visions of the Fish and Wildlife Coordination Act and of the Federal Power Act are working well to protect our fish and wildlife resources in the context of multi-purpose river development. Existing law enables the Commission to work with other agencies to strengthen procedures for conservation of these resources, as witness our new rulemaking proposal. The proposed amendment could adversely affect the orderly and expeditious processing and disposition of applications for projects contributing to comprehensive development of the nation's water power resources under the broad and flexible multiple-purpose public benefits standard of the Federal Power Act. Moreover, adoption of the amendment is unnecessary, since the conservation interests entrusted to the state and federal agencies concerned with the protection and enhancement of fishery resources are adequately and effectively safeguarded by existing statutory provisions and administrative policies and procedures for the consideration and determination of licensing matters under the Power Act. Further, we recommend that section 3 of the bill be amended to make it clear that responsibility for prescribing and administering any license conditions to control or abate thermal pollution at projects licensed by the Federal Power Commission shall continue to be vested in this Commission. LEE C. WHITE, Chairman.

APPENDIX A

A. The Commission demonstrated its concern for the preservation of fish resources in a licensing action affecting the Salmon River and involving conflict ing license applications for the so-called High Mountain Sheep and Nez Perce hydroelectric power projects in Idaho. In that proceeding the Commission's action which was recently upheld on appeal denied a license for the Nez Perce project (Project No. 2273) while granting a license for the High Mountain Sheep project (Project No. 2243). One of the controlling factors in the Commission's selection of the High Mountain Sheep site over the Nez Perce site for power development was its conclusion that in the present state of the art it is not possible to build facilities for passage of fish over a high dam and through a reservoir, such as Nez Perce, with any assurance that they will be effective. The Commission concluded that construction of the Nez Perce Dam, with its reservoir extending 63 miles up the Salmon River, would adversely affect fish runs on that stream which is a principal spawning area of Columbia River salmon, as contrasted to the proposed High Mountain Sheep development on the upper Snake River, which would affect only the fish runs on the Snake River which are already impaired.

B. As a result of Commission action, changes have been made in two of the three fish ladders at the Rock Island Dam site (Project No. 943) on the Columbia River in Washington, to avoid the adverse effects on fish runs that would otherwise result from the construction downstream of the Wanapum Dam (Project No. 2114). The Commission also directed the licensees of both projects, in cooperation with representatives of the Department of Interior and the Washington State Department of Fisheries and Game, to develop a program for the study and evaluation of the further effects on fish passage at Rock Island Dam that may result from raising the water level downstream from that dam by construction and operation of the Wanapum Project. At the Priest RapidsWanapum Dam developments of Project No. 2114, the licensee was required to provide up to a total of $182,000 for studies of the extent and character of the fish and wildlife resources of the project area and to devise means and measures for mitigating losses to those resources.

C. The Commission with judicial sanction has directed a licensee to construct and bear a substantial part of the cost of operating and maintaining fish hatchery and rearing facilities at the Iron Gate Development on the Klamath River in California (Project No. 2082), as requested by the State of California Department of Fish and Game, in order to compensate for spawning areas rendered inaccessible by construction of the dam.

D. In a recent decision involving the Turlock and Modesto Irrigation Districts, California (Project No. 2299), the Commission included a license condition sought by the State of California and the Secretary of the Interior, requiring the maintenance of water releases necessary to sustain a specified minimum run of salmon in the Tuolumne River. In addition, the Commission required the applicant to cooperate in the submission of plans for undertaking continuing studies of the fish problem. The Commission's action in this matter was sustained by the courts.

E. In another recent opinion the Commission denied a license to Public Utility District No. 1 of Skamania County, Washington (Project No. 2199). An important reason for the Commission's denial of the application in that case was its findings that construction and operation of the proposed project would endanger two fish hatcheries on the Little White Salmon River and adversely affect cooperative programs of the U.S. Fish and Wildlife Service and the States of Idaho, Oregon, and Washington in rehabilitating salmon and steelhead fishery resources of the Columbia River System.

F. In three Columbia Basin projects, Project Nos. 1971, 2145, 2030, upon recommendations of the Secretary of the Interior and the state fishery agencies, the Commission has ordered the construction of experimental facilities for anadromous fish passage and propagation in order to help protect and preserve the runs of fish. Since some of the facilities are experimental, evaluation studies have also been provided to determine if the facilities are giving the protection for which they were designed.

G. The cooperative study on the Susquehanna River to determine the feasibility of rehabilitating runs of shad in that river basin above four existing dams, should be noted. These studies, now in their third year, are being jointly financed by the licensees of the four dams, FPC Project Nos. 405, 2268, 1024, and 1888, at a total estimated cost of $196,500. The United States Fish and Wildlife Service and the state fishery agencies of Pennsylvania, New York and Maryland are conducting the studies. The Commission is being kept advised of the progress of this work.

APPENDIX B

UNITED STATES OF AMERICA, FEDERAL POWER COMMISSION

Before Commissioners Lee C. White, Chairman; L. J. O'Connor, Jr.; Charles R. Ross; David S. Black; and Carl E. Bagge

Hydroelectric License Applications-Exhibit Relating to Protection and Enhancement of Fish and Wildlife Resources, Docket No. R-303

NOTICE OF PROPOSED RULEMAKING (18 CFR, 4.41) (APRIL 19, 1966)

1. Notice is given pursuant to Section 4 of the Administrative Procedure Act that the Commission is proposing to amend Part 4, Regulations under the Federal Power Act (18 CFR 4.41) to provide that an exhibit setting forth matters related to the conservation of fish and wildlife resources affected by the project be filed as part of license applications for proposed projects of more than 2,000 horsepower installed capacity.

It is not presently contemplated that such an exhibit will be required with respect to applications for constructed projects, except with respect to applications for licenses under section 15 of the Federal Power Act.

2. The proposed exhibit would be of assistance in expediting the processing of applications by identifying potential problems with respect to fish and wildlife resources and suggesting possible solutions thereto, upon the filing of an application. The requirement for the proposed exhibit is intended to encourage applicants' early consultation with Federal and State Fish and Wildlife agencies in planning for the conservation and enhancement of fish and wildlife resources affected by a project. It would also facilitate the Commission's compliance with the requirements of the Fish and Wildlife Coordination Act (P. L. 85-624, 48 Stat. 401) for consultation with the U.S. Fish and Wildlife Service, Department of the Interior and appropriate state fish and wildlife agencies on the conservation of fish and wildlife resources affected by a project.

3. This amendment is proposed to be issued under the authority granted to the Federal Power Commission by the Federal Power Act, as amended, particularly sections 4(e), 9, 10(a), 10(i), and 309 thereof (16 U.S.C. 797 (e), 802, 803, 825 (h)).

4. Accordingly, it is proposed to amend Part 4, Subchapter B, Chapter I, Title 18 of the Code of Federal Regulations,

(1) by adding Exhibit S, to follow § 4.41 Exhibit R reading as follows: § 4.41 Required Exhibits.

Exhibit S. A report on the effect, if any, of the project upon the fish and wildlife resources in the project area and proposals for measures considered necessary to conserve and, if possible, to enhance fish and wildlife resources affected by the

project, including functional design drawings of any fish ladders proposed to be constructed in compliance with section 18 of the Federal Power Act and such other facilities or developments as may be necessary for the protection, conservation, improvement, and mitigation of losses of fish and wildlife resources. The Applicant shall prepare this exhibit on the basis of studies made after consultation and in cooperation with the United States Fish and Wildlife Service. Department of the Interior, and appropriate state fish and wildlife agencies and shall include therein a statement on the nature and extent of its consultation and cooperation with those agencies.

(2) by modifying § 4.50 to include an exception to the requirement for an Exhibit S with respect to applications for certain constructed projects: $4.50 Contents.

*

Exhibit S. This exhibit shall not be required for license applications on constructed projects, except with respect to applications for licenses under Section 15 of the Federal Power Act.

5. Any person may submit to the Federal Power Commission, Washington. D.C. 20426, not later than May 19, 1966, data, views, comments and suggestions in writing concerning the proposed revision in the regulations under the Federal Power Act. An original and nine conformed copies of any such submittals should be filed. The Commission will consider any such written submittals before acting on the proposed regulations.

By direction of the Commission.

JOSEPH H. GUTRIDE, Secretary.

DEPARTMENT OF THE INTERIOR,

Hon. EDWARD A. GARMATZ,

OFFICE OF THE SECRETARY, Washington, D.C., May 10, 1966.

Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C.

DEAR MR. GARMATZ: Your Committee has requested the views and recommendations of this Department on H.R. 9492, a bill "To amend the Fish and Wildlife Coordination Act to provide adequate notice and opportunity for the Secretary of the Interior and State fish and wildlife agencies to conduct studies in the effects of projects licensed by Federal agencies on fish and wildlife resources, and for other purposes."

Section 1 of the bill amends the Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661-666c). It provides that, after July 1, 1967, Federal agencies, such as the Federal Power Commission and the Atomic Energy Commission, cannot issue a license or permit for a construction project which affects a stream or other body of water until adequate studies are made by this Department, in cooperation with the States, on the potential effects of the project on fish and wildlife, and until the Secretary of the Interior makes appropriate recommendations. The prohibition applies to all projects affecting these waters for which a Federal license is required, unless the Secretary determines that such studies are unnecessary. There is no time limit during which the studies must be completed and recommendations made. The bill authorizes the Secretary to use monies made available by project applicants to finance these studies.

Section 2 of the Fish and Wildlife Coordination Act, as amended, now requires public or private agencies seeking Federal permits or licenses to construct facilities to consult with this Department and the affected State fish and game agency when such facilities are designed to, among other things, impound, divert, or otherwise control or modify streams or other bodies of water. The purpose of this consultation is to enable the Secretary and the States to make comments on the effects of the proposed facility on the fish and wildlife resources and to provide an opportunity for making recommendations for the purposes of conserving and enhancing this resources This section also applies to similar projects to be constructed by a Federal agency.

A major problem with which this Department is faced in these cases is the lack of adequate studies upon which to make meaningful recommendations. This problem is most prevalent in the case of projects constructed under Federal license.

It should be emphasized, however, that this problem of inadequacy of time to conduct studies, to analyze potential project effects, and to advise corrective and enhancement measures is inherent in only a few hard-core cases for which a Federal permit or license has been applied for. A large proportion of projects before the various regulatory agencies, such as the Federal Power Commission and the Atomic Energy Commission, do not pose a serious threat to fish and wildlife. Some of the new projects before the FPC are for preliminary permits which usually allow ample time for study and planning.

Most of the difficult cases have involved FPC license applications for construction of a new project which has not gone through the preliminary permit stage. Generally, the prevailing rules of practice of the Federal Power Commission do not allow time for any but reconnaissance, field, and office studies of the potential impact of the project on fish and wildlife. In many cases, the basic planning of the applicant has been nearly completed prior to application. In such cases, the applicant is ready and anxious to go to construction without delay. In some few cases procedures have been worked out which allow construction to proceed concurrently with the biological and engineering studies needed to conserve and develop fish and wildlife. There are, however, other cases where a thorough ecological and biological study is needed. Such a study generally cannot be undertaken within the 90-day or 180-day period that the FPC normally allots for review of project plans. In some cases, the studies may take as much as two to three years.

In the case of FPC license applications, adequate authority now exists to work out an administrative solution and to establish satisfactory procedures which will minimize, if not eliminate, the problem of inadequate notice and time for studies. In fact, after recent discussions with the staff of the Federal Power Commission, the Commission agreed to adopt regulations requiring an applicant to submit a "Fish and Wildlife Exhibit" with his application. On April 19, 1966, the Federal Power Commission published a "Notice of Proposed Rulemaking" which provides that "an exhibit setting forth matters related to the conservation of fish and wildlife resources affected by the project be filed as part of license applications for proposed projects of more than 2,000 horsepower installed capacity."

A copy of that notice is enclosed.

We prefer this administrative solution to the problem.

In the case of the Atomic Energy Commission, the Commission is authorized by the Atomic Energy Act of 1954, as amended, to issue permits for construction of some facilities, principally nuclear reactors, which affect streams and other bodies of waters. Some of these facilities utilize these waters for cooling purposes. In many cases, facilities of this type may harmfully affect our streams and the fisheries therein through diversion and discharge of cooling water. Modern plants of this type use large volumes of water and raise the temperature of the receiving waters significantly. Of course, much higher temperatures occur in the cooling system of a plant, and in certain situations where no screens or, in some cases, ineffective screens have been installed, large numbers of fish can be killed by being drawn into the plant. Similar plants located on the ocean can also cause losses of marine fish.

Recently, the Atomic Energy Commission advised us that they lack authority to impose conditions in licenses relating to thermal and other nonradiological effects on fish and wildlife. The Commission said:

"The AEC now has comprehensive statutory authority to control the radiological hazards attributable to the activities of its licensees. As you know, for the past three years the AEC, in discharging its functions under the Atomic Energy Act, has sought and obtained the recommendations of the Fish and Wildlife Service with respect to the potential radiological hazards to fish and wildlife that might emanate from facilities proposed for licensing and has assured that its licensees follow such recommendations. However, the statutory scheme established by Congress provides no authority for the AEC to impose conditions in its licenses relating to thermal and other non-radiological effects (on the marine environment) attributable to effluents from a licensed facility. We have not thus far seen any justification which would warrant the enactment of legislation expanding the AEC's regulatory authority to encompass the nonradiological effects of plant operation. The AEC has no special competence in such non-radiological matters, which have traditionally been left to the States and other Federal agencies."

Authority is needed to impose on AEC licensees conditions which will protect adequately fish and fishery resources. A similar problem of thermal pollution may occur from non-nuclear facilities, such as fossil fuel facilities, which divert water for cooling purposes and which are not now under Federal license. H.R. 10701, which is now pending before the Committee on Interstate and Foreign Commerce of the House of Representatives, will provide authority for the Federal Power Commission to license water diversion facilities, including nuclear and non-nuclear facilities, using waters from navigable streams for cooling purposes. These licenses would be subject to the provisions of the Fish and Wildlife Coordination Act and could be conditioned to protect fish and wildlife. This Department strongly urges the enactment of H.R. 10701 with certain clarifying amendments which we will submit in our report on that bill to the Interstate and Foreign Commerce Committee.

Section 2 of the bill authorizes this Department to carry out an accelerated and comprehensive study of the effects of thermal pollution on fish and wildlife resources of the Nation. We are recommending a clarifying amendment to section 5 of the Fish and Wildlife Coordination Act for this purpose in our report on H.R. 14455.

Section 3 of the bill authorizes the Secretary to initiate action to abate thermal pollution which he determines is detrimental to fish and wildlife and recreation. He is directed to make findings and to send his findings to the person or persons causing the pollution together with a notice of at least six months to secure abatement of the pollution. If the abatement action is not taken voluntarily by the pollutor, the Secretary is directed to notify the Secretary of Health, Education, and Welfare, who will take whatever action he believes necessary to abate the pollution.

We agree with the objectives of this section. We believe, however, that, at the very least, an amendment would be needed to authorize the Secretary of the Interior to take into account other legitimate uses of the waters. It is conceivable that the public interest may be better served by the continuing operation of a facility even though it may adversely affect one resource. In some cases, a modification of the facility may even reduce the adverse effects on fish and wildlife. The Secretary should be able to take into account all factors in determining whether or not abatement proceedings should be initiated. Also, it should be noted that under Reorganization Plan No. 2 of 1966, the Secretary now has the responsibility of carrying out the enforcement provisions of the Federal Water Pollution Control Act, as amended.

The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program. Sincerely yours.

STANLEY A. CAIN,

Assistant Secretary of the Interior.

UNITED STATES OF AMERICA, FEDERAL POWER COMMISSION

Before Commissioners Lee C. White, Chairman; L. J. O'Connor, Jr.; Charles R. Ross; David S. Black; and Carl E. Bagge

Hyroelectric License Applications-Exhibit Relating to Protection and Enhancement of Fish and Wildlife Resources, Docket No. R-303

(18 CFR, 4.41) (APRIL 19, 1966)

1. Notice is given pursuant to Section 4 of the Administrative Procedure Act that the Commission is proposing to amend Part 4. Regulations under the Federal Power Act (18 CFR 4.41) to provide that an exhibit setting forth matters related to the conservation of fish and wildlife resources affected by the project be filed as part of license applications for proposed projects of more than 2,000 horsepower installed capacity.

It is not presently contemplated that such an exhibit will be required with respect to applications for constructed projects, except with respect to applications for licenses under section 15 of the Federal Power Act.

2. The proposed exhibit would be of assistance in expediting the processing of applications by identifying potential problems with respect to fish and wildlife resources and suggesting possible solutions thereto, upon the filing of an applica