I do not know whether that was worth pointing out or not, but I don't think there is any doubt about it that the new administration is not going to construe the law in derogation of its own powers. I have been a bureaucrat in my time in the State and no bureaucrat ever does that; he is always looking for more power, and I think they will have a good argument here very likely.

Mr. CRAMER. The President made such recommendation in his message to Congress on the water pollution question, that this standardsetting power should be included for navigable as well as interstate streams. That is clearly what the policy of the administration will be. Secretary Udall testified to that effect as well.

Mr. MOORE. It was in view of Mr. Harsha's statement this morning that I pointed this out, for whatever it is worth.

Mr. CRAMER. I think it is very helpful.

Mr. MOORE. My immediate problem is the Chicago diversion situation. The power authority for which I work is to a large extent a creature of this committee. Under the leadership of Chairman Blatnik, the Congress in 1957 passed a Niagara Redevelopment Act which authorized the State and Power Authority of the State of New Yorkup in the territory of Mr. McCarthy; they had already been in Congressman McEwen's territory-to build the Niagara power project.

The statute as put out by this committee specifically directed the power authority to build a plant big enough to use all the water of the Niagara River available to the United States by international agreement. We built such a plant, pursuant to that statute, which in turn was pursuant to the 1950 treaty between the United States and Canada.

Now we also have the St. Lawrence power project in the St. Lawrence River, which was authorized pursuant to the agreement between the two countries by exchanges of notes, and also pursuant to the 1909 treaty between the United States and Great Britain which set up the International Joint Commission, about which Congressman McEwen spoke this morning. So we have those two projects.

We have no tax power, we have no State credit, we have no Federal credit. We borrowed $1.1 billion from prudent private investors with which to build the two projects. We still owe most of that money. The only source of income from which we can pay the money back is the money we get from the production of electricity from the falling water and selling the power. That amounts to a lot. We have to take in, with operation and maintenance, something like $85 million or $87 million a year.

Every cubic foot of water which is taken out of Lake Michigan at Chicago and dumped down into the Mississippi is a cubic foot of water which does not go through our powerplant in Niagara Falls or the powerplant at St. Lawrence. It is true we were in partnership with the Canadians at St. Lawrence, and the Canadians have a plant of their own at Niagara, but the Canadian officials have made it clear if there is any further diversion of water out of the Great Lakes, they are going to claim the power authority is going to have to stand the whole brunt of it, and Canada is not going to share in the loss. In the 1920's Chicago was taking about 10,000 cubic feet of water out of Lake Michigan for sanitary purposes, and the other States bordering the Great Lakes, except for Indiana, sued, and finally in

1930 the Supreme Court of the United States held, on recommendation of Charles Evans, who was the special master-this is an original action in the U.S. Supreme Court, one State suing another-that Chicago's diversion of the water was illegal, but for practical purposes they could not block it off completely, so the Supreme Court held Chicago might continue to divert 1,500 cubic feet per second, plus what it needed for domestic purposes.

Now Chicago diverts about 3,300 cubic feet. It wants to divert more. The other Great Lakes want it to divert less, so we are back in court again, and we have been since 1958.

The old 1930 decree was reopened, the U.S. Supreme Court appointed a special master, he held hearings for 4 years; he is now working on his findings of fact and conclusions of law.

Just to give you an idea of what it means to the power authority, every thousand cubic feet of water means almost a million dollars$900,000-odd at Niagara and a quarter of a million at St. Lawrence. So it is a terrific amount of money as far as the power authority and its stockholders and customers are concerned.

In the litigation the other Great Lakes States, other than Illinois, claim Chicago should take out less water than it is taking out now; it should build new equipment, and it should return the effluent from part of the water it takes for domestic purposes back into Lake Michigan, and that it could do so without harm. Chicago of course claims it should be allowed to take more water.

As a matter of fact, there is a second lawsuit now pending in addition to the reopening of the old one.

Here is where the standard provisions in the procedure and by which standards are set comes into play. The opposing States pretty well agree on what the standards should be, what standards should be for that water. The United States intervened in the case and the U.S. Health Department has produced testimony in the case. The U.S. Health Department's testimony is based on Health Department recommendations that the dissolved oxygen content of the Chicago Canal should be presently at least three parts per million and ultimately five parts per million. Now, five parts per million is a trout stream. That is what is required for a trout stream. This is what the New York State Health Department and Conservation Department specifies. That is what the Health Department says the quality should be of the water in the Chicago drainage canal.

Even if it is as high as 3 million, none of the effluent could be put back in. If it went up to 5 million, what would happen would be for Chicago to build enough facilities to establish that situation-heaven only knows how much it would cost; it would be an astronomical program-but the easy way is of course, "Oh, let's take some more water out of Lake Michigan, and so that is where we come in."

In order to set that standard up where the Health Department in this litigation says it ought to be undoubtedly, application would be made to take a lot more water out of Lake Michigan. It would not go over the falls; it would not go over in the St. Lawrence; any water taken out of Lake Michigan is lost.

Here is the situation where we litigate a tremendous expanse for years, and at issue in the litigation is this very question: What is the standard for this body of water? The Health Department is a pro

tagonist in the litigation. It is a party in the litigation. The judge who makes the decision in this case is going to recommend to the Supreme Court.

If the bill were passed, section 5 of S. 4, in the form in which it now is, the Health Department, the new Administrator, the new czar, who is a part of the Health Department, would just set the standard, and he would have to consult it is true he would have to call up the Secretary of the Interior and say "What do you think?" He would have to talk to some of the States, say, "What do you think?" He would have to have some kind of pro forma public hearing, but that is all he would have to do. He would not have to take anybody's advice.

I repeat this is not one of the things Governor Rockefeller addressed himself to this morning. He could do it unilaterally on his own, and once that standard were established there is no appeal from that.

I have listened to the Congressman from Louisiana talk about appeals, court review. Court reviews of Federal findings of fact, as we all know, are pretty ineffective anyway. The argument is always made by the Government, "Oh, the Court can't look at this as long as there is some evidence." That is it. I go through that all the time with the Power Commission. I just finished one, "Oh, no, you can't look at that. This has been decided."

As long as there is some evidence, we are finished, but here there is no court review at all as far as the standards are concerned,

Mr. CRAMER. Mr. Chairman, on that particular point I think we are bringing out a very salient and important point. Even if you try to provide for administrative procedure of the type you need, still the burden of proof rests on the nongovernmental Federal agency or individual or business, and the only chance he has is if he can prove the discussion exercised was not reasonable, and it does not permit a trial de novo of the actual facts of the case.

Is that not correct?

Mr. MOORE. That is correct. That is as arbitrary and capricious as sometimes when a Government agency gets so far off the beam that it shocks the conscience of the Court, the Court goes around looking for some procedural basis on which to overrule it, but as far as facts are concerned, you are licked; you don't have a chance when you walk in. That is true not only in the Federal Government but in the State procedures usually, but there is nothing here.

Incidentally, they have an advisory board on the standards, but that does not have any power.

Of course, I do not frankly understand the bill on enforcement. It is a hodgepodge of the old and the new, and gentlemen, very respectfully I say it should be clarified. Whatever is meant should be written down very clearly. I spent 2 hours arguing with a couple of very learned people about this, and the two learned people did not agree between themselves, but the point is, this is a situation where we are really going to be at the mercy of a litigant. What happens when this litigation goes on and we have spent all the money?

The other States, remember-Minnesota, Michigan, Wisconsin, Ohio, Pennsylvania, who are involved in this litigation-Illinois also has interests other than the interest I represent, particularly the power

authority. They are interested in navigation, they are interested in recreation, and here we are now, we have the lowest water in the Great Lakes in the 104 years in which records have been kept. We are just about at the lowest, and it is really a pretty sorry situation right now. Congressman McEwen will tell you about this up in his country. But in any event on the standards it seems to me one man gets too much power, and I think that you ought to take a good hard look at it. As far as enforcement is concerned, I frankly say I do not understand that.

There is another thing to which I would like to call attention, and that is

Mr. CRAMER. Mr. Moore, before you leave that point, I understand you brought out a question which has not been previously testified to before this committee. I do not recall it being testified at last year's hearings. That is, what effect will the setting of these standards have on pending litigation?

As I understand it, as the present time, this case started way back in 1930; it is now as a result of these hearings, according to your testimony on page 8, which extended from October 1959 to July 1953, that the judge is now considering his facts and conclusions of law to be rendered. Therefore, it is still in litigation?

Mr. MOORE. That is right.

Mr. CRAMER. There is no provision in the proposed setting of standards for that type of situation, is there, where it is presently in litigation?

Mr. MOORE. No, I am sure the argument will be made by the Government, at least I do not know about Illinois-that the Congress has now taken over the decision on standards, has delegated it to the Administrator, in the Department of Health, Education, and Welfare, who will establish standards; and presumably it is going to establish the standards; which it testified are the appropriate ones. Certainly they are not going to set any other standards after there having been reams and reams and reams of testimony on the subject. Then I think the judge is going to be bound by it.

Mr. CRAMER. The effect of that would lead to indefinitely delaying a final determination further, delaying further final determination in this matter, finally coming to a head between the litigated parties? Mr. MOORE. I do not know whether it would or not. See, the judge has to make a report to the Supreme Court and the Supreme Court is going to say Chicago can take more water out or less, or status quo. The next step, you are going to have these new standards, certainly they are not going to say, "Take out less water." So they kill us right off there, as far as a good part of our case is concerned. And this is by one man making a decision.

Mr. CRAMER. Let's assume that the Court had made its final determination. There is no provision in this proposed bill taking cognizance of court-determined decisions relating to standards is there? Mr. MOORE. No, sir. That is one of the things I respectfully wanted to bring to your attention.

Mr. MCCARTHY. Will the gentleman yield?

Mr. CRAMER. Yes.

Mr. McCARTHY. Mr. Moore, you alluded to the lowest water in many years. Now, do I understand correctly you are ascribing this solely to the diversion in Chicago?

Mr. MOORE. No; I am not doing that. But I am trying to point out the fact we are hurting. The water is low. It makes all the more important that more water not be taken out at Chicago.

Mr. MCCARTHY. It is not true that the causes for the low water have not yet been determined and the International Joint Commission now is conducting a study? Dry seasons have also been ascribed for the low level of water and nobody really knows precisely the cause of the low water?

Mr. MOORE. Oh, sure, we know what is wrong with the low water. It did not rain, did not snow. It is as simple as that.

Mr. MCCARTHY. Why are they conducting this study?

Mr. MOORE. Somebody always studies. People are always studying. Study, study, study.

I do not know, it is a good idea. We are helping. We are doing all we can to help them.

Mr. BLATNIK. Mr. Moore, I do not mean to interrupt, but time is running out.

We are familiar with the controversy respecting water diversion in Chicago. We have had three hearings before this committee. We understand your concern here about the standards being set fairly high. You fear it is necessary to divert more water, which would entail an economic loss to your powerplants.

Anything further?

Mr. MOORE. Yes, I do want to say, as far as enforcement is concerned, the remedy in court is a very inadequate one there, too, because suppose somebody suggested that another 5,000 cubic feet be taken out, for instance; what can the court decide?

All the practicality of it, the court may very well-it is bound by the only evidence it will have before it, what is presented by that hearing board. And they say it is practical. There you are. You may be back into another finding of fact.

I do want to point out one thing, sir-I am sorry if I took too much time-this_bill involves coastal waters, international waters. Congressman McEwen pointed out this morning the 1909 treaty with Great Britain has specific agreements in it giving jurisdiction over pollution in Great Britain and St. Lawrence and Niagara Rivers. And the 1889 treaty with Mexico, as amended in 1944, gives similar authority over pollution to an agency established under that treaty. Now, there is nothing in the proposed legislation which would tell the man who set the standards to consult the Secretary of State or any internationally concerned organization, even, in the Federal Government.

Mr. BLATNIK. Any questions?

Thank you very much, Mr. Moore.

(The statement of Thomas F. Moore, Jr. follows.)

STATEMENT OF THOMAS F. MOORE, JR., GENERAL COUNSEL OF POWER
AUTHORITY OF THE STATE OF NEW YORK

We are wholeheartedly in favor of the efforts of the President and our own Governor to eliminate water pollution. We are also in favor of the enactment of legislation to provide assistance to States and localities which are seeking to combat water pollution and to provide effective controls in areas where they do not now exist.

However, bills pending before your committee which are intended to accomplish these praiseworthy objectives by amending the Federal Water Pollution