environment comes of age state environmental issues

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U.S. DEPARTMENT OF COMMERCE
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PB-281 635

The Environment Comes of Age
State Environmental Issues

Council of State Governments, Lexington, Ky

Pmparwl for
National Science Foundation, Washington, D C Applied Science and Research
Applications

Jun 77

HD
V@ 30.255
.E58
1977

The Council of State Governments PB 281 635
REPRODUCED BY THE NATIONAL TECHNICAL INFORMATION SERVICE U.S. DEPARTMENT OF COMMERCE SPRINGFIELD, VA 22161
THE ENVIRONMENT COMES OF AGE ASRA INFORMATION RESOURCES CENTER NATIONAL SCIENCE FOUNDATION (State Environmental Issues)

The Council of State Covernments

The Council is a joint agency of all the state governments
created, supported, and directed by them. It conducts
research on state programs and problems maintains an
information service available to state agencies, officials, and
legislators; issues it variety of publications, assists in state-
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50272-101
REPORT DOCUMENTAT REPORT NO. 2.
PAGE IONT-NSF/M-770501 TA3
4. Title and Subtitle 5. Report Date -
The Environment Comes of Age: State Environmental Issues June 1977

7. Author(s) S. Performing Organization Rept. No.
0. Performing Organization Name and Address 10. ProjoCt/Tsilt/Work Unit No.
Council of State Governments
Iron Works Pike II. Contract(C) or Grant(G) No.
Lexington, Kentucky 40511 (C)
ISR7520393

12. Sponsoring Organization Name and Address 13. Type of Report Period Covered
:Applied Science and Research Applications (ASRA)
National Science Foundation
1800 G Street, N.W. 14.
Washington, D.C. 20550
.15. Supplementary;Notes

26. Abstract (Limit: 200 words)
This project has three purposes: (1) to identify current and impending environmental
issues of high concern to state officials;'(2) to prepare state-of-the-art reviews.of
these issues; and (3) to provide.research agenda for furthering knowledje' in the
selected issue areas. The Councilof State Government's ddvisory pranel chose four,
areas of environmental concern as issues to study as research topics: energy con-
.servation,; environmental impact assessment; nonpoint sources of pollution; and the
effects of Indian rights and claims 'on state environmental programs. Each-:of these issue:
became the subject of a staff-prepared report.@' This document updates thelist of
current environmental issues in the states, and also notes some of the more policy-
oriented issues that arose during thepreparation of the four reports. Summaries of
each of the four reports and a concluding chapter which discusses research needs in
thefour areas are included.

17. Document Analysis a. Descriptors
.Energy conservation Environment pollution
Environmental impact assessments State government
Environmental issues Government policies
Nonpoint sources

b. Identifiers/Open-Ended Terms

American Indians
State environmental programs

C. COSATI F
seld/Group
IS. Availability Statement 19. Security Class (This Report)
NTIS.
20. Security Class (This Page) 22. Price

(See ANSI-Z39. IS)
Sea, Instructions on Reverse ONAL FORM 272 (4-7
(Formerly NTIS-3S)
Department of Commerce

ENVIRONMENT
COMES OF A GE:

STATE
ENVIRONMENTAL
ISSUES

Publinshed June 1977 by
The Council of State Governments
Iron Works Pike, Lexington, Kentucky 40511

The research and publication of this rport were made possible through a
research contract form the National Science Foundation Intergovernmental Pro-
gram. Contract No ISR 75-20393. Any opinions, findings, conclusions, or rec-
ommendations expressed herein are those of the study team and do not neces-
sarily reflect the views of the National Science Foundation or the Council of
State Governments.

Contents

FOREWORD ............................... vii

THE ENVIRONMENT COMES OF AGE: AN OVERVIEW ....... ix

1. PART I - INTRODUCTION .................... I

H. SUBSTANTIVE ENVIRONMENTAL ISSUES ........... 2
Introduction
Water: Fewer Drops to Drink ................... 2
Energy: Demand and Supply ................... 4
Exotic Substances: Nowhere To Go . . . . . . . . . . . . . . . 6
Land Use: Reconsidered . . . . . . . . . . . . . . . . . . . . . 7

111. REGULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Introduction . . . . . . . 9
The Problem of Process . . . . . . . . . . . . . . . . . . . . . . 9
Slit) rtcomings in the Regulatory Proce ,ss . . . . . . . . . . . . . 10
Overlapifing Jurisdictions . . . . . . . . . . . . . . . . . . . 10
Regulation and Inflexibilit'i . . . . . . . . . . . . . . . . . . . 12
77ze Costs of Regidation . . . . . . . . . . . . . . . . . . . . 15
Streanifining Regulatory Procedures . . . . . . . . . . . . . . . 16
Regulation as Administrative Policyinaking . . . . . . . . . . . 18

IV. COORDINATING STATE ENVIRONMENTAL PROGRAMS - - - 21
The Structural Backdrop . . . . . . . . . . . . . . . . . . . . . 21
Mechanisms for Coordination . . . . . . f . . . . . . . . . . . 23

V. THE INSTITUTIONALIZATION OF ENVIRONMENTAL
CONCERNS 26
A Not-So-Ddicate Balance . . . . . . . . . . . . . . . . . . . . 26
Maki@ng It All One . . . . . . . . . . . . . . . . . . . . . . . . 27

VI. PART 2 - INTRODUCTION . . . . . . . . . . . . . . . . . . . . 29

VII. ENERGY CONSERVATION: POLICY CONSIDERATIONS FOR
THE STATES . . . . . . . . . . . . . 32
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

States and Energy Conservation............................33
Energy Impacts and State Response...................33
State Trends........................................34
State Policy Development............................34
Energy Conservation in the Electric Utility Sector........35
Conservation Policy.................................36
Efficiency..........................................37
Policy Implications.................................38
Energy Conservation in Buildings..........................39
Assessment of State Policies........................40
Policy Implications.................................41
Footnotes..............................................42

VIII ENVIRONMENTAL IMPACT ASSESSMENT POLICY CONSIDERATIONS
FOR THE STATE
Introduction..............................................44
State Opinions on Environmental Impact Analysis...........45
Environmetnal Impact Analysis: The State-of-the-Art.......46
Planning and Policy Issues..........................47
EISs: Their Role....................................48
Emerging Role of SEPAs..............................48
Time, Costs and Human Resource Issues...............49
Addressing Common Problems..........................50
Time Sequence.......................................50
Impact Uncertainties................................51
State Innovations in Environmental Impact Analyses........51
North Dakota Regional Enviromental Assessment
Program (REAP)....................................51
The Utah Process....................................52
Technoloy Assessment of Western Energy Development..52
Hawaii's State Center for Science and
Technology Assessment.............................53
Footnotes.............................................54

IX. DIFFUSE SOURCE POLLUTION POLICY CONSIDERATIONS
FOR THE STATES..................................................56
Introduction..............................................56
Air Pollution Legislation...........................56
Water Pollution Legislation.........................57
Issues in Managing DSP....................................58
Institutional Requirements..........................58
Control Methods.....................................59
Standards Monitoring and Enforcement................59
Reasons for State Concern.................................59
Regulating DSP............................................60
Clean Air.................................................60
Indirect Source Review..............................60

Significant Deterioration . . . . . . . . . . . . . . . . . . . 61
Transportation Control Plans . . . . . . . . . . . . . . . . . 62
Clean Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 208 Planning . . . . . . . . . . . . . . . . . . . . . 62
Final Section 208 Regulations . . . . . . . . . . . . . . . . 63
Nonpoint Source Pollution . . . . . . . . . . . . . . . . . . 65
Related State Programs . . . .. . . . . . . . . . . . . . . . . 65
Issues in Implementing DSP Programs . . . . . . . . . . . . . . 66
Institutional Issues . . . . . . . . . . . . . . . . . . . . . . . . 66
Coordination . . . . . . . . . . . . . . . . . . . . . . . . . 66
Federal-State Relations . . . . . . . . . . . . . . . . . 67
Policy Basis of DSP Control . . . . . . . . . . . . . . . .. . . . 67
Realistic and Dependable Federal Funding . . . . . . . . . . . . 67
Rational Federal Timing and Deadlines . . . . . . . . . . . . . . 68
State Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . 68
State-Local Relationships . . . . . . . . . . . . . . . . . . . . . 69
Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
X. INDIAN RIGHTS AND CLAIMS: ENVIRONMENTAL MANAGEMENT
CONSIDERATIONS FOR THE STATES . . . . . . . . . . . . . . 72
Introduction 72
The Actors and Their Interests . . . . . . . . . . . . . . . . . . 73
Tribal Government . . . . . . . . . . . . . . . . . . . . . . 73
Federal Government . . . . . . . . . . . . . . . . . . . . . 73
State Government . . . .
. . . . . . . . . . . . . . . . . . . 74
Local Government . . . . . . . . . . . . . . . . . . . . . . 74
The Legal Claims to Jurisdiction . . . . . . . . . . . . . . . . . 75
Tribal Government . . . . . . . . . . . . . . . . . . . . . 75
Federal Government . . . . . . . . . . . . . . . . . . . . . 75
State Claims to Authoriity . . . . . . . . . . . : . . . . . . . . 76
The Environmental Arenas of Dispute . . . . . . . . . . . . . . 77
Regulation of Development . . . . . . . . . . . . . . . . . . 78
Water Rights . . . . . . . . . . . . . . . . . . . . . . . . . 79
Hunting and Fishing . . . . . . . . . . . . . . . . . . . . . . 80
Air and Water Quality . . . . . . . . . . . . . . . . . . . . . . 81
Energy Development and Mineral Exploration . . . . . . . . 82
Summary and Conclusions . . . . . . . . . . . . . . . . . . . . 83
The Legal Climate . . . . . . . . . . . . . . . . . . . . . . . 83
State Options . . . . . . . . . . . . . . . . . . . . . . . . . 84
Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
XI. RESEARCH AGENDA: FUTURE DIRECTIONS AND NEEDS . . 87
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Actors Involved . . . . . . . . . . . . . . . . . . . . . . . . . 87
Research Agenda . . . . . . . . . . . . . . . . . . . . . . . . . 88
Research Agenda: State Energy Conservation Programs . . . . 89
Research Agenda: Environmental Impact Assessment . . . . . 90
Research Agenda: Diffuse Source Pollution . . . . . . . . . . 92
Research Agenda: Indian Rights and Claims . . . . . . . . . 94

Foreword

Problems of tile environment continue to loom larger in the eyes of the
public and the public's representatives. In particular, state governments have
assumed-and been assigned-more extensive roles in the management of activi-
ties controlling or bearing on the natural environment.
Tile Council of State Governments' State Environmental Issues project, which
this report represents, is an effort to assess the most demanding environmental
problems of states and to provide a veliMe for sharing inforniation about these
-problems among the states.
This book and the others in this series are intended as aids to state policy and
program officials. It is hoped that the information and research agenda in the
series will further augment tile effectiveness of future state environmental ac-
tions.
Herbert L. Wiltsee
Lexington, Kentucky Executive Director
June 1977 7he Council of'State Governments

vii Preceding page blank

The Environment Comes of Age:
An Overview

This document is the final report of the Council of State Governments
Environmental Issues project. The profect, funded by the National Science
Foundation's Research Applied to National Needs program, had three essential
purposes: (1) to identify current and impending environmental issues of high
concern to state officials (2) to prepare state-of-the-art reviews of these issues
and (3) to provide research agenda for the furterance of knowledge in the
selected issue areas.
Four issues were chosen on the basis of recommendations of a national advis-
ory panel. The panel included Burton L. Carlson, former Director of State
Planning Coordination, Utah: Janet McLennan,Assistant to the Governor for
Natural Resources, Oregon; Stephen Born, Director of the Wisconsin State Plan-
ing office; Jackie Swigerl, Chairperson of the Kentucky Environmental Quality
Commision; and State Senator Sanford Steckler of Mississippi.
The State Environmental Issues project began in the fall of 1975 when the
advisory panel met at the Council of State Governments' headquarters in Lexing-
ton, Kentucky. The officials identified four areas of environmental concern for
the CSG staff to analyze. Using as criteria for selection the relevance to states
and the ongoing or emerging nature of the issue, the panel chose energy conser-
vation, environmental impact assessment, nonpoint sources of pollution, and the
efects of Indian rights and claims on the state environmental programs as research
topics.
Each of these topics became the subject of a staff-prepared report. The re-
ports were reviewed by special committees of knowledgable individuals chosen
for each topic. A complete list of panel memebers is on the inside back cover. All
four of these reports were published under seperate covers. Part 2 of this volume
contains summaries of each. A concluding chapter discusses research needs in all
four areas.
Part 1 of this volume is an attempt to update the list of current environmental
issues in the states and to sound out some of the more policy-oriented issues that
arose during the preparation of the first four reports. Material for Part1 was
gathered from personal interviews with about 60 state officials in 10 states
(California, Colorado, Georgia. Indiana, Kentucky, Massachusetts, Mississippi,
New Jersey,Oregon, and Wyoming).
Becouse the list is long and to protect the confidentiality of the officials'
remarks, their names will not be listed. Their comments,knowledge and atti-
tudes are gratefully acknowledged, however, and constitute the substance of
this report.

Special thanks also are due tile staffs of the Council of State Governments'
regional offices who helped in identifying key policy officials in the states, and;
to Edward Kelly, Project Monitor of Intergovernmental Sciences, National
Science Foundation, for his guidance.
Tile principal authors of Part I were Tom Hatiger and Anne D. Stubbs. John
E. Chowning prepared tile summaries contained in Part If. Overall project direc-
tion was given by If. Milton Patton, Associate Director. of State Services, and
James L. Breithaupt, Senior Assistant for Environmental. Affairs. Additional
staff assistance was provided by William R. Bernhagen, Support services-were
provided by Mardcllflorn, Brenda Mearns, and Susan I-larding.

H. Milton Patton
Associate Director
of State Services

PART 1

I. Introduction

State governments have a variety of roles in environmental management.
These roles appear in recent federal laws and in initiatives by the states over a
longer time. This study was undertaken to define the current extent of those
state roles and to identify the types of environmental issues with which the
states now must grapple.
To provide a current interpretation of these roles, two staff members of the
Council of State Governments interviewed state legislators, legislative staff,
heads of environmental agencies, governors' assistants, attorneys general. and
state planning officers during January and February 1977. Formal question-
naires were not employed, and not all the same questions were asked of all the
state officials. Instead, the interview results were used to construct mosaics of
environmental activities and prevalent attitudes in the states.
In addition to asking what the current and emerging environmental issues for
each state were. the interviewers explored three more general notions with the
state officials. Those notions were: the increasing activism of the courts in
interpreting environmental policy; a simultaneous reliance on and aversion to the
use of administrative regulations for developing and articulating environmental
policies; and the need for coordination among environmental programs with
other actions of state government. These three notions had appeared as strong
themes in four earlier reports prepared for this environmental issues project. Part
of the study's purpose was to see how pervasive these themes are among state
environmental officials. Except for the question of judicial activism. these
themes struck responsive chords with most persons interviewed.
Court decisions are seen as being as much a part of life as the weather. They
are accepted with resignation and respect. The role of the courts is not seen as a
voluntarv and changeable one, but as one that proceeds from the weight of
evidence and precedence to the rendering of judicial rulings of law.
The problems of regulation and coordination, however, were considered im-
portant issues for states to address. Accordingly, this report contains a chapter
devoted to the discussion of each of these as revealed by the interview process. A
separate chapter enumerates the emerging issues identified by the state officials.
The overriding conclusion drawn from the state visits is that state govern-
ments can and do play important parts in the enhancement and preservation of
the natural environment. Environmental concerns in state government have
transcended the stage of being smokestack-plugging crisis interventions and have
come to be regarded as legitimate realms for state planning and management.

II. Substantative Environmental
Issues

II. SUBSTANTIVE ENVIRONMENTAL ISSUES

Introduction

While the pattern of recent state involvement in environmental matters has
been to implement wide-ranging existing laws,crises still arise. Some states are
striving to add pieces to their complements of environmental statutes. Some of
these are extraordinary, such as the 1976 Oregon ban on aerosol containers, the
Colorado legislation empowering local governments to use land use controls to
prevent the shading of solar energy facilities, and California's consideration of
protective procedures to be followed in laboratory research on recombinant
DNA. Some other areas of activity and concern are repeated across state borders.
such as water supply allocation, the impacts of energy supply development. the
regulation of toxic substances, and the use of land use controls to effect a
diversity of policy objectives.

Water: Fewer Drops to Drink

The unusual winter weather of 1976-77 has reemphasized the unequal and
unpredictable distribution of the most basic of all resources water. While, much
of the east was finding it necessary to dig through enormous amounts of snow,
the ski slope operators of the west were languishing in loneliness: some even had
to close their resorts for lack of snow. Indeed, much. of the western half of the
nation has been experiencing a drought since the summer of 1976.
Dwindling water supplies in the west have caused some drastic governmental
proposals and actions for coping with the shortage. In the San Francisco Bay
area of California, the communities of Oakland.Berkeley and Marin County
have adopted severe. mandatory water rationing. In Colorado, some private
water rights have been condenmed and taken over by the state in order to meet
its obligations under the Colorado River Basin Compact. In Oregon, there is fear
that the reduced flow in the riverbeds will hamper the production of hydropow-
er- the area's chief source of electricity.
Additionally, the great plains states with their vast reserves of coal and oil
shale are now or soon will be facing the question of allocating water among
several competing sectors. In Colorado and Wyoming, a state policy regarding
the relative distribution of water among the chief competitors- domestic, agri-
cultural and energy development uses has not been enunciated.
As do most western states, Wyoming and Colorado operate under the prior
appriations doctrine of water rights.Each request for or dispute over water

rights is considered in isolation by the slate water engineer or by the water
courts. These individual decisions are based on the legal doctrine and not in
terms of the desired developmental effects the state hopes to achieve.
Water quantity management is not solely a response to recent critical short-
ages, however. In the relatively water-rich east, several states are beginning to
recognize the necessity for addressing the future management of water supplies.
In Georgia, for instance, tile principal new area of enviromental action before
the current legislature was a bill that would give tile Department of Natural
Resources the authority to issue permits for major withdrawals or diversions of
water. The impetus for the ascension of this issue in Georgia comes from recent
projections that the Chattahoochee River in Atlanta will be dry where it passes
through the city by tile year 2010.
In Indiana, the estimates are not so specific, bill knowledgeable public offi-
cials do not believe the White River can continue to be the sole source of
domestic water I'm file Indianapolis metropolitan area. Similarly, in Massachu-
setts, while there are no formal proposals, there is all an awareness of the finite
capacity of current water supplies for domestic and industrial users.
The types of state responses proposed for coping with existing or expected
shortages of water are wide-ranging. None of the states visited, however, seemed
to have developed a comprehensive means of addressing the question of distrib-
uting scarce water resources among competing users. Most state responses to
perceived water shortages resemble crisis management more than deliberate and
coordinated approaches to government action. Indeed, in some states where the
drougt seemed particularly acute, there seemed to be an almost laissez-faire
attitude toward the shortage on the part of some officials as if they hoped that
the problem, like the water, would just go away.
A frequently mentioned cure suggested to relieve the drought's symptoms
was the inter-basin transfer of water. (In Colorado, the talk is of trans-mountain
diversion.) Simply put, this would mean taking water from river basins where
there is more water than demand and diverting it to areas where demand out-
strips supply. Most of the water used in populous Southern California is already
derived from outside its mid basins. Proposals under consideration for future
actions in California, Colorado, Indiana and Massachusetts place strong reliance
on the potential of inter-basin transfers, although concern was expressed in some
quarters as to both the legality and the environmental soundness of such proj-
ects.
In Massachusetts, although no schemes are now being implemented, it has
been proposed that at least part of the solution be accomplished through reduc-
ing levels of demand rather than through increasing supplies. Demand can be
decreased by imposing water conservation procedures, such as industrial recycl-
ing. These efforts achieve much the same purpose as the drastic rationing pro-
gram in the San Francisco area, but with the burden of inconvenience more
equitably distributed among users.
The most holistic attempts to deal with the water quantity question are

proposals to authorize or redefine the authorities of state agencies to allocate
water to major users on the basis of predetermined criteria. Legislation intro-
duced by Georgia Govenor George Busbee would give this power to tile Depart-

ment of Natural Resources. In Wyoming, an effort is being made to modify the
controls and procedures of of the state water engineer.
There can be no single water management solution applicable in all states.
Major differences in the water laws across file states are a limiting factor to the fie
universality of solutions. Riparian rights law prevalent in the east presents entire-
ly different opportunities for water management than does the western doctrine
of prior appropriation. Variations in each of these legal theories among the states
detract from the interstate transferability of mechanisms for water management.
Nonetheless, water availability or the lack of it is a question of critical pro-
portions, especially in the drought-stricken west where energy development and
new industrial growth will soon increase radically the demand for water. If states
are to exercise influence over tile nature mid location of future developments
within their borders, they must recognize what one official called the "profound
implications of water on land use patterns."The notion that water can continue
to flow to the highest bidder will need to be reevaluated in light of state
government objectives and perceptions of the general public interest.

Energy: Demand and Supply

The energy problem continues to reveal its increasingly complex dimensions.
The severe cold temperatures and increased fuel use of the 1976-77 winter
helped to renew public awareness and to reemphasize particular aspects of tile
nation's energy concern.
Legally and economically. energy is primarily a federal issue, but there are at
least two sides of the question that are of direct interest to the states. These are
energy conservation and the impacts on the state of developing new - and main-
taining existing fuel Supplies.
The states role in energy conservation is the subject of another report in this
series and a summary version is presented in Part 2. The state enviromental
officials interviewed in connection with this report generally viewed conserva-
tion as a necessary element in averting energy supply shortfalls, but most of
them consider the federal Energy Policy and Conservation Act of 1975 and the
states' roles under it as insignificant contributions toward energy savings, even

though file federal program forms the essence of most state energy conservation
efforts. Several thought that this was one of the few environmental areas in
which Public awareness and sentiment lagged behind government officials'.
While conservation programs attempt to lower the demand for energy, more
serious and far-reaching environmental hazards are raised by attempts to increase
energy supplies. It was the insufficient availability of natural gas that caused the
closing of schools and industries and the reduced hours for public offices and
private enterprises. These responses by state government and the private sector
reflect an almost classic case of crisis management. The impacts from both the
crisis itself and from the responses to it were largely econonmic - damage to public
works from freezing and thawing and higher unemployment rates because of
plant closings.
While economics form a basis for many decisions affecting the supply of
energy, states are in a better position to feel and to mitigate tile environmental

effects of maintaining and developing adequate energy supplies. The rash of oil
tanker accidents and spills in late 1976 and early 1977 only symbolizes the risks
inherent in energy production.
Threats of more frequent oil spills are only a part of the cause for state
government anxiety over the imminent development of outer continental shelf
(OCS) oil and gas reserves. Offshore drilling also is expected to cause interfer-
ence with marine fishing activities as in the George's Bank area off the New
England coast. Major energy corporations are evaluating several locations on
both ocean coasts and in the Gulf of Mexico as possible sites for superports.
Highly unstable and combustible liquefied natural gas (LNG) is an efficient
mode for shipping that fuel, but the dangers to life and property in such ship-
ment are beyond calculation.
Even allowing for the adoption of restrictions that could ameliorate the envir-
onmental consequences of these energy delivery systems, certain onshore im-
pacts from the anticipated OCS exploration are inevitable. The secondary
growth needed to receive and refine oil and to accommodate construction and
oil rig workers presents an entirely separate class of environmental issues. In the
coastal areas, these issues are being addressed by state coastal zone management
agencies to ensure that only suitable types and levels of development occur.
Coastal states are not the only ones affected by the pressure to increase
domestic energy production. Leases have already been let for mining federal coal
reserves in several western states, and oil shale is still considered a viable-if
distant source of fuel. Extracting these minerals implies major environmental
impacts.
For one filing, strip-mining appears to be the method that will be used to
remove much of the energy minerals from the ground.In the absence of federal
standards to control this activity, state legislation is required to protect the land
resource from imprudent mining practices. Wyoming has adopted stringent regu-
lations and has been given authority over mining of federal as well as nonfederal
lands through an agreement with the U.S. Department of Interior. Concerns still

exist in Wyoming, however, over certain mining techniques, such as stripping of
alluvial valleys.
The mining of western fuel minerials also places new and stronger demands on
the area's water resources. Oil shale conversion into a usable energy source is a
water-intensive process. Additional water would be needed if coal slurry pipe-
lines are used to transport the coal from the mines to remote generating facili-
ties. Even on-site coal burning for electricity production would require water for
use in the generators.
Because of limited water supplies in many areas of the west, the energy-re-
lated uses of water may involve diversion of substantial amounts of water from
agricultural purposes. This could mean a reduction in total acreage of productive
arable land. The economic consequences of losing agricultural land could surpass
any environmental cost.
Further effects of energy development in the west may be manifested in the
boom-town syndrome. Under this scenario, mobile home parks and other tem-
porary housing are developed across the landscape with little consideration for
public facilities and costs.

In preparation for or in response to the environmental concerns prompted
by energy development, several states are increasing their control over potential
sources of deleterious effects. The federal Coastal Zone Management Act and
subsequent OCS impact funds give coastal states a mechanism for addressing the
problems associated with OCS exploration and the siting of other facilities in
coastal areas.
Some states, such as Massachusetts, have assumed in active role in overseeing
federal activity in file leasing of OCS tracts. Through this participation, the state
is negotiating with the Department of interior for the inclusion of restrictions on
drilling areas and drilling procedures in its leasing regulations. Other coastal
states have enacted, or are considering, laws to compensate victims of oil spills.
New Jersey's Coastal Area Facility -Review Act and Spill Compensation and
Control Act are effective tools for dealing with energy impacts on the coast.
To cope with the expected impacts of coal development, mined land reclama-
tion laws, similar to Wyoming's, have been adopted. Wyoming also has estab-
lished an industrial siting council charged with reviewing and approving construc-
tion of major industrial facilities over $50 million. Because of the high threshold
placed oil developments to be reviewed, only two applications were processed in
nearly a year and a half. The Council does, however, provide a unique structure for examining tile environmental, social and economic impacts qf large industrial
for examining the enviromental,social and economic impacts of large industrial
developments.
Lacking federal energy policy defining the relative reliance to be placed on
various energy forms and the sequence and pace for developing new sources, the
states have been limited in their choices of energy policies. Adopting stopgap
measures of strip-mine and facility-siting control will help alleviate some of the
environmental damages these operations could impose. An expanded picture of
what the nation's energy goals are to be is necessary, however. before states can
identify the parameters in which broader decisions about their appropriate activ-
ities can be made.

Exotic Substances: Nowhere to Go

The state officials interviewed exhibited a growing concern over the un-
checked proliferation of wastes and other products that are known to be toxic
or hazardous to human health. The issue for the states is complex. First, there is
a need to identify all such substances, but beyond that there is a need to define a
clear state role regarding the establishment and enforcement of controls over the
handling, use, and disposal of these substances.
Chief among concerns about toxic substances is disposal of radioactive wastes
from nuclear power plants. Historically and statutorily, this has been a federal
concern- originally under the Atomic Energy Commission and now under the
Nuclear Regulatory Commission. However, the sites currently being used and the
indefinite projections as to future sites are located within state boundaries. with
definite implications for the state selected as the depository, and possibly for
neighboring states.
Horror stories abound regarding the subterranean migration of radioactive
materials from nuclear burial grounds in Hanford, Washington, and Maxey Flats,

Kentucky. State officials charged with overseeing environmental matters are
aware of these occurrences and arc wary of' having their own states used as
nuclear dumping grounds.
Georgia officials expressed some anxiety about the location of a nuclear
reprocessing plant ill South Carolina. Some officials interviewed say the site
chosen is dangerously close, to file aquifer that supplies much of northern
Georgia's groundwater. The fear water contamination has caused Georgia to
look for ways to affect decisions about onsite waste disposal at tile plant and
the plant itself.
In Colorado, radioactive military wastes were discovered in the foundations
of school buildings and housing develpopments. While remedies were provided by
the federal government, the lessons were leaened. State officials now are reluctant
to accept further nuclear burdens in Colorado.
State officials also are perplexed by polychlorinated biphenyls (PCB's)
Bloomington, Indiana. is file location of a Westinghouse plant that uses PCBs to
make elecronic components. The federal ban oil those chemicals through the
1976 Toxic Substances Act will prohibit their use, except in closed systems. The
law does not, however, tell how to cope with the residue of PCBs that have been
flowing through the city's sewer system for years.
Uncertainty pervades state officials, thinking on the matter of regulating the
products of scientific achievements and echnological developments, Other than
through research at the federal level. there is little way for states to know which
substances they must control. Furthermore, methods of control and of flushing
out already infested systems may require resources and technology beyond the
capabilities of most states. If is a small benefit to file states that, as one Califor-
ma official put it file documented carcinogenic effects of PCBs bave demon-
strafed the huuman health effects of environmental regulations and heightened
the awarmess of the general public.
The federal Toxic Substances Act and the Resource Conservation and Recov-
cry Act adopted in 1976 provide federal assistance to states to control this
materiials. New state legislation may also permit' an increased state role in this
area although the nature of some substances or their commerce may require
federal action for effective regulation.
New Jersey's Spill Compensation and Control Act primarily is directed at the
problems posed by petroleum products. bill it also contains provisions pertaining
to "hazardous substances- as defined by the Department of Environmental Pro-
tection and the Federal Environmental Protection Agency. In addition. owners of
major facilities that handle or produce hazardous substances are required to pay
a tax into a fund to conipensate parties damaged by the Unauthorized release of
the substances. Class actions may be filed with tile Department of the Public
Advocate. and civil fines may also be levied against offenders.
The problem of exotic substances release seems to lie an issue of more than
brief duration. As research continues. it is possible more hazards will be discov-
ered requiring furyther technological and institutional solutions.

Land Use: Reconsidered

The ground swell of state activity in the enactment of land use controls of the

early 1970s has slowed. Oregon's law was challenged by a public initiative in the
1976 election. it survived, In most other states visited. state land use control was
not mentioned as an item for major attenton this year
The general trend of the recent leglislative sentiments toward land use seems
to indicate that land use responsibilities will continue to be devolved to local
governments. The 1976 California legislature adopted a coastal act which re-
quires local governments in the coastal zone to prepare land use plans in accord-
ance with state promulgated guidelines with state financial and technical assis-
tance. New Jersey in 1976 passed the Local Land Use Planning Act. Massachu-
setts uses local land use plans as a prime element in the development of ist state
growth management plan. Georgia's recently redrawn constitution contains a
provision which, according to one interpretation, gives the state the sole authori-
ty to plan and local governments the sole authority to zone, but the courts have
yet to decide that issue.
The heart of state land use activity now appears to be in complying with the
requirments of federal legislation. As the deadline for the mandatory land use
element of HUD 701 plans nears, states are striving to meet it and are supplying
technical assistance to local governments aiming at the same date. The land use
planning component of Section 208 of the Federal Water Pollution Control
Amendments is being handled by most states with caution: it has not been taken
as a license to plan a state border-to-border, and its products may be rather
timid.
Meanwhile, state coastal zone management continues to be "state land use
planning in a microcosm." Indiana passed through its first tortured year of the
federal Coastal Zone Management planning program, unsure of its continued
participation. Oregon has issued guidelines for the coastal zone under its Land
Conservation and Development Act. Massachusetts is anticipating approval of its
management plan under the federal CZM Act. Georgia's effort moves ahead
encouraged by a favorable court decision that the state owns all its ocean
beaches.
which

III. Regulation

Introduction

One environmental concern is common to all states the pervasiveness of
regulation as a tool for achieving environmental quality. The environment
peaked as a national priority issue in the early 1970s. The leveling off of atten-
tion that occurred since has coincided with an economic recession and with the
enactment of further federal and state statutes addressing environmental quality
and resource managment. Activity in the environmental area has now moved to
the implementation stage. Consequently, environmental quality has become
synonymous with regulation.
Environmental regulatory programs are diverse, ranging from mandatory stan-
dards on allowable effluents and emissions to regulations governing the proced-
ures and conditions for issuance of a permit. Regulations also accompany man-
datory state and local review processes, even when such reviews are designed for
information rather than for permits. This chapter explores the problems associ-
ated with regulation as a policy approach to environmental objectives and the
efforts of states to address these problems.

The Problem of Process

The perception is widespread that the problems associated with a regulatory
approach do not lie in the fact of regulation itself. Nor do they lie in particular
standards and procedures. The major problem lies in the process by which regu-
lations have emerged and are implemented.
The scope and complexity of environmental regulations have increased dra-
matically. New areas of concern are subject to governmental policies and more
governmental actors have entered the regulatory process. The traditional public
health-local government focus of environmental concern has long been sur-
passed. Several states initiated environmental quality and natural resource con-
servation programs prior to the federal efforts of the late 1960s. However,
federal programs in air and water quality, noise, solid waste, and safe drinking
water serve as catalysts that bring state and local governments into far-reaching
regulatory programs. Most states have further adopted regulatory controls over
land resource areas such as wetlands, surface mining, and power plant siting.
The growing number and the complexity of environmental regulations bring
outeries of red tape, confusion, and governmental intrusion from both the pri-
vate sector and various governmental entities. Yet the onslaught of regulation as

a tool to achieve environmental policy goals is unlikely to subside. Many slate
officials agree that regulation can be an onerous and poor method of doing
business. Yet most see few alternatives. Regulation is argued to be necessary to
make environmental programs effective. Some individuals are not likely to take
voluntarily the necessary steps to achieve enviromental objectives. In a market
economy and in a governmental system geared to crisis management, regulation
may be the most feasible way to encourage actions which have immediate costs
and long-term, indirect benefits.
With regulation at the forefront of environmental programs, tile challenge
facing state officials is to make the regulatory process less cumbersome and more
efficient. Most public officials, and many businessmen would agree with an
interview comment that file "Costs of environmental programs result from their
procedures not their standards." The costs of instituting the tehnology or pro-
cedural changes necessary to meet environmental standards may be unbearable
for small or marginally profitable firms. But, for larger firms the major costs and
source of frustration lie not in meeting tile standard. but in the costly delays
caused by procedural requirements. While private business is not necessarily
happy with environmentalprograms. its main concern is with the need for
established ground rules to reduce risks and uncertainty.
For the most part tile current disagreement between government and tile
private sector is not over tile value of the environment, but over tile management
and enforcement of environmental programs. Thus. State Officials see a need to
reduce the number of environmental hoops. without reducing tile commitment
to a quality environment.
There is considerable sensitivity within state government to the need to im-
prove the efficiency of the regulatory process as enforcement programs affect
small businesses and individuals. Continued favorable state court rulings, on state
authority for environmental. regulation may also depend upon the development
of regulatory programs which are reasonable in their demands and procedures.

Shortcomings in the Regulatory Process

Several specific complaints against environmental regulatory programs were
raised by officials in the preparation of this report. They include attacks on: ( 1 )
the overlapping jurisdictions and uncertainty associated with regulation: (2) the
inflexibility in implementing regulations and standards: and (3) the costs asso-
ciated with conforming to environmental standards and procedures. Similar corn-
plaints Lire made by private business and local governments against' state regula-
tions, and by state government against federal agencies.

Overlapping Jurisdictions

The piecemeal emergence of federal and state environmental policies and
Programs contributes to overlapping jurisdictions and contradictory standards.
The result is confusion, uncertainty, and delays for those subject to the regula-
tions.
Environmental programs have been cumulative, with little or no effort to

codify the various laws and attendant regulations at either the federal or state
level. Consequently, overlapping and disjointed regulatory programs are com-
mon. The complexity and confusion associated with environmental regulation
stem from the number of actors involved and the duality of regulatory proced-
ures at the state and federal levels.
Most development-related activities of any scale and complexity require sev-
-eral different environmental permits. Typically, the various environmental per-
mits needed for a project are issued by different state and local agencies, each of
which may follow different standards and timing for review. Measures adopted
to meet file standards required under a permit, such as for groundwater appro-
priation, may fail to meet the standards necessary under a separate permit appli-
cation for water pollution discharge. State legislation and regulations requiring a
permit also are not always clear on how jurisdiction is shared between the state
and the locality concerning permit review and issuance and subsequent enforce-
ment.
Particularly in public health areas (e.g., groundwater, subdivision standards), a
local government and a state agency have a role is setting standards and in
determining whether a proposed activity is acceptable under those standards.
Too often, a mechanism to reconcile conflict created by the differing standards
and permits is absent.

A major complaint against environmental regulation is the duplication of
regulatory procedures. The problem arises primarily when both federal and state
agencies administer similar programs in related areas. The result a proposed
activity which is subject to federal and state permits and/or EIS requirements-
frequently must meet dissimilar standards and procedural requirements for the
same activity. When federal agencies have approved state administration of feder-
al permit programs, the regulatory steps and procedures are somewhat simplified
since fewer actors are involved. In most states, however, administration is totally
federal or is shared among state and federal agencies. In such instances, an
applicant must deal with federal and state procedures to obtain the
requisite permits. The number of regulatory actors and procedures increases
when local permits are included.
The overlap in federal and state jurisdictional authority in air and water
quality programs frequently leads to friction between state and federal agencies
in program enforcement. One state state official accused federal EPA official of
engaging in "bean-counting" or enforcement quotas, in its insistence on federal

enforcement of regulatory programs also subject to state jurisdiction. With this
overlap and friction among enforcement agencies, the regulated individual is
frequently at an impasse regarding which measures to follow for compliance.
Many states have sought to improve state and local decisions on public and
private projects having significant environmental impacts by emulating national
Environmental Protection Agency requirements for an environmental impact
statement (FIS). The resulting two-track system of environmental review for
many projects brings charges of duplication, delay, and more red tape in obtain-
neccessary approval. Seperate state, as well as local EIS requirements increase
the potential for legal challenges and concomitant delays to a proposed activity.

Such legal challenges are frequently unrelated to substantive environmental is-

sues. NAPA-related requirements have, in the words of one state official, become
"totally procedural with everyone knowing how to play the game."
Environmental programs exacerbate the continuing tension between state and
local governments over the distribution of authority and program administra-
tion. Regulations for air and water quality may be imposted by federal agencies,
but local governments often view state agencies as the culprit. In some states,
agencies are hesitant to rely on local governments to implement environmental
programs. In some instances, local officials who fail to comply with environ-
mental standards or to administer delegated responsibilities are perceived as part
of the problem in enforcing environmental programs.
The growing experience of states in administering environmental programs
has strengthened their credibility with the public. In states where environmental
quality programs do not seem to have strong legislative support, the sentiment is
expressed that regulation should shift to the states. Even those opposed to the
direction of many environmental programs would prefer state administration of
federal programs and regulations. Officials in several states cited industry's frus-
tration with local permitting procedures as a reason for its greater willingness to
work with the state in environmental programs. In one state, a survey in connec-
tion with the Coastal Zone Management program found greater confidence in
state government administration than in local administration.

Regulation and Inflexibility

Local government and private sector denunciations of "red tape" in environ-
mental programs are mirrored in state officials charges of federal inflexibility
and indecision in the administration of environmental programs. The problems
lie both in federal programs which are delegated to the state for administration
and in federal activities which fail to consider state environmental policies and
programs.
Federal programs in air and water quality call for state administration of
standards, permit issuance, and compliance plans, subject to federal approval.
Currently, few state plans and programs have met full federal (EPA) approval,
contributing further to the problems of duplication in permit programs. Not all
states desire to administer such programs. Many of those which do administer
them maintain that federal rigidity is an obstacle to effective state administra-
tion.
State officials are outspoken on the difficulty which EPA regulations cause
for the creative design of programs and flexible administraton of regulations.
National standards and regulations cannot be applicable to the environmental
economic and governmental peculiarities of all states. The difficulty of meshing
state environmental conditions and programs with federal requirements varies
according to the state involved and with this program. Even when good working
relations with EPA regional offices exist and when the differences in federal and
stae statutes are acknowledged. EPA's perceived rigidity in enforcing federal
regulations creates hardships for state governments.
Officials in several states assert that federal insistance on adherence to federal
regulations undercuts efforts to develop flexible states programs that are consis-

tent with overall state objectives. Furthermore, where state initiatives proceded
federal policies, the requirements to adhere to EPA regulations may hamper an
ongoing program. In such instances, federal regulations are held to be "unreal,
unresponsive, unnecessary, and inflexible." Some Oregon officials estimate that
their water quality program which began in the early 1950's was set back a year
and a half by being confined to the requirements of the federal NPDES ap-
proach.* Further, they feel that federal NPDES regulations perceived as "bur-
densome and too long in procedures." are a setback to existing state initiatives in
water quality. Federal regulations and rigid enforcement provisions also are con-
trary to the compliance and enforcement mechanisms developed by some states.
The narrow regulatory interpretation of federal environmental programs un-
dercuts efforts of state officials to use federal funding for such programs more
creative and effectively. In Massachusetts where an effort is under way to use
environmental programs as part of a more positive growth management strategy,
the regulatory focus of federally funded programs has hampered flexibilty ac-
cording to some state officials.
Some state officials contend thate EPA's inflexibility is matched by its indecis-
iveness in approving state environmental programs. State legislators are particu-
larly sensitive to the "federal preemption" concept wherein federal agencies
withhold approval of state programs developed under federal policy initiatives.
State administration of such programs. In the words of one official, "the feds should
run the programs or they should delegate them with adequate reviews and
general audits to ensure the state's ability to administer the program." An offi-
cial in another state phrases it more strongly: "I want no federal EPA interfer-
ence with the state's compliance and enforcement programs unless the state
hasn't done its job."
A second way in which federal agencies are seen as inflexible is in federal
agency compliance with state environmental programs. The management of fed-
eral lands and a number of federal developments, such as those of the Bureau of
Reclamation and the Corps of Engineers have significant implications for the
management of state environmental programs. In the east, state officials often
find federal noncompliance with state permit and review programs more of an
irritant than a major stumbling block to state administration. Officials in states
likely to be impacted by off-shore drilling, however, want the terms of federal
leases to include due consideration to state environmental standards and pro-
grams.
In the western states where federal landholdings and projects are more
extensive the problem is more severe. The issue for the states is how to design
and manage effective programs when significant landholdings and activities are
not subject to state jurisdiction. Jurisdiction over federal water projects and
energy development projects on federal lands is a particularly sensitive are. Yet,
the problem extends to other areas of resource-related activities and permits.

_________________

*National Pollution Discharge Elimination System permitting process pursuant to Sec-
tion 402 of the Federal Water Pollution Control Act Amendments of 1972.

The Bureau of Reclamation often is cited as insensitive to state water quality
management plans in its development of irrigation projects. In California de-
creased flows resulting from one planned dam project threaten some areas with
saltwater intrusion beyond that permitted by state standards.
State officials couple their charges of federal inflexibility and noncompliance
with suggestions for improving the mesh of federal and stale programs by allow-
ing greater state flexibility and latitude in enforcement. Such flexibility would
permit state officials discretion in tailoring federal programs to local and regional
conditions. Oregon officials say federal insistence on hard dates for compliance,
oil fines and injunctions undercuts state conciliation and encouragement of in-
dustry to find innovative means to comply with air and water quality standards.
Oregon's traditional emphasis on conciliation and cooperation with offenders
tailors the compliance methods and schedules to the individual case, while pro-
viding realistic abatement of pollution.
In arguing for greater flexibility and responsiveness to state needs, state offi-
cials do not suggest that federal programs and national interest should be handed
over to the states. Saying that federal programs are "like a nervous system
without a brain." one official argued for a wholesale review of federal invest-
ment and regulatory programs. Such a review should recognize differences
among states, yet be supportive of the hierarchy of national interests. Physically
locating EPA officials within the state may improve communication among state
and federal officials and increase mutual sensitivity to their respective objectives,
perspectives and statutory mandates.
State efforts to encourage federal compliance with state standards and per-
mits have varied. Many officials withhold judgment on federal agency flexibility
and willingness to observe state programs. Federal compliance must be volun-
tary in fight of a California state court ruling that the state had no procedural
ties over activities on federal land. Wyoming had success in its dealings with
the federal Department of the Interior under a special court agreement that the
more stringent state reclamation standards apply to stripmining on federal land.
Officials in other states are less optimistic that cooperative agreements with
federal agencies without enforcement mechanism are the answer. Some states,
such as Oregon, have, through discussion with their EPA regions, established the
principle that the state should be involved in decisions dealing with federal
permits and with private activities on federal lands which are of significant
interest to the state.
In other states, officials find that persistency can make federal agencies recog-
nize the need to cooperate with the state in areas of mutual concern. Georgia
officials feel such persistence contributed to the current system of state-federal
joint notice of proposed activities requiring reviews and permits.
While state officials criticize the inflexible interpretations of federal regula-
tions, state programs are not immune to the charge of inflexibility. Local govern-
ments, which issue and are subject to environmental regulations and permits,
frequently view state regulatory agencies as the "bad guys" who refuse to give
the locals adequate consideration in enforcing state standards and review proced-
tures. California has recognized the need for greater flexibility and latitude asso-

ciated with the CEQA regulations guiding the EIR process.* The model EIR
patterned for projects and their impacts did not easily serve the review of
policies and plans, even though such proposed activities were also subject to the
CEQA. Recent modifications to the law are intended to alleviate this inflexibili-
ty.

The Costs of Regulation

The difficulties associated with red tape and inflexibility contribute to a third
major concern with the regulatory approach expressed by state officials deter-
mining the cost of environmental regulations. The cost to the state of instituting,
monitoring, and enforcing environmental programs is seldom mentioned as a
factor in evaluating regulatory programs. However, all officials express concern
for the dollar costs imposed on private business and local governments which
must comply with environmental review procedures. Few would go so far as one
state official who said environmental quality programs actually save state and
business dollars by getting environmental considerations and costs up front,
rather than in post facto cleanup efforts.
Local government and private business appear to be accepting the need to
assume certain costs for resource management. What they are not willing to
assume is the cost associated with complex procedures to achieve environmental
quality objectives.
In several states, local government hostility to state environmental programs
is waring. Local governments support for a state lead in environmental manage-
ment is not without reservations. One criticism of state environmental programs
is related to the distribution of program responsibility. Local officials say the
state agencies in designing regulatory environmental programs fail to give suffi-
cient attention to the local role in pollution control programs relative to the
heavy burden on local government budgets. The burden can be significant, since
local governments are potential polluters as well as regulators.
States also are becoming more aware of the costs imposed on local govern-
ments by the requirements of environmental procedures. Local governments are
less capable of passing costs on to the consumer. Local officials may prefer local
control of regulation, but in many states they are seeking state assistance to
meet environmental requirements. However, as one state official commented,
"State aid does not occur without some preemptions."
Ways of helping local governments with compliance costs and the extent to
which states encourage local governments to assume such costs vary. For ex-
ample, several states assume a portion of the local matching funds required to
obtain federal grants for wastewater treatment facilities. One state, by taking
legal steps to convince local and regional sewage authorities to act, has com-

*The California Environmental Quality Act requires the preparation of Environmental
Impact Reports much as the National Environmental Policy Act requires federal Envion-
mental Impact Statements.

pelled significant local expenditures for sewage treatment programs. But, as one
official commented, "You can't close down local government For inadequate
treatment of sewerage."
State agencies also are becoming aware that local officials like private busi-
nessmen are being buried in regulation. Environmental regulations are so com-
plicated that many smaller communities could use, but cannot afford, a full-time
lawyer for environmental programs. Local governments argue that the costs of
procedures associated with planning and management programs are not ade-
quately considered. In response, a few states are providing limited funds to local
governments for costs they incur complying with state and federal environment-
al programs. Colorado, as an example, gives local governments an amount equal
to 5 percent of federal 201 allocations* for technical assistance in water quality
planning.
States are also assisting industry in meeting environmental standards. In
Georgia, the Environmental Protection Division of the Department of Natural
Resources works with operators of prospective new facilities in site selection and
in delincating specific pollution control requirements. Colorado's joint program
review process involves the private sector and local government with state offi-
cials in identifying problems and opportunities associated with new ski slope
development.

Streamlining Regulatory Procedures

The charges of duplication, red tape and the associated costs have increased
states' sensitivity to regulatory procedures. State officials are unwilling to aban-
don the tool of regulation. However, they are conscious of the need to improve
the effectiveness and simplicity of their regulatory programs. "It is now a matter
not of reducing standards, but of weeding out inefficiency," says one official.
"Regulation is necessary, but it must be simple and fairly and quickly admin-
istered." These words reflect the working premise of most state environmental
officials as they seek to trim regulatory procedures without weakening the objec-
tive of a clean environment and well-managed natural resources. Several ap-
proaches are being attempted. One is an effort to create an awareness that not
every environmental problem can be regulated. The second is mechanisms to
address criticisms leveled against permit and review procedures.
In developing state regulatory and enforcement programs many state officials
follow the advice. "Don't take on the world." Rather than attempt to regulate
every problem, state officials recognize the limitations of staff expertise and
time and of available local government enforcement tools. By developing an
enforcement strategy, officials seek more effective use of their resources and
public credibility.
The most widespread effort to increase the effectiveness of regulatory pro-
grams is occurring with steps to streamline environmental assessment and envi-
ronmental permit procedures. The effort is intended to increase the efficiency of

*Section 201 of the Federal Water Pollution Control Act Amendments of 1972, P.L.
92-500 pertains to planning and construction grants for wastewater treatment facilities.

review programs with requirements for vast quantities of data,hearings,and
approvals by numerous agencies. There are several general approaches: (a)
greater clarification of what constitutes adequate data and reporting of impacts
(b) improved information and early communication between public officials and
applicants, (c) specified review periods for state agencies; and, most commonly,
(d) some form of a one-step permit system.
California is attempting to modify the regulations governing its environmental
assessement procedures. Recent amendments to CEQA regulations are designed to
reduce inefficiencies in information reporting requirements and to improve the
program's flexibility. CEQA is viewed by state officials as an informational
device to improve decisionmaking not as a regulatory program. Thus, new regu-
lations provide greater clarification of what constitues an adequate level and
range of reporting. New regulations also address the problem of repetitiver report-
ing of basic environmental data. The state encourages a master environmental
assessment base to assist state and local agencies in the EIS process. The assess-
ment base, by aggregating all data on state resources presently maintained by
state agencies, would provide a common data base for all jurisdictions. The state
Office of Planning and Research also recommends that local agencies develop
local master environmental assessments to provide a common set of data and to
define a common context in which environmental impacts are evaluated. Devel-
oping such master environmental assessments could simplify EIS preparation and
Would improve the reliability of assessments.*
Improved communication between applicants and state officials responsible
for permit issuance is another important way to minimize unecessary work.
One relatively simple means is to notify applicants about permits that will be
required for particular activities. One of the major frustrations for applicants,
particularly those with smaller projects, is determining which of the many per-
mits (environmental and otherwise) they must obtain. Some states, including
Massachusetts, Wyoming and Oregon, provide a detailed permit directory or a
permit office or bondsman.
A second way to improve communication is early, informal contacts between
applicants and state officials. Several states, including Colorado and New Jersey.
have instituted pre-application conferences. Both parties discuss the proposed
project, its likely impacts, and its probable reception within the permit system
without either party being committed. Such early and informal contact between
applicants and the state, between local and state officials, and between state and
federal officials can lead to projects more likely to comply with required stan-
dards. It may also lay the groundwork and provide personal contact for reducing
future conflict.
Another response is to impose mandatory time schedules for agency review.
New Jersey enacted legislation requiring that permits must be issued within 90
days for certain projects or the project is deemed approved. While there is some
inclination to extend the mandatory review provision to other activities, there
are problems with the approach. Projects which are large and complex and which

*California, OPR. The California Environmental Quality Act: A Review, March 1976.
Sacramento.

involve technical environmental standards and multiple impacts call seldom be
adequately assessed within a short period. Requiring an agency to sign off within
a relatively short time may result in superficial research and questionable deci-
sions. As a consequence, the time saved by having a quick turnaround on an
agency's decision may be offset by legal challenges from either opponents of an
approved activity or by ensuing environmental costs.
The most frequently used means to improve the permit system is a version of
one-stop permitting. A few states have adopted a formal one-stop permit pro-
cess. Others are improving coordination among permitting agencies while still
retaining an agency's prerogative to grant or deny a permit. In most states,
state-local sensitivities keep local permit systems outside state efforts to make
permitting more efficient
Ways to rationalize the environmental permit system are numerous. Massa- permit process and by consolidating various agency procedures at the regional
level. Several States, including Oregon. New Jersey and Massachusetts. have
adopted a master application form allowing the various permit review processes
projects over which they have permit authority; The master application does not
end the necessity for individual permits. Individual permitting agencies still issue

or deny permits according to statutory or administrative criteria and policy.
However, a master application form, along with joint hearings, call contribute to
a reduction in an applicant's paperwork and makes a more complete, uniform record available to (lie reviewing agencies. Both of these actors call contribute
to a smoother, more efficient processing of the application.
States, such as Georgia, with an environmental Superagency have used their
organizational structure to develop an informal one-step permit system for pri-
vate, state and federal activities. Having the major natural resource and pollution
control programs within one structure and under the leadership of one commis-
sioner increases the potential for internal review, liaison, and coordination, as
well as resolution of conflicts among the various permit granting divisions. The
result can be greater coordination and more efficient and effective procedures.

Regulation as Administrative Policymaking

The charge of administrative lawmaking is seldom specific to environmental
programs. It is not so much one of executive abuse of authority, but a concern
for the overall complexity of bureaucracy. Charges have been made that regula-
tory agencies are freewheeling with the authority granted them under environ mental legislation. In Some instances, overly zealous state officials have been
charged with using regulation to achieve environmental objectives which would
not have been adopted by the legislature. This is particularly true in land use
programs. In the words of one state legislator," Since legislators shy away from
land use, the planners take over." In another instance, state officials who
issued regulations which they described as the "functional equivalent" of the
statutory requirements were denounced by some legislators for failure to imple-
ment the law. One legislator called this administrative practice "the greatest

threat to democracy since the Reichstag Fire." While there is legitimate concern
that state and federal regulatory agencies may exceed legislative intent, most
officials interviewed say agencies are sensitive to the issue. Legislative control of
appropriations encourages this sensitivity.
In an increasing number of states, legislatures have adopted or are considering
legislative oversight of administrative regulations. Motivation for such oversight
extends beyond environmental programs. It reflects a general concern for execu-
tive branch initiatives and accountability and the legislature's sense of unease
over tile control of, state policy. As one state legislator phrased it, "the bureau-
cracy, not policy level people, make regulations: and the bureaucracy just rolls
along at its own pace."
However, many state officials, both executive and legislative, express strong
reservations about the desirability and feasibility of such legislative oversight.
The arguments against legislative oversight of environmental regulations are nu-
merous. The most frequently mentioned are the time and staff requirements for
review of complex, highly technical regulations. Oversight of many regula-

ulations is particularly troublesome, given the technical nature of many regula-
tory provisions. One legislator said that even a full-time,well-staffed legislature
could not conduct systematic oversight of program regulations. Legislative com-
mittees and staff seldom have the level of expertise to judge the details involved
in regulation. One legislator in a state attempting to conduct committee over-
sight of regulations admits the legislature is "floundering" in its effort.

One possible weakness of legislative oversight is that it may become too
political. Lacking sufficient time, staff, and information, the legislature may
employ a "gut" reaction in selecting the programs for review. Regulations which
raise the ire of an outspoken constituent are most likely to be reviewed. In such
instances, procedures and substance are unlikely to be the criteria for review.
A third reservation about legislative oversight or efforts to dictate regulations
by statutory requirement is the inherent complexity of a regulatory system. and
the resulting need for flexibility. Efforts to restrict agency authority to promul-
gate regulations may backfire. An agency needs some broad authority to meet
federal regulations which frequently are conditions for federal
funds. Since many state legislatures meet infrequently, state agencies without a
sufficiently broad mandate would be severely hampered in the effort to comply
with federal program requirements.
Statutory efforts to dictate guidelines for regulations may also prevent agen-
cies from tailoring regulations to specific classes of activities or to changing
conditions. Categorical "exclusions" and "inclusions" to environmental pro-
grams are difficult to design in advance. Therefore, efforts to spell out every
detail in statutes take away from an administrator the necessary flexibility to
administer a reasonable and equitable program.
Laws lend to be passed incrementally, with inevitable conflicts. Furthermore,
the language of legislation is seldom crisp. Many bills are written to be all
encompassing, with general language on goals and with little attention to the
demands of implementation.
More feasible steps than legislative oversight of environmental regulations are
possible to prevent actual or perceived administrative abuse. One of the most

frequently mentioned is improved access to top agency officials by the legisla-
ture. Interested legislators can then stay informed of the direction in which
environmental programs are being developed. It also permits negotiation among
state officials, legislators, and interested parties before regulations are effectivc.
In some states, ad hoc committees composed of private sector, executive, and
legislative members provide forums in which the exchange of information and
views contribute to the development of agency regulations and procedures. Such
mechanisms can lessen the pressure exerted through the legislature to weaken
environmental standards or dismantle environmental programs. In other states,
formal commissions composed of public, private, executive, legislative or other
combinations of representation have been given the responsibility to promulgate
agency regulations.
Several officials in different states from both branches of government suggest-
ed that the solution could be found in more carefully drawn statutes. This would
most likely require extensive review of each bill before its final adoption to
ensure that it does not conflict with existing statutes and that it does not, permit
an unwarranted amount of discretion to the administrator.

IV. Coordinating State
Environmental Programs

Energy conservation, land use, water availability, and the typical pollutions
control programs are considered environmental topic open for consideration as
the emerging issues for this report. It was thus only a minor surprise that the
state officials interviewed brought up a wide range current issues. It was then
not unexpected that these same officials should begin defining relationships
among several types of state environmental activities relationships that require
improved structures of innovative mechanisms to provide the needed coordina-
tion among them.
Few of the officials interviewed questioned the need for improved coordina-
tion among emvironmental programs. Citing increased awarness of jurisdictional
competition among programs and apparent policy gaps, most felt there is a need
for regularized means, of resolving conflicts and assigning responsibility.
Some of the conflicts among separate programs are inherent in the legislation
authorizing them. Nearly all gaps result from the lack of specific legislative
mandates. Policy and program coordination generally originate in the executive
branch where file problems arise when coordination is lacking.
State governments have sought to facilitate communications to produce a
unified state posture and cost-effective action in the environmental arena. Their
actions range from enunciating broad policy guidelines under which all environ-
mental decisions are made, to assigning the same office manager to all environ-
mental agencies. Among the most common techniques used have been reorgani-
zation, liaison officers, information sharing, and formal and informal meetings of
the relevant division or department heads.
Because of the relative newess of most state environmental programs. the
recognition of need for coordination is also fairly recent. The mechanisms for
attaining this coordination are still evolving. This chapter presents a snapshot of
these mechanisms as of early 1977.

The Structural Backdrop

The attention states have devoted to reorganizing environmental functions in
recent years points to the perceived link between structural factors and coordi-
nation/effectiveness concerns. Since 1967, 15 states have created environmental
superagencies. Little FPAs were established in 12 stayes. *However, the continu-

*The Council of State Governments. Integration and Coonlination of State Environ-
mental Programs. September 1975.

ing challenge of improved coordination and repeated "tinkering" with organiza-
tional structure suggest that stucture is not the single or major key to policy
and program coordination.
Most state officials concede that organizational structure can contribute to
improved coordination. They definitely agree that improper organization of en-
vironmental programs can hinder efforts to institute coordinative mechanisms
and procedures. The experiences gained in efforts to enhance coordination sug-
gest that, though no one organizational structure will guarantee coordination,

some are more conducive than others.
The organization environmental agencies involves some degree of arbitrari-
ness in the combinations and separations of highly interdependent functions and
resources. No structure could bring in all activities affecting the environment.
A specific functional focus oil water resources, on economic development, on
public health, or recreation could, however, be defended in organizational terms.
even as the interdependencies are recognized. The more frequent model unites
pollution control programs and, sometimes, additional programs.
Anli organizational structure conducive to coordination also is complicated by
intergovernmental factors. Authority for the planning, review, and regulation of
environmental programs and activities impacting on the environment is shared
among local, regional, state, and federal agencies, and often various boards and
commissions. Thus, the fragmentation in structure is both horizontal and verti-
cal. Devising it structure to encourage coordinatin among agencies, divisions,
bureaus, and commissions at the same level is difficult; designing a structure to
induce coordination among the various agencies at different levels of government
may be a superhuman task.
Coordinating lines of authority and the number of boards and commissions
with a policy role is more critical than bringing a number of functional programs
into a single environmental agency.
In Colorado, environmental reorganization has been limited. Functional pro-
granis for air and water quality. solid waste, and noise are located within the
Health Department. The policy and rulemaking authority is vested in statutory
commissions. The independent bases of the commissopms and their tendency to
construe legislative mandates narrowly increase the difficulty of resolving con-
flicts among various regulatory, review, and permitting prograns.
California brings several resource-related activities under the umbrella State
Resources Agency. However, the numerous state and regional boards, commis-
sopns, and departments responsible for plans, policies, and permit issuance have
varying degrees of authority from the agency head and from the state-level
boards. Coordination is thus extremely difficult because there is no strong cen-
tral coordinative position.
Wyoming's Department of Environmental Quality pulls together the major
polluction control programs of, air, water, and land, An independent environment-
al qualify council appointed by the governor promulgates rules and regulations

and serves as a hearing board on cases arising from the laws and regulations
issued by the department. Department policy decisions are determined by the
three advisory boards which each serve one of the major divisions. The overall
council which could serve as a coordinating body is separated from line agencies

by the independent policy advisory boards and assumes more of a quasi-judicial
role.
In Georgia, pollution control and resource management programs all reside
within the Department of Natural Resources. Reorganization in Georgia moved a
step beyond Wyoming in the degree of centralization. Thirty-three formerly
independent agencies and programs were brought into a new agency, and their
separate policy boards were abolished. The superagency is headed by one Board
of Natural Resources which appoints the commissioner, sets policies and ap-
proves regulations for all divisions within the agency. The presence of one overall
policy and rulemaking body enhances the likelihood that mechanisms to mini-
mize inconsistencies among functional programs will be effective. Furthermore,
the prospect for coordination among agencies is enhanced by the fact that the
Office of Planning and Budget in the Office of the Governor has the statutory
authority to resolve conflicts among agencies.

Mechanisms for Coordination

If would be improper to term all processes for coordination among state
government programs as "mechanisms." Informal discussions around the coffee
pot or over lunch often enable personnel of different agencies to exchange views
and to bring each other up to date. Several officials said that while formal
mechanisms are nice, they find that when a conflict exists between agencies,
picking up the telephone and thrashing over the situation is a perfectly adequate
method for achieving coordination.
Other techniques for information sharing have been more formalized within
state governments. Some of them, such as the A-95 clearinghouse, are geared to
a broad participation among many agencies. Some, such as permit review pro-
cesses, operate only between agencies requiring frequent contact. Other mechan-

isms are structured to facilitate consideration of specific projects or actions.
The A-95 review process is not employed by all States to its maximum theo-
retical potential, but some have devised selective purposes for which it is emi-
mently suited. In Georgia, the Office of Planning and Budget (OPB) uses review-
ing agencies' comments not so much for what is said about a proposed project,
but for determining the attitudes and concerns which underlie those comments.

This information permits the OPB to identify possible policy or program con-
flicts among agencies as well as any inconsistency with tile governor's goals and
policies. The large number of projects which enter the A-95 system in the
Department of Natural Resources for review makes detailed assessments diffi-
cult, but important issues are selectively addressed after the staff judges the
project's significance and the appropriate agencies to perform the review.
In Massachusetts, the State Planning Office uses its weekly A-95 review ses-
sion to coordinate programs with overall state policies. The reviews are directed
toward determining project consistency with the state growth stragey. Beyond
information sharing. Massachusetts is using A-95 as negative control over feder-
ally funded projects, that would contradict the slate's planning framework de-
scribed in its growth policy statement.
Environmental impact review processes have been touted by some as a means

for sharing information coordinating program activities. Stats EIR processes.
however, are often seen by applicants and many state officials themselves as
procedural headaches that are so narrowly focused on individual projects as to
severely limit their use for broader purposes. Several states are attempting to
break out of this myopic view of EIR. New Jersey has initiated a process to
stimulate program coordination. The Department of Environmental Protection
has bimonthly meetings the department's division heads. Information sharing
among programs is thus facilitated, and prospects for coordination are enhanced
both by the centralized review and by the frequent joint meetings.
Recent reforms in the California Environmental Quality Act's impact state-
ment requirements enhance information exchange. Under the new guidelines,
the impact documents have become more manageable. Only problem areas re-
lated to proposed projects need be described at length and data does not need to
be repeated from one EIR to the next: an inventory suffices for nonproblem
aspects of a project, and references can be made to data in other documents.
California officials consider the fact that EIRs must be prepared an indict-
ment of the planning process and hope that their recent encouragement of
master environmental assessments will be heeded. These assessments would es-
sentially be resource data bases from which all planning would proceed. The
notion is that if all environmental planning decisions are based on the same

comprehensive collection of information, better and more consistent results will
be achieved than from the current process of incremental plan development and
review. The coordination does not yet exist to provide the data base. The same
problem of data exchange has been noted in Oregon. To address it there, a task
force has been appointed to analyze alternative ways to organize tile state's
natura; respirce data gathering and use.
Besides information sharing, several states try to put state personnel in con-
fact with one another regarding problems of common interest. In the Georgia

Department of Natural Resources, one of the four branches of the Environment-
al Protection Division is the Program Coordination Branch. Its responsibilities
include providing support services for the other branches. operating the depart-
ment's management information system, and initiating contacts between the
EPD and outside programs, such as coastal zone management. The use of liaison
officers as initiators of such contacts is felt to be a most efficient interagency
coordinating tool because those officers call choose the most appropriate entry
points and people for facilitating communications on particular issues.
A similar approach is used in Indiana and Oregon. Staff assistants to the
governors in those states are assigned to oversee functional areas of state activity.
If conflicts between agencies occur, the relevant staff member(s), assume a liaison
role by convening the appropriate agency personnel to discuss the matter and
effect the executive's policy.
The various adaptations of the one-stop permit process, besides simplifying
regulatory procedures, also serve a coordinative function. In Oregon, a single

office is responsible for disseminating information about some 200 permit re-
quirements (about 35 of which are environmental) and for accepting and proces-
sing master application forms. These forms describe the proposed project and are
distributed amoong permitting agencies who must respond to (the applicant within

30 days, saying whether or not they have a permit interest in the project. In
Oregon and some other states, consolidated hearings may be requested by the
applicant or required by law. In either case such hearings are considered infor-
mational exchanges both between applicant and agency and between agency and
agency. Such processes also help to identify potential conflicts and opportunities
for cooperation among agencies.
By having joint hearing or a central permitting office that oversees all permit
activities, a state might avoid the problem of the permit applicant obtaining
permits one at a time beginning with the easiest and using his "beltload of
trophies" to pressure the remaining agencies to follow suit. This is an acknow-
ledged practice, state officials say, but one that may be curtailed by the one-stop
processes that are becoming more apparent and more discussed in state govern-
ment and within the development community.
More regularized and centrally directed coordination procedures seem to be
emerging om a number of states. Some of these address the problems of advance
planning for specific projects. while others are aimed more at the reconciliation
of policy goals and objectives. Of fairly recent origin as the Colorado Planning
and Coordinating Council. One role of the council is to pull together all those
responsible for functional planning in the state. The council cannot interfere
with or change the activities of the several independent, environmentally related
commissions, but it does address those areas over which the governor is permit-
ed discretion.
As a coordinating device, both on an interagency and an intergovernmental
basis, Colorado has also set up a joint review process involving state officials.
local government, and the U.S. Forest Service working through cooperative
agreements. While serving as an informational link among governmental levels
and as a forum for exchanging their points of view, it also gives developers a
picture of governmental attitudes as well as the problems and opportunities that
might exist in connection with proposed prjects. To date, this process has been
used mostly for advance review of ski slope developments, but its potential
reaches beyond these considerations.

In other states coordination is indirectly facilitated through overlapping
membership on various commissions or through regular joint meetings of these
commissions. There are nearly as many variations in state mechanisms as there
are possible problems, but the state recognition of a need for an integrated state
approach is apparent. Because problems imposed by a lack of coordination are
not constant, it is unlikely that many of the mechanisms and structures dis-
cussed here will be permanent. Instead, is should be anticipated that the states
will continue to revise structures, adjust programs and institute new mechanisms
for a smoother blend of environmental activities.

V. The Institutionalization of
Environmental Concerns

A Not-So-Delicate Balance

While problems of water shortage, energy development, hazardous materials
disposal, land use and the coordination of all of these were common themes
among the states visited, another frequently mentioned and always visible issue
deserves particular attention. It is not easily measured, but it pervades the discus-
sions of all environmental programs whose effect is to limit or put standards
on development.
The issue is referred to as a balancing of environmental and economic con-
cerns. In reality, there are few decisions of state government involving a clearcut
choice between economic growth and environmental protection, although many
decisions involve elements of both. In many cases, the issue has forced the state
to assert a leadership role in distributing political victories between development-
al and environmental interests.
So, while tile environmentalists move toward translating their goals into the
language of the state programs, the developmental interests continue to make their
claims about plant closings, increased unemployment and reduced tax base. This
relationship does not suggest a balance but a battle.
To be sure, the development interests are not always the "crass nay-sayers"
and the environmentalists are not always the "fuzzy-thinking idealists." There
are as many different descriptions of the two parties as there are ways of mani-
festing the balance. In all the states, the battlegrounds for maintaining or
achieving balance are multiple and dynamic. In no states is the question static or
ignored.
In 1976, a major challenge was mentioned in Oregon against the state's pioneer-
ing land use legislation. A citizen's initiative placed the repeal of that law on the
November ballot. The state's authority in land use matters was upheld by a
margin of 58 percent to 42 percent. Most of the state's environmental officials
do not see this vote as a mandate for increased state action and point out that
although it was a victory, the fact of the challenge should temper future related
state action with caution. Meanwhile, the timber industry, a major opponent of
the land use legislation, is considered the lose in this battle. Even though it
supported the initiative for repeal. Oregon political observers say the timber
industry would have preferred fighting particular aspects of the law in the halls
of tile legislature. The industry's fear now is that the expression of popular will
might prevent any anticipated success in getting such legislative cooperation.
In several states, a perception of imbalance has led to vocal coalitions be-

tween organized labor and industry. In New Jersey, there is an identifiable
organization, tile Society for Environmental and Economic Development, that
Voices tile group's opinions about environmental regulation. Such pressures in
New Jersey have resulted in a rollback of state air quality standards to the
federal minimum.
In California, the General Assembly prepared interrogatories to gather evi-
dence addressing the question of whether environmental efforts stagnate eco-
nomic progress. These were to be submitted to members of the labor, business,
government and academic communities. A study was also planned by legislative
staff to determine what, if any, relationship exists between environmental con-
trots and the unemployment rate.
In Colorado, the balance issue centers, as do many other concerns, on the
effects amd demands of energy development. Most frequently, this entails a
discussion of the allocation of water between the current agricultural and the
proposed energy development uses. In Indiana, an official said he believes the
state's populace is pleased with the quality of the state's environment and that
they are afraid of a repeat of the recent closing, of a U.S. Steel plant by the
federal EPA. Many people were laid off because of the closing, and, says the
official, "the air is not so dirty that we can afford to increase our unemployment
like that."
The southern and border state visited are eagerly recruiting new business and
industry for continued economic expansion, but they are not compromising
environmental objectives to attract new jobs. Kentucky and Mississippi both are
seeking clean industry. Georgia is promoting the growth of its service industries,
and it goes one step further. The Environmental Protection Division of the
state's Department of Natural Resources helps new industries with site selection
and pollution control requirements to meet the state's rigid standards.
Environmentalists in the declining industrial northeast wish that such har-
mony could be established between industrv and state environmental programs
there. The jobless rate in Massachusetts, for instance, is high, and the ear of
public officials is particularly sensitive to charges that current state policies work
against increased employment.
As long as some still see environmental controls and economic development
as mutually exclusive, the word "balance" will continue to be applied to their
relationship. In the state political arenas, and at the federal level, these issues
have been viewed as either/or options, and policymakers have struggled to estab-
lish an equilibrium. More factual, and less emotional, descriptions of the rela-
tionships between them may promote more realistic and positive steps toward
each.

Making It All One

The casual observer of air quality standard rollbacks in New Jersey and the
attempt to repeal Oregon's land use bill may conclude that effective environ-
mental management by the state governments is on the wane. However, New Jersey
has not eliminated control for air pollution: it has merely reduced its standards
to a level consistent with the requirements of federal law,and the Oregon land
use bill was upheld by the voters.

The reconsideration of various state environmentl statutes and standards
merely represents adjustments to attain the elusive balance. Officials in Georgia.
Colorado, Wyoming, Oregon, California, Indiana and New Jersey said the majori-
ty of citizens in those states favor the preservation of a quality enivironment. Up
to this time, however, and with the exception of federally required programs,
most environmental measures have continued to meet organized opposition.
Whatever the origins and whatever obstacles were overcome, a significant
amount of environmental legislation is on the books in all states. All states, for
instance, have air quality, water quality and solid waste programs that enforce
federally mandated standards, although a number of these state programs pre-
date the federal initiatives, and the state standards are often more stringent than
the federal standards. Nearly all states have some form of state-administered land
use legislation. More than half the states have laws requiring environmental
impact statements for public and occasionally private projects. It is the states
which have assumed the leadership role in meeting the potential environmental
consequenses of new energy development. In the final analysis, the success or
failure of lite nation's efforts to maintain and improve the natural environment
will be accomplished by the actions of the states.
The fact that the balance question is usually raised within the state capitols is
evidence of the weight the state role carries. The states are perceived as the
balancers precisely because they have been the focal points of environmental
protection activities.
The states, bolstered by federal minimum standards for many programs and
by continuing popular support for most environmental goals, have stood their
ground in defending the integrity of their environmental programs. And that's
the point: environmental programs are, today, as much a part of most state
governments as highway departments were in the 1950's.
An item occasionally reaches the news media concerning an environmental
crisis in which the state is or must become involved. However, environmental
matters seldom are headline material any longer because they are being ad-
dressed by ,state governments on a daily basis. Issues are less likely to reach crisis
proportions as they are addressed by effective state mechanisms that anticipate
or are prepared to face potential large-scale problems.
In some states, environmental programs have become a working part of the
government and have assumed the role of equal partners with other state agen-
cies.
What cannont be so easily shown is the genuine pride exuded by countless
state officials as they told of the strength and accomplishments of their environ-
mental programs. It Is that pride which makes the programs successful and which
will prevent state environmental achievements from being overturned now that
they have come of age.

PART 2

VI. Introduction

Part 2 of this report is an overview of policy considerations emerging from
environmental issues at the state level. The first four reports in the "State
Environmental Issues Series" are summarized to give state officials a concise
guide to these specific environmental issue areas.* Abstracts of each of these
four reports are included at the beginning of each summary chapter.
Chapter VII is a summary of polic implications for state energy conservation
policies and programs in the public utility and building sectors. Chapter VIII is
an overview of the status of the environmental impact assessment process and
recommendations for its improvement. The institutional and technical challenges
arising form the control of diffuse source pollution are discussed in ChapterIX.
Problems of both air and water pollution caused by diffuse sources are analyzed.
The impact of Indian rights andclaims on state environmental management is
explored in Chapter X.
Finally, a research agenda taken form each of the specific issue areas is
presented. This agenda serves as a point of departure for continuing study of
environmental and related issues from the state perspective. It is hoped that the
research agenda and the presentation of issues will help guide the allocation of
research and research support in directions of most value to state environmental
decisionmaking needs.
The four environmental issuem areas discussed above energy conservation,en-
vironmental impact assessment,diffuse source pollution, and the impact of na-
tive American claims on state environmental management were ientified at the
outset of this project by an advisory panel of state officials, as constituting a
viable list of environmental issues of pressing and immediate concern to many
state governments. Review panels of state leaders made recommentdations to the
project team studying each problem area. Their recoommendations and insights
proved invaluable in preparing the reports. The review panel members for each
issue were:

*The reader is referred to the first four publication in the State Environmental Issues
Series for a more comprehensive treatment of each topic. These four reports are:
Energy Conservation: Policy Considerations for the States:
Environmental IMpact Assessment: Policy Considerations for the States:
Diffuse Source Pollution: Policy Considerations for the States, and
Indian Rights and Claims: Considerations for State Environmental Management.

Energy Conservation
-Chart Bonham. Deputy Director. State Energy Office. Georgia
-Jeanette Brinch. Conservation Foundation. Washington,D.C.
-Representative Sam Gejdenson. Connecticut:
-Michael Goodwin, Architect (Former Arizona state representative) and
-Marvin E. Olsen. Senior Research Scientist. Battelle Human Affairs Re-
search Center. Seattle,Washington.

Environmental Impact Assessment
Schuyler Jackson,Vermont Environmental Board;
Edward Kelly, Project Monitor of Intergovernmental Sciences, National
Science Foundation;
Loren Kramer, Oregon Departmetn of Enviromnetal Quality;
John Reuss, Montana Envrironmental Quality Council,and
Eastern tin. Florida Bureau of Land Planning.

Diffuse Source Pollution

Jeffry Kell, Kentucky Office of Planning and Research;
Berton L. Lamb, Eastern Kentucky University;
Gary Pryor,Central Iowa Regional Association of Local Governments;
Victoria Greenfield; EPA Nonproint Sources Branch,and
Daniel W. Varin, Rhode Island Statewide Planning Programs.

Indian Rights and Claims

John Niemisto, Department of Justice, Madison,Wisconsin;
William Mauk, Idaho Supreme Court, Boise,Idaho;
Craig Bell, Western States Water Concil,Salt Lake City, Utah,and
Robert Deer, University of Wisconsin.

Energy Conservation: Policy Considerations for the States directs
attention to a critical problem in which the states are assuming a strate-
gic role-energy cnservation. Two specific issue areas are discussed as
constituting sectors taht are most amneable to state energy conserva-
tion efforts. These issue areas are the regulation of public utilities and
improved energy conservation in buildings.
Manipulation of the rate structure is analyzed as on means of facili-
tating conservation of electricity. Load mamagement techniques such as
peak-load pricing increasingly are being employed to reduce the level of
peak demand by shifting demand for electricity to"off peak" periods.
According to this scheme, the price is highest in those daily/seasonal
periods when demand is high and conversely lower when demand is low.
Significant and long-term energy savings can be obtained through
changes in building design and construction practices and through im-
proved or supplementary energy systems within buildings. Conservation
of energy can also be achieved by retrofitting existing buildings wiht
proper insulation. The major problems to be encountered by state offi-
cials in reducing energy use in buildings will be pubic inertia and insti-
tutional obstacles. Therein lie the major policy considerations for state
leaders as they seek to deal with the ramifications of the energy crunch.

VII. Energy Conservation:
Policy Considerations for the States*

Introduction

The states have important roles to pursue in efforts to address the national
objective of energy conservation. Despite limited information on patterns of
energy consumption and the impacts of energy conservation efforts, state legis-
latures and agencies have been instrumental in providing direction to a variety of
measures within the states. To improve the effectiveness of state efforts, it is
important that state officials be aware of possible constraints to various energy
conservation policy approaches. State officials can then better devise rograms
to partially negate such constraints and better define the state's role in the
pursuit of energy conservation.
At the base of the energy problem lies the need to maintain the balance
between energy demand and producible supply. Energy conservation is the most
feasible policy option for the intermediate period, to achieve the balancebe-
tween energy demand and energy supply. However, energy conservation has
long-termaspects. Although some measuers may have immediate results, other
measures may result in significant energy savings only over an extended period
of time. Even if energy efficient buildings, appliances and automobiles are soon
available,the extant stock of these durable goods is so large that the conserva-
tion impact will not be felt in the immediate future.
State officials face some further limitations on their freedom to design effec-
tive energy conservation programs. These include legislative mandaes, compet-
ing policy objectives and limited resources. Federal adn state legislative action in
energy conservation proviedes immediate dirdectives for state policy. While legisl-
tive action dose not rult out other approaches it does set some basic parameters
for energy conservation efforts in the near future. Within the limitations posed
by comptitive, and sometimes conflicting policies and programs and limited
resources, stsate officials are required to exercise both creativity and flexibility in
desingnign conservation programs.
Two program areas are examined in this chapter regulation of public utiiities
and improved energy efficiency of buildings. States have the primary autorutiy
and responsibility to regulate public utilities, and numerous state agencies wiht
this authority are adding the efficient use of energy to the declared objeftive of
*this chapter represents a condensed version of Energy Conservatin:Ploicy Considerations
\for the States. The Council ofState Government:Lexington, Kentucky,1976

regulation. Programs to encourage efficient energy use in building design. con-
struction and operation have been authorized in many states. Thus, it becomes
apparent that these are two particular policy areas in which the states can make
contributions to the national goal of nergy conservation.

STATES AND ENERGY CONSERVATION

The severity of the energy demand-supply problem has given rise to the
need for a "division of labor" between the federal government and the states as
they deal with the energy problem and seek to lessen its impacts. The complexities
of supply and price of most energy sources should be addressed at the
national level by the federal government in conjunction with the private sector.
National patterns of energy consuption and the large interlinked energy companies
reflect this problem of scale. The complexities of the energy system and its
interrelationships with environmental policies and economic activities require
much of the leadership to come from the federal level.
This certainly does not mean that states are not or should not be concerned
with energy policy. Several states are allocating significant funds and efforts to
research alternative energy resources. Energy conservation, however, is an even
more attractive policy option for the states. States are somewhat limited in their
ability to influence energy conservation and sufficient flexibility to
design and implement energy conservation measures in line with their need and unique
characteristics.

Energy Impacts and State Response

Most states have felt the negative impacts of the supply-demand-price aspects
of the energy problem. The inflationary prices of the energy problem have raised
the cost of goods and services procured and provided by state governments. Tax
revenues are also negatively affected as energy-related infaltion contributes to a
slowdown in business and economic activity.
In certain regions of the country, the energy problem is more serious than the
general problem of infaltion. Severe problems may arise in accordance with climate and
economic conditions, the source and type of fuel supply, or the distribution network
serving a state. The uncertainty of supply and high prices of imported fuels have
caused severe economic dislocations in the New england region. In the Rocky
Mountain area, several states are faced with costly environmental and
socioeconomic impacts should they become significant energy producing states.
The practices that most likely will result in energy savings avary among and
within the states. The feasibility of certain energy conservation practices de-
pends on many factors including climate, institutinal, and market conditions.
Response to energy problems is further complicated by the realtive lack of
state-level data. Most research on energy conservation options is based on nationally
aggregated data on energy use by the economic sector. Consequently, recommended
energy conservation measure often do not adequately take into

account the difficulties of implementing energy conserving practices at the indi-
vidual stae level. This makes it necessary for the states to arrive at more individ-
ualized plans of action for energy conservation that take into account the unique
cahracteristics of a particular state.

STATE TRENDS
The separate efforts currently being pursued by the states in energy conserva-
tion number in the hundreds. These actions include thermostat and lighting
cutbacks in public building: public education and direct technical assistance for
energy conservation: efforts to encourage efficient use of energy through peak-
load pricing of utilities and life cycle costing: energy budgets for public facilities:
voluntary or mandatory energy-cost appliance labeling: and financial incentives
for the adoption of alternative energy systems.
An inventory of state legislative action since 1974 indicates the momentum
and trends of state conservation activities. In 1974 fewer than half of the
states adopted energy conservation bills. The creation of fuel allocation offices
and energy agencies to deal with fuel distribution problems was the most fre-
quent legislative action. By the end of 1975 some two thirds of the staes had
enacted energy conservatin legislation. The most common legislation in 1975
occured in the area of public utilities (especially electric) regulation and en-
couragement of solar energy systems by financcial incentives or research funds.
Other measures adopted included voluntary or mandatory measures to encour-
age more efficient use of energy, particularly through standards for building
construction.
State legislation in 1976 built on previous state initiatives for energy conser-
vation. States have begun to implement previously enacted programs and to
develop energy conservation programs in line with federal programs and to
develop energy conservation programs in line with federal programs. A signifi-
cant decline in solar energy legislation has occurred at the state level, while
legislation dealing with energy conservation plans for buildings has increased.
Although the sectors addressed by states in 1976 are more diverse than in
previous years, the residential-commercial sector remains a common target of
legislative programs. States also have begun to place new emphasis on state
government directed or supported studeies of energy conservation activities.
The functional areas and sectors which state programs are addressing are
reinforced by the federal Energy Policy and Conservation Act of 1975 (epca).
While the states, undfer this federal grant program, have latitude in developing
plans for reducing the projected 1980 level of energy consuption by 5 percent.
The mandatory program areas for state energy conservation coincide closely with those
which serveral states and local governments have already enacted. These
include: lighting efficiency standard for public buildings: programs for carpools,
vanpools, and public transportation: energy efficiency in state procurement:
thermal efficiency standards and insulation requirements for new and renovated
buildings: and traffic regulations permitting right turn on red.

State Policy Development

The federal EPCA sets possible paramenters for immediate state energy conser-

vation activities. The states are faced with the fiddicult task of determining the
details of how the energy conservation measures will be developed and imple-
mented. Acoordingly, attention should focus on those sectors and functional
uses in which:
(1) Technological potential for energy savings is high:
(2) Public acceptance is likely:
(3) State authority and ability to act is strong, and
(4) An acceptable environmental-economic-quity tradeoff can be obtained.
These broad criteria provide guidelines for arriving at an overall energy con-
servation strategy. Specific policyt approaches regulatory, incentive, and educa-
tional should reflect a balancing of the technological, economic, political, and
administrative factors and should be optimal in terms of dollar costa, energy
savings, environmental and social impacts, and administrative considerations.
Development of such optimal programs is obstructed by a number of con-
straints. Information across a range of topics is required for policy makers at the
state level to effectively disign energy conservation programs. Currently un-
known or unavailable in useful form is inforamation relating to actual and pro-
jected energy consumption and supply levels: an understanding of the market
forces relative to energy consumption: consumer willingness to adopt energy
conserving behavior: and the social, economic and environmental impacts of
conservation measures.
Institutional considerations also influence the determination of cost-effective
state energy conservation activites. The choice of the appropriate market or
nonmarket conservation strategies is influenced by the economic structure of the
state and its energy distribution networks. The structure of the national econo-
my and energy systems, as well as the dynamics of intergovernmental relations,
must enter into the determination of which sectors and uses are the most likely
targets, and which government level should assume resposibility.
Research is under way to discover the likely results of general conservation
policies, but the impacts of specific measures within particular states will be
difficult to ascertain in view of the national dimensions of the energy problem.
the scale of most available data, and the inextricalbe relationship of energy to
the national economy.

Energy Conservation in the Electric Utility Sector

In the united states, the electric electric utility generating industry has the longest
growth rate of any energy-consuming sector, with electric generating processes
themselves accounting for 27 percent of the total U.S. energy demand. Approxi-
mately 38 percent of the energy used within the sector represents scarce oil and
natural gas resources that are used as fuels for generating electricity.
Electricity can be an efficient form of energy as used by the consumer.
However, the production and transmission of electrical energy to the consumer
is highly inefficient in the use of fuel resources. In combination with the scar-
city, costa and impacts associated with the development of many of these fuel
resources, the inefficient conversion processes draw attention to the need for
conservation in the electric utilities sector.

Conservation Policy
Proposals for conserving energy in the electric utility sector can be viewed in
terms of three basic tools that can be applied by state officials to reduce the
amount of energy required to produce electricity. These tools are:
Regulation techniques that restrict the amount or duration of electrical use
allowable or that require the use of more efficient technology in the energy
conversion process:
Voluntary Conservation: public relations and eductional techniques de-
signed to promote voluntary cutbacks in the consumer use electricity:
Rate Structure: techniques that employ vairation in the price of electricity
to promote energy conservation.
For political and economic reasons, regulationmay not be a viable conserva-
tion measure on a widespread basis. Such techniques as interruptible service
(restrictions on the amount and duration of electrical use) have not been applied
on a large scale, and voluntary conservation programs have yet to demonstrate
long-term favorable rsults. Consequently, many proposals for the conervation
of electrical energy ionvolve some manipulation of the rate structure to encourage
consumers to change their level or pattern of electricity consumption. The use of
rate structures as a means of conservation is based on two assumptions: elasticity
of demand for electricity and public acceptance of the policy.
Under the first assumption, changes in demand respond directly to changes in
prices. A dilemma lies in the fact, though, that studies of the elasticity of
demand for electricty have not been conclusive on this point. Simply stated, a
number of studies have found that demand for electricity did not change in the
expected manner with manipulation of the rates. This indicates that the price
elasticity of electricity is more complex than originally thought and requires
further scrutiny if it is to be usd as an assumption in devising rate structures
that foster conservation of electricity. for example elasticity of demand has not
usually been examined for its relationhip to time of day, total usage, or end
usage. The limited amount of data is exacerbated by the effects of the historical
period and prevailing market conditions during which most of the elasticity
studies were conducted. Changing market conditions due to escalating prices and
the lack of substitute fuels could render obsolete all previous studies about the
elasticity of demand for electricity.
In various studies of elasticity, demand has been found to be a function of
numerous vairables including not only the price of electricity, but also the price
of alternative fuels, family income, population, lif syles, and the existing stock
of appliances. Changes in any one varialbe may have more or less than propor-
tionate impact on electricity use.
The national Associates of Regulatory Utility Commissioners has con-
cluded, however, that the demand for electricity appears to be somewhat respon-
sive to price in the long run. Short-term responsiveness is likely to be limited
because consumers of electricity often are locked into certain life syltes which
require considerable time to change.
The unceratinty as to the effect of price elasticity in coserving electricity has
several ramifications for state policymakers. One is that rate structure changes

may do little to effectuate needed energy conservation in the short term.There
is also the possibility of windfall profits for utility companies, with minimal
conservation benefits.Finally some methods using the rate structure to conserve
energy may result in higher prices for comsumers, thus raising the queation of
equity for persons on low or fixed incomes.

Efficiency

Current inefficiencies in the generation of electricity are partially attributable
to the existing pricing systems which have encouraged the growth of demand.
Electric utility rates have two primary objectives generation sufficient aggregate
revenue and allocating scarce resources economically and fairly.The level of
rates is designed for revenue purposes and the state utilities regulartory commissions have been more
concerned with the level of rates than the structure of rates. Cognizant of this
fact,utility companies have used the rate structure as a means of expansion.This
has been accomplished by using a declining block-rate structure,whereby each
successive block of kilowatt hours used is cheaper than the preceding one.Thus,
the demand for electricity increased as large users had incentive to comsume
more electrical energy.
Current rate structures do not generally reflect the fact that demands on the
electrical energy system at times of maximum demand impose a major strain on
the generation system.To meet these increases in demand utility companies
often rely on older and less efficient auxiliary generating unitswhich are expensive
to maintain and activate.Therefore the output of older auxiliary units is
usually sold for less than the actual cost of their energy production.
Peak-load figures are important to energy conservation efforts for additional
reasons.The construction of new power plants is often based on projected
growth of peak period loads.Consumption during peak periods thus contributes
directly to the construction of new facilities which might not have been required if the demand were more eventy distributed
The facilities in turn contribute to the costs of electrical anergy.
Many of the solutions proposed to alleviate the problem of peak demands are
based on methods that would shift a portion of the peak demand to nonpeak
periods.This load-management approach entails the deliberate reshaping of a
utility's load curve.The electric utility industry's major success to date in load
management has been thought seasonal load balancing.
One load management technique is commonly referred as peak-load pricing.
The objective of peak-load pricing is to reduce the level of peak demand by shifting demand for electricity
to "off preak" periods.This approach can allow
more realistic pricing but can also produce savings from a more constant
level of demand. The energy used in off-peak periods can be generated with the
more efficient base equiptment which uses less energy than electricity generated
by peak generating systems.
Peak0load pricing varies the price of electricity accourding to the demand on a
utilitysystem over a daily and/or seasonal cycle.When demand is high, the price
is high and conversely lower when demand is low.With this scheme,the price of

electrical energy closely reflects the actual incurred in the production of the
electrical energy being used.
The degree of energy savings through peak-load pricing is unclear.Several
studies using simulated data that both dollar and energy savings may be
significant,but the data suggests that both dollar and energy savings may be
significant,but data from actual demostrations are less conclusive.
Further implementation of peak-load pricing will continue to encounter problems.
The cost effectiveness of adding metering equiptment that would tell when
the electricity was used,is one such issue.Of great concern to both utility
companies and consumers, is the effect that peak-load pricing will have on the
utilities revenues.Some companies believe that peak-load pricing would result in
revenue short falls, due to a decrease in demand,while some consumers believe it
would result in a revenue surplus due to the direct relationship between production costs and rates.
Another problem involves consumer responce to a time-of-day pricing
scheme.In the industrial and commercial sectors,peak or high cost periods will
most likely occur during periods of normal operations.In the residentual sector ,there is no
evidence that the price differences based on actual cost of production will be significant enough to alter consumption patterns
To reduce demand,evidence suggests that prices during peak-load must be six to 16 times higher
than during off-peak hours.

Policy Impications

Despite uncertainties about cost effectiveness, changes in rate structure provide
states with potential policy approaches to energy concervation.A better
balancing of demand for electricity and the utilities generating capacity can
reduce the need for costly capital expansion and for using energy inefficient
peak systems.Peak-load pricing is an attractive policy option for several resons.
By working through market forces,it lessens the politicak and enforcement problems
associated with regulation.The likelihood of windfall profits for utilities is limited
since peak-load pricing brings prices more closely in line with actual costs.
This technique incorporates the carrot stick approach.It offers visible
dollars savings to the consumer who makes the shift in use and meets the load
management purpose of peak-load pricing and penalizes through higher costs,the user
who make no change in his pattern of electrical consumption.By encouraging consumers to shift rather than
actually reduce demand a rate structure device minimizes the prospect that consumers
will alternate fuel sources.Finally, with its metering approach peak-load pricing can be selectively
targeted to the residentual, commercia,or industrian sectors, and to individual
consumers within each sector.Conservation within the electric utilities sector inevitably the state
by virtue of the widespread public intrest in the regulation of the public utilies sector.
Cooperative efforts by the states and utility companies are required
for the balancing of equety concerns, market forces,the special economic and capital problems
of the utility companie,and the public intrest in the use and costs of electricity.

The highly complex nature of electric utilities management and rate structures and the significant and widespread impacts
which electricity have on the economy call foe a committed approach by the state. The setting and administration of specific
load management and rate structure changes should be shielded form political pressure to the extent possible by deleigation
to public agencies such as public service commissions.The policy determination to use such approaches in the first place is
of course a political judgment.This regulartory function should occur within specific parameters and under general legisla-
tive oversight.The legislative and executive branches are directly involved in designing and implementing programs which
address the equity issues and economic impacts associated with changes in the rate structure of electric utilities. A strong
state role in utilities conservation efforts is necessary to ensure that such programs are not simply temporary solutions to
the current capital shortage of many utility companies, but are instituted as a part long-term stratagies for energy conservation
States and electric utilities should begin to acquire the needed information on various conservation practices and policies
by implimenting pilot projects under a variety of market conditions and conservation measures.Such pilot projects can generate
information on the technical and economic feasibility of peak-load pricing,the nature of consumer reaction the type of public
education programs required and the degree of energy savings likely to result.Pilot projects might also reveal the need fo r
additional actions by the company or the state to make peak-load pricing both equitable and cost effective.

Energy Conservation in Buildings

Residential and commercial buildinfgs are also prime targets for state energy conservation efforts.Effective and substantial
energy savings can be achieved by modifying a buildind shell and its space heating and cooling systems.The localized nature
of the building market and strong regional differences in climate and energy use make state level action particularly
appropriate.Recent federan programs and energy use make state level action particulaly appropriate.Recent federal programs
require and encourade conservation standards in new buildings code authority, also help make this area of activity an important
energy conservation devise for the states.The initial efforts in the Unites States to encourage energy conservation in
residential and commercial buildings have been well publicized;for example the request for voluntary thermostat cutback
Through energy savings from such measures can be sustantial greater ,morereliable, and longer term savings can be
achieved through changes in building design and construction practices and through improved or supplementary energy
systems within the buildings.In most states significant energy savings can be achieved by retrofitting buildings with
proper insulation.Relatively little attention was given to the efficency of buildings in the past.Consequently, energy
requirements for heating and cooling are subject to substancial reductions in many residential-commercial buildings .The
technology and materials exist to make buildings more energy

efficient and can be used to bring about significant energy savings even without
reliance on experimental systems such as molar energy.
The success of energy conservation measures in file building sector also de-
pend upon public acceptance. The dollar costs and savings of various energy
conservation practices may be the most important issue in consumers' decisions
to adopt conservation actions. Thus. policymakers must balance energy saving
objectives and program with an awareness of related economic costs and conse-
quences to the consumer. This is particularly important for conservation strate-
gies based on voluntary consumer actions. It also is necessary for mandatory
conservation measures. Impacts on consumers should be a major policy consder-
ation.
Studies of energy savings and cost effectiveness of various techniques for
energy efficient buildings provide only general indicators to policymakers. Other
factors such as climate conditions, type of building unit, new construction or
retrofit, the price of energy, personal habits of the consumer, the price of
materials and labor, financing terms, person financial situations, and tax rates
must enter into the equation that determines the optimal level and type of
energy saving techniques for tile individual. For the policymake whose goal is
substantial energy savings, the conclusions drawn from economic analyses of
energy saving techniques are even more complicated. Investment decisions which
optimize tile individual's energy and dollar savings do not always result in the
greatest overall energy savings.
The Major difficulties to reduced energy use in residential and commercial
buildings do not lie in technology or building economics. The major problems
are public inertia and institutional obstacles.
Inertia and unawareness prevalent in public attitudes and behavior toward
energy conservation in buidings. Depsite increased prices, consumers are slow in
displaying energy conservation behavior. This is partially due to the lack of
information on practical steps they can take. However, there are indications of
change. In certain regions of the country, there is evidence of an emerging
conservation ethic. For example, in the northeast and east coast regions where
energy problems remain severe, public awareness of the problem has begun to
cause a discernible demand for more energy efficient buildings in the residential
and commercial sectors. Also, a number of states have initiated programs to
further support this emerging ethic by direct technical assistance.
Implementing necessary energy conservation measures is further constrained
by a number of marketplace forces and industry policies. Among these are the
nature of the building market and construction industry, utility company rate
structures, lending institution practices, and characteristics of the building stock.

Assessment of State Policies

The efficacy of present state approaches for energy conservation in buildings
is not easily assessed. National energy policies and energy prices, over which
states have minimal influence, affect any market-related strategy. This further
impedes states implementing efficient energy conservation standards.
The effectiveness of state conservation efforts is related to several factors

which should be addressed by state officials. These include:
1. Energy savings potential offered by building technologies:
2. Market-related constraints in the residential and commercial sectors, and
3. Administrative, legal and intergovernmental concerns.
Policies which factors Should increase the likelihood that State
action will lead to more efficient energy use in buildings while increasing the
acceptability of such measures.
In most states, regulatory approaches to energy efficiency of buildings rely on
building code programs. Regulation by building codes is a method, that call
achieve significant savings with consumer acceptance minimal market
restraints, and clear-cut legal authority. However, political and administrative
problems in statewide building codes are serious. The political and intergovern-
mental obstacles to file adoption of a uniform statewide building code and
problems of local code enforcement interplay in such a manner that code modi--
fications are likely to soon result in significant energy savings.
Policies to encourage the retrofitting of existing buildings and the adoption of
solar and other energy augmenting devices currently rely heavily on incentives.
Incentive policies are important encouraging retrofitting since the regulatory
approach of building codes is not applicable to existing buildings. An incentive
policy may achieve the desired consumer response, but it may have drawbacks.
Economic incentives represent an undefined drain on the government's revenue
stream.
Equity considerations also raise some objections to the incentive approach.
Most current incentive programs are directed to the homeowner, not the renter.
Providing equity to both owners and renter poses problems in the design and
implementation of programs. Additionally, the financial incentives states can
offer through exemptions of various state and local taxes are generally minimal as
compared to the capital outlay required by the owner for retrofit or for solar
systems.
Voluntary and incentive programs must be reinforced with public education
to increase the public's awareness of the need and techniques for energy conser-
servation. Energy conservation programs will have limited effectiveness until
widespread public demand for energy efficient buildings emerges.

Policy Implications

To achieve significant energy conservation in buildings, state policymakers
must be made aware of the full range of market cons and other forces that
affect the results of conservation efforts. The following statements represent a
summary of implications which state policymakers should consider:
Maximum savings are likely to result from programs which focus on innova-
tive design and more efficient operation and maintenance in new commercial
buildings as as well as retrofitting existing residential units.

States should avoid a heavy reliance on the impact of solar and other
alternate energy systems.
The highly variable economics of savomg techniques for new and

retrofitted buildings calls for flexible state policies and programs to achieve
savings through the use of various conservation techniques.
The costs of retrofit techniques call for financial incentive programs for
most income groups.
States should consider programs such as income tax credits, propert tax
exemptions, and changes in depreciation write-off to shorten the payback per-
iod of energy conservation and alternate energy system investments.
Since energy efficiency standards for new buildings do not necessarily in-
crease construction costs, first-cost subsidies may not be necessary for new
buildings.
State policies and programs for energy conservation in buildings should
supplement the owner or tenant's limited ability to use the marketplace to affect
appropriate energy conservation techniques and
Short-run conservation programs should be directed toward builders, lend-
ers, and appraisers whose decisions affect the energy use in buildings or the value
of energy efficient buildings.

FOOTNOTES

1. The illustrative sample of state energy conservation legislation 1973-1976 was
developed by the Council of State Governments, based on the Council survey
of state energy legislation. Energy Legislation Update 1973-1976 and ECP
Report Energy Conservatio Project Environmental Law Institute.

2. Energy Policy and Conservation Act, Title iii Parc C "State Energy Conser-
vation Programs."

3. Energy Research and Development Administration A National Plan for Ener-
gy Research, Development and Demonstration: Certain Energy Choices for
the Future-Volume 1: The Plan, Washington D.C. U.S. Government Print-
ing Office, 1976 p. 45.

4. National Association of Regulatory Utility Commissioners. 1974 Report of
the General Council of Economics. 86th Annual Convention, October 8.
1974; p. 10.

Environmental Impact Assessment: Policy Considerations for the
States presents a state-of-the-art evaluation of environmental impact
assessment and suggests policy considerations for state leaders in line
with the evaluation. Because of its preeminence as a means of environ-
mental assessment the environmental impact statement (EIS)is closely
scrutinized for its value and weakness at the federal and state levels.
Simply stated, more attention has been paid to EIS procedural require-
ments than to their substantive content. The quality and content of the
EIS must be upgraded so that it can become an integral component of
the decisionmaking and planning processes at all levels of government.
means to accomplish this are suggested in this chapter. In essence, these
suggestions entail a broadening of the scope of the impact assessment
process so that it includes not only an environmental assessment, but
the social, economic, and cultural impacts of a project as well.
Four recent innovationsin environmental analyses at the state level
are presented as examples of improving the efficacy of the assessment
process. These approaches ar designed to facilitate both environmental
impact analyses and solutions to other state probelems. They are illus-
trative of the broadened scope of the impact assessment process.

VM. Environmental Impact
Assessment: Policy
Considerations for the
States*

Introduction

State government involvement in the environmental area during most of this
century has been concentrated on the conservation of resources rather than
environmental quality. In the late 1940s, states began to display greater concern
for problems of environmental quality. State activity to solve pollution problems
greatly increased after the enactment of major federal legislation in the mid-
1960s and early 1970s. Among the most important of these enactments were the
Federal Water Pollution Control Act Of 1965, the Solid Waste Disposal Act of
1965, the Clean Air acts of 1965 and 1970. the 1972 amendments to to the
Federal Water Pollution Control Act. and the National Environmental Policy Act
(NEPA) of 1969. These laws provide the basic framework for most current
environmental efforts, and all require increased state roles. By 1976, environ-
mental quality had become one of the major institutional objectives of state
goverment.1
Public and govrnmental concern is moving beyond pollution abatement as
the sole concern to the broader questions of growth and development and their
environmental impacts. For example states increasingly are adopting various
land use programs. Other programs are being stimulated be federal efforts, such
as Section 208 water quality planning and coastal zone management.
In accordance with this broader orientation, state measures to address the
problems of growth and development can be grouped into two general catego-
ries - broad policy approach and project approval approach. The broad policy
approach refers to state actions which provide a framework prior to the initia-
tion of particular projects. They help predetermine the location, type, intensity
and scale of development, and perhaps even whether there will be development.
Comprehensive and enforceable policies and plans are tile prime examples of this
approach.
Under the project approval approach,the implementation of legislated policy
awaits triggering by a development application. Under this general approach.
policy may be implemented and developed on a case-by-case basis. Such case-by-

*This chapter is a summary of Environmental Impact Aassessment: Policy Considera-
tions for the States. Council of State Governments: Lexington, Kentucky.1976.

case policy may develop through the evolution of formal or informal criteria
applied through the development review process.
Current state programs entail broth approaches simultaneously. It is neither
possible nor desirable to devise mechanisms that are distinctly one type or the
other. To a certain degree. the broad policy approach infers some positive shap-
ing of growth and development whereas the project approval approach implies
ad hoe reaction to growth. Both approaches are necessary and are indicative of
the trend of state policies to maintain and improve environmental quality.
An enormous range of state activities and programs could be included in a
listing of each approach. Environmental assessment activities are an important
part of both policty approaches. More than half of the states require some kind
of environmental review. with 19 states having adopted general state environ-
mental impact requirements.
Environmental impact analysis is becoming an integral component in planning
and decisionmaking at the state level. Yet, states are questioning the present
structure and role of environmental analysis. There is a general feeling among
states that environmental analysis is a necessary tool, but requires changes in
both tenchnical output and program direction. Each unit within state government
places different demands on virtually every aspect of environmental analyses
including methodological approaches, procedural and substantive requirements.
time, cost and manpower requirements.
States are passing environmental policy acts, modifying or developing assess-
ment methodologies, strengthening existing or forming new environmental pro-
tection agencies and promoting new and innovative processes for incorporating
environmental considerations into planning and decisionmaking.
State leaders have shown an awareness of the need to clearly define environ-
mental goals and policy and to formulate criteria for evaluating the substantive
content of environmental impact statements. There should be greater identifica-
tion of activities subject to impact analyses and thorough examination of project
alternatives. Greater quantification in the review process with consideration of
EIS review comments the environmental assessment process into policy and deci-
sionmaking.

State Opinions on Environmental Impact Analysis

This section deals with the collective opinions of state leaders on the value of
environmental impact analyses in state planning and decisionmaking. It should
be noted that these opionions are primarily the result of state leaders' experience
with NEPA and the state equivalents SEPAs. As a result, the opinions reflect a
strong orientation toward NEPA rather than toward environmental impact anal-
yses in general. This NEPA orientation, however, does not diminish the signifi-
cance of state opinions on environmental impact analysis, for NEPA may be the
most important and widely incorporated environmental directive due to its re-
quirement for developing environmental impact statement (EIS).
Conversations with state officials and reviews of recent documents have re-
vealed widely varied opinions as to the perceived value of environmental impact

analyses to state planning and decisionmaking. Interestingly, two-seeming incom-
sistencies have arisen out of this effort. First, a number of the items noted as
criticisms also have been identified as major contributions by other leaders.
Secondly, obvious solutions to some of the problems noted will only aggravate
other problems. For example, one criticism suggests that environmental impact
analysis is not an effective planning mechanism: while on the other hand, it is
also praised as an additional planning food. The fact is that both points are valid.
Few state officials would disagree that improved environmental analyses would
improve their use as a planning tool. At the same time, there is no doubt that
extant processes have contributed to planning and decisionmaking.
The second apparent inconsistency is true that providing solutions to one
problem will aggravate another. As an example, overcoming the restricted scope
of analyses may well require increased expenditures of time and money. Another
example lies in the fact that FIS often are criticized as being both restrictive
and excessive in their time requirements. There are no easy means by which to
resolve these conflicts. The problem is one of trade-off-if you improve one,
you may aggravate another. The decisionmaker must then determine which
problem is most tolerable.
NEPA and environmental impact analyses in general have achieved a number
of accomplishments. These include emphasizing ecological and environmental
problems: encouraging the development of quantitative and qualitative informa-
tion bases: establishing a vehicle for public involvement: stimulating the develop-
ment and application of analytical tools: providing a mechanism for improving
federal,state, and local coordination: improving state planning and management
processes. systemizing inquiries into federal action: and contributing to more
comprehensive decisionmaking. There is ample room for improvement in each of
these areas. But this should not negate the gains that have occurred. Environ-
mental impact analyses and specifically NEPA have filled a void that existed in
public planning and decisionmaking.
For example, the mere existance of NEPA with its requirements for public
participation and governmental review of the proposed action through the EIS
process, has considerably influenced planning and decisionmaking prior to the
actual EIS stage. The fact that an action will be open for review at some point
undoubtedly influences that action.

However, environmental impact analyses should not be expected to accom-
plish too much. There are inherent problems and imperfections in federal, state
and local decisionmaking with or without environmental impact analyses. Prob-
lems and issues will continue to arise at a rate slightly ahead of institutions and
laws addressing them. In a sense NFPA has aggravated prior problems inter-
and intra-agency communications, and liaison and coordination among branches
of state government.

Environmental Impact Analysis: The State-of-the-Art

Specific problems and issues associated with environmental impact analyses
can be grouped into four broad categories: (1) institutional organizational:(2)
methodological and data requirements: (3) planning and decisionmaking,and(4)

time, cost, and manpoer. Due to their complexity, the institutional/organiza-
tional issues and data requirements are addressed in the final chapter of this
report regarding future directions and needed research, indicating the need for
further refinement in terms of environmental assessment. The remaining prob-
lems identified above are examined here in three groups: planning/policy issues;
time, cost, and manpower issues: and methodological issues.

Planning and Policy Issues

State agencies have, heretofore, paid greater attention to procedual require-
ments than to the Substantive aspects of environmental impact Statements. Re-
cently,greater heed has been paid to the quality of EISs as a decisionmaking and
planning tool as well as for a public information document.
Current environmental impact statements have emphasized site-specific state-
ments: volumnes of description rather than concise analysis of options:limited
exploration of alternatives:cursory treatment of mitigation measures:and man-
datory assessment and discussion of all impact parameters, even if irrelevant or
unimportant. Accordingly, efforts are widespread to imporve the substantive
content of EISs and to produce a document more responsive to the needs of
planners and decisionmakers.
One possible way to improve the content of EISs entails the use of standards
and criteria for evaluating the presence of substantive information. This would
encourage and provide direction for developing substantive input. Gordon A. Ink
in Beyond NEPA: Criteria for Environmental Impact Review attempts to devel-
op criteria for evaluating both the procedural and substantive aspects of EISs.
A second improvement would be to change the orientation of most state-
ments, thereby improving the substantive content of most statements. Four
areas of major improvements have been suggested by Dr. Maurice Warner.
(1) Integrate assessment into planning. Environmental assessment cannot be
a one-step activity. A better approach is to investigate the environmental issues
associated with each step in the planning sequence at the level of detail appropri-
ate to thate stage.
(2) Balance detail and impact importance. A great deal of effort is currently
spent to "cover all the bases." Agencies have tended to be encyclopedic, with
the data being descriptive rather than prescriptive.Warmer indicates that a good
rule seems to be to include detailed data only as needed to reach and support
conclusions on impacts.
(3) Emphasize the direct comparison of alternatives. One of the most wide-
spread deficiencies of impact statements is a failure to clearly state the major
differences between alternatives. The comparison of the alternative actions
should be direct and concise for effective communication to policymakers.
(4) Use improved analytical tools. Better techniques for assessing environ-
mental impacts are continually being developed. A number of modeling tools are
now available to deal with air and water quality, impacts of demographic pat-
terns, and economic impacts. Numberous studies providing data on impacts of
specific types of projects are also available.
A third improvement in the EISs would result from greater utilization of

policy and program impact statements.Policy impact statements are assessments
prepared on major,specific guidelines that an agency is following.For example a
state department of transportation may have a policy of salting all state roads
after a snowfall of more than one inch. In this case, a policy impact statement
would assess the environmental implications of such a policy without excessive
details.
Program impact statements are assessments prepared on major, but general
activities of an agency. As an example, a state department of natural resources
may have a program to develop 10 new parks within three years. It might be
advantageous to prepare a program impact statement on the overall conse-
quences of acquiring land and building the necessary park facilities. Such an
assessment would not be concerned with site-specific impacts but rather the
general implications of developing 10 new parks. Later in the planning process, it
might be necessary to include the site-specific assessments as supplementary to
the broader process.

EISs: Their Role

State planners nad decisionmakers voice concern that the effectiveness of
impact statements is greatly diminished by their length,inclusion of extraneous
detail,and lack of focus upon the most important issues. Such problems result
from legal requirements that must be observed. Courts have ruled inadequate
EISs that omit information or are negligent about following procedural require-
ments, but have been reticent in censuring those that contain excessive detail
and peripheral information.
A conflict has thus arisen between planners and decisionmakers and the
courts over the role of environmental impact statements. Legalities require a
comprehensive document that adheres to format and procedural requirements
whereas policymakers need a more flexible document. This means that there
must be trade-offs between these competing uses. The environmental assessment
process must result in an impact statement that is more substantively oriented
without abusing basic procedural safeguards.

Emerging Role of SEPAS

In response to NEPA, many states have initiated "State Environmental Pro-
tection Acts" (SEPAS). The form of these acts closely parallels Title I (EIS
requirement) Section 102 of NEPA. However, some states have slightly deviated
in an effort to overcome some of the problems associated with NEPA. For
example, seven states (California, Maryland, Massachusetts, Michigan, North
Carolina, South Dakota, and Virginia) require an EIS to include a discussion of
mitigation measures proposed to minimize impacts. Two states (California and
South Dakota) require analysis of the secondary growth-inducing aspects of the
proposed action. Connecticut, Texas and Wisconsin call for a summary of the
costs and benefits of a proposal in both environmental and economic terms.
These and other state requirements reveal innovations and modifications made at
the state level.

Despite these state improvements, many of NEPA's weaknesses are also ap-
parent in the states' application of environmental assessment processes. Specific
questions that have not been addressed by most states include:
(1) How should impact statements relate to other state and local programs or
planning activities, e.g., 208 planning, coastal zone management, land use plan-
ning, critical area protection?
(2) How should guidelines and procedures relate to federal requirements
when a federal EIS is required for a specific project and vice versa?
(3) What procedures should be followed if a proposed project falls under the
jurisdiction of two or more states?
(4) Will there be one state agency responsible for enforcing environmental
requirements? How will this agency interact with other agencies? What role will
the governor's office pursue in reviewing EISs?

Time. Costs and Human Resource Issues

The task of determining if an impact assessment is required for a specific
project is a perplexing issue. This decision is often the responsiblity of one
individual or a small group of individuals with little or no environmental know-
ledge. This decision process is seldom systematic, replicable, comprehensive, or
well-documented. Therefore, agencies often are criticized for inconsistency in
determining the need for an environmental assessment.
In reaction to this, the federal Consumer Product Safety Commission (CPSC)
has instituted an approach that is designed to avoid unnecessary assessments
while aiding the CPSC staff in determining actions that do require assessments.
This approach entails two distinct tasks. The first task involves identifying possi-
ble environmental impacts. A series of questions guide the user through the task,
first by considering the most general categories of impacts and then consistently
focusing on more specific areas of impact. The second task, an evaluation of the
potential magnitude or significance of possible impact,involves an impact evalu-
ation matrix. The matrix makes it possible to consider each impact individually,
and as it relates to the composite picture of impact. Although this approach was
designed explicitly for problems confronting CPSC,it is indicative of one type of
approach that may assist in the determination of whether an environmental
assessment is required.
Impact analysis methods have proliferated since NEPA's inception. Most of
these tools address one or more aspects of an environmental impact analysis,
while a few are designed to deal with all elements of an assessment. Each tool
has inherent strengths and weaknesses.
Maurice L. Warner and Edward H. Preston suggest that an environmental
impact assessment must effectively deal with impact identification, measure-
ment, interpretation, and communication to information users. Each of these
steps, in turn, cna be met through defferent methods. For example, there are
approaches that use overlays, checklists,matrices or networks. Some assessments
combine two or more of these devices.
There are choices in determining the most effective approach under a given
set of circumstances. Determining which approach depends on existing con-

straints, Thus, there is no one right methodology or even combination of
methodologies for impact assessment that can be applied uniformly. States must
be aware of a range of assessment tools. This allows greater flexibility in con-
ducting an analysis of impacts.

Addressing Common Problems

A common problem encountered is the failure to specify the region of analy-
sis. Full comprehension of project impacts requires such specificity. Many EISs
have proved deficient because of the failure to identify the regions examined.
When a region is identified, a single, narrowly defined geographical area is often
Used, producing justifiable outcries from reviewers Who are concerned about
impacts outside the bounds of that region. The need is for a broader use of the
term "region" to infer more than the geographic bounds of a project.
An alternative approach is to identify three types of regions: on-site region.
project region, and out-region. An on-site region should be defined to encompass
all direct physical changes produced by the proposed action. On-site regions
should be mappable and may be specified by hydrologic basins or ecological
community boundaries: governmental boundaries such as county lines: or arbi-
trarily set (for example, everything within one mile of the stream bank). Several
subunits of the on-site region can usually be identified.
A project region should be defined large enough to include the traceable
secondary impacts of a project. Appropriate boundaries will be defined as the
contiguous area within which the analyst call trace out secondary, tertiary,and
higher-order impacts. Generally, the significant impacts at the project region
level are socioeconomic impacts. though secondary ecological or physical-chemi-
cal changes may sometimes be significant.
The out-region is the level at which statewide. interstate. or national issues
come into play. These issues may include shifts in economic activities between
noncontiguous regions and the project region, concern for irrevocable uses of
scarce resources. and undesired alteration in unique areas of state or national
significance.
Time Sequence

An adequate impact analysis must clearly treat the expected timing of im-
pacts generated by the project. Often project-induced changes will continue to
specific future dates is also important in that other changes occurring in the
analysis. To adequately separate project from nonproject changes. it is necessary
to State explicitly What assumptions regarding nonproject changes have been
made and at what point in the future they are expected to occur.
A common error made in the development of, impact statements is to assume
that the "no action" alternative is really a continuation of existing conditions.
This is not always the case for change is inevilable and must be taken into
account. There are no definitive rules to deal with projecting the no-action

alternative,other than to be sensitive to the file fact that dynamics are likely to
dictate change in existing conditions. and that such changes should be addressed.

Impact Uncertainties

Predicting a project's future impacts is usually a hazardous task. Some im-
pacts, mostly direct physical changes, are certain to occur if a project goes
forward. However, most impacts are less certain and must be based on the
professional judgment of the individual. This means that they are typically in-
complete and often inconclusive. Consequently, an EIS should indicate the de-
gree of confidence an analyst has in his projections.

State Innovations in Environmental Impact Analyses

In response to the state decisionmakers' need for an accurate and coordinated
inforamtion and fore casting tool in the face of an exceptional rise in energy
resource development. governor Arthur Link signed House Bill 1004(1974)
establishing the North Dakota REAP. As stated in H.B. 1004, REAP is charged
with "...establishing and carrying on research in regards to North Dakota's
resources...for the purpose of assisting in the development of new laws, policies
and governmental actions and providing facts and information to the citizens of
the state."The act also sepcifies that REAP is responsible for "...the development
of necessary data and information systems in regard to the existence of
and potential use of North Dakota's natural resources in order that (North
Dakotans)...may know...the alternatives available to the state in any use and
development of resources in order that...any such use shall in fact enhance the
quality of life of the citizens of the state."
four primary tasks are to be achieved: (1) development of a resource information
system: (2) development of an assessment/simulation modeling capacity:
(3) collection of baseline information, and (4) development of a resource mon-
itoring system. Integrating the end products of these tasks will produce a com-
prehensive system for the ongoing assessment and forecasts of impacts associat-
ed with potential resource development activities. REAP also is charged with the
coordination of all ongoing and future resource realted studies within the state
and with making the results of these studies available to decisionmakers in a
usable format.
Basically, this system provides the capability to assess a region's future envi-
ronmental, social and economic conditions by simulating the effects of proposed

52
developments against a comprehensive set of objectives and constraints. Once a
program or development has been approved, the actual impacts will be moni-
tored to test the validity of the predictive portion of the system and to maintain
an adequate data file.

The Utah process

The need for multiobjective planning spurred the development of the Utah
Process. In 1971, the Office of State Planning Coordination in Utah developed
an experimental process for coordinating the planning activities of state agencies,
boards, and commissions. At the heart of the Utah Process is a forecasting model
for projecting and evaluating alternative demographic and economic futures for
the state. Although these futures are not environmentakl futures, they have direct
environmental implications and this process has the potential for including direct
environmental aspects.
Projections of population and economic impacts are achieved by computer
simulation of possible combinations of likely economic events. These impacts
are then analyzed and incorporated into the decisionmaking process. In accord-
ance, state agencies formulate contingency programs and budgets for dealing
with each projected future.
The Utah Process has two major functions. The first is establishing a system-
atic procedure for developing coordinated contingency plans and budgets by
various state agnecies for petoential alternative futures. the second function is
relating th eproposed projects an dprograms of each alternative future to budget-
ary requirements. This improves each agency's capabilities and provides a greater
degree of interagency and intra-agency's capabilities and provides a grater
degree of interagency and intra-agnecy coorination.
Utah officials believe th ePorcess has permitted a forum for policy determina-
tion, conflict resolution, and program integration. It has encouraged communica-
tion upward from the needs-assessment level and downward fromthe policy
level. It also brings to the fore potential confilcts among agencies at the earliest
stage of planning and proveds a means for forecasting social and economic
conditions, thereby aiding an environmental analysis.

Technology Assessment of Western Energy Development

Much concern is being ecpressed over the environmental impacts associated
with the development of western energy resources. This is due to the emer-
gence of new energy-related technologies in the west. As a result, there is the
potential of serious social, economic, health, and environmental impacts. Fur-
ther complicating the situation are the many possible strategies that could be
followed in developing coal, oil shale, oil, natural gas, geothermal, and uranium rsources.
All levels of government have taken an interest in this development issue.
Consequently, the Office of Energy, Minerals and Industry, U.S. Environ-
mental Protection Agency (EPA), has sponsored an integrated technology assess-
ment study of western energy development. This is not a direct state program,
but due to its applicability to states, it is relevant to this discussion.

53
Essentially, technology assessments are conducted for the purpose of: (1)
anticipating and systematically identifying, defining, and analyzing socioeco-
nomic, cultural, environmental, and institutional consequences of applying new
modified technoogies: (2) identifying, defining, and analyzing alternative poli-
cies for either mitigating undesirable consequences or enhancing beneficial con-
sequences, and (3) identifying, defining, and evaluating implementation strate-
gies for feasible policy options.
this technology assessment, now in the first year of a three-year study, covers
the period 1975-2000 and is designed to identify and quantify the diverse im-
pacts of energy development in the west, including secondary and higher-order
impacts. Additionally, the assessment will try to develop and analyze policy
alternatives for dealing with the identified impacts.
One of the key purposes of an integrated technology assessment is to serve as
a long-range forecasting or planning tool for decisionmakers. It provides an
identification of unanticipated consequences of potential actions or technologies.
Therefore, it is ocmparable to an EIS. However, it differs from an EIS in when
and how impacts in the planning process are identified. It also differs in the
specificty of those impacts and in the types of actions assessed.
A technology assessment is designed to be performed at the beginning of the
planning process, prior to the selection of specific technologies or a range of
alternatives. In contrast, an EIS is prepared rather late in the planning process on
a selected action. A second difference involves the assessment format. An EIS
adheres to a rather formal format (as a legal document), whereas a technology
assessment is more flexible in its planning orientation.
Perhaps the most important distinction is the type of action assessed. An
environmental impact statement traditionally deals with a specific action at a
given location. A technology assessment is tintended to look at a full range and
combination of actions, technologies, locations, and timing alternatives.
Although technology assessments provide early warning as to impacts, they
are somewhat limited in applicability because the process tends to be expensive
and iof relatively long duration. Technology assessments entail large data require-
ments and suffer from some of the same methodological problems as EISs.

Hawaii's State Center for Science Policy and Technology Assessment

Faced with the problems of high cost and long time periods for completion of
technology assessments, Hawaii formed the State Center for Science Policy and
Technology Assessment to resolve these and realted problems. Located within
the State Department of planning and Economic Development, the Center has
existed for a little over three years. It was conceived to perform six tasks:
(1) Survey Hawaii's scientific resources, research and development efforts.
and future needs:
(2) Determine relevance to Hawaii of vaious fields of science and technology
and establish priorities:
(3) Study institutions and policymaking bodies with the objective of coor-
dinating state efforts:

54
(4) Select appropriate method sfor and carry out assessments of opportuni-
ties for science and technology applicatons in Hawaii:
(5) Compile a list o fauthorities in forecasting and assessment and monitor
ongoing developments, and
(6) Maintain liaison with projects developing environemtnal and socail-sys-
tem models for the state.
The center has developed a procedure to complete an assessment within three
to six months at reasonable costs. These assessments are accomplished by using a
workshop technique, which involves a study on the status of the technology, a
pre-workshop questionnaire to define areas of need, a workshop to formulate
solutions or policies and to set priorities, refinement of results, and publication
of a final report. The average cost of these mini-assessment of results, and publication
of a final report. The average cost of these mini-assessments has been $10,000
and they have been completed in three to four months. Regular technology
assessments have tended to be expensive and of long daration often several years.

FOOTNOTES

1. The council of State Governments, Integration and Coordination of State
Environemtnal Programs, Lexington, Kentucky, September 1975. p. 15.
2. Maurice L. Warner and Edward ii Preston, A Review of Environemtnal Im-
pact Assessment Methodologies, Washington, D.C. Office of Research and
Development, U.S. Environmental Protection Agency, April 1974.
3. First Year Work Plan for a Technology Assessment of Western Energy Re-
sourc Development, Office of Energy, Minerals and Industry. Office of Re-
search and Development, U.S. Environmental Protection Agency. Washington
D.C. (EPA-600/5-76-001). March 1976. p. 22.
4. State Center for Science Policy and Technology Assessment (Final Report,
1971-1974). State of Hawaii, Department of planning and Economic Development,
p. 15.

Diffuse Source Pollution: Policy Considerations for the States di-
rects attention to managing diffuse sources of air and water pollution
and the resulting policy considerations for state government. The em-
phasis on point sources of pollution is no longer adequate, to meet
national goals of clean air and water. Amendments to the Clean Air Act
and Federal Water Pollution Control Act have provided regulatory
mechanisms to deal with sources of pollution not so easily identified,
i.e., diffuse source pollution (DSP).
Diffuse source pollution includes both nonpoint sources of water
pollution and indirect or complex sources of air pollution. The states
are responsible for devising and implementing EPA-approved plans to
control diffuse source pollution to meet the national ambient air and
water quality standards.
DSP control will require interjurisdictional management programs.
This necessity evolves from the incremental and sporadic nature of the
pollutant source and from the state-federal statutory requirements. The
need for innovative intergovernmental arrangements for the successful
control of DSP is highlighted.
Control techniques are not readily availble for all types of diffuse
source pollution. The prevention of significant air deterioration, for
example, may include a complex review and permit process involving
several political jurisdictions. Transportation plans and sediment con-
trol may require an intergovernmental management program. Overcom-
ing these challenges will be a major test of the endurance and creativity
of state leaders.

IX. Diffuse Source Pollution:
Policy Considerations for the
States*

Introduction

A major portion of the regulatory activity attempting to manage air and
water quality has dealt with specific sources of pollution. Smokestacks and
sewer pipes have been the main targets of past and present permitting, monitor-
ing, and enforcement activity. However, the focus on these "point" sources is no
longer adequate to meet the goals for clean air and water. Amendments to the
federal Clean Air Act (CAA) in 1970 and the comprehensive Federal Water
Pollution Control Act (FWPCA) Amendments in 1972 provide a regulatory
mechanism to deal with sources of pollution not so easily identified. They also
provide more effective means of dealing with the point sources of pollution.
Diffuse source pollution (DSP) is that type of pollutant source which is not
easily identified. In and of itself, each such source may not be a significant
source of pollution, yet when certain actions are taken in relation to the source,
considerable pollution can result. DSP includes both nonpoint sources of water
pollution and indirect or complex sources of air pollution. An example is a large
shopping center or sports stadium which attracts automobiles in such quantity
that the air quality over that area is adversely affected. Another example is
traces of highly toxic metal carried into streams by runoff from highways.
Evidence indicates that DSP has a significant impact on air and water quality.
The federal Environmental Protection Agency and the Council on Environment-
al Quality have found that without programs to manage DSP, our efforts to
upgrade air and water quality will be severely hindered.

Air Pollution Legislation

The initial federal legislation dealing with air pollution control was passed in
1955. It dealt primarily with research into the nature and extent of the nation's
air pollution problem. The 1963 Clean Air Act provided grants to state and local
agencies to assist them in their own control programs and gave limited authority
to the federal government to abate interstate pollution problems. In 1967 the

*This chapter is a summary of Diffuse Source Pollution: Policy Considerations for the
States. Council of State Governments: Levington. Kentucky. 1977.

act was strengthened by amendment. The 1970 amendments. however, provide
the strongest legal tools for air pollution control to date.
The thrust of the federal air pollution control program has been that the
control of air pollution at its source is primarily the responsibility of state and
local governments. However, if states fail to meet their responsibilities, the fed-
eral government has the responsibility and authority to enforce pollution con-
trols through EPA.
Section 110 requires the states to develop plans to meet the national ambient
air quality standards. These State Implementation Plans (SIPs) are the keys to
the regulatory program. If considered inadequate, EPA can require modification
of the plan or essentially take over a state's program.
Those aspects of a SIP, which could be categorized under the heading of
diffuse source pollution in that they require a regulatory strategy which regu-
lates how the source is used more than the source itself include indirect source
review, significant deterioration regulation and transportation control plans.
Each of these examined later in this chapter.

Water Pollution Legislation

The Federal Water Pollution Control Act Amendments of 1972 (FWPCA),
Public Law 92-500, entailed a major restructuring of the federal water pollution
control program. The 1972 amendments have focused on pollution control at
the source by requiring major water polluters to limit the amount of effluents
discharged into a water body. Under the act, a permit system called the National
Pollutant Discharge Elimination System (NPDES) has been established to over-
see installation of specified levels of pollution abatement equipment for all point
Sources of pollution.
Secondly, the act significantly expanded the amount of federal aid to states
and local units for construction of sewage treatment facilities and linked the
construction grant program to water quality planning, land use management, and
regulation on an areawide basis. Requirements also were set for control of pollu-
tion from dilluse sources such as construction, agriculture, and mining. Diffuse
source pollution in terms of the FWPCA is called "nonpoint source pollution"
and is defined as "...sources of pollution which enter surface or ground waters
through diffused small increments." This perspective. Section 201, dealing with
grants for construction of treatment works and Section 208, dealing with area-
wide waste treatment management, is designed to integrate land use and water
plannig in order to achieve water quality objectives.
Under the 1972 amendments, water quality standards will be revised by the
state and reviewed or revised by EPA on a three-year basis. This review process is
designed to meet the act's 1983 interim goal of achieving water quality adequate
for swimming and for the protection and propagation of fish and shellfish in all
water bodies of the country. The law gives EPA considerable authority to direct,
oversee, and enforce the pollution control program.
As with the CAA, the FWPCA provides for ambient standards. Minimum
quality is not the same nationwide, however, as is the case with air. The law now
requires states to set standards or the EPA will do it for them.

Each state must have a continuing planning process or an implementation
plan. The implementation plan can be approved by EPA only if it provides at
least for EPA-set effluent limitations and incorporates areawide waste treatment
management plans. The implementation plan also must provide for maximum
daily pollutant loads, include procedures for revision of water quality standards,
and indicate that there is available authority for intergovernmental cooperation
and power to implement effluent and water quality limitations and standards.
Section 208 provides for areawide waste treatment management planning.
Under this section governors are called upon to designate areawide planning
agencies for portions of the state which. because of "urban industrial" concentra-
tions or other factors, have especially difficult water quality problems. For
remaining portions of state, tile state itself is to serve as the planning agency.
Once a plan is completed, EPA construction grants for sewage treatment facili-
ties must be consistent with the plan and NPDES permits must be reviewed for
consistency with the plan.
In the legislation, Congress set forth general guidelines to be used in areawide
planning. First, the plan must specify various regulatory processes and techniques
which will be used to control water pollution. The plan must include a
process to regulate "location, modification ; and construction of any facilities
within file planning area which may result in discharge of any effluent in the
area. Secondly, 208 plans are to include regulatory programs for implementing
waste treatment management. Once the plan is approved. EPA- funded sewage
treatment facilities must be consistent with the plan. The intent of the plan is to
assess waste treatment needs for the region over a 20-year period. Thirdly, the
plan also must include control of procedures including fund use requirements to
combat nonpoint pollution. Finally, the 208 plan is to describe the measures
necessary to implement the plan, including the agency or agencies that will be
involved in their legal authority.

Issues in Managing DSP

When establishing an administrative and enforcement program to deal with
specific point sources of pollution, there is an easily identifiable target of any
regulatory activity which call be shown to be a significant source of pollution.
However, when attempting to, regulate DSP, there are varying opinions as to the
actual sources, the type of control program it to be established, if any, and tile
institutifional arrangements needed to successfully monitor and enforce file con-
trol program.

Institutional Requirements

Point sources are often amenable to a regulatory program, based on local
government monitoring and enforcellient once uniform standards are set. How-
ever, because diffuse sources are likely to require interjurisdictional management
programs both because of the nature of the pollulant source and because of state
or federal statutory requirements, institutional requirements inherent in success-

fully implementing such a program are complex. Traditional as well as innovative
intergovernmental arrangements must be used if such a program is to succeed.

Control Methods

Another important distinction lies in the way the ultimate pollution source
will be controlled. While technological solutions are available for controlling
most point sources, such techniques may not be available for handling diffuse
source pollution. For example, the review and permitting of indirect sources of
air pollution may require limitations on the size or capacity of a proposed
facility or may necessitate the creation of a mass transit program. The preven-
tion of significant air quality deterioration may include a complex review and
permit process involving multiple political jurisdictions. Transportation plans
and sediment control may require an intergovernmental management program.
These and related control problems must be overcome if in effective diffuse
source pollution regulatory program is to be implemented.

Standards, Monitoring and Enforcement

One of the primary concerns over the successful implementation of a DSP
regulatory program centers around who designs and implements the program,
who sets the standards and on what basis, how monitoring is to be accomplished,
and how the program is to be enforced it violations occur. Different levels and
agencies of government will have to cope with inevitable "turf" problems as well
as being cognizant of the program's impact on economic and social well-being.
With both the air and water quality programs, states are dealing with a situa-
tion where the federal government has substantially preempted standard setting
although states are allowed to set more strict standards in some situations.
Monitoring and enforcement, though carried out under a state program, are
under substantial federal influence. Since EPA is required to review state pro-
grams for compliance with federal standards, the potential exists for EPA to
promulgate and administer for the state the type of program it deems necessary.

Reasons for State Concern

States have displayed an awareness of the impact that diffuse source pollution
has upon air and water quality. States have implemented both programs for
which federal grants are available as well as programs for which there are no
present federal financial incentives sediment control legislation and strip-mining
regulation being prime examples of the latter.
State atempts at protecting environmental quality have been both helped
and hindered by the federal government. Uniform federal legislation may have
helped remove some of the competitive economic disadvantages which would
result if only some states had acted. However, because the nature, causes, and
possible means to control DSP are so variable across the States. rigid uniformity
in this area can cause as many problems as it solves.

Another problem has arisen from repeated modifications and court challenges
of EPA rules, regulations, and guidelines. Financial assistance also has been
uncertain. The Funding support for DSP regulatory programs has been subject to
changes based on the mood of the federal executive or Congress. Because of the
uncertainties entailed in financing such programs. efficient and effective pro-
grams must be designed to guarantee positive results when federal support begins
to wane. Finally, state actions to promote acceptance of diffuse source pollution
regulation face continued frustration as the Congress repeatedly postpones the
consideration of clarifying amendments to the air and water acts.

Regulating DSP

Clean Air

The Clean Air Act specifies the required elements of a state implementation
plan necessary to achieve and maintain national primary and secondary air quali-
ty standards. No state is required to prepare such a plan. Howeverer, if the state
chooses to prepare a plan and it does not meet EPA approval or if all imple-
mentation plan is not prepared by tile state, EPA itself may take the necessary
steps to achieve the standards.
Diffuse source pollution has a major impact on air quality. Regulatory and
management programs which have been proposed or implemented to deal with
this problem include indirect source review, prevention of significant deteriora-
tion of existing air quality, and transportation control plans.

Indirect Source Review

Every State implementation plan (SIP) was to have been completed by May
31, 1972. Subsequent to the approval of these plans. the Natural Resources
Defense Council (NRDC), filed suit in the U.S. Court of Appeals for the District
of Columbia Circuit contending the approved state implementation plans were
not adequate to insure maintenance of the standards once they were attained.
EPA lost the suit, NRDC v. EPA I and responded in two basic ways: (a) by
requiring states to develop "air quality maintenance plans," and (b) by requiring
state implementation plans to include indirect source regulations. An indirect
source was defined as:
. . a faciiity which does not itself emit air pollutants, but which attracts
automobiles in sufficient numbers so as to have the potential for creating
concentrations of auto-related air pollutants in excess of national standards.

EPA Promulgated a regulation in June 1973 requiring states to add indirect
source regulations to to their plans.2 To meet EPA approval, the regulations would
have to require the review of new indirect sources prior to construction and
would have to provide that construction be prohibited where ambient air quality
violations could occur.
Since 52 of 55 states and territories did not submit approvable regulations
within the court-ordered deadline, EPA was required to promulgate its own

regulation on February 25, 1974.3 This became part of each affected state's
implementation plan.
Subsequent regulations in July 1974 required the review of the following
categories of indirect sources if a project were of a certain size and location:
highways and roads; parking facilities; retail, industrial, and commercial facili-
ties; recreation, amusement, sports. and entertainment facilities; airports; office
and government buildings. apartment and condominium buildings; and educa-
tion facilities.4 Wbether a particular project was subject to review depended on
its size. In turn, the size limitation depended on whether the project would be
located in a Standard Metropolitan Statistical Area (SMSA) (a metropolitan area
of 50,000 or more).
In SMSAs, a proposed indirect source listed above with an associated parking
facility for 1,000 or more cars would be reviewed. Modification of a parking
facility associated with an indirect source would be reviewed if it would increase
parking capacity by 500 or more cars. For indirect sources outside of SMSAS,
the size of an indirect source with parking facilities would double to 2,000 and
1,000 respectively. Within SMSAs, new highways with an expected average of
20,000 vehicles daily 10 years after construction, or a highway modification
project with an anticipated. daily traffic increase of 10,000 vehicles would be
reviewed. These standards provide some insight into the extent 'of review of
indirect sources intended by EPA when it promulgated this regulation.
Confusing the issue has been litigation over the regulations themselves.
Shortly after the promulgation of EPA's indirect source regulation, 50 petitions
for review were filed in every Federal Circuit Court. The petitions have all been
transferred to and consolidated in the District of Columbia Circuit Court under
the caption NRDC v. EPA. No action has been taken because the regulations
were suspended by EPA. Several bills were introduced in the U.S. House of
Representatives to either delay or prohibit their implementation. Congress also
&ferred implementation by restricting the use ofEPA appropriations in regulat-
ing parking (a controversial part of the indirect source review).

Signiflcant Deletioration

As a result of a 1972 challenge of EPA approvals of State Implementation
Plans, the District Court for the District ol'Columbia held that EPA rhust.review
all state implementation plans and disapprove "any portion of a state plan whi ch
fails to effectively prevent significant deterioration of existing air quality."5 This
decision also directed EPA to promulgate regulations in the event a state plan
failed to provide adequate measures to prevent significant deterioration.
Little guidance has been provided by the Clean Air Act (CAA) or the court
decision in discerning what actually constitutes significant deterioration. H *ow-
ever, EPA issued final regulations December 5, 1974, designed to meet.this
objective. Although the irgulations became effective January 6, 1975, EPA
chose not to aggressively enforce them pending their legal challenge or congres-
sional action.
The regulations were quickly challenged by both business and industry and
environmental groups, the fornier on grounds of severe adverse economic *effects

and the latter on grounds that the regulations did not go far enough. Congress
has since considered writing clarified significant deterioration requirements into
the CAA, but no final legislation has been passed at this point.

Transportation Control Plans

The CAA's legislative history *recognizes tire need to@control motor vehicle
use in certain areas to achieve ambient standards. EPAVas forced to require the
development of transportation control measures on a very short timetable be-
cause of die decision in NRDC v. IYA requiring EPA to approve only SiPs
providing for both attainment and maintenance of ambient standards. Since
most states could not develop transportation control measures within the court's
timeframe, EPA was forced to promulgate its own measures. Among the meas-
ures issued were: mandates to the states to set up programs to inspect/mairitain
all motor vehicles for compliance with emission limitations, gasoline rationing;
requirements that states set up exclusive bus and carpool.lanes: requirements for
managing parkirig supply; surcharges on commercial parking; and requirements
that states set up computer carpool matching programs. The outcry over tile
parking surcharges was particularly harsh. Consequently, the surcharge provi-
sions were withdrawn from the several areas to which'they had been applied.
The other transportation controls largely remain in effect, but,proposais have
been introduced in Congress to amend the Clean Air Act's sections dealing with
transportation control strategies. No final action has been taken in this regard.

Clean Water

Section 208 Planning

Diffuse source pollution in terms of the FWPCA is called nonpoint source
pollution. Section 208 details riot only how noripoint sources shall be planned
for, but also tile entire range of pollutant sources which affect water quality.
Section 208 provides for the development of a continuous areawide waste
treatment management planning process in areas within a state which have sub-
staiitial water quality control problems as a result of urban industrial concentra-
tions or other factors. Section 208 (aft provides that tile state sliall act as a
planning agency for all portions of the state which are riot designated as area-
wide management areas. Although the state planning agency designated by the
governor may delegate portions of' its responsibilities to other state, federal,
local, or interstate agencies, the state planning agency still has the responsibility
of assuring that each element of the state's approved planning process is
achieved.
Because of delays by EPA in implementing the 208 program, all areas had not
received 100 percent in federal funds when the funding date expired June 30,
1975. This leaves some 125 areas to be designated *and funded, with only 75
percent grants now available.
Furthermore, in 1975 the U.S. District Court for tile District of Columbia in
NRDC et al, v. Train el aL.(' ruled that states are required to conduct the

commensurate level of 208 planning in all designated areas as would have been
conducted by the local agency if the area had been designated and that the
initial planning must be completed by November 1978. The court also said 208
funds must be made available to the states to help them conduct this planning
from funds appropraited for fiscal year 1976.
Estimated are that some $400 million in total funding will be required to
complete the initial planning by November 1978. Federal funds obligated to
date cover around 60 percent of the total required.
The remaining $160 million in costs is relatively equally distributed between
state and local agencies. These figures include funds only for the initial phase of
the planning process. The federal budget for fiscal year 1977 has provided only
$15 million for this program.
Both Congress and the courts have been concerned with the inequalities sur-
rounding Section 208. Emphasis has been placed on extending the time period
for 100 percent funding of designated agencies. The U.S. District Court, on June
1, 1976, ordered EPA to keep $137 million in 100 perent 208 funds from past
fiscal years available for obligation until September 30, 1977. However, the
status of these funds continues to be uncertain.
Funding concerns are not the only problems 208 agencies face. This is per-
haps the most complex and ambitious planning process and structure even man-
dated by Congress, and regulation under FWPCA have placed substantial re-
sponsibility on the governor, the state water quality agency, designated regional
agencies, and local governments. EPA regulations specify the process which a
208 planning agency must pursue to qualify for designation. Once designated
the planning agency must produce a detailed planning program relative to the
208 mission.
After approval by the governor and the EPA regional administrator, the 208
plan is to guide EPA's construction grant program for municipal treatment
works and the permit program for point source discharges. Approval of construc-
tion grants and discharge permits depends upon their conformity with the plan.
Subsequent to completing of the initial plan, one or more "management
agencies" are to be designated to implement the plan. Management agencies
must satisfy several criteria listed in the act. They must be able to carry out the
plan: design, construct, and manage waste treatment works: raise revenues and
incir indebtedness; assure that communities participating in waste treatment pay
their proportionate share of treatment costs: and refuse to receive wastes from
municipalities which fail to comply with any provision of an approved plan.

Final Section 208 Regulations

EPA issued its final revised regulations governing Section 208 on November
28, 1975.7 The new regulations governing the continuing planning process, plan
preparation, and application for grants for planning assistance--had been necces-
sitated by the U.S. District Court in NRDC v Train, requiring a more active state
role in the 208 process. The intent of the revised regulations is to "unify and
integrate the state and areawide water quality management planning and imple-
mentation requirements" of 208.

Crucial to the new 208 structure is the provision for an agreement between a
state and the EPA on the proper level of detail and timing of state water quality
management plan preparation. The agreement is to include state water quality
priorities and a time scale for attaining the 1983 water quality goals. If a state
determines that 208 planning is not necessary in a specific area, the state must
certify that water quality problems do not exist (or are not likely to occur)
during the time period of the planning process. Such an exception must be
approved by the EPA regional administrator.

The designation process has also changed somewhat. The governor is to desig-
nate a state planning agency to be responsible for the overall process. If a
designated areawide planning agency failes to achieve Section 208 requirements,
the state planning agency is responsible for assuring the achievement of 208
requirements. EPA has indicated that it will give preference to areas of urban-
industrial concentrations in the designation of areawide planning areas (as in
previous regulations).

The state and areawide planning process requirements include adequate pub-
lic participation during plan development, review, and adoption; intergovern-
mental input in plan development and implementation; coordination and inte
gration of water quality management planning for state and areawide manage-
ment planning areas with other related functional and comprehensive state,
local, and federal planning; preparation of required water quality management
plans, and regulatory programs to implement water quality plans. Additionally,
the state process is to include the development, review, and adoption of stan-
dards for water quality; review and certification of the plans for the designated
areawide agencies; and the annual preparation of the state strategy for prevent-
ing and controlling water pollution over a five-year period.

The most critical new factor in the revised regulations is the deadline for
preparation. The original court order under which EPA has been operating had
indicated that final plans were to be submitted for nondesignated areas no later
than November 1, 1978. For the sake of uniformity, EPA also was to require
that the designated areawide plans by completed in time to be submitted with
the state plans. Areawide plans probably will have to be complete prior to this
deadline so that the state review of areawide plans is completed in time for a
coordinated submittal of the overall state plan.

The regulations indicate that intensive, detailed plans will be required in areas
of heavy urban-industrial concentration. On the other hand, there will be little
or no planning required in those areas where a state certifies certain types of
planning and implementation activities will not be undertaken.

The court order mandated grants for both states and designated areawide
agencies for 208 planning. An allocation formula has been devised which is based
on both population and land area, with population being favored by a factor
of three. These dual factors were introduced into the formula to reflect the necessi-
ty of considering both point and nonpoint sources, but with the emphasis still
being placed on urban-industrial concentration as reflected by greater reliance on
populations as the water quality problem indicator.

Nonpoint Source Pollution

At this point, no 208 agency has progressed far enough to seek implementa-
tion funds. For a 208 agency to qualify for implementation funding, one of the
primary concerns is the establishment of all effective means of dealing with
nonpoint source pollution.

The magnitude of the nonpoint source problem is possibly equal to or
greater than the total problem caused by all point sources. EPA's responsibili-
ty in the nonpoint source management effort will be to provide guidance to
the states I,or initiating planning and implementation of nonpoint source
management in order that the 1983 water quality goals of the act may be
reached. The implementation ofthese management programs wfll be a part of
the areawide planning process in designated 208 areas,as well as part of the
state water quality management responsibilities in non-designated areas.8
EPA' s strategy was to jim at the eventual control of' nonpoint source pollu-
tion through local combinations of treatment, preventive management tech-
niques (contour farming, construction site terracing, abolition or strict control
of clear-cutting in forests) and as a framework, legislative initiatives to promote
proper land use and 'nonpoint source pollution control (such as EPA's model
sedimentation law). EPA sought to correct (lie deficiencies in information sur-
rounding nonpoint source pollution by mandating that each state:

0 DLvelop a profile ot'particular state nonpoint source problems, and

0 prepare all assessment of' what it considers to be (lie most effective mix of
available prevention and control techniques for its particular set of lion-
point source pollution problems.

EPA took primary responsibility for research on the generation and effects of
noripoint.sources and for the development and assessment ofaddifional preven-
tion and control techniques.
This coordinated effort was designed to establish by 1970 local and state
programs focused on achieving the 1983 ambient goals. This objective was not
achieved, and it seems apparent that nonpoint, source controls may be one of the
major problems in meeting the November 1, 1978, deadline for water quality
management plans ordered by NRDC v. Train. This obviously places the states
under severe time constraints.

Related State Nograms

A variety of state laws already influence nonpoint source pollution control
efforts. These range from wetlands protection and coastal zone management to
floodplain regulation and high way -related legislation. The two areas of state
legislation which directly affect nonpoint sources are state sediment and erosion
control laws and state programs for (lie reclamation of surface-mined areas.

Eleven states and the Virgin Islands have enacted laws providing regulatory
erosion and sediment control programs. The states are Georgia, Hawaii, Iowa,
Maryland, Michigan, New York, North Carolina, Ohio, Pennsylvania, South
Carolina, and Virginia. The number of state programs designed for mined-area
reclamation had increased to 38 States in 1975. In several of tile remaining 12
states, draft legislation is being proposed. There is a clear trend in the new state
programs toward an integration of land use and mine planning, and toward
requiring longer time frames and more comprehensive approaches to reclamation
planning. The roles of local governments are recognized in all laws. A few of the
statutes place local governments directly in decisionmaking process with
regard to the issuance of minining permits.

Issues in Implementing DSP Programs

Great concern has been expressed concerning the burdensome requirements
placed on the EPA to devise guidelines for diffuse source pollution control
within short timeframes. Deadlines established by both statute and court orders
have severely hampered efforts to devise reasonable, effective programs. The lack
of trained manpower and adequate data has resulted in further litigation and
delay.
A further constraint has been the lack of dependable funding. State and local
programs have often been faced with the curtailment of federal funding in any
number of programs after staffing and implementation have begun. These fund-
ing problems have resulted in extreme caution on the part of state and local
officials who are concerned with inheriting programs they cannot afford in the
long run.

Institutional Issues
The management of diffuse source pollution is a shared responsibility among
federal, state, regional, and local governments. This creative federalism approach
requires certain institution arrangements to facilitate the involvement of all
agencies in overall management structure. These institutional arrangements
are now further examined within the context of coordination and federal-state
relations.

Coordination

Diffuse source pollution regulations involve government entities at the state,
regional, and local levels. A variety of special purpose agencies may be involved,
including those concerned with air pollution control, construction regulations,
transportation, water supply and pollution control, solid waste collection and
disposal, and zoning and those in broader activities such as comprehensive com-
munity planning agencies and councils of governments (COGs). The governor of
each state is responsible for ensuring arrangements to involve these various agen-
cies and to ensure proper coordination.
There must also be effective integration and coordination of various function-

al bodies at different levels of government, These programs involve the coordina-
tion of transportation, land use, environmental, and all other considerations that
affect planning and growth. Air and water quality considerations must be inte-
grated into the planning and decisionmaking procedures in the above areas.
Likewise, authorities responsible for land use, transportation, and other environ-
mental functions must be integrated into the DSP control programs to ensure
consistency and successful implementation.
Areawide or regional solutions are mandatory. These problems transcend
local political boundaries, and solutions must bridge the functional activities of
planning and implementation. This need for greater coordination is impeded by
the traditional separation of planning and environmental protection at all gov-
emmental levels.
EPA has sought to foster greater coordination through interagency agree-
ments at the federal level. EPA has entered into agreements for its 208 grants
with both the Department of Housing and Urban Development (for 701 grants)
and the Department of Commerce (for coastal zone management grants). Addi-
tionally, EPA has established working relationships with the U.S. Geological
Survey, Forest Service, Soil Conservation Service, National Association of Con-
servation Districts, Bureau of Land Management, and Corps of Engineers.

Federal State Relations

The federal government plays the lead role under the air and water quality
legislation. It sets quality standards for the states to apply as well as regulates in
great detail how programs are to operate. If EPA feels that part of a proposed
state program does not comply with the legislative intent it may insert its own
proposals. The courts have upheld this type of action.
While EPA may need maximum authority to force reluctant states to act.
such preemption can create problems for some states because of their unique
legal, political, and financial situations. These diverse situations must be recog-
nized with some allowances for accomodation or modification.

Policy Basis of DSP Control

Although there are similarities between the Clean Air Act and the Federal
Water Pollution Control Act relative to diffuse Source pollution, there are also
some differences which should be briefly examined. Generally, implementation
of the Clean Air Act by EPA has been more rigid then that of FWPCA. This
results from statutory language, court decisions. and federal administrative ac-
tions. The FWPCA provides a more participatory process. For example, Section
208 is intergovermmental in its framework and requires a high degree of public \
participation.
Realistic and Dependable Federal Funding

Realistic and dependable federal funding is a necessity it' effective DSP pro-
grains are to be achieved. State and local leaders are justifiably leary about the

financial impacts of federally mandated programs. They repeatedly have faced
the need to assume program commitments as federal financial support is with-
drawn.
This concern is recognizable in Section 208 grants from tile vantage of states
and locales. Willi Section 208, the initial grants are for 100 percent of tile costs,
whereas subsequent grants decrease to 75 percent. At tile end of (lie planning
process, the flow stops altogether. After a period of federal funding, the states
face die task of alternative funding sources or significant cuts in program and
personnel.
Levels of funding by the federal government must be adequate to promote
program consistency. At the same time, state and local governments Should be
given flexibility in shaping the program.

Rational Federal Timing and Deadlines

Throughout this study, repeated mention has been made of the burdensome
requirements on EPA to devise guidelines and criteria in too short time periods.
These time constraints have hindered efforts to devise realistic, workable pro-
grams. When this timeframe is combined with uncertain funding, the costs to
state and local government arc indeed astounding.

State Policy Issues

States face critical choices as a result of federally mandated diffuse source
activities. The first choice obviously is whether to face the problems of DSP at
all. It is assumed that states will confront file problem because environmental
quality has become a major objective of state government. Beyond this, the
Clean Air and Federal Water Pollution Control Act Amendments place legal
responsibility at tile state level.
Diffuse source pollution management may involve governmental entities at
the federal, state, regional, and local levels. At these levels, a variety of special
purpose agencies may be involved. However, the governor of each state is ulti-
mately responsible for both the air and water quality programs to control DSP.
Tile states must assure that appropriate arrangements are fashioned and should
facilitate the involvement of these various agencies to ensure effective coordina-
tion.

For effective coordination, areawide or regional solutions may be necessary,
because certain problems transcend local political boundaries.

Under Section 208 guidelines, each state is to have designated a state water
quality agency to bear the responsibility for coordinating all water-quality re-
lated functional planning activities within the state. While many of these plan-
ning activities may occur within file state's environmental agency, sonic will be
scattered organizationally. Because of the variety among the states, it is not

possible to identify the one best organizational choice for tile state water quality
management agency or to develop a model pattern of delegation.*

State-Local Relationships
0
In dealing with both air and water diffuse source pollution, there must be a
high degree of cooperation and coordination among states and their local govern-
ments. Since the state is ultimately responsible. It cannot effect a 100 percent
delegation of authority to local government. The state must be willing to pre-
empt local control if local performance is inadequate.
Greater communication can be fostered by joint state-local involvement in
technical planning. Areawide agencies could be served by contracting for specific
technical work from the state water quality agency. This type of communication
can lead to greater overall coordination between the two levels.
On the other hand, states often can turn the procedure around and assign
responsibility to local government or regional agencies. States also can provide
technical assistance to the lower level entities. In those states which already have
developed effective means of state-local coordination. Diffuse source manage-
ment programs must be fully integrated into these approaches.
A major concern entails the multiplicity of special districts which have pro-
liferated in the United States. Many of these special districts, particularly water
and sewer districts, will expect to assume a special role in the 208 water quality
management process. However, great care must be exercised before 208 jurisdic-
tion is granted to special districts. Perhaps, their primary contribution lies in an
advisory capacity to general purpose units of government.
As with federal-state relations. States should seek to develop a stronger state-
local partnership to enhance the feasibility of their own programs. States have
the opportunity to develop innovative programs within the boundaries of federal
standards. Only by nurturing the partnership with other levels of government
and developing a strong,unified approach can states avoid federal imposition of
diffuse source pollution controls.

FOOTNOTES

1. 475 F. 2d 968 (D.C. Cir. 1973).

2. 40 Federal Register, 5 1.18.

3. 39 Federal Register, 7270 et seq.

4. 39 Federal Register, 25-292.

*See State Environmental Issues Series: Diffuse Source Pollution: Policy Considera-
tions for the States, p. 34-37., for general considerations for States in coordinating all water
quality planning activities.

5. Sierra Club v. Ruckelshans, 344 F. Stupp. 253 (D.D.C. 1972) 4ERC 1815
(D.C. Cir. 1973): Sierra Club v. Fri 4 12 U.S. 541 (1973).

6. 396 F. Supp. 1386.

7. 40 Federal Register, 130-131.

8. Mark Pisano, Director of EPA's Water Planning Division. Water Pollution
Control Federation Conference, Miami Beach, Florida, October 8, 1975.

ndian Rights and Claims: deals with one of the more controversial issues confronting many states as they seek to implement
environmental regulations and to positively affect environmental quality. This chapter focuses on questions of state-tribal
jurisdiction which have been complicated by changing federal policies and inconsistent court decisions. State officials encounter
major uncertainty in their efforts to apply environmental standards to Indians and Indian lands.
The basic assumption underling this chapter is the reality of Indian self-determination adn sovereignity. Consequently,
the tribal governments are a fourth level of government within the intergovernmental framework. Because of the position of the states
and the tribal governments, there is need for a new federal intergovernmental relations act specifically addressing state-Indian
affairs.
The recent history of state and tribal relations has too often been characterized by bitter contention and adversity. While
litigation is sometimes the best and often the only method of conflict resoultion, it should not be the only method. The trend
of judicial decisions seems to point to increasing losses for the state position. The overwhelming need is to find and actively
develop new and cooperative means to develop a partnership between state and tribal governments to seek out and achieve common
goals.

X. Indian Right and Claims:
Environmental Management
Considerations for the States*

Introduction

Despite two centuries of coexistence in territory governed by (lie United
States, Indian groups and federal, state, and local governments continue to dis-
pute fundamental issues ofjurisdiction over tile personal and property rights of
Indians. In recent years, a new dimension in this ongoing dispute has emerged
regarding tile uncertainty of the application of environmental and natural re-
sources management laws and regulations to Indians.
Questions of legal jurisdiction over Indians and their lands have confronted
this nation since its founding. Indians increasingly have demanded self-deter-
mination and economic opportunity. At the same time, a growing concern with
environmental quality and the conservation of natural resources has evolved. Tile
result is an aggravation of long-standing disputes over tile exercise of federal,
state, and local authority over land and resources in territory either conceded to
be or claimed to be Indian owned.
Consequently, relationships among Indian groups and governments seeking to
assume jurisdiction over (lie lands have become hostile and resulted in extended
litigation. These legal battles have involved resources in Indian lands of substan-
tial value, such as water, minerals, and energy.
Court decisions in recent years have tended to favor Indian claims. Numerous
state and local regulations have been struck down as applied to Indians and
Indian lands. States have lost de fikfo jurisdiction through these decisions with
the result being that their authority to control activity oil Indian lands is severe-
ly limited.
The mass oflegislation relating to Indians and Indian lands has contributed to
confusion over the powers of tribal governments and the extent of their jurisdic-
tion. Recurring disputes have arisen out ofthe confusion surrounding the separa-
tion of authority between tribal governments and tile federal government. Near
chaos has resulted with the increasing imposition of state authority in environ-
mental concerns.
States and Indian tribes have turned to the federal government for guidance

*This chapter is a condensation of' Indian Rights and Claims: Environmental Manage-
?nent Considerations fi)r the Slares, The Council of State Governments: Lexington, Ken-
lucky, 1977.

in disceming the limits of their jurisdictional authority. Changes in federal legislative and judicial directions create
a need to clarify the existing jurisdiction. No clear federal statutory guidelines are available and case law is both sporadic
and inconsistent.
These problems clearly entail issues of intergovernmental relations within the federal system. The tradtional model of
three levels of government-federal, state, and local-must be modified to incorporate a fourth level-tribal government. The
actors involved are numerous; their interests in environmental and natural resource jurisdiction are diverse, and their claims
often conflict. Any new policy and institutional framework must reflect both prior policy and legal decisions and the concept
of Indian self-determination. New devices in the environmental field must respect the special status of Indians while allowing
a state to work toward reasonable environmental goals.

The Actors and Their Interests

Disputes among states and Indians over jurisdictional claims reach beyond these two major actors to other governmental
entities. The federal government is involved because of its dominant authority in issues of Indian jurisdiction. Local governments
often are involved. The intergovernmental aspects of state-Indian disputes are further clouded by the number of institutions
at each level whose interests are affected. These interests include not only questions of sovereignty, but reach into the
environmental and economic interests of individuals, private corporations and public entities concerned with the
conversation or development of the enviroment.

Tribal Government

A primary concern of tribal governments in pressing jurisdictional claims over persons and property is the desire to
preserve the cultural heritage of the tribe. To do this, the political integrity and economic viability of the Indian
community must be respected and developed. Land has held a central place in the heritage of most tribes. These lands in the
western states include public grazing lands. mineral and energy deposits, and water resources. A tribe's ability to regulate
the use and development of these resources is a key to cultural preservation and economic viability for the tribe.
Tribal claims to self-determination and jurisdiction should not be equated with full autonomy, especially in the economic
area. As a result of the long standing dependant status and economic poverty of reservation tribes the termination of special
federal support and protection could mean economic and political disaster for many tribes,

Federal Government

It is at the federal level that the greatest number of actors and potentially conflicting interests are involved in
Indian jurdistional claims. Constitutionally, Congress and the President have dominant authority in issues of Indian jurisdic-

tion. Numerous administrative agencies also are involved in the questoin of jurisdiction of Indians and Indian lands.
The Department of the Interior is the primary federal agency. However in the environmental area the department's
interests in Indian claims are severely fragmented. The Bureau of Indian Affairs is the agency charged with implementing
congressional policy toward federally recognized tribes. Along with the Department of Justice, the bureau is responsible for
assuring that Indian rights are not undetermined by the actions of the private sector state and local governments and other
federal agencies.
The ability of other agencies to carry out their respective policies and programs is weakened by any policies or rulings
to increase tribal governments jurisdiction. The Bureau of Land Management the Bureau of Land Reclamation and the Environmental
Protection Agency may oppose efforts to restrict their authority to administer and regulate activities on Indian lands which
affect air and water rights land and resource development programs conservation and reclamation programs. The Corps of Engineers
also may find itself in conflict with Indian claims in pursuing mandate.

State Government

In contrast the states are more unified and consistent in their claims to jurisdiction over Indians and Indian lands.
The states' interests in pressing jurisdictional claims in the environmental area are questions of sovereignty policy and
program administration and economic development.
Of more immediate interests to states in pressing jurisdictional claims in growing state involvement in enviromental programs
Most states are immersed in the design and implementation of enviromental quality and resource management programs. Most such
programs are based on regulating activities with potentially harmful effects on environmental quality and environmental health.
The difficulty of administering statewide environmental programs is increased when Indian-held lands Indian-claimed
resource rights and activities on Indian lands are exempt from the state's regulatory authority.
The state's interests extends to the promotion and protection of ecomonic interests of its citizens. Environmental
regulations directly affect numerous economic activties related to the use and development of land and natural resources.
The diminution of state jurisdiction authority reduces effective control over the allocation of access to resource rights.

Local Government

Local government interest in this issue emerges from the concerns for home rule and for the impacts associated with
land and resource development. Many of the problems emerge from local government efforts to extend police power to tribal
members and lands. Other common problems such as financing public services, taxation authority, and economic development are
exacerbated when one entity operates under a different set of political and legal rules.
Local government may be particulary sensitive to the right of tribes to re-

ceive full public sercives without being subject to its taxation and regulation
authority. Indian claims to resources may restrict the decelopment and econom-
ic activity subject to local regulation and taxation. This makes the regulation of
land a major local issue.

The Legal Claims to Jurisdiction*

The degree of success of tribal and state governments in pressing their respec-
tive claims of jurisdiction greatly depends on legal precedent. The issue of legal
recognition of tribal gobernments as political entities is well established. The
crucial issue now is the extent of tribal governments' sovereignty and their status
in relation to the intergovernmental framework of the federal system.

Tribal Government

The case of Worcester v. Georgia (1832) was the first enunciation of the
principle that an Indian tribe is a political body endowed with the powers of
self-government. In short, the Supreme Court held that the powers of tribes
derice from their inherent original sovereignty and from their status as owners of
land.
The question of present tribal powers and jurisdiction clearly rests on this and
similar cases. In summary with the exception of those powers repeales or modi-
fied by treaty or an act of congress. Indian tribes retain inherent jurisdiction
over a broad range of domestic matters and governance.

Federal Government

The federal government has always assumed dominant authority in issues of
Indian jurisdiction. The United States Constitution (Artical 1, Section 8, Chapter
3) grants to congress the power to regulate commerce with foreign nations,
among the states, and with the Indian tribes. Treaties and acts requiring federal
licensing of trade with Indian tribes are based on this clause. Federal authority is
further strengthened by the constitutional grant to the President of power to
make treaties by and with the advice and consent of the Senate (Artical 11,
Section 2, Chapter 2).
The federal government has also asserted the guardian theory as a basis for its
own supremacy with regard to jurisdiction. Upheld in numerous cases this con-
cept asserts the need for protection of the Indian people as grounds for federal
jurisdiction.
Federal policy regarding Indian tribes has not been totally consistent with its
claims of dominant authority. Fluctuating congressional attitudes hace clouded.

"As this paper was being written, a new set of Indian assertions was being litigated and
negotiated, principally in Maine, Massachusetts, and North Carolina. These are claims made
by "state jurisdictional" Indians and incolce the Non-Intercourse Act of 1970. These claims
raise new and complex issues that are not discussed in the following analysis.

tribal and state claims to jurisdiction. The current policy of self-determination of
Indian tribes was preceded by policies of isolation, then assimilation, followed
by grants of specific authority to the states grants which were later revoked by
Congress.
Since 1968, the existing notion of Indian self-determination and freedom
from state control has been strengthened by federal policy and Supreme Court
decisions. The Indian Civil Rights Act (1968) prohibited states from assuming
civil and criminal consent without the express consent of affected Indians. Tile
act also allows for "retrocession," i.e.. the return of state jurisdiction over Indian
lands to the federal government and the tribes. Congress also passed the Indian
Self-Determination and Education Assistance Act (1975) to further establish the
reality of Indian self-determination.

Stale Claims to Authority

The states' claims to authority over Indians and Indian lands are intertwined
with federal legislation and court rulings. The states are cognizant of tile domi-
nant federal authority in Indian affairs. However, they point to three basic
grounds for asserting state regulatory authority. These are specific congressional
grant of authority over Indians or Indian lands, Public Law 280, and regulatory
authority in public health and specific administrative grants of authority.
State claims to authority appeared to be reinforced during the federal policy
of assimilation. Congress had made specific grants of criminal jurisdiction to
certain states, but it was in 1950 that Congress granted its first comprehensive
civil jurisdiction over Indians to the State of New York.2 Then in 1953, Con-
gress passed Public Law 280, an act conferring degrees of legal jurisdiction to
various states to replace existing federal and tribal jurisdiction.
Public Law 280 divided the states into three categories:
- Six states were given direct civil and criminal jurisdiction:
-Thirty-six states were empowered to take jurisdiction over reservations by
enactment of state legislation, and
- Eight states were empowered to assume jurisdiction by amending their state
constitutions.
The third group of states was distinguished from the other states by virtue of
existing enabling acts or constitutions specifically disclaiming jurisdiction over
Indian lands within their borders. Congress felt that to Overturn such a disclaim-
er would require a state constitutional ammendment if it desired to legally assume
jurisdiction over Indian affairs. However, some states have assumed jurisdiction
without going through the amendment process arguing that provisions of P.L.
280 are sufficiently broad to allow a state and its Courts to determine whether a
constitutional amendment is in fact necessary.
P.L. 280 does not provide clear guidelines regarding the degree of state juris-
diction over Indians and Indian lands. Subsequent amendmets contain the fol-
lowing exceptions to jurisdiction:

Nothing in this section shall authorize the alienation, encumbrance, or
taxation of any real or personal property, including water rights, belonging to

any Indian or any Indian tribe, band, or community that is held in trust by
the United States or is subject to a restriction against alienation imposed by
the United States, or shall authorize regulation of the use of such property in
a manner inconsistent with any federal treaty, agreement, or statute or with
any regulation made pursuant thereto, or shall deprive any Indian or Indian
tribe, band, or community of any right, privilege, or immunity afforded
under federal treaty, agreement, or statute with respect to hunting, trapping,
or fishing, or tile control, licensing, or regulation thereof.

The federal government and P.L. 280 states differ on the extent to which this
exemption restricts state claims of wide jurisdictional authority. The federal
government relies upon a definition by the U.S. Supreme Court of "encum-
brance" to support its position that the term should be broadly defined thereby
limiting any state action which could create a burden on the land which might
lessen its value to the tribe. On the other hand, the states argue that the term
should be narrowly defined.
The use of P.L. 280 by states to buttress jurisdictional claims has been
severely restricted by the Indian Civil Rights Act of 1968 and by a judicial trend
toward a restrictive view of the state's jurisdiction. No state has used the provi-
sions of the 1968 act which allow states to assume jurisdiction by the express
consent of the tribes affected or to "retrocede," i.e.. return state jurisdiction to
the federal government and the tribes.
Another basis for state jurisdiction is its regulatory authority to maintain
public health. The state also may gain authority by specific grant of the Secre-
tary of the Interior. Although use of this administrative grant of authority may
allow the application of state and local standards, it appears contrary to the
state's claim of a wide grant of authority under P.L. 280 because it involves a
more specific and narrowly defined scope of jursidiction.

The Environmental Arenas of Dispute

Extensive state involvement in state and federally initiated environmental
programs has increased the incidence of conflicting state-tribal claims to juris-
diction. Jurisdictional disputes have emerged regarding land development regula-
tion, water rights, hunting and fishing rights, air and water quality, and energy
development and mineral exploitation.
The reguatory nature of most environmental programs further intensifies the
conflicting claims to exercise jurisdiction over Indian-claimed land and resources
and activities involving that land and resources. A very sensitive issue to states
and local government is regulation of nonIndian lessees of Indian lands and
resource rights.
State regulatory programs pose a number of serious issues as to the extent to
which the state or its local governments may impose their regulatory schemes
upon Indians and Indian lands. A careful examination of state law, federal
treaties and statutes and existing case law provides no precise answer to jurisdic-
tional claims in these areas. Instead, each area of regulation must be examined
for guidelines to resolution of state-tribal disputes.

Regulation of Development

The most common means of regulating development have traditionally been
planning, zoning, subdivision regulations, and building codes. Nine states recent-
ly have gone beyond mere delegation of such authority to require local govern-
ments to employ these regulatory tools. Many states have begun to play a more
active role in the control of development through legislation dealing with power
plant siting, critical areas,and development of regional impacts.
The question naturally arises as to how, much these controls call be exercised
on Indian lands. It is the opinion of the American Indian Policy Review Commis-
sion that in states subject to P.L. 280, a distinction must be made between state
laws of general application and local ordinances. This argument maintains that
the state's authority to exercise development controls is constrained by state
laws of general applicability, by the fact of encumbrance, and by the tribal
government's ability to handle such functions. Local ordinances. the commission
argues, have no affect on Indian lands. This distinction is important to states
which rely on local governments to adopt their own programs of control or to
administer state-mandated programs through local ordinances.
Litigation has been inconsistent as to whether Public Law 280 allows local
governments to enforce their regulations on trust land withing Indian reserva-
tions. Case law supporst both sides of the question regarding whether such
ordinances are of general application, whether they constitute all encumbrance,
and whether they infringe on tribal sovereignty. A brief examination of some of
these cases is illustrative of this point.
In Snohomish County v Seattle Disposal Comapny.3 the court held that the
zoning ordinances fall within the definition of "encumbrance" and therefore are
unenforceable on Indian lands. This decision is an example of the broader inter-
pretation of the concept of encumbrance, thereby limiting the states' jursidic-
tion over Indian lands.
The Ninth Circuit Court of Appeals, in Santa Rosa Band of Indians v. King
County,4 ruled against county jursidiction over Indian reservation, trust lands
and articulated views on the importance of tribal sovereignty vis-a-vis local gov-
ernments. Cases, involving a particular local ordinance must be decided by the
courts on a case-by-case basis.
The importance of the Santa Rosa case has gone beyond that of the particular
Situation. The court found "that P.L. 280 subjected Indian country only to the
civil laws of the state, and not to local regulation." The decision also was
adamant in its position that local jurisdiction should not apply to Indian lands.
Another noteworthy case is taht of Sangre de Christo Development Corpora-
tion, Inc. v. City of Santa Fe.5 The New Mexico Supreme Court examined the
validity of local plnning and subdivision controls on Pueblo Indian land leased
to a private developer in view of the state constitution's disclaimer of right and
title to Indian land. Since the disclaimer was one of proprietary interest and not
a disclaimer of government control, the court held that the disclaimer did not
prevent exercise regulatory powers.
In response to other issures raised, the court said the exercise of such authori-
ty did not interfere with the self-government of the Pueblo Indians. However,

the court went on to find that Congress had preempted all control over the
leasing of Indian lands by 25 U.S.C., Section 415. Under these regulations the
Secretary of Interior could opt to apply the equivalent of local standards, but
this decision would be to the secretary, not the state or its local governments.
The issue was not the fact of regulation, but who applies the regulations.
New Mexico subsequently filed Suit in federal district court against the Secre-
tary of Interior and the Sangre de Christo Development Corporation to establish
state jurisdiction over the leased development. The court found in favor of the
state, declaring 25 C.F.R., Section 1.4 to be an ultra vires regulation and, there-
fore, invalid. Thus, the tate statute in question was applicable to the nonIndian
lessees. The case has been appealed.
It is apparent that the issue of who has regulatory authority over develop-
ment on Indian lands Will Continue. Extensive litigation call be expected. None
of these relationships is clear, nor is the definition of encumbrance explicit at
this point.

Water Rights

The allocation of water rights is most consequence to the western states.
Indian claims to these rights, based on initial ownership and upon treaties,
frequently have emerged after water rights already have been allocated among
the states and among users in the states. Indian claims to prior rights have made
this a volatile question. Court cases generally have been decided in favor of
Indian claims.
The benchmark case of Indian-state water rights conflict is Winters v. United
States. In this Montana case involving diversion of river waters away from reser-
vation lands by private individuals, the U.S. Supreme Court upheld the lower
court's view that the Indians were the owners of the rights to the use of water
which they retained under file treaty agreement of 1888. Since they were the
grantors in the agreement, they held all of their right, title, and interest in the
reservation which they did not convey to the United States. Thus, the State of
Montana could not interfere or enact laws pertaining to use of Indian waters.
The second issure addressed in Winters was the amount of water reserved by
the Indians. The court was definite about the duration of water rights "for a
use which would be necessarily continued through years. "It hinted that the
reserved amount could be large: that beneficial use of the water could be made
whether the lands were "kept for hunting, grazing roving herds of stock, or
turned to agriculture and the arts of civilization.
Although the basic Winters doctrine subsequently was applied in other cases,
the courts have not clearly defined phrases such as "arts of civilization. "This
phrase leaves open the question as to the exact types of activity for which the
Indians have reserved water rights.
United States v. Powers6 dealt with the issue of water rights on Indian allot-
ment land later sold to nonindians. The United States sought to enjoin the
diversion of waters by nonindian successors in the interest of the Indian allot-
ments, to the extent that this water was needed for an Indian irrigation project.
This relief was denied by file lower federal courts and was affirmed by the U.S.

Supreme Court. The Supreme Court held that under Winters. waters were re-
served for the reservation. When allotments were duly made for exclusive use
and thereafter conveyed in fee, the right to some portion of tribal waters essen-
tial for cultivation passed to the nonindians. The court left unanswered the
question of how a quantifiable amount Would be ascertained.
United States v. Walker River Irrigation District7 dealt with reservation lands
not part of Indian aboriginal holdings. The suit sought an adjudication of a right
to 1,500 cubic feet per second of water from the Walker River for the irrigation
of reservation lands. The trial court ruled that the reservation doctrine did not
apply to this reservation because it was not a treaty, reservation. The U.S. Court
of Appeals reversed the ruling, stating:

In the Winters case as in this case the basic question or determination was
one of, intent whether the waters of the stream were intended to be re-
served for the use of the Indians or whether the lands only were reserved. We
see no reason to believe that the intention to reserve need be evidenced by
treaty or agreement. A statute or an executive order setting apart the reserva-
tion may be equally indicative of the intent.

With respect to the measure of the water right of the reservation. the court held
that the measure was the amount reasonably necessary to supply Indian needs. It
concluded that 70 years of experience demonstrated a need for adequate water
to irrigate some 2,100 acres of the 10,000 irrigable acres. This action of per-
manently fixing the amount of water to which the Indians were entitled set an
important legal precedent.

Hunting and Fishing

Disputes between Indian tribes and state governments over the regulation of
hunting and fishing have proliferated. This is particularly true with regard to
commercial fishing in areas where environmental problems have decreased the
catch and exacerbated the competition between Indians and nonindians.
Public Law 280 contains specific language exempting state regulation of In-
dian hunting and fishing. Therefore, it would appear that those states acting
pursuant to P.L. 280 are prohibited from such regulation and those states not
acting under 280 also are prohibited from exercising control. Jurisdiction re-
mains with the federal government. However, case law reveals inconsistencies in
decisions relative to P.L. 280 states and non-P.L. 280 states.
The most active state in attempting to resolve this jurisdictional issue has
been Washington. a non-P.L. 280 state assuming jurisdiction under state statute.
Two early cases8 upheld Washington's right to regulate hunting and fishing as
long as the controls did not discriminate against Indians and adhered to the
"reasonable and necessary" test.
The case of United States v. Washington9 in 1975 further refined these issues.
The principal issues to be resolved were the extent of off-reservation Indian
fishing rights provided by treaty to the tribes: whether the state regulatory

scheme infringed upon those rights. and, if so, what relief could be granted.
The court held that the state continued to have the power to regulate, for
conservation purposes. the tribes' taking of fish at its usual off-reservation
grouds if regulations did not discriminate against the treaty tribe's reserved
right to fish, met appropriate standards of substantive and procedural due pro-
cess, and were shown to be both "reasonable and necessary" to preserve and
maintain the resource. The state must also "treat such treaty rights as an obliga-
tion and interest to be promoted in the state's regulatory management and
obligation programs." However, the existing Washington laws and regulations
applicable to Indian fishing were declared unlawful because they were not neces-
sary to preserve and maintain the resource; they discriminated against the tribes:
and they had been adopted and enforced in violation of appropriate standards
and in derogation of the meaning and purposes of the treaty provisions.
The court also provided a formula which said the Indian tribes are entitled to
have the opportunity to Catch up to one-half the run of fish that normally would
pass by their off-reservation sites. This decision also allows for the self-regulation
of off-reservation fishing by qualifying treaty Indians.
The court's formula, of guaranteeing Indians up to a 50 percent opportunity
to catch the runs of fish at off-reservation stations, has led to difficulties for
both the state and commercial fisherman.

Air and Water Quality

Though legislation directing the management of air and water quality has
been Federally initiated. the states are allowed considerable discretion to develop
and administer programs. Both the Clean Air Act Amendments of 1970(CAA)
and the Federal Water Pollution Control Act of 1972 (FWPCA) set minimum
standards and allow the states to run approved regulatory programs under U.S.
Environmental Protection Agency (EPA) guidance. A state can set more strin-
gent standards than those of the federal government.
A crucial issue now emerging is the extent to which these regulatory programs
are applicable to Indian lands. Those states which have assumed jurisdiction
under P.L. 280 believe they have such authority. States not acting under 280 are
facing the issue in a variety of ways. For example, the attorney general of
Arizona has interpreted the state's constitutional disclaimers of jurisdiction to
apply only to Indian lands as property and not to state sovereignty over those
lands so that Arizona could claim jurisdiction over air and water quality by
statute.
The major dilemna is in those states which enact standards in excess of
minimum federal standards. It is not clear which standard would apply to Indian
lands. The federal legislation does delegate to qualifying states the management
of such programs to meet national goals. Accordingly, one view might be that
the federal government, by delegating authority to the state, has also delegated
the authority to regulate Indian land. On the other hand, it can be argued that
Congress should bestow authority over Indian lands expressly, not implicitly.
A further problem clouding the issue is a situation in which the state regula-
tory program is a delegation of administration and enforcement to a local gov-

ernment acting under local ordinances. Public Law 280 jurisdiction is extended
only for "those Civil laws of Such state or territory that are of general application
to private persons or private property." The Indians and Department of Interior
believe that only state statutes, not county or municipal ordinances. satisfy the
requirement of "general application." If a local ordinance conforms with a state
program which EPA has approved. it is not clear whether this passes the "general
application" test.
State initiated programs, such as sediment control. surface mining controls
and power plant siting. must meet both the "encumbrance" and "general appli-
cation" tests. If a regulation places a "burden upon land depreciative of its
value," it likely would not stand up in a legal challenge. States which did not
acquire jurisdiction under P.L. 280 may have great difficulty in prevailing if their
air and water quality standards as applied to Indian lands are legally challenged.
Two recent court cases10 have dealt with Similar problems as posed here
(although they did not deal Specifically with application of state air and water
quality standards to Indian lands). In these cases, the court held that two federal
installations discharging air and water pollutants did not have to obtain permits
from states with federally approved plans. The legal basis for these decisions was
that Congress had made no Clear and unambiguous declarations that federal
installations could not operate without a state permit. The relevancy of these
cases is that a State apparently cannot require a permit. to illustrate compliance
with pollution standards for Indian activities on Indian lands. if Congress fails to
So Specify in legislation.

Energy Development and Mineral Exploration

As the exploration for new domestic supplies of energy and minerals has
increased. there has been the realization that the rights to certain coal, oil and oil
shale, natural gas. rich mineral deposits. and the western States' water Supply
belong to the Indians. Governments at all levels now have to deal with tribes for
access and the terms under which extraction will be allowed.
Consequently, Indian tribes are organizing to better protect their resources
from exploitation. A coalition of 26 tribes. the Native American Natural Re-
sources Development Federation and the Coalition of Energy Resource Tribes.
met in late 1975 to coordinate strategy for litigating their coal and water de-
mands. In Montana, the Northern Cheyenne and the Crow tribes have filed suit
to gain Control of waters flowing through their reservations. Since much of this
water already has been sold by federal and state authorities for eventual use by
energy Companies, the outcome could have negative impacts on planned electric
and coal gasification plants. Other proposed energy developments in western
states are similarly vulnerable to legal challenges because they would use water
or coal on or near reservations, or Would require transmission lines Crossing
reservation lands.
The decision in Choctaw Nation V. Oklahoma11 indicates the judiciary's wil-
lingness to support Such Indian rights and Claims. The Supreme Court held that
the Indians were owners of substantial mineral rights (oil and gas rights) which
Oklahoma had previously leased to various corporations. An appraisal subse-

quently set the values of these claims at $177 million. The outcome of negotia-
tions to settle this dispute is of major importance to the position of both the
states and the tribes.
Coordination of energy development and joint planning to minimize adverse
environmental, economic, and cultural impacts of resource development must
be a joint responsibility among the federal government, states, Indian tribes, and
energy development corporations. In seeking to improve the lines of communica-
tion between state and tribal governments in particular. both parties must realize
that decisions of one will impact upon the policies and programs of the other.

Summary and Conclusions

The Legal Climate

There are several dominant factors in the prevailing legal situation pertaining
to Indian jurisdictional questions as they relate to natural resource and environ-
mental management. First are federal policies favoring Indian governmental and
economic independence formalized in the Indian Civil Rights Act (1968) and
Indian Self-Determination and Education Assistance Act (1975). Second is con-
tinuing confusion grounded in ambiguous and sometimes contradictory state and
federal court decisions on the application of state and federal natural resource
and environmental law and regulation to Indian land and disputed territories.
For several decades, the Congress and federal agencies have promoted greater
tribal sovereignty with the objective of diminishing Indian political and econom-
ic dependence on the federal establishment. This effor to encourage Indian
self-government and economic self-sufficiency has reinforced Indian initiative to
win political and legal confirmation of their claims to property and resources in
states. In this pursuit, the Indians have come into innumberable confrontations
with state and local governments.
State governments have found themselves in a serious dilemma. They are
under severe political pressure to resist Indian claims from citizens and corpora-
tions resident on disputed land or dependent on disputed resources. Often,
conflicts involve in-holdings or water rights that have been assumed to be legally
the property of nonIndians for generations. The declared owners are adamantly
opposed to any state concessions that may cloud their entitlement. They de-
mand court challenges.
Concurrently, state governments are in a precarious position in attempting to
implement environmental management policies, including those mandated by
federal law and regulation. There is confusion over the applicability of land use,
water and air quality and other environmental controls in Indian country. This
confusion is compounded by recent uncertainty over whether supposedly settled
jurisdictional doctrine encompasses Indian property or only Indian people.
Further complications are created by Indian conveyance of property and
development rights to nonIndians whose subsequent operations are nonetheless
within the boundaries of Indian jurisdiction. Finally, many forms of state juris-
diction given or taken under P.L 280 have been successfully challenged. Many
states which have not acted under P.L. 280 have been held by federal authori-

ties, will some court confirmation, to have no jurisdiction over Indians or their
lands.
Faced with this maze of ownership, jurisdictional, management and political
conflict, Indians and state and local governments have gone to Court. The inevi-
table adversary relationship has often bred deep hostility on both sides.
States have not fared well in the courts. The precedent-setting decisions have
generally favored Indian rights and claims, and federal over state and local juris-
diction. Consequently, states have usually lost de facto authority under which
they had been applying natural resource-environmental policy in Indian do-
mains. State program administration has substantially diminished in its regula-
tion of both Indian and nonIndian enterprises.
The emerging 1977 water crisis in the west, coupled with accelerating de-
mands for energy resource development. increase tile dangers of conflict.

State Options

Court fights have soured state-Indian relations, and adverse decisions have
weakened state administrative capacity. Even when states have won in the
courts, the animosities created have made subsequent relationships hostile. Once
adversary roles have been assumed, settlement of conflicts by negotiation has
proven very difficult.
In some instances, resorting to the courts is a necessity for both state govern-
ment and the Indians. Only through definitive court judgments can fundamental
jurisdictional issues be resolved. However, in many situations, the Option of
negotiation is a legitimate alternative. and one that may offer a resolution
greater mutual benefit to the parties involved. The use of federal mediation is a
device to facilitate agreement. Notwithstanding the political risks involved. nego-
tiation would appear to Offer States a better approach than litigation in establish-
ing a solid legal and political foundation to sustained amicable relations with
Indian groups. Such a basis of communication is critical in facilitating reasonable
state influence and possible intervention in questions affecting natural resource
and environmental management in Indian territory.
To further develop a positive. and mutually beneficial state-Indian relation-
ship, states would be wise to accept and promote national policies favoring
Indian self-determination and economic independence. Slate initiatives to pro-
vide aid and technical assistance are vital to the improvement of Indian capacity
for self-government and for self-sustaining economic enterprise.' Through
strengthening tribal organizations and economics, states will be laying tile
groundwork for tile, kind of partnership arrangements that may provide the basis
for cooperative endeavors in environmental management.
It is important that state environmental and resource laws and regulations
explicitly recognize the separate status of Indians and Indian lands if only to.
avoid unnessary friction and legal crisis. Indians are given a voice in framing
tile statutory language that relates to them, it is conceivable that they will
become party to the extension of policy and management to their own domain.
State administrations might profit from looking at their own history of state-
local relations, and file structures and processes they have developed to improve

intergovernmental communication, coordination, and cooperation. Although
local governments are creatures of the state in a legal sense. they are generally
intensely independent politically. Home rule is a constant demand. However,
local governments have also tended to bypass the state capitol in establishing
direct and ofthen very dependent relations with teh federal government and its
agencies.
Since the passage of the federal Intergovernmental Cooperation Act of 1968.
states have become increasingly conscious of the importance of closer state-local
links in program administration. The act gives staets a new leadership role in
state-local coordination and teh potential for substantial control over federal
programs previously administered on a federal-local basis. In developing this role.
states have devised a variety of structures and mechanisms to manage state-local
relations including the creation of community affairs departments, the expan-
sion of roles of substate regional planning and development agencies, and the
delegation to the local and regional levels of program planning and administra-
tion. These mechanisms often have the dual purpose of providing the opportuni-
ty for local intervention and participation in state policemaking.
As a model for state-Indian intergovernmental communications, state-local
mechanisms would require considerable alteration. Quite conceivably, there is
need for a new federal intergovernmental relations act specifically addressing
state-Indian arrangements. to clear up unresolved issues, such legislation specifi-
cally could delegate to states some of the residual powers of the the federal govern-
Without Which states can make no binding agreements with tribal govern-
ments and associations.
In summary, it would appear that the time has come for states to consider
aternatives to legal challenges and court confrontations with Indians. Recent

history Suggests that constant resort to the courts has engendered hostility and
produced detrimental legal decisions. Moreover. it has substantially limited state
capacity for resource management and environmental regulation in critical areas.
States should consider the following proposals for establishing a, positive, pro-
ductive base for state-Indian intergovernmental partnership:
Recognizing the doctrine of Indian self-determination:
Assist Indians in building governmental capability:
Provide grants and technical assistance to foster Indian economic self-suffi-
ciency:
Acknowledge special Indian status in environmental, statutes and regula-
tions:
Assert mutual state-Indian interest in resource Conservation and environ-
mental quality and develop binding agreements on resource and environmental
management systems, and
Establish state-Indian intergovenmental structures and mechanisms to facil-
itate communication cooperation and coordination.

FOOTNOTES

1. Worcester v. Georgia.31 U.S. 515(1832).
2. 25 U.S.C. 233.c.845.Sec.1.64 Stat.845.

3. Snohomish County,V,Scank dispensal Company,425 P 2d 22
Court, Washington. 1959).
4. Santa Rosa Band of Indians v. King County. 532 F.2d 655 (1975).
5. 503 P. 2d 323(1973).
6. 305 U.S. 527 (1939).
7. 104 F. 2d 334 (9th Cir. 1939).
8. Tulce v. Washington, 315 U.S.681(1945)Puyallop v. Department of Game
of Washington, 391 U.S. 393 (1968).
9. 520 F. 2d 676(1975), Cert. Den. 9th S. Ct. 877(1976).
10. Hancock v. Train. No. 74-220. July 7, 1976: EPA v. State Water Resources
Control Board, No. 74-1435, July 7, 1976.
11. 397 U.S. (1970).

XI. Research Agenda: Future
Directions and Needs

Introduction

The need for further research is among the most important results of the
effort to identify and analyze current environmental issues and state responses.
In all four issue areas, the state-of-the-art is such that further research is manda-
tory if the states are to effectively address the challenges posed by the myriad
environmental and related problems. This conclusion has been reinforced by
interviews with state officials. An oft-repeated constrant impeding state pro-
grams has been tile lack of adequate information and guidance in designing and
implementing action programs.
Beyond this basic information need is the increasing complexity of our
understanding of environmental issues. It is no longer feasible to consider envi-
romental problems in isolation. As an example, the enhancement of mainten-
ance of environmental quality is inevitably related to economic development.
There must be tradeoffs between these two goals if either is to be accomplished.
These two concerns will not be easily reconciled. Consequently, state efforts at
reconciliation call be enhanced greatly by further research.
Another recurrent theme in this environmental series has been the need for
innovative governmental approaches to policymaking and program implementa-
tion. Indications are that a minimun of major additional environmental legisla-
tion will be enacted by Congress in the near future. Accordingly, states will bear
the brunt of initiating any new programs or refining their existing partnership in
federal programs. In either situation, state leaders must look beyond traditional
institutions and programs. This implies greater coordination among agencies and
levels of government, interagency and intergovernmental agreements, and inno-
vative organizational structures. There are no easy anwsers to these needs.
This is not a comprehensive treatment of research needs. but it is illustrative
and supportive of the need for further research. Scientific research agendas are
provided for each of the environmental issues studied. A brief review of the
actors involved and their interactions is discussed prior to the research agenda.

Actors Involved

Environmental quality must be the concern of all levels of government.
Although their roles and concerns vary according to jurisdiction and level, each
has an important position in environmental programs. Support of and involve-
ment in research efforts are a part of the process for federal, state, and local

governments. Emphasis must be placed on the federal and state governments as
they have sufficient jurisdiction and resources to augment the requisite amount
and quality of environmental research.
The federal government should at the center of this research effort. The
federal government has done much to enhance environmental quality by enact-
ing legislation such as file Clean Air Act, the Federal Water Pollution Control
Act, and the Coastal Zone Management Act.
However, the concept of totally centralized federal control of environmental
programs is being replaced with a renewed emphasis on the federal-state partner-
ship. In keeping with this orientation, the federal government is perhaps the
primary source of funding for research studies relating to environmental issues.
Foundations and other private institutions may provide supplementary kinds.
As federal programs increasingly rely upon state level implementation, the
need for more adequate data, information, and innovative approaches will be-
come more acute at the state level. Accordingly, state leaders should become
initiators and users of environmental research. Interaction with the federal gov-
ernment, the academic community, and others is important for states in the
successful design and implementation of environmental policies and programs.
Academia should not be overlooked as a vital source of expertise for state
policymakers. This applies to all institutions of higher learning, but perhaps the
already close relationship between states and their own university systems pro-
vides special opportunities for cooperation. As specialists in their fields of study.
academicians must be further integrated into governmental research studies of
environmental issues.
The various actors are cognizant of the need to increase cooperation in
environmental reseach. Governments, private interests, or research groups, can-
not afford the luxury of isolating their research from the other parties involved.
To do so would be counterproductive in view of the complex relationship of
environmental issues with other issues such as economic development, growth
management, energy, transportation, and urban decline. The impacts of these
issues transcend political and jurisdictional boundaries. Only. a coordinated and
cooperative research effort can meet the challenges posed.

Research Agenda

This Section is a suggested research agenda for the future regarding enivorn-me
mental issues. These research needs are identified to suggest efforts which would
be of direct benefit to state government. No priority of needs within the four
general issue areas is implied.
The research needs have emerged from this environmental issues series and
specifically relate to energy conservation, environmental impact assessment.
Management of diffuse source pollution, and impact of Indian rights and
claims on state environmental policy. The agenda comes from analysis and
suggestions by review panels in each issue area. Interviews with state officials have provided additional refinement to these research needs.

Research Agenda: State Energy Conservation Programs

1. Environmental, Social, and Economic Impacts of Energy Use Patterns and
Selected Energy Conservation Policies:

Energy conservation activities are generally hampered by the absence of infor-
mation on the type and degree of environmental, social, and economic conse-
quences of various energy conservation measures. Energy conservation is essen-
tially an environmental goal: thus, research is needed to assess possible links
among air and water quality and land use programs to energy conservation
programs. Research must also determine the impacts of conservation practices
on various socioeconomic groups and the public's responsiveness to mandatory
and voluntary programs.

2. Information Needs for Developing State Conservation Programs:

Current energy conservation programs are impeded by the lack of adequate
data available to state officials. The construction of energy demand models and
the development of energy conservation policies require signficant amounts of
data on such interactive items as available supply, energy, use patterns, economic
activity, and likely impacts of conservation activities.

3.Developing a State Government Planning and Decision Framework for
Energy Conservation:

Energy must be more fully integrated as a routine component of
planning and cisionmaking in state government. Energy use must be made an
important factor in the trade-offs of public decisionmaking in the areas of trans-
portation, environmental programs, land use, public capital investments, eco-
nomic development programs, and government procurement.

4. Effective Roles for State Government in Implementing Energy Conserva-
tion Goals:

The pervasiveness and complexity of energy use and the uncertainty sur-
rounding energy conservation measures require careful consideration of the most
effective state role in achieving energy conservation objectives. Research is need-
ed to identify and develop the state roles most effective in affecting market
forces which influence the level and patterns of energy consumption in the
buildings, industrial, and transportation sectors. This role might include govern-
ment action to alter constraints and inequities associated with an imperfect
market, as well as efforts to facilitate and reinforce market forces favorable to
energy conservation.
5. Education Programs to Encourage Public Cooperation with Energy Con-
servation Objectives:

In view of present state emphasis on voluntary measures and financial incen-

tive mechanisms, research must be directed toward effective educational pro-
grams in energy conservation to encourage public acceptance and involvement.
The states are best suited for adapting and disseminating conservation tech-
niques. Proposals for federal programs to encourage state extension programs in
energy conservation reinforce the need for research in the design and implemen-
tation of state consumer education programs.

6. Land Use and Transportation Links to Energy Conservation:

Research is needed to explore the links between land use and transportation
and energy use and conservation. More insight is needed as to steps a state can
take to encourage more efficient land development patterns. States should focus
attention on means available to reduce reliance on automobile transportation
and to influence wider acceptance of mass transit as a more efficient travel
mode. Barriers to governmental or citizen acceptance must also be identified so
that the most viable strategies for energy conservation may be ascertained.

Research Agenda: Environmental Impact Assessment

1. Institutional and Organizational Questions in Environmental Assessment:

There are many pertiment institutional and organizational questions to be
asked in assessing future environmental activities. For example, how do institu-
tional and organizational arrangements affect decisionmaking? Do different ar-
rangements affect the responsiveness to environmental concerns? What remedies
exist?
There are also broad institutional questions regarding Section 103 of NEPA.
Are agencies continually assessing potential conflicts between their mission and
NEPA's policies as required under that section? The feasibility of a natioal
informaion clearinghouse to promote better communication relative to environ-
mental programs is a subject worth exploring.
A study of institutional arrangements for dealing with projects that fall under
the jurisdiction of two or more states is warranted. A related area of research is
determining ways to integrate state guidelines and procedures with federal
(NEPA) requirements.
Two final research items that have not been adequately explored are: (l)
finding ways to enable states to participate in the federal EIS process at an
earlier stage and. (2) investigating institutional and organizational arrangements
that achieve multiple environmental objectives at the state level.

desire to fully integrate impact statement requirements into planning and deci-
sionmaking. The role and content of the process would be more intelligible.
The second research direction is to examine measures for mitigating environ-
mental impacts. The EIS process has been used primarily to prevent develop-
ment rather than to resolve or mitigate impacts associated with the proposed
action. There is the need for additional work on ways to allow development
while maintaining environmental quality.

3.Integrating Planning and Environmental Impact
Assessmnts:

Three major research priorities in the area of planning and decisionmaking
have been identified:
(1) Explore alternatives to the EIS process for gaming environmental infor-
mation:
(2) Determine ways of improving the responsiveness of EISs to decisionmak-
ing need, and
(3) Examine ways of holding agencies responsible for the findings of their
impact assessments by monitoring projects after approval.

4. Optimal Resource Use:

Three avenues of research are recommended in striving toward optunal re-
source use. The first is to determin if state involvement with environmental
concerns has overshadowed or created an imbalance between environmental is-
sues and nonenvironmental issues. This is obviously a very sensitive question, but
an important one for state governments.
The second research avenue is to examine ways to avoid unnecessary environ-
mental assessments and statements. This could take several directions including:
(1) determining or ranking actions that will always require assessments and
statements, actions that may require assessments, and actions that will never
require assessments: (2) exploring institutional and administrative means of gain-
inq, coordination and cooperation of governmental agencies in preparing state-
ments: and (3) exploring file use of "mini" impact assessments that focus on one
or two major issues or build on existing impact statements of a similar nature,
thereby avoiding duplication.
The third research area reflects the importance of timing in the EIS process
by focusing on the need to determine means of reviewing EISs at both the state
and local levels simultaneously. The review process can also be cut by having a
simultaneous review by all departments and agencies in each governmental level.

5. Data Needs for Environmental Impact Assessments:

Two primary areas of research are seen as important within tile area of data
requirements. The first entails comparing the data requirements of other state
and local programs with environmental assessment activities to avoid duplication
and to expand the information base available to all programs. Such an investiga-

tion should include the following: Section 208 water quality planning, land Use
planning, growth management, coastal zone management, and transportation
planning, and others.
A second research need lies in exploring means of collecting, organizing and
presenting data to reduce cost and improve its utility. Although such studies
have been done previously, the need for improvement is apparent.

Rescarch Agenda: Diffuse Source Pollution

1. Shortage of Data on Extent of DSP Problems:

The intermittent nature of diffuse source pollutants makes their measurement
difficult and expensive. Consequently, there is little accurate data on the extent
of DSP problems, particularly in relation to water nonpoint pollutants. Quantif-
cation is needed and is perhaps best achieved at the state, regional, and local
levels rather than as a more cumbersome nationwide effort. There should be, of
course, some mechanism at the federal level to compile the aggregate data.
Efforts at managing diffuse source pollutants will continue to be impeded until
greater emphasis is placed on providing adequate base-line data.

2. Questions as to the Effectiveness of Nonpoint Source Control Techniques:

One of the most perplexing dilenimas encountered in managing nonpoint
source pollutants is the degree of uncertainty as to the effectiveness of con-
trol techniques. Many of the control techniques are hardly beyond the experi-
mental stages, and others have been applied only in local instances. Meaningful
cost-effectiveness analysis has not been applied on a widespread scale. Such
analysis will likely be burdensome since it is possible only at a local, case-by-case
basis.
Two kinds of information are mandatory to assess the various control tech-
niques: (1) nonpoint pollution impacts and the cost of associated damage or
harm, and (2) the effectiveness of, each control technique in terms of pollution
impacts reduced and file direct and indirect costs implementation.
One current source of information on control techniques is tile Environment-
al Protection Agency through its technical guidance documents on recommend-
ed control procedures. However. since these documents are intended to be na-
tionwide in scope, they often are very general and have limited applicability to
site-specific problems. This documentation should are made more sensitive to the
extreme regional Variation in the nature of the problems and the potential con-
trol methods.

3. Innovative Methods of Technical Assistance:

Repeated mention has been made of the need for greater technical assistance
to states and local agencies as they plan and implement programs to deal with

diffuse source problems. Most state and local agencies do not possess sufficient

resources and expertise to effectuate adequate Dsp strategies.
A major research need lies in ascertaining methods of technical assistance that
would be of greatest benefit. Tentative suggestions include intensive surveys to
identify and define DSP problems at state and local levels, upgrading informa-
tion and data provided by the federal government, developing and operating
demonstration projects to illustrate alternatives in dealing with diffuse sources.
and assisting private sector DSB contributors as they seek to meet environmental
standards.

4. Inadequate Water Quality Criteria:

Current water quality criteria were designed primarily for point source pollu-
tion. An example of this inadequacy lies in the fact that sediment is not ade-
quately addressed. Sediment is perhaps the most important of the nonpoint
Source pollutants. Limits established in the criteria are more oriented towards
the steady-state characteristics point sources rather than the diffuse and spo-

radic nature of nonpoint sources.
Closly related to the absence of adequate water quality criteria is the unclear

distinction between point sources and nonpoint sources. Nonpoint sources have
waters become polluted. but which are not covered as permissible point sources
become a catch-all category for all of those means by which surface and ground
under the NPDES permit system. There is a demonstrated need for further
delineation between point and nonpoint sources as state and local governments
enter critical phases in planning and implementing environmental programs.

5. Lack of Documentation of the Impacts of Diffuse Source Catergories:

A major problem confronting state officials is the lack of documentation of
the impacts of diffuse source pollutants in air and water quality. Most officials need for DSP con-
associated with environmental programs are cognizant of the need for DSP con-
trols. but there is a inadequate knowledge of the relationships between many
kinds ofdiffuse sources and actual changes in air and water quality.
Diffuse sources are a signficant factor in tile deterioration of environmental
quality. Efforts should be undertaken to obtain a more adequate capability to
assess: (I) the nature and amount of diffuse source pollution resulting from
specific activities and practices:(2) the relationship between such pollution loads
and ambient air and water quality. and (3) the effectiveness of proposed control
methods.

6. Institutional Challenges Posed by the Control of Diffuse Source Pollution:

Efforts to control diffuse source pollution have previously been given lower
priority. compared it) point source programs. resulting in adcquate resources and
a lack of management attention for DSP problems. This' lack of attention and
the section 208 mandate under tile Federal Water Pollution Control Act have
caused friction and confusion at all levels of government.

Section 208 is exemplary of tile need for new relationships between the
federal, state, and local governments in order to achieve national air and water
quality goals. Methods to implement the 208 planning process without undue
hardships upon file states must be found. These methods may include adequate
and timely financing: restructured relations between EPA, its regions, the states,
areawide agencies, and local governments: and more allowance for state discre-
tion and initiative in the control of nonpoint source pollutants.

7. Public Participation in the Control of Diffuse Source Pollution:

As a result of the often-mentiond implications of 208 and other DSP pro-
grams, increased public participation in the process is a necessity. Without public
support and participation, no such program can succeed.
Accordingly, more insight is needed to determine the extent to which EPA
states and areawide agencies should go to augment interest among the citizenry.
Published notices, information centers, mailing lists, and public hearings are ac-
cepted means of achieving public participation, but they have not always facili-
tated high levels of support or participation. All levels of government and mem-
bers of the research community must display considerable creativity in upgrading
such methods or designing new means of facilitating public participation.

Research Agenda: Indian Rights and Claims

1. Indian Organizations:

As States and Indgian groups attempt more formalized relations, the problem
of the grat variety of Indian associations will be encountered. Indian groups
and their domains range greatly in size: some are structured as goverernments,
sonic are incorporated, some simply exist together as communities without legal
form The cultural, economic and socail condition of Indian groups vary widely
and thus their capacity for self-government varies. A typology of Indian organi-
zations hould be developed together with an analysis of problems created by
different forms in intergovernmetnal relations. Proposals and recommendations
for improving tribal organization structure should be included, with the provi-
sion of model structures for groups of different sizes and situations.

2. State-Indian Intergovernmental Relations Act:

Using file 1968 Intergovernmental Act as a point of departure, a study should
be undertaken of actions and arrangements at the federal, state, local, and tribal
levels needed to stablize and formalize intergovernmental relations involving
Indian organizations. Such a study should consider the replacement of P.L. 280
with a new instrument that clearly delineates existing powers, and provides for
the delegation of powers through federal-state-Indian agreement.

3. Tribal-State Compacts:

A study should be undertaken to assess the applicability of compacts
modelled after the interstate compact instument. The investigation should con-
sider the potential of this approach for defining:
(a) Relations among a state and tribal goernments within its boundaries:
(b) Relations among several states and a tribal government whose boundaries
encompass parts of these states:
(c) Multifunctional relations among the parties, or
(d) single-purpose relations among the parties.

4. Indian Environmental Programs:

Various Indian tribes have laws, customs and traditions relating to tile land,
natural resources and the envrionment. These should be surveyed in a quest for
common ground for cooperative state-Indian endeavors in environmental man-
agement. Special attention should be given to examples of successful environ-
mental programs initiated by Indian groups, or in which Indians participated.
Models for intergovernmental programs should be proposed.

5. Nonfederal Tribes:

A study should be conducted regarding the legal and policy issues surround-
ing eastern states nonfederal tribal claims.

6. Special Enivrionmental Policy Problems:

Studies sensitive to state-tribal-federal relations should be done to examine
the policy and administrative questions associated with:
(a) The implementation of sifnificant deterioration programs conducted
under the Clean Air Act of 1972, and
(b) The implementation of statewide planning and management respoinsibili-
ties pursuant to Section 208 of the Federal Water Pollution Control Act of
1972.

NATIONAL PANEL ON STATE ENVIRONMENTAL ISSUES

Burton L. Carlson, Coordinator Stephen Born, Director
Utah State Planning Office Wisconsin State Planning Office

Janet McLennan, Assistant to Governor Jackie Swigert, Chairperson
Natural Resources, Oregon Environmental Quality Commission
Kentucky

Senator Sanford Steckler
Mississippi

Energy Conservation Advisory Panel Environmental Impact Assessment Panel

Chart Bonham Ed Kelly
Georgia State Energy Office National Science Foundation

Marvin E. Olsen Eastern Tin
Battelle Human Affairs Research Center Division of State Planning, Florida
Washington
Schuyler Jackson
Michael Goodwin Vermont Environmental Board
Tempe, Arizona
John Reuss
Jeanette Brinch Environmental Quality Council, Montana
Conservation Foundation
Washington, D.C. Loren Kramer
Department of Environmental Quality
Representative Sam Gejdesnson Oregon
Connecticut
Indian Rights and Claims Panel
Diffuse Source Pollution Panel
John Niemisto
Daniel W. Varin Assistant Attorney General, Wisconsin
Rhode Island Statewide Planning
William Mauk
Berton L Lamb Idaho Supreme Court
Eastern Kentucky University

Craig Bell
Gary Pryor Western Sues Water Council, Utah
Centrala Iowa Regional Association of
Local Governments Robert Deer
University of, Wisconsin
Victoria Greenfield
U.S. Environmental Protection Agency

Jeff Kell
Kentucky Office of Planning and Research

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