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Shortly before hearings were conducted by the Rivers and Harbors Committee of the House and the Commerce Committee of the Senate at the last session, a new bill was presented by Senator Barkley, also one by Representative Vinson incorporating the principal features of the original Barkley-Hollister legislation, but also including provision for loans and grants-in-aid and certain other features taken from other bills on the same subject that were pending. These various changes advanced the legislation several steps farther than originally contemplated by the Ohio Valley groups, but they were largely acceptable and promptly supported in the hearings that followed.
During the many months in which the Barkley-Hollister bills were in the course of preparation numerous other bills on stream pollution were offered in the House and in the Senate. The Ohio Valley group decided that it would "keep its eye on the ball” and encourage preparation of the type of legislation that it believed most practicable, that could be enacted and that could be enforced if enacted, keeping in mind the eighteenth amendment and other prohibitory laws which have proven impractical of enforcement. The committee decided that it would not oppose any of these bills, preferring to be in the position of supporting a constructive program it had helped to develop rather than to be in the position of trying to tear down well-meant legislation, undertaken by others toward the same objective, which it believed could not pass or of supporting legislation in which it had no confidence. To this policy the Ohio Valley group has strictly adhered, and the record in Washington will not disclose any opposition to other forms of stream-pollution legislation. It will reveal that many national organizations had previously expressed themselves in harmony with the basic principles embodied in the Barkley-Vinson legislation, that now include sections from half a dozen bills. Among such groups will be found the American Society of Civil Engineers, water resources committee of the United States Chamber of Commerce, American Water Works Association, New England Water Works Association, National Brewers Association, Health Engineers of the Upper Mississippi Drainage Basin Sanitation Agreement, State and Territorial Health Officers of the United States, National Resources Committee, Federated garden clubs, and many others.
Support for the Barkley-Vinson bills poured in from all sides. Proponents of certain other bills, startled by widespread interest and general acceptance of the new legislation, could not understand why the bills were not vigorously opposed by industry and suspected some unholy alliance as to sponsorship and support. This conclusion might easily be reached by anyone unfamiliar with the history of the legislation, but the record is clear from start to finish that the new bills were not inspired by "big business”, nor were they inspired by any bureau in Washington. As a matter of fact, the guiding power behind the bills will be found in a group of Ohio Valley cities that desperately fear the polluted condition of the Ohio River from which they draw all their water supplies. Then came inevitable support from all sections of the country in recognition of a practical program, as shown by the record of hearings that were conducted before the Rivers and Harbors Committee of the House and the Commerce Committee of the Senate. Both bills were favorably reported, passed by the House and placed on the unanimous consent calendar of the Senate.
The record in both hearings is intensely interesting and has supplied the press with a fund of valuable data on this vital problem. Pertinent comments on the legislation are contained in the following report recently published by the Committee on National Water Policy of the American Water Works Association, of which Mr. Abel Wolman of the Water Resources Committee is chairman,
Upon the introduction of Senate bill 3958, by Senator Lonergan, of Connecticut, on the control of water pollution, your chairman was requested to appear before the Senate Commerce Committee, under the chairmanship of Senator Copeland, of New York. The hearings on this particular legislation were presided over by Senator Caraway, of Arkansas.
Your chairman made his appearance on March 23, 1936, and reviewed before the Senate committee similar issues already discussed before the House Committee on Wild Life. He presented further an analysis of the act proposed by Senator Lonergan and pointed out the major deficiencies therein. The involved character of the legislation proposed by Senator Lonergan was particularly emphasized inasmuch as it included administrative, appropriating, and regulatory provisions which would be quite impossible for one agency to enforce. Furthermore, it delegated to the National Resources Committee, a planning and coordinating agency, administrative duties of such detail as to vitiate entirely the functioning of the National Resources Committee.
The Lonergan Act appeared to be unwieldy, impractical, and an unnecessary extension of Federal powers.
On May 21, 1936, your chairman appeared once more before the subcommittee on the Senate Commerce Committee to discuss the merits of a new water-pollution act introduced by Senator Barkley, of Kentucky.
This bill provided for the creation of a stream pollution control division in the United States Public Health Service to which powers would be delegated for investigation, coordination, and stimulation of activities in this field. The act further provided for grants-in-aid to local areas for sewage treatment purposes, upon the approval of the Secretary of the Treasury and upon the recommendation of the Surgeon General of the United States Public Health Service.
This proposed act apparently meets the criteria for reasonable Federal legislation which the advisory subcommittee of the National Resources Committee on Water Pollution had established in 1934.
At this hearing your chairman indicated these conclusions and suggested that the American Water Works Association stood in agreement with these proposals. It is important to point out, furthermore, that the State and Territorial health officers of the United States have also reviewed and approved the legislation proposed by Senator Barkley.
Its passage would mark the first step in an orderly attack on the water pollution control problem.
On May 29, 1936, your chairman discussed the same legislation before a
L. R. Howson,
Committee on National Water Policy. In the hearings on the Barkley-Hollister-Vinson legislation, there were neither radical support nor violent opposition to the bill. Both proponents and opponents were in agreement that Federal legislation along the lines of technical guidance and financial stimulation were necessary for the effective promotion of water-pollution control in the United States. All parties were agreed that there should not be Federal encroachment on the rights of the 48 States in these matters. There were no discordant interpretations of the proposed legislation nor questionings as to the constitutionality of the measure. The text was clear and its meaning definite. There were no vague ambiguities of language or superfluous explanations by its advocates as to the probable administrative interpretations of the act subsequent to its enactment.
In other words, the legislation is based on sound principles. It is safe and sane. It is understandable. It does not encroach on State rights. It does not give the entire benefits of our waters to the sportsman or recreationist. Neither does it give the industrialists the right to preempt the streams to their uses. It is sponsored by representatives of the several sides of the question. It does not fly in the face of resolutions of national, professional, and technical societies against extension of Federal authority into fields reserved to the States by the Constitution. We believe the Members of Congress will appreciate these facts and realize that the aim and objectives of this legislation are intended to satisfy not just one group of their constituents but as many of their constituents as possible, for there is no question that all of us want clean streams and better living. This is the explanation of the gratifying acceptance of the proposed Barkley-Vinson water pollution legislation, and we hope your committee will recommend its prompt enactment by the Seventyfifth Congress.
The Barkley-Vinson bill leaves intact State control of water pollution. In each of the States there is a State health department. In the 34 most populous States there are laws vesting these departments with responsibility in varying degrees for the control of water pollution.
Recognition in decisions of the Supreme Court of the principle of the equitable division of the use of water, and of domestic water supply as the highest use of water, emphasizes the wisdom of supporting effective stream pollution control by these State health agencies vested with State responsibility in water supply matters. We believe there is no constitutional authority for Federal waterpollution control, on any other basis than cooperation with the States through their established health agencies. Any Federal legislation which fails to recognize this fact will not succeed, both from its unconstitutionality and from opposition of the States. The proposed Barkley-Vinson legislation is in complete accordance with this principle of State supremacy in this field where the Government of the United States, being a government of delegated powers, received no grant of power in the Constitution, either expressly granted or reasonably implied, according to best authority. The Government has a limited jurisdiction over the navigable waters of the country, but beyond that limit it has no authority. Failure to recognize the extent of power in this regard has caused confusion to develop whenever Federal control of stream pollution is discussed.
The Government was by article I, section 8, clause 3, of the Constitution given the power to regulate commerce with foreign nations and among the several States. Such grant necessarily carried with it the power of control over navigable waters of the country to that extent necessary to effectually exercise the express authority contained in that clause. A small degree of control is also derived from the grant to the United States of judicial power in cases of admiralty and maritime jurisdiction, contained in article III, section 2, clause i.
The authority of the United States over waters has been legally defined (45 Corpus Juris, p. 419) as follows:
By virtue of the commerce clause of the Federal Constitution and the clause empowering Congress to make all laws necessary to carry into execution the Federal judicial power in admiralty and maritime matters, “navigable waters of the United States”, which include waters over which by themselves or in connection with other waters, commerce may be carried on between States or with foreign countries, and of which admiralty has jurisdiction, are under the control of Congress which has power to legislate in regard thereto so far as commerce is concerned.
The Supreme Court in the case of Port of Seattle v. Oregon & Washington Railroad Company, reported in 255 U. S. 56, held that “The right of United States in the navigable waters within the several States is limited to the control thereof for purposes of navigation”, and in the case of Escanaba and Lake Michigan Transportation Company v. City of Chicago, reported in 107 U. S. 678—
The power vested in the General Government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the States or with foreign countries.
I seems clear, then, that unless any control sought to be exercised by the Federal Government over the waters of the country is necessary to the maintenance of free navigation, it will have no constitutional support and will be almost certain to fall at the first attack directed against it in the courts.
Congress has already enacted certain legislation intended to regulate certain types of pollution which may threaten the conduct of free navigation. An example of such regulation is the Oil Pollution Act, (being Act of Congress of June 7, 1924, c. 216, sec. 1) by which the discharge of oil upon the coastal waters of the United States, except in specified contingencies, is prohibited. Another Act of Congress of March 3, 1899, c. 425, sec. 13, prohibits the placing of refuse of any kind, other than that flowing from sewers and streets in liquid form, into ’navigable waters or tributaries thereof. Each of these acts attacks a possible menace to navigation and to commerce.
A prohibitory measure enacted by Congress within the scope of the constitutional powers of the United States would be ineffective as against many conditions which must be corrected in order to clean up the rivers and streams of the country, and the enactment of any unconstitutional legislation would hinder, rather than help, the cause of stream purification.
The Barkley-Vinson legislation has been drafted with the limitations of the Federal Government clearly in mind and is probably free from attack upon constitutional grounds, and the benefits to be derived from it should not be subject to delay and interference by way of litigation.
The provisions of the Barkley-Vinson stream-pollution legislation may be summarized briefly as follows:
1. It establishes a Division of Water Pollution Control in the United States Public Health Service. This would not be a new activity of the Public Health Service, but an extension and elaboration of functions administered since 1914, principally through its stream pollution investigations station. The Public Health Service, founded in 1798, is one of the nonpolitical career services of the Government and is supervised by a corps of commissioned officers which insures continuity of policy, programs, and administration.
2. It provides for joint investigations and for the preparation, in cooperation with the State agencies, of a comprehensive plan for eliminating or reducing pollution of the waters of the United States, with due consideration to their use for public-water supplies, propagation of fish, and aquatic life, recreational purposes, agricultural, industrial, and other legitimate uses.
3. It authorizes the Public Health Service, upon the request of a State health authority, to make investigations and surveys of any specific problem of stream pollution confronting any State, drainagebasin authority, community, or municipality, and to make definite recommendations for the elimination or correction of unsatisfactory conditions.
4. It provides for the encouragement of cooperative activities by the several States for the prevention and abatement of pollution; encouragement of the enactment of uniform State water-pollution laws; and the encouragement of compacts between the several States for the prevention and abatement of water pollution.
5. It provides for the publication by the Public Health Service of he reports of studies, investigations, and surveys, together with appropriate recommendations for the control of pollution of the waters of the United States.
6. It provides for Federal aid in the form of grants-in-aid and loans for the construction of remedial-treatment works by any State, municipality, or other public body which is discharging sewage or wastes into public waters. The plans must be approved by the State Health Department and by the Public Health Service, and the Federal financial aid shall be granted only upon their respective request and approval. Grants-in-aid are limited to 33% percent of the cost of labor and materials including the cost of preparation and execution of plans.
7. It provides for Federal aid in the form of loans for the construction of remedial-treatment works to any private corporation discharging untreated or inadequately treated sewage or deleterious wastes into public waters. Loans are made only upon the recommendation of the State health department and upon approval of the Public Health Service and after the plans have been approved by both.
8. It provides that a board of five experienced engineers of the Public Health Service shall review all projects and prepare an estimate of the funds required each year for loans, and grants-in-aid for remedial-construction works, for transmission by the Surgeon General to Congress, and the authorization of the appropriation of funds annually by Congress for these purposes.
9. It authorizes an annual appropriation of $300,000 per year for the carrying out of these activities by the Public Health Service (exclusive of funds appropriated as explained in item 8) and the allotment of $700,000 annually to the State health departments for expenditures in promotion, investigations, surveys, and studies necessary in the prevention and control of stream pollution under the supervision of the Public Health Service in accordance with rules and regulations prescribed by the Secretary of the Treasury, which presumably will require the States to provide similar funds from their own revenues.
The Barkley-Vinson bill provides the two elements necessary for constructive work in stream-pollution control: (1) The strengthening of the State organizations so as to be able to respond to public demand for adequate enforcement of State laws and regulations, and (2) the availability of Federal funds for loans and grants to States and municipalities, and loans to industry for stream-pollution abatement.