR-BEARING ANIMALS AND FISH § 661. Declaration of purpose; cooperation of agencies; surveys and investigations; donations For the purpose of recognizing the vital contribution of our wildlife resources to the Nation, the increasing public interest and significance thereof due to expansion of our national economy and other factors, and to provide that wildlife conservation shall receive equal consider- ation and be coordinated with other features of water-resource devel- opment programa through the effectual and harmonious planning, de- velopment, maintenance, and coordination of wildlife conservation and rehabilitation for the purposes of sections 661 to 66Gc of this title in the United States, its Territorics and possessions, the Secretary of the Interior is authorized (1) to provide adsistance to, and cooperute with, Federal, State, and public or private agencies and organizations in the development, protection, rearing, and stocking of all species of wild- life, resources thereof, and their habitat, in controlling losses of the same from disease or other causes, in minimizing damages from overa- bundant species, in providing public shooting and fishing areas, in- cluding easements across public lands for access thereto, and in carry- ing out other measures necessary to effectuate the purposes of said sections; (2) to make surveys and investigations of the wildlife of the public domain, including lands and waters or interests therein ac- quired or controlled by any agency of the United States; and (3) to accept donations of land and contributions of funds in furtherance of the purposes of said sections, Mar. 10, 1934, ¢, 55, § 1, 48 Stat. 401; 1939 Reorg.Plan No, II, § 4(e), (f), eff, July 1, 1939, 4 FR. 2731, 53 Stat. 1433; Aug. 14, 1946, ¢. 965, GO Stat. 1080; Aug. 12, 1958, Pub.L. 85-624, § 2, 72 Stat. 563. Misterteal Nete 1984 Amendment, Dub.L. 83-24 insert. and te equal consideration and coordina @d provisions which relate te recoqnities twa ef wildlife conservation with vther wf the vital contribution of wildlife re. water devel tou rame, wrurews to the Nation, the lecressing and which authorise the Mewretary to bullic wterest end siguificnace therwel, previde public fishing arenes, aud tu ac: 334 A-88 16 $661 ond measutes for (1) attesting deple thet te ptedbaetive bedde, (2) festering to presluetiva tade formerly productive, OO) developing few areas, (1) tmprtoving metheds of @ “. t vl . one handing; and (5) otherwise incewestiog predurtion and improving quetity for henefit of both prod and ts, and, authorized appropristion fur the fiwe-year period beginaliag July 1, ten, of $230.0w to carry out the studies of the woflt-shell clam ead the sum of PROTECTION OF WILDLIFE Ch. 5A Slaw te catty out the studies of the hard shell clerm Administration of Kefuee Act Permit Veearem. Administration of Mefuse Act permit program te tegulate discharge of pollutants and other refuse matter inte navigable weters of Uatted States of theie tributaries, sce Kx.Ord No. 11574, Dee. Ti, 1970, 35 FR, 10027, set out an @ mete under sevtion 40T of Tithe 33, Newt gatiwa and Navigabie Waters. Library References rich Goa CIS. Fieh 1 Game 34%. C13. Game § 7. Cede ef Federal Regulaticns Nend ie lly exsieted programe, see 43 CR 17.1 et sey. and Ap peadices. § 662. impounding, diverting, or controlling of waters— Consultations between agencies (a) Except as hereafter stated in subsection (h) of this section, whenever the waters of any stream or other body of water are pro- posed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the agency exercis- ing administration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources by preventing loss of and damage to such resources as well as providing for the development and improvement thereof in connection with such water-resource development. Ree ana (b) In furtherance of such purposes, the reports and recommenda- tions of the Secretary of the Interior on the wildlife aspects of such projects, and any report of the herd of the State ayency exercising ad- ministration over the wildlife reesvces of the State, based on surveys and investigations conducted by the United States Fish and Wildlife Service and such State agency for the purpose of determining the pos- sible damage to wildlife resources and for the purpose of determining means and measures that should be adopted to prevent the loss of or damage to such wildlife resources, as well as to provide concurrently for the development and improvement of such resources, shall be made an integral part of any report prepared or submitted by any agency of 336 Ch. 5A GAME AND FISH 16 § 662 the Federal Government responsible for engincering surveys and con- struction of such projects when such reports are preaented to the Congress or to any agency or person having the authority or the pow- er, by administrative action or otherwise, (1) to authorize the con- struction of water-resource development projects or (2) to approve a report on the modification or supplementation of plans for previously authorized projects, to which sections 661 to 66fc of this title apply. Recommendations of the Secretary of the Interior shall be as specific as is practicable with respect to features recommended for wildlife conservation and development, lands to be utilized or acquired for such purposes, the results expected, and shal! describe the damage to wild- life attributable to the project and the measures proposed for mitigat- ing or compensating for these damages. The reporting officers in project reports of the Federal agencies shall give full consideration to the report and recommendations of the Secretary of the Interior and to any report of the State agency on the wildlife aspects of such proj- ects, and the project plan shall include such justifiable means and measures for wildlife purposes as the reporting agency finds should be adopted to obtain maximum overall project benefits. Medification of projects: acquiatiion of lands (c) Federal agencies authorized to construct or operate water-con- trol projects are authorized to modify or add to the structures and op- erations of such projects, the construction of which has not been sub- stantially completed on the date of enactment of the Fish and Wildlife Coordination Act, and to acquire lands in accordance with section 663 of this title, in order to accommodate the means and mvasures for such conservation of wildlife resources as an integra! part of such projects: Provided, That for projects authorized by a specific Act of Congress before the date of enactment of the Fish and Wildlife Coor- dination Act (1) such modification or land acquisition shall be com- patible with the purposes for which the project was authorized; (2) the cost of such modifications or land acquisition, as means and mea- sures to prevent loss of and damage to wildlife resources to the extent justifiable, shall be an integral part of the cost of such projects; and (3) the cost of such modifications or land acquisition for the develop- ment or improvement of wildlife resources may be included to the ex- tent justifiable, and an appropriate share of the cost of any project may be allocated for this purpose with a finding as to the part of such allocated cost, if any, to be reimbursed by non-Federal interests. reject costs (d) The cost of planning for and the construction or installation and maintenance of such means and measures adopted to carry out the conservation purposes of this section shall! constitute an integral part of the cost of such projects: Provided, That such cost attributable to | the development and improvement of wildlife shall not extend beyond | that necessary for (1) land acquisition, (2) facilities as specifically 1 WUSCA $6 e01-o1—22 337 16 § 662 PROTECTION OF WILDLIFE Ch. 5A recommended in water resource project reports, (3) modification of the project, and (4) modification of project operations, but shall not include the operation of wildlife facilities. Treaster of fuade (e) In the case of construction by a Federal agency, that agency is authorized to transfer to the United States Fish and Wildlife Service, out of appropriations or other funds made available for investigations, engineering, or construction, such funds as may be necessary to con- duct all or part of the investigations required to carry out the pur- poses of this section. Eotimation of wildlife benefits o¢ tosore (f) In addition to other requirements, there shall be included in any report submitted to Congresa supporting a recommendation for authorization of any new project for the control or use of water as de- scribed herein (including any new division of such project or new sup- plemental works on such project) an estimation of the wildlife bene- fits or losses to be derived therefrom including benefits to be derived from measures recommended specifically for the development and im- provement of wildlife resources, the cost of providing wildlife benefits (including the cost of additional facilities to be installed or lands to be acquired specifically for that particular phase of wildlife conservation relating to the development and improvement of wildlife), the part of the cost of joint-use facilities allocated to wildlife, and the part of such costs, if any, to be reimbursed by non-Federal interests. Apolieebiiity te projects (g) The provisions of this section shall be applicable with respect to any project for the control or use of water as prescribed herein, or any unit of such project authorized before or after the date of enact- ment of the Fish and Wildlife Coordination Act for planning or con- struction, but shall not be applicable to any project or unit thereof au- thorized before the date of enactment of the Fish and Wildlife Coordi- nation Act if the construction of the particular project or unit thereof has been substantially completed. A project or unit thereof shall be considered to be substantially completed when sixty percent or more of the estimated construction cost has been obligated for expenditure. - — ‘ (h) The provisions of sections 661 to 666c of this title shall not be applicable to those projects for the impoundment of water where the maximum surface area of such impoundments is less than ten acres, nor to activities for or in connection with programs primarily for land management and use carried out by Federal agencies with respect to Federal lands under their jurisdiction. Mar. 10, 1934, e. 55, § 2, 48 Stat, 401; 1949 Reorg.Plan No. II, § 4(e), (f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat. 1433; Aug. 14, 1946, 338 Grout, Lakes Water Quality Aureement , ¢ - ol 1978 Agreement, with annexes and terms of reference, between the United States of America and Canada signed at Ottawa November 22, 1978 & - tae International Joint Commission ®. alr ‘aren dey 2 . , . - ca ; y rae Canada and the Uniled Slates % ‘s A-93 GREAT LAKES WATER QUALITY ACREEMENT OF 1978 ARTICLE SUBJECT iz me -—-—— eed Te I Definitions Il Purpose ltl Cencral Objectives Iv Specific Objectives Vv Standards. Other Rew . Requirements, and &. -: vi Programs and Other “Mews e Vil Powers, Responsibilit Functions of the IJ. VIII Joint Inscitucions 4- Ix Submission and Exch: x Consultation and Re. x1 Implementation XII Existing Rights ana KILI Amendment XIV Entry Into Force ant .+ xv Supersession ~*~ ~“ SUBJECT Specific Objectives Limited Use Zones Control of Phosphc--- Discharges of Oil ane Polluting Substan:« - Review of Pollution fr - Sources Oredging Discharges from Ons: and Offshore Facil itic« Joint Contingency Pili Hazardous Polluting ~- > * of @uN FU PWN APPENDIX 1 - Hazardous Polluting ‘. APPENDIX 2 = Potential Hazard. # Substances \ Persistent boxic Serbst on, ros of Reterence tor the Joint institut Great lakes Regional Obtice A-94 Discharges of Vessel ».:~:« Surveillance and Moniteerc: * teerne the intecactings cc7rerents Of e1f, seNC, warce anc ssVi59 Orgarsers, inclué:ng man, within the drairace Cesin of tre Se. wawsence River at Of wptirear {FOS the ZOIAe at oF.c7 thit caver tecomes the international Councery between Ceraca and the United States: "Great Lakes Systea” sears a1) of the streazs, rivers, lakes and other bodies cl water that are within the Crairase basin on the St. Leecence A.ver at OF ups*ireas from the point at ehich this river Leccves the international boundary tetween Caraeda and the United States; *Harelul Guantity® means ary quantity of a substance that af discharged into ceceiving water woule irconsistent with tne achievezent of the Genera: ans Specific Osjectives; “hazardous peliuting sucstance® means ens elerent o: Compound igentified by the Parties snich, if Cischergeds an any Guantity into cr upon receiving weters o- ning shorelines, would present an imeinent anc rtial danger to puslic healt! or welfare; for th.S perpose, “public healtn or welface® encozpazres al. factors affecting the health ant welfare of 22: Tole. MG Set Ot Liaised to Ws S@4.0s., and thy SIlG Set SN oPS BPC.@OTIO. SF 2e6T8 E55 Sdet0, -- Fi eVeee Sle getT uve en doweae8 255 Bweds.es: Feeeee (hk) aa) (mn) (o) (p) (q) (r) (s) (s) “Internationals Joint Cor-7ission® or “Cor-sacsion” rears the International Joint Comission estarlirces ty tre Boundary Waters Treaty; *Fonitorine” means « scientifically desicned svste> of continuing standardized reasurezents and observations and the evaluation thereof; *“Objectives® means the Ceneral Osjectivis adostea Pursuant to Article III and the Spesific Odjectives acopted psrsuant to Article IV of this Agreerent: *Parties® means the Government of Canada ane the Governzent of the United States of Aterica: “Phosohorus® >ears the elertent phosphorus present as a constituent of various organic ard inorganic complexes and compounds; “Research® weans developrent, deronstration . 4 other fesearch activities but does not include monitoring ant Surveillance of water or air quality: “Science Advisory Board® means the Great Lakes Science Acvisory Board of the International Joine Corrissics estadlisted pursuant to Article Vill of tnis Agreevent;: "Specific Objectives* wreans the concentration or quantity of @ substance or level of effect trat tre Parties agree, after investigation, to recocn.ze as a faxicus or minitum desired lirit for as definec sody of water of portion thereof, taking into account tne beneficias uses or level of enavironzental quality snich the Parties desire to secure and protect: “State and Provircial Covernzents* reans tne Governments of the States of Illinois, Indiana, Michigan, Minnesota, New York, On10, Wisconsin arc tre Commonwealth of Pennsylvania, and the Covecnrent of tre Province of Ontario; “Surveillance® peans specific observations and Beassrements relative to contro] or garnagerent; “Terms of Reference” means the Terns of Refererce for the Joint Institutions and the Creat Laces Regiona! Office estadlished pursuant to this Agreement, which are attached to and form an integral part of this Agreement: “Tonic substance” means @ substance which can cause death, disease, behavioural abnorralties, cancer, genetic eutations, physiological or reproductive malfunctions or physical deforeities in any ornanisz or its offspring, or wnich can becote poisonous after concentration in the food chain or in combination with other substances; *Tributery waters of the Great Lakes Systen* or “tributary waters® means all the waters within the Great Lakes System inat are not boundary waters; “Water Quality Board® means the Creat Lakes water Qvality Boerd of the International Joint Cozaission estadlished pursuant to Acticle VII! of this Acreerert. turccose of the Parties 18 {0 restore a@7-c Fairia.e et. ct.. Diyeieal, and droloesca) inteority of tne waters of ott tases Erran Teosyster. In order to eshieve this t 2 "ties acree to rake @ waxigum effort to develoo oot ard techrology necessary for a hetter the Great Lakes Basin Ecosystem ané to eliminate rexic lx extent practicadle the discharce of sce Great Lakes Systen. t.ttent with the provisions of this Agreerent, it 18 tre & ~ sf the Parties thats s T . d:zeriree Of toxic setstances in tonic ceosnts ve “s+ ,Date> end the discharce of any or all persiszert *cwle sursterces be virtually eliminated; -s.rent works be provided by @ combination of loc ttat-, provincaal, ané federal particisation; anc te Crordinates plennine processes am bes: zanaceren: Fractices te ¢eveloned and isolerentec dv the respect: ve jurisdictions to ensure adequate contro: of ¢.. Scsrres of poliutents. ARTICLE 111 GENEPAL OBJECTIVES T’« 2srties adope the follow:ne Genera: Objectives fcr tre Great Lenes System. These waters should ce: (a, free frc™ substances that directly of indirectly e*cer the eaters ef @ result of huren activity and thet 2.2) Settle to fers outrescent or ctherwise objectionasile Sludee deoosits, of that will) adversely affect equatic life of waterfowl]; (t! Free Crom floating materials such as debris, oi), scuz, a2 other immiscible substances resulting frow huran actavities am arounts that ace unsightly oc Gelvtericus; ic) Free froz materials ard heat directly or indirectly entering the water as a cesult of human ectivity that alone, OF IM COaLination with other materials, will produce colour, odour, taste, or other conditions in Such @ dearee as to interfere with beneficial uses; (6) Free {roa raterials av! neat directly of indirectly erterina the seater as a result of human activity that slone, or in combination with other gaterials, will ’ Prcduce conditions that are toxic or harefu) tc huran, animal, or aquatic lifes; and (e) Free from nutrients directly o¢ indirectly entering the waters as a result of human activity in arounts that Create growths of aquatic life that interfere with bereficial ces. The AFTICLE 3 a SPECIFIC OBJECTIVES Parties edoot the Specific Oniectives for tre boundary waters of the Great Lakes System as set forth in teres subject to the following: i, 3 (db) te) (¢) (f) (a) (bd) The Specific Cdjectives sedooted pursuant to this Article cepresent the winimur levels of water o.3..% desired in the Boundary waters of the Great Lake: Svstce and ere not intended to preciuce whe establishment of pore sicingent requirescnts. The deterzination of the echieveren: of Scecific Oojectives shall be based on statiaticaliy valic sampling data. Kotwithstanding the adootion of Scecific Onject. ver, @ll reasonable and practicable ceasures shall te tare to maintain oc iwprove the existing water cuoality in those areas of the boundary waters of the Creat Laves System where such water quality is Letter than treat prescribed by the Specific Objectives, end in tose aceas having outstanding natural resource value. The responsible regulatory agencies shall mot core. ‘er flow augzentation a8 @ Substitute fcr steouate treatment to meet the Soecific Odjectiver. The Parties recoanize that in certain eress Of oper ice waters natural phenomena exist which, Cesrite tr t% efforts of the Parties, will prevent the acrhieve- some of the Specific Oniectives. As early a8 Gotcicic, these areas sould be identified exolicitly bv te aopropriate jurisdictions ant reported co the International] Joint Commission. Limited use tones in the wicirity of present a°4 f..-5e wpunicipel, industriel and tricutacy point source discharges shall be desicrated by the resson reaulatocy agencies within wrich sorte of the Sceciiic OCtjectives may not acply. Cstarlishwer: of these pores shall not be considered a sudttitute for atecwate treatment oc contro) of discharges at their tc. The size shall be rinisized to the creas:ert pose degree, being no leraer than that attairatie t, a). reasorable anc practicatie effivent treatrert Peasures. The boundary of @ limited use zore f%4.. ro. transect the international Boundary. Frircidies fst tne designation of litited ute stones are set o.t if Annes 2. Tne Specific Odjectives for the boundary watere cf tre Creat Lakes System or for particular portions thereof thail .4 kept under review by the Parties and by the Interratioral Joint Comrission, which stall] make sozroeriate recosrendatiors. The Parties shell conselt on: The establishment of Specific Obtectives t> protect beneficial uses from tne coz>ines effecis of pollutants; and The centro] of pollutest loading teres for ear lane Dasin to protect the sategrity cf tne ecosystes Ker the sons tere. Apticurv (vi) CocuOdasnwent of effective enforcerert crogre ft to ensure that the above pollution abaterent STANDARDS OTHER REGULATORY REQUIRENERTS, AND RESEARCH requirements are fully met. } water quality standards and other reculetory (b) eccarrerents of the Parties shall be consistent with the e-*severent of the General and Specific Odjectives. The Parties ceo) use thetic best efforts to ensure that water quality siacderds and other requlatory requirements of the State arc soon as practicable and in any case no later than Prov pcial Governments shall similarly te consistent with the December }), 1983, and shall include: acc severent of these Objectives. Plow aug~entation shall ret de -ossidere4d a8 @ Sudstitute for adequate treatment to Pert water (i) s.ality standards or other regulatory reouirerents. Pollution from Industrial Sources. Procrass for we apatement, control and prevention of pollution {rs industcial sources entering the Great Laker Syste. These prograts shall be completed amd in operasion O68 Cetablishceat of waste treatrent of control requirements expressed as effivent Jiwitetiors The Parties shall use their test efforts to ensure (a) The principal research funding agencies in both countries orient the research orogrars of their organizations in response to research priocities identified? by the Science Advisory Board and recomrended by the Commission; and (concentrations and/or loading limits for trecifac pollutants where possible) for o)) inésstrial plants, including power generatine fecilitics, to provide levels of treatzent or reduction or elimination of inouts of substances anid effects consistent with the achieverent of the Gescra. ac? Specific Objectives and other contro, requirements, taking into account the effects of waste from other sources; (bo) Mechanisms be developed for avpropriate cost-effective ° ® ‘ (4) Requirements for the substantial elirination of internationsl cooperation. discharges into the Great Lakes Syste of ARTICL. VI persistent toxic substances; PROGRAMS AXD OTHER MEASURES (aiid julakaeeeae” for the control of therza) The Parties shall continue to develop ant ixsieren: 5 * ‘ sett -tsorers and other meosures te fulfil the purpose ef t>is (iv) Measures to control tne discherce Of facicwct.ve freemen resent activ s** peas (a) t and to weet the General and Specific Odjectives. rere treatztent 18 inadequate to meet the Genera: arc Soecific es, at4itional treatment shall be required. The progra s veces shall include the following: Pollutios from Muricinal Sources. Prograva for tre araterert, Contcol ans prevention of munic:cal discharges and ursan drainace into the Great Lares System. These procrars shail be completed ard ir Operation a8 soon a8 oracticable, and in tre case of municipal sewace treatrent facilities no later tnan Decerber 31, 1982. These crograts shall incisde: . paterials into the Great Lares Syster: (v) Requirements to minimize adverse envirorctenta: iepacts of water inteces; (vi) Development and izplenentation cf orocrats %: rec: industrial pre-treatrent recuirezents «8 specs fs.es under sub-paragraph (a) (iv) above; and (vii) Eetadlishment of effective enforcerent crocrams to ensure the adove pollution abdaterent reguirervenct ace fully met. 1 Pollution Ataterent Poo.: res ** (i) Construction end cperation of waste treetrer: aes popentors ot TOWRA ONCG A Se ao facilities in all muricicalities having sewer requirements for a)] eunicipa: and industeciel Systems to provide levels of treatment consister: facilities discharging into the Great Lakes Sysse> 5” with the achieverent of phosphorus requirerents order to gavoe progress toward the earliert practices. and the General and Specific Cbjectives, takings completion and operation ef the proarans Sisted in into account the effects of waste from orher sub-paragraphs (a) and (b) adove. This irvertory, sources; prepared and revised annually, shall incisde compliarce schedules and status of compliance with miniter.c3 act (aa) Provision of financial resources to enssre prompt e{fluent restrictions, and onats te wade avaiias e to construction of needed facilities: o thelInternational Joint Commission ané to the p.clic. (iid) Establishment of requirements for construction and Dae ane Sa = ech operating standards for facilities; identifies by the fuler Gasbhte Board. ee ‘ Establish Hf od tay) stop ishaeet © fo eagennee sequcennnate for (d) futrephication, Prograas and measures fo: tne ons ety guaed trosaeen works wees euch SOSuEtIOA OAS Consses Of inputs Of phoenereee fiance. industrial wastes are not asenatle to adeouate ee alae in eovesdense with whe provisions of Anaee treatzent or rezoval using conventional municipe) , treatrent processes; te) es: (v) Development ard izplerentation of prac:: - , a aunpmmpnmnm Gam anhrntagn aaatGantae Bas Pollution aA rievlturay: forestry 9°: 22°27 _-a°e fe Ast ~ Measures (Of the adaterert ars fant of setter on rox ef 3 agricultural, forestry ard cs. A-100 TOT-W ( (f) (1) Measures for the control of pest control products used in the Creat Lakes Basin to ensure that pest control products likely to nave long-tera deleterious effects cn th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0139%3A1. Public record. Not legal advice.