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 tion. The requirement for the proposed exhibit is intended to encourage appli cant's 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 S. 4.41 Exhibit R reading as follows: § 4.41 Required Exhibits. Ezhibits 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. [H.R. 14414, H.R. 14975, 89th Cong., 2d sess.] BILLS To amend the Fish and Wildlife Coordination Act to make it applicable to the Atomic Energy Commission, the Federal Power Commission, and to permittees and licensees of such Commissions Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That section 9 of the Fish and Wildlife Coordination Act (16 U.S.C. 666c) is amended to read as follows: "SEC. 9. (a) The provisions of this Act shall not apply to the Tennessee Valley Authority. (b) The provisions of this Act shall apply to the Atomic Energy Commission. the Federal Power Commission, and to any public or private person, agency, or instrumentality issued a permit or a license by either of such commissions." Hon. EDWARD A. GARMATZ, DEPARTMENT OF AGRICULTURE, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: This is in response to your request of April 15, 1966, for the views of this Department on H.R. 14414, a bill "To amend the Fish and Wildlife Coordination Act to make it applicable to the Atomic Energy Commission, the Federal Power Commission, and the permittees and licensees of such Commissions." The Fish and Wildlife Coordination Act (48 Stat. 401), as amended (16 U.S.C. 661-666C), provides for recognition of the contribution of our wildlife resources to the Nation, the increasing public interest in them and their significance to our economy. It provides that wildlife conservation shall receive equal consideration and be coordinated with other features of water-resource development programs. It authorizes the Secretary of the Interior to provide assistance to and cooperate with Federal, State, and public or private agencies and organizations in the development, protection, rearing and stocking of all species of wildlife, resources thereof, and their habitat, to make surveys and investigations of the wildlife of the public domain; and to accept donations of land and contributions of funds in furtherance of its purposes. Section 9 of the Fish and Wildlife Coordination Act exempts the provision of the Act from application to the Tennessee Valley Authority. H.R. 14414 would retain that exemption, but make the provisions of the Act applicable to the Atomic Energy Commission, the Federal Power Commission, and to any public or private person, agency, or instrumentality issued a permit or a license by either of such Commissions. In this connection we note that H.R. 14455, also under consideration by your Committee, would repeal the exemption from application of the provisions of the Fish and Wildlife Coordination Act to the Tennessee Valley Authority. Since the provisions of H.R. 14414 relate to the programs and responsibilities of other agencies of the Federal Government, this Department refrains from any comment on the bill. The Bureau of the Budget advises that there is no objection to the presentation of this report from the standpoint of the Adminisration's program. Sincerely yours, ORVILLE L. FREEMAN, Secretary. ATOMIC ENERGY COMMISSION, OFFICE OF THE CHAIRMAN, Washington, D.C., May 12, 1966. Hon. EDWARD A. GARMATZ, Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. GARMATZ: You have requested the comments of the Atomic Energy Commission on H.R. 14414, a bill "To amend the Fish and Wildlife Coordination Act to make it applicable to the Atomic Energy Commission, the Federal Power Commission, and to permittees and licensees of such Commissions." With respect to the Commission's regulatory functions, the Atomic Energy Act of 1954, as amended invests the Commission with comprehensive authority to license and regulate the possession and use of atomic energy materials and the construction and operation of nuclear plants, including nuclear power reactors. The Commission's regulatory authority, however, is limited to matters of radiological health and safety and the common defense and security. The AEC, in discharging its regulatory functions under the Atomic Energy Act, already makes it a practice to seek and obtain the recommendations of the the Fish and Wildlife Service with respect to the potential radiological hazards to fish and wildlife that might result from the discharge of effluents from nuclear power plants proposed for licensing. The bill, if enacted, would probably not significantly affect the AEC's regulatory activities. The AEC would still not be empowered to impose license conditions regarding the thermal effects of facility operation or other matters outside the AEC's regulatory authority since the bill would not grant any new jurisdiction to the AEC. The AEC is very much in sympathy with programs seeking to protect the nation's fish and wildlife resources and would have no objections to legislation of the type which would require all power plants producing electrical energy to be regulated from the point of view of their effects on fish and wildlife. But H.R. 14414, even if it should be construed or revised to grant the AEC regulatory authority over thermal effects, would not accomplish such a purpose. It would affect nuclear plants but not fossil-fueled plants. For these reasons, we are opposed to H.R. 14414, but would be in favor of legislation along the lines of another pending bill, namely H.R. 10701, which would amend the Federal Power Act to authorize the Federal Power Commission to license "water diversion facilities." Legislation along the lines of H.R. 10701 would have the effect of treating equally, from the standpoint of effects on fish and wildlife, all "water diversion facilities," whether or not the associated power plant is nuclear-fueled or fossil-fueled. Under such legislation the Federal Power Commission would be in a position to impose license conditions designed to control thermal and other non-radiological effects of the utilization of water in power production. The AEC also carries on in Government-owned plants and laboratories research and production activities in atomic energy fields. To the extent these activities of the AEC require waters to be impounded, diverted or otherwise controlled within the scope of 16 U.S.C. 662 (a) and 16 U.S.C. 663 (a), they are subject to the FWCA. Throughout its history, the AEC has endeavored to cooperate with Federal, state and local authorities having an interest in various aspects of our plant operations. For example, our criteria for the selection of plant sites require that assistance and information be obtained from various Federal and state agencies which include the Bureau of Commerical Fisheries, and Bureau of Sport Fisheries and Wildlife, of the Department of the Interior. Accordingly, as far as the operation of Government-owned plants and laboratories is concerned, the proposed addition to the FWCA by H.R. 14414 is not needed. In summary, the Commission strongly supports programs seeking to protect the nation's fish and wildlife resources. However, in view of the considerations mentioned above, we are opposed to enactment of H.R. 14414. 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. Cordially, GLENN T. SEABORG, Chairman. FEDERAL POWER COMMISSION, Hon. EDWARD A. GARMATZ. Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: In response to your request of April 13, 1966, the Commission wishes to advise the Committee that it does not believe enactment of H.R. 14414 would effect or require any change in its present practice. The bill would specifically make the Fish and Wildlife Coordination Act applicable to the Commission, to the Atomic Energy Commission and to licensees or permittees of either agency. However, section 2 of the Act presently requires that "any department or agency of the United States, or *** any public or private agency under Federal permit or license" shall consult with the Fish and Wildlife Service and with the appropriate State bodies before taking any action to impound or divert any stream or other body of water. The Federal Power Commission has consistently interpreted this language as applying to the Commission, since Part I of the Federal Power Act provides for the licensing of substantial impoundments and diversions of streams by hydroelectric projects. The criteria and machinery of the Power Act for multi-purpose river development are in harmony with the policy of the Coordination Act and give the Commission full authority to implement that policy. For example, we have recently issued the attached notice of proposed rulemaking in Docket No. R-303 (31 Federal Register 6379) requiring applicants for a license to consult directly with the fish and wildlife agencies and develop a plan for conservation and enhancement of fish and wildlife resources prior to filing their application; the proposed rule would be issued under the Federal Power Act in order to "facilitate the Commission's compliance with the requirements of the Fish and Wildlife Coordination Act" as well as the complementary requirements of Section 10(a) of the Federal Power Act. The Commission therefore does not believe that the proposed amendment would actually change the present law insofar as it applies to the Federal Power Commission and to its permittees and licensees. Sincerely, LEE C. WHITE, Chairman. |