MISCELLANEOUS FISHERIES LEGISLATION FISH AND WILDLIFE COORDINATION ACT WEDNESDAY, MAY 11, 1966 HOUSE OF REPRESENTATIVES, COMMITTEE ON MERCHANT MARINE AND FISHERIES, Washington, D.C. The subcommittee met at 10:10 a.m., pursuant to call, in room 1334 Longworth House Office Building, Hon. John D. Dingell (chairman of the subcommittee) presiding. Mr. DINGELL. The subcommittee will come to order. This morning the Subcommittee on Fisheries and Wildlife Conservation will receive testimony on a series of bills designed to afford more protection to fish and wildlife resources by amending the Fish and Wildlife Coordination Act. Under present law, sufficient time has not been allowed in the past for the Department of the Interior and State agencies concerned to adequately study proposed water-resources projects before making proper recommendations for safeguards to our Nation's wildlife and fish resources prior to issuance of a permit for construction. The Chair would point out that there were rather extensive commentaries received by this committee during the last session of Congress regarding a series of projects in New York State on the Hudson River, both with regard to atomic energy licenses and also potential licenses by the Federal Power Commission, which resulted in the chairman of the subcommittee and other Members of Congress introducing legislation on this point. With all segments of industry turning more and more to nuclear reactors for energy, and in view of the grossly inadequate protection now being afforded fish and wildlife resources, it is obvious that unless remedial action is soon taken by the Congress, it will only be a matter of time before these valuable resources will be a thing of the past. One of the bills to be heard this morning is H.R. 9492. Among other things, this bill will give more protection to fish and wildlife resources by authorizing the Secretary of the Interior and the States to conduct studies and make recommendations to the proper Federal agency prior to the issuance of a permit or license for construction under a water-resource project. H.R. 14414, by Mr. Reuss, and H.R. 14455, by the chairman, will afford additional protection to these resources by making the Atomic Energy Commission, the Federal Power Commission, and the Tennessee Valley Authority, as well as the permittees and licensees of such Commission, subject to the provisions of the Fish and Wildlife Coordination Act. Since all of the bills to be heard this morning are concerned with the Fish and Wildlife Coordination Act, the subcommittee will consider them as a group. The Chair is hopeful that the testimony to be received this morning will be most helpful when the committee considers these bills at a later date. Before calling the first witness, I would like for the record to show that as of last night at 6 p.m., out of six departments asked to report on the bills to be heard this morning, only one had responded. And, Mr. Counsel, I think it would be well that an appropriate letter be drafted by the staff over the signature of the chairman to the appropriate agencies requesting official statements from those agencies as to why response has not been more punctually received by the committee. Members of this committee cannot properly prepare themselves for hearings on legislation such as we are considering today unless departmental reports are timely filed. I want the record to further show that this subcommittee was faced with this same dilemma last Tuesday morning, May 3, when departmental reports on legislation being heard at that time were not received until the same morning. Gentlemen, this is very displeasing and, as chairman of this subcommittee, I think it is incumbent upon me to try to solve this problem. I will not impose upon the committee any more at this time but I do intend to have a thorough look into this matter at a later date. I want those being heard this morning to discuss why reports were not more punctually received by the subcommittee. Let the bills and the reports received appear in the record at this time. Those reports that were not received I hope will be received, so that the position of the departments may be shown. (The bills and reports follow:) [H.R. 9492, H.R. 15001, 89th Cong., 1st sess.] BILLS 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 on the effects of projects licensed by Federal agencies on fish and wildlife resources, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 2(a) of the Fish and Wildlife Coordination Act (72 Stat. 564; 16 U.S.C. 662 (a)) is amended by adding at the end thereof the following: "After July 1, 1967, no Federal permit or license shall be issued by any department or agency of the United States for the construction of any facility that impounds, diverts, controls, or otherwise modifies such waters until adequate biological and ecological studies on the effects of the proposed construction of the fish and wildlife resources are conducted by the Secretary of the Interior in cooperation with the State wherein the project will be located, unless he determines that such studies are not needed, and until the Secretary makes recommendations to such department or agency of the United States. based on such studies, as provided in subsection (b) of this section. In carrying out such studies, the Secretary is authorized to accept and use funds made available by the applicant for a Federal license or permit to cover all reasonable costs of such studies, in addition to appropriated funds made available under this Act." SEC. 2. There is authorized to be appropriated $500,000 to carry out, pursuant to the provisions of section 5 of the Fish and Wildlife Coordination Act (72 Stat. 563; 16 U.S.C. 665) an accelerated and comprehensive nationwide study of the effects of thermal pollution of water from power plants and other facilities on fish and wildlife resources of the Nation. SEC. 3. (a) Whenever the Secretary of the Interior determines, based on reports, studies, or investigations conducted by him pursuant to the Fish and Wildlife Coordination Act, that the operation of any facility located on or near interstate or navigable waters pollutes these waters by raising the temperature of such waters to a degree that is detrimental to fish and wildlife resources and recreation, he shall send his findings to the person or persons causing such pollution, together with a notice specifying a reasonable time (not less than six months) to secure abatement of such pollution. If action reasonably calculated to secure abatement is not taken, he shall notify the Secretary of Health. Education, and Welfare who shall take such action, pursuant to the Federal Water Pollution Control Act, as he deems necessary to secure the abatement of such pollution. (b) As used in this section, the term "person" means an individual, corporation, association, or a partnership. Hon. EDWARD A. GARMATZ, DEPARTMENT OF AGRICULTURE, Acting Chairman, Committee on Merchant Marine and Fisheries, House of Representatives. DEAR MR. CHAIRMAN: This is in response to the request of July 16, 1965, for a report 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 on the effects of projects licensed by Federal agencies on fish and wildlife resources, and for other purposes." We would have no objection to the enactment of H.R. 9492. Section 1 of H.R. 9492 would amend subsection 2(a) of the Fish and Wildlife Coordination Act by establishing certain conditions for the issuance of a Federal permit or license for the construction of any facility that impounds, diverts. controls, or otherwise modifies the waters of any stream or other body of water. After July 1, 1967, no such permit or license could be issued until the Secretary of the Interior, if he determines that studies are necessary, (1) conducts adequate biological and ecological studies, in cooperation with the State wherein the project will be located, on the effects of the proposed construction on fish and wildlife resources; and (2) makes recommendations to the permitting or licensing department or agency as provided in subsection 2(b) of the Fish and Wildlife Coordination Act. To cover the cost of such studies, the Secretary of the Interior would be authorized to accept and use funds made available by the applicant for a Federal license or permit in addition to using appropriated funds available under the Fish and Wildlife Coordination Act. Section 2 of the bill would authorize an appropriation of $500,000 to carry out an accelerated and comprehensive nationwide study of the effects on fish and wildlife of thermal pollution of water from power plants and other facilities. The study would be conducted pursuant to section 5 of the Fish and Wildlife Coordination Act. Section 3 of the bill would authorize the Secretary of the Interior, when he determines that the operation of any facility pollutes interstate or navigable waters by raising the temperature of such waters to a degree that is detrimental to fish and wildlife resources and recreation, to send his findings to the persons causing such pollution, together with a notice specifying a reasonable time to secure abatement of such pollution. The Secretary's determination would be based on reports, studies, or investigations conducted pursuant to the Fish and Wildlife Coordination Act. If reasonable abatement action is not taken, the Secretary of the Interior would notify the Secretary of Health, Education, and Welfare, who would take such action he deems necessary under the Federal Water Pollution Control Act. Subsection 2(a) of the Fish and Wildlife Coordination Act (48 Stat. 401, as amended, 16 U.S.C. 661-666c), applies to any impoundment, diversion, channel deepening or other control or modification of any stream or other body of water by a Federal department or agency, or by any public or private agency under Federal permit or license. It presently requires those Departments or agencies, prior to construction of a project, to consult with the Fish and Wildlife Service and with the head of the agency administering the wildlife resources of the State where the project is to be constructed, with a view to conservation, development, and improvement of the wildlife resources involved. Section 1 of H.R. 9492 would add to the requirement of subsection 2(a). The bill would provide that after July 1, 1967, no Federal permit or license for water control or modification projects could be issued until the Secretary of the Interior conducted the biological and ecological studies on the effects of the project on fish and wildlife which he determined to be necessary. Subsection 2(h) of the Fish and Wildlife Coordination Act provides that the Act is not applicable to (1) all impoundments with a maximum surface area of less than 10 acres; and (2) all activities for or in connection with programs primarily for land management and use carried out by Federal agencies with respect to Federal lands under their jurisdiction. The provisions which would be added to subsection 2(a) of section 1 of H.R. 9492 would be subject to this exemption. A significant part of the habitat for the Nation's fish and wildlife resources is within the National Forests and National Grasslands, which are administered by the Forest Service of this Department. Fish and wildlife are among the purposes for which these National Forest System lands are established. The Forest Service also conducts research concerning various aspects of fish and wildlife habitat. In the management of the National Forest System, the Forest Service safeguards and protects fish and wildlife resources. Frequent consultations are had with the Fish and Wildlife Service and with appropriate State agencies. Projects that this Department proposes or authorizes in its program for the management of the National Forest System and which we believe would have a significant effect on fish and wildlife are referred to these agencies. Their recommendations help us reduce to a minimum foreseeable adverse impacts of the projects on fish and wildlife. The coordination between this Department and State and Federal agencies concerned with fish and wildlife has been effective. These coordination efforts are consistent with the purposes of H.R. 9492. We would continue to cooperate in the same manner with these agencies in any activities or studies authorized by H.R. 9492 which might affect lands under our jurisdiction. The Bureau of the Budget advises that there is no objection to the presentation of this report from the standpoint of the Administration's program. Sincerely yours, Hon. EDWARD A. GARMATZ, ORVILLE O. FREEMAN. ATOMIC ENERGY COMMISSION, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. GARMATZ: Our views have been requested 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 on the effects of projects licensed by Federal agencies on fish and wildlife resources, and for other purposes." This Commission is authorized by the Atomic Energy Act of 1954, as amended, to issue construction permits for some facilities, principally nuclear reactors, encompassed by this bill. The bill would prohibit the Commission from issuing such construction permits until certain biological and ecological, studies are conducted by the Secretary of the Interior, and recommendations thereon are made to the AEC. No time is specified within which such recommendations would be made. While the bill does not expressly so provide, as we understand its intent, AEC would be expected to take into consideration the recommendations received from the Secretary and condition any construction permit it issues on compliance by the permittee with the reasonable recommendations of the Secretary concerning, |