The mere reading of that provision would appear to establish, uncontestably, the rights of States to determine the use of waters within the States.

However, section 18 of the Boulder Canyon Act stated similar protection which the Supreme Court chose to ignore in Arizona v. California, 373 U.S. 546 (1963). Section 18 provides:

"Nothing herein shall be construed as interfering with such rights as the States now have either to the waters within their borders or to adopt such policies and enact such laws as they may deem necessary with respect to the appropriation, control, and use of waters within their borders *

Since the Act was passed to authorize the government to control navigable water for purposes of flood control, navigation, power generation and other uses, the court held that State's rights were subject to the Federal Government's right to regulate and develop the river. More specifically, the court stated:

"Section 18 merely preserves such rights as the States "now" have, that is, such rights as they had at the time the Act was passed. While the States were generally free to exercise some jurisdiction over these waters before the Act was passed, this right was subject to the Federal Government's right to regulate and develop the river."

S. 707 requires the Secretary to find, prior to certification, that the pipeline project is in the national interest. In addition he must consider the balance between the energy needs of the area to be benefited by the project and the water requirements and other impacts on the area from which the coal is to be transported.

Given the findings the Secretary is required to make prior to issuing the certification, the Supreme Court might be swayed by the magnitude of the benefits derived from the operation of a coal slurry pipeline versus the benefits in the protection of the water supplies of a small municipality or that of several ranchers. Recall the court's findings in Pike v. Bruce Church, mentioned earlier; "Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.". Certainly, Governor Herschler can find no comfort in that ruling and he is wise in concluding that no language can assure uncontested protection of his State's water rights.

Proponents of this legislation have charged that language in section 5(h)the Roncalio amendment-denies states their rights to determine water use and they urge its modification. That view is incorrect and it misses the point of the provision. The Secretary is required to find that the operation of a well field will not have adverse impacts on the hydrology of the area. A negative finding will, supposedly, prevent the Secretary from issuing a certification of public convenience and necessity. This, it is argued, usurps an important state function-the hydrologic study-and leaves the federal government in control of the ultimate use of state waters. However, the requirements of 5 (h) only restrict the Secretary to issuing certification only when a positive hydrologic finding is made. It does not prevent the state government from issuing a certification under the provisions of state statutes if it chooses to do so regardless of the federal government's finding.

In conclusion, the Center continues to hold the position that the proponents of this legislation have yet to establish a need for its adoption. Existing federal and state statutes appear to address their concerns about access to rights-of-way across federal, state and private lands. Guaranteed access cross railroad rightsof-way would assist in mapping more cost-effective slurry pipeline routes and this should be considered as an alternative to the sweeping powers granted pipeline interests in this bill. The heavy hand of the federal government, while not intended to usurp State water rights, will do just that if this legislation is adopted and the probable court cases which ensue, are decided in favor of National interests over local benefits.

What will be accomplished if this Congress adopts this bill, is the name of creating competition in the coal-hauling market, only to find that the long-term effect has been to weaken the financial stability of our most important transportation system. This is a time to prepare the Nation's railroads for the mammoth tasks ahead as fuel costs continue to escalate. They should be encouraged and given assistance to take on more of the freight traffic rather than

discouraging the necessary capital outlays by the creation of a competitor which has unfair advantages and privileges.

Senator BUMPERS. Thank you. I just want to make a couple of observations. First, regarding all the cases that have been cited in these hearings indicating that Congress cannot protect these water rights in legislation, and that somehow the Supreme Court is going to rule that once this water goes into interstate commerce, no matter how scrupulously detailed and definitive the legislation is to the State's right to the water, that somehow or other they lose that right—you cited the Boulder Canyon case that case deals with a navigable stream. The Constitution gives the Congress the right to deal with a navigable stream. If you were talking about the Big Horn River, which came up a moment ago, I can see how Congress would have that right, how the court would have a right to rule State legislation dealing with water rights in the Big Horn unconstitutional. I think there are very valid distinctions to be made in every case that has been cited here, and I personally don't believe there is any question but that Federal legislation could be defined to meet all of these objections. My concern for the Madison formulation may not be quite as great as my friend Senator Hansen's of course. I was for this bill like I was for the Panama Canal Treaty. I rejected the idea when it was first presented to me, and I was repelled by the idea of slurry pipelines because of this water problem. I think it should be done just in the most judicious and certain way that we can define, but I really don't think most of the cases that have been cited here indicate that somehow the States are going to lose control no matter how jealously they guard that right.

Mr. MCCORMICK. Senator, I look again at the pragmatics of the situation that the Supreme Court might be faced with if the State of Wyoming took an action to prevent them from receiving any additional water once the pipeline were constructed; 25 million tons of coal supplying the needs of an economy that might encompass 10 or 15 or 20 million people versus the needs of several dozen farmers, and the economics that that water could translate in that local economy, clearly the benefits of slurrying that coal outweigh the benefits to those ranchers and farmers, but Wyoming may take the action nonetheless, and our feeling is that the Supreme Court would be swayed by again the magnitude of the situation at the receiving end versus the situation at the supplying end.

Senator BUMPERS. That point is certainly well taken, John, and I understand that, but Senator Hansen was very successful during the strip mining legislation in jealously guarding and in protecting a few ranchers and miners, which it is estimated will cost the people of this country a ton of money but I hate to bring that up.

Senator HANSEN. Thank you, Mr. Chairman. John, I appreciate your statement, as I do that of the National Farmers Union. I agree with you when you reach the conclusion that existing State and State rights are not changed, there is not enough protection, but I would observe that as far as I know, and I am trying to be the devil's advocate here, there isn't any restriction on what the Congress of the United States might do in granting additional rights to the States that they do no have now, at least I am not aware of it, and I ask you if you might be, to put a specific provision granting States authority to forbid

the transport of water or conditioning the use of that water be written into a bill that would affort the protection; I think generally I share your concern, but I am just wondering if there might be language that could be written into a bill that would confer additional rights to a State which it may not now have, in your opinion, or do you have an opinion on that?

Mr. McCORMICK. I don't have an opinion on that. I would like to give that some consideration.

Senator HANSEN. We might submit that in writing and shape it up a little bit, and if you would like to respond, that would be fine. Mr. MULLINS. I would as well like to respond to that in a written form but as our counsel has said, and I asked him about language, if he thought language could be drafted that would achieve this goal, and he very seriously doubted it under both the commerce and contract clauses.

Senator HANSEN. I don't know at all then that it could be done, but I am just curious.

I have no further questions, Mr. Chairman.

Senator BUMPERS. Thank you both very much for coming this morning. This is the final hearing to be held on the slurry pipelines which hopefully may be considered for markup soon, either voted up or down by this committee.

Thank you all.

[Whereupon, at 12:28 p.m., the hearing was adjourned. 1

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

STATEMENT OF STEVEN R. REZNEK, DEPUTY ASSISTANT ADMINISTRATOR FOR ENERGY, MINERALS AND INDUSTRY, ENVIRONMENTAL PROTECTION AGENCY

Good morning, Mr. Chairman and members of the Subcommittee. I am Steven Reznek, Acting Deputy Assistant Administrator for Energy, Minerals and Industry in EPA.

The proposed legislation before this Subcommittee would facilitate the construction of coal slurry pipelines. I am pleased to provide you with EPA's views on the possible environmental impact of coal slurry transport.

We at the Environmental Protection Agency are well aware of the need for domestic energy production. We are committed to a policy which, while seeking increased domestic energy production, is consistent with the need for environmental protection.

The proposal before the Subcommittee for coal slurry pipelines may well provide us with another important alternative to convey coal from its source to the point of consumption. Every reasonable alternative should be explored.

We are optimistic that coal slurry pipelines can be built and operated in an environmentally acceptable manner. Coal slurry pipelines can have environmental advantages. By providing a means of conveying coal from the origin to a remote point of use, the mined area is spared the additional environmental problems attendant to mine mouth power generation. These problems of coal combustion include air pollution and a far greater degree of water consumption—a limiting factor in the West.

Two direct environmental concerns which can be posed by a coal slurry pipeline are its impact on water supply and on water quality. Water supply impacts can in turn have an effect on water quality. The use of surface water may deplete the volume of stream flow to the point that the dicharged pollutant load degrades water quality or the stream's ecological integrity is destroyed. The use of underground water, whether saline or potable, may affect the quality of potable water aquifers.

As presently designed, coal slurries will be approximately 50% water and 50% pulverized coal. They are, therefore, a water intensive means of transporting coal. The use of surface waters or the mining of ground waters for this purpose may have secondary and cumulative impacts well beyond the geographic area of the pipeline itself. Careful and scientific investigation is needed before commitment of scarce water resources to slurry pipelines should be made. Only 64% of the water in the slurry carrier is available for re-use.

Quantitative determination of the availability of water for large coal slurry pipelines requires extensive hydrologic investigation and the assessment of the recharge to the tapped ground water aquifer. Thus, the effects of withdrawing water must be assessed prior to construction of the pipeline. In the case of the proposed Wyoming to Arkansas pipeline, some investigations to define the available water in the aquifer system have been completed; others are continuing. These ground water studies include investigations to determine aquifer characteristics, measurements to define recharge rates and monitoring of the responses of the surface water system to ground water withdrawals.

While overall water consumption by a pipeline may not be great, on a local scale withdrawal of any significant amount of water can be serious. Any water use means lost opportunity for other uses, especially in the arid West. Proposals have

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