Coordination Act Amendments

subimpoundments for waterfowl management. The Fish and Wildlife Service did not request replacement lands.

During post-authorization studies, further analyses were made in cooperation with the U.S. Fish and Wildlife Service resulting in provisions for 18,000 acres of land within project boundaries for wildlife management. This acreage is considered acceptable by the U.S. Fish and Wildlife Service.

Dworshak Wildlife Mitigation.-The Corps has purchased 5,120 acres of land for intensive wildlife habitat management. Federal and State fish and wildlife agencies, concerned that these lands would not provide the necessary replacement habitat, requested that the Smith Ridge area adjacent to the reservoir be acquired. This acreage is approximately 4,500 acres and is owned by the Idaho State Land Board, and managed for its timber resources. The Land Board was opposed to the sale of the land because of potential school revenue losses. On this basis, the Corps proposed that a land trade be accomplished with Bureau of Land Management to provide the State suitable timber lands in other areas. This recommendation has been accepted by the Department of the Interior (see attached letter) and negotiations are under way at the field level to effectuate the exchange.

Dworshak Fish Mitigation.-The U.S. Fish and Wildlife Service supplemental report of 30 November 1964 supported the construction of a hatchery to rear the necessary young for reproducing 12,000 adult steelhead for mitigation purposes. The adult requirement was based on an estimate prepared by the Bureau of Sport Fisheries and Wildlife in that 60% of the steelhead passing over the Lewiston Dam, located 40 miles downstream of the Dworshak project, were of North Fork Clearwater origin. Results of a 4-year fish count by the Bureau of Sport Fisheries and Wildlife from 1958 through 1962 shows that an average of 20,000 steelhead passed the Lewiston Dam annually.

With respect to the request for mitigation of 16,000 chinook that enter the North Fork of Clearwater River, a 1962 Fish and Wildlife Service report makes reference to potential spawning areas for chinook salmon that would be lost with construction of the Dworshak project although at that time these fish did not enter the North Fork of the Clearwater River. Only in recent years as a result of artificial propagation and the transfer of adult salmon from other rivers in the Snake River system by the Idaho Department of Fish and Game, and after construction of the Dworshak project, has a small chinook run been established in the Clearwater River.

(b) Please describe your agencies' policies and procedures concerning mitigation and indicate the extent to which the public has had an opportunity to review and comment on those policies and procedures.

Mitigation actions are handled as part of our normal planning process. Mitigation for a specific project is developed through coordination activities with State and Federal fish and wildlife agencies. In view of the broad scope of our mitigation policies, there is enclosed a copy of Corps regulation ER 1105-2-129 which provides guidance to our field office on mitigation matters. Since this regulation is for use by Corps offices for technical guidance in formulating water resource plans, comments have not been requested from the public. However, the general public is afforded opportunity to comment and participate in the development or refinement of mitigation and conservation measures which are planned for corps of Engineer projects. This participation by the general public comes about through public meetings and through the review and coordination process established for the preparation of environmental impact statements.

3. On March 1, 1974 the Corps published a proposed regulation (39 F.R. 7942) amending the Corps' responsibilities under the Coordination Act and the National Environmental Policy Act concerning the construction of pipelines in navigable waters. In support of this regulation, the Corps cites Public Law 92-153 which amends the Mineral Leasing Act of 1920. But the 1920 Act, as amended, does not by definition apply to navigable waters.

Please, therefore, explain the legal basis for this regulation and the Corps' decision not to consider the impact of a pipeline constructed in navigable waters on fish and wildlife, the environment and pollution, as required by other laws.

It is the policy of the Corps of Engineers, as reflected in its regulations, to review individual permit applications under Section 10 of the River and Harbor Act of 1899 (33 USC 403) to determine whether the proposed work or structure

in the navigable water is in the public interest. Factors such as water quality, fish and wildlife, general environmental concerns, and navigation are all taken into consideration in this review. These procedures have been modified with respect to the Trans-Alaska, Pipeline System for the following reasons:

On November 16, 1973, Congress enacted the Trans-Alaska Pipeline Authorization Act (PL 93-153), to insure that, because of the national interest in the early delivery of North Slope oil to domestic markets, the trans-Alaska oil pipeline system would be constructed promptly and without further administrative delay or impediment. In so doing, it authorized and directed the heads of Federal agencies to issue and take all necessary action to administer all permits and other authorizations necessary to the construction, operation, and maintenance of this oil pipeline system and to waive any procedural requirements of law or regulation it deemed desirable to accomplish the purposes of the Trans-Alaska Pipeline Authorization Act. In addition, Congress further declared that actions relating to the construction and completion of the pipeline system taken pursuant to this Act shall be taken without further action under the National Environmental Policy Act of 1969.

On November 16, 1973, Congress also amended the Mineral Leasing Act of 1920. In so doing, it required the Secretary of the Interior, prior to issuance of the basic right-of-way permit across Federal lands for the construction of this pipeline system, to be satisfied with the technical capability of the permittee. In addition, the Secretary of the Interior was given the responsibility of imposing appropriate requirements for the safe operation of the pipeline and its related facilities and also for the overall protection of the environment, including adherence to applicable air and water quality standards and the prevention of fish and wildlife losses.

In view of the Congressional finding that the construction of the TransAlaska Pipeline System is in the national interest and the Department of the Interior's responsibility for assuring, prior to issuance of the right-of-way permit, that the pipeline system is designed and constructed to achieve engineering safety and integrity and to assure adequate environmental protection, the decision was made to limit the Corps review of permit applications under the aforementioned 1899 Act to the effect which the physical presence of this pipeline and its appurtenant structures will have on navigation. This decision was made because the public interest determination concerning the TransAlaska Pipeline System has already been made by Congress and because the coordination and review requirements of various legislation such as the National Environmental Policy Act and the Fish and Wildlife Coordination Act have already been performed by the Department of the Interior preparatory to its issuance of the basic right-of-way permit across Federal lands. In addition, written confirmation was also obtained from the Secretary of the Interior of its responsibility to protect all matters of the public interest associated with this pipeline system other than navigation.

Following receipt of this confirmation, the Secretary of the Army, acting through the Corps of Engineers, published a proposed regulation in the Federal Register (39 FR 7942) on 1 March 1974, which prescribed the proposed policy, practice, and procedure to be followed in the processing of Department of the Army permits for the Trans-Alaska Pipeline System. This regulation does not reflect the procedures to be followed by the Corps of Engineers in authorizing the construction of all pipelines in navigable waters. It only pertains to the trans-Alaska Pipeline and its appurtenant features.

4. The GAO report lists several "Conclusions" on pages 43-44. Please provide your comments on each of them.

The Corps of Engineers generally concurs in the conclusions listed on pages 43 and 44 of the report. With respect to the first full paragraph on page 44, we fully support the position that a general plan for implementing wildlife conservation measures should be included in the project authorization document. However, in view of the considerable amount of time that often occurs between the authorization and construction of a project, any specific detailed recommendations may become obsolete. It is suggested, therefore, that any recommendations regarding lands to be acquired or facilities to be installed should be of a general nature.

U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., April 24, 1974.

DEAR GENERAL MORRIS: This further responds to your September 20, 1973, letter regarding a proposed land exchange to acquire additional wildlife mitigation lands for the Dworshak Project in Idaho. As mentioned in previous correspondence, considerable time was involved in the intradepartmental review of this proposed exchange which deviates from normal policy and operating procedures of this Department.

We are gratified to see the Corps of Engineers take such an active, aggressive role in attempting to achieve wildlife compensation levels at this project. As you indicated, the wildlife management agreement between the Idaho State Board of Land Commissioners and the Idaho Fish and Game Department has proven to be unworkable. Moreover, there apparently is no reason to believe it will become workable in the future. As a result of this situation, the Bureau of Sport Fisheries and Wildlife wrote to the District Engineer, Walla Walla, Washington, on August 25, 1972. The Bureau's letter discussed this problem and presented a revised wildlife mitigation proposal including justification, i.e., the acquisition in fee of, or exclusive wildlife management rights on, 4,500 acres of State-owned land on Smith Ridge.

We agree that the proposal-to exchange Bureau of Land Management land for the urgently needed 4,500 acres of State-owned land on Smith Ridge→ appears to be the most reasonable solution to this problem. Accordingly, we suggest that representatives of the Corps of Engineers, the Bureau of Land Management, and the Idaho Board of Land Commissioners meet in the immediate future to initiate the procedures necessary to expedite this land exchange. The prompt completion of the exchange is desirable so that the urgently needed wildlife management measures can be initiated.

Again, we appreciate the interest of the Corps in this matter. If we can be of further assistance, please call on us.

Sincerely yours,

JOHN WHITAKER,

UNDER SECRETARY OF THE INTERIOR.