d : } 19 Environmental Protective Reculatory Activities. Section 5(d) of the CEQ guidelines indicates that certain activities of the Environmental Protection Agency do not constitute "actions" for purposes of Section 102. A number of agencies have been confused by the reference in this section to activities "concurred" in by EPA. That reference is not meant to permit agencies to avoid the 102 process merely because the views of the EPA have somehow been secured with respect to environmental aspects of proposed activities. Additional confusion has been created by recent . district court decisions, severely restricting the applicability of §5(d) with respect to regulatory activities taken_by agencies other than the EPA. a . See Kalur v...Resor, 3 ERC 1458 (D. _D.Cc. (1971); a o— = “=Bierva- Civbwv. Sarcent) © 3-ERC 19D5{WD=Wash.,.1972)= aT These cases -axe@-being. appealed.Ih.additionlegis-=* ~ lative proposalshave“been ‘intréduced seeking ° — = Congressional clarification of some cf the issues involved. In this respect, agencies should be aware of the testimony given by Chairman Train on March 22, 1972 before the Fisheries and Wildlife Conservation Subcommittee of the House Committee on Merchant Marine and fisheries: . - i. -_-— foe . mo - " eee ee “S205 t. ~ = - - nes -h Qe ~ae ~ = ; . ~ There has been some confusion about the Council's views on the Kalur decision and what clarification of NEPA's applicability to environmental protective regula- tory activity is necessary. In my opinion, the most narrow possible legislative action, addressed only to the water quality permit program, is desirable. With respect to EPA's other environmental protective regulatory activities we are asking EPA to study and: xevise its NEPA procedures to state specifi- cally what activities and authorities are included under Section 5(d) of our Guidelines and the rationale for such inclusion. 2 ee =m TT ~ we 2