Mr. BERG. Well, we consider this information privileged and confidential, and in the Chicod watershed area. the plaintiffs requested all information that we had pertaining to the watershed project. We have made this information available to them to copy, except for specific damage schedules.

Mr. MCCLOSKEY. Mr. Berg, let me go back. Are you familiar with President Nixon's Executive order that only the President will claim executive privilege, when there is a reasonable request from a committee of jurisdiction to an executive agency?

Mr. BERG. Oh, yes.

Mr. MCCLOSKEY. Is your regulation not subordinate to the President's Executive order that you will furnish to this committee information that we will request?

Mr. BERG. Well, my counsel from the Department advises me that, yes, we can furnish the committee whatever information it feels it needs in regard to this particular case.

Mr. MCCLOSKEY. Why have you not done so?

Mr. BERG. I do not think we have neglected to provide information in this regard.

Mr. MCCLOSKEY. It is my understanding of your answer here that you have a regulation which prohibits divulging privileged and confidential information to the public, and you are using that regulation to deny that information to this committee. Am I not correct?

Mr. BERG. Well, the questions were not cast in that light, as we understood it. They reflected back to the opinion in the Chicod case rendered by Judge Larkin and we have been responsive. Mrs. Garner can respond as to how the Department reviewed this along with the Department of Justice.

Mr. MCCLOSKEY. Then, you are prepared to divulge this information to this committee, I take it? Is that correct? May I have a yesor-no answer to that question?

Mr. BERG. Yes. If the committee feels that this would help to understand what we are dealing with in this particular case. I did raise the caution and need the advice of our counsel and the Justice Department in terms of this particular case now before a Federal judge. It has been before him for 18 months in the Chicod case. I am not, as a layman, acquainted with what our particular agency would have the right to do in that particular instance because I understand we should be silent on this particular case, except in response to the requests of the court.

Mr. MCCLOSKEY. What about the Congress?

Mr. BERG. That question had not been raised until you raised it. Mr. MCCLOSKEY. Perhaps your counsel can answer. What I am trying to understand is whether or not your agency is willing to comply with the Executive order, that the executive privilege can be claimed only if the President, himself, claims it?

Mrs. GARNER. Mr. McCloskey, the question arose as to executive privilege in the Chicod case, and the only reference to executive privilege that we are aware of was in Judge Larkin's opinion that said that the Government had claimed executive privilege. Actually, SCS had not claimed executive privilege and neither had the Department of Justice with respect to any of the pleadings. The only data that were not made available in that case were damage schedules which contained

information that had names and information with respect to production that is considered confidential under SCS regulations which were issued pursuant to the Freedom of Information Act. Information of that nature is considered confidential and is not released.

Mr. MCCLOSKEY. Now, does this information which you prepared on a stream channelization project show the presumed benefit of the project to individual landowners?

Mr. BERG. It shows the benefits to the community as a whole, and the local people can determine-and do determine in their process of assessments as to who will bear the local costs, the non-Federal costs which are roughly 50 percent of the total costs of these projects-who the beneficiaries are and, on that basis, they do make assessments.

Mr. MCCLOSKEY. Well, when you determine your benefits to the community do you not determine the benefits to the land in the watershed?

Mr. BERG. Yes.

Mr. MCCLOSKEY. By increased valuation of that land?

Mr. BERG. Yes, sir; and the protection that is afforded by the project. Mr. MCCLOSKEY. And you do that on a per acre basis or on a per landholder basis?

Mr. BERG. My economist, Mr. Parker, can answer that.

Mr. PARKER. Primarily on a per acre basis, increased production, reduced production costs, improved quality of the crop, and so forth, are the major items considered. This type of information we need to gather from the individual farmers to use in making the benefit evaluation. It is the damage schedules that we are talking about from which we get this privileged information from individual farmers, as to what their damages are, what their crops are, what their income is, what their crop yields are and so forth.

We have said that we do not want to divulge that type of information to the general public.

Mr. MCCLOSKEY. Is there any reason to keep secret or keep privileged the estimated increase in the value of a man's land because of this project?

Mr. PARKER. No. I do not think that is kept secret. Information concerning benefits on a per acre basis is contained in the watershed work plan or in the supporting data files for the plan.

Mr. MCCLOSKEY. Then why should you keep secret the identification of the beneficiaries of this project?

Mr. BERG. I do not think we do; it is not intentional. It would certainly be available to anybody who wanted to obtain that information in any particular project.

Mr. PARKER. We usually have landowner maps available.

Mr. MCCLOSKEY. The testimony we have received indicates that the Soil Conservation Service environmental impact statements have been inadequate. I assume from your testimony here this morning that you are cognizant of that. Is that correct?

Mr. BERG. We are doing all we can to make them better each day and each week; yes.

Mr. MCCLOSKEY. And why should the Soil Conservation Service be unwilling to identify the beneficiaries of the project and the landowners involved?

Mr. BERG. Mr. Davey has examined this in some detail in response to the kind of query we had in the Chicod case.

Mr. DAVEY. We have not specifically identified beneficiaries in either the impact statement or the work plan. We do include maps of the work plan which show the total area benefited. Now, ordinarily, the sponsoring organizations create a legal entity to carry out their share of the costs and to assume operation and maintenance. Ordinarily when one of these is created, it is by judicial apparatus under State law in which at that time there is published in the newspapers-under State law all of the benefited area, including the land descriptions and land holdings. There are hearings held and it is the sponsor's obligation to assess the taxes which includes beneficiaries. So this is really all brought out, but it is brought out primarily as part of their legal entity. We have not included it in the watershed work plan, so there is no attempt to keep it secret. We just never thought there was a real need since this other step was involved.

Mr. MCCLOSKEY. Mr. Berg, one other question, if I may.

You referred to Secretary Butz and his desire for balance between environmental preservation and development; yet the Water Bank Program Act, which Congress has passed most recently in this field, has been terminated in its entirety, as I understand it, by the Secretary, Mr. Butz. This program was a preservation and conservation effort, and yet you have continued the stream channelization projects, despite perhaps the change in thinking that has been recognized in earlier testimony.

Can you tell me why the Secretary terminated the entire water bank program in December?

Mr. BERG. This program was new. It was operating in its second year and it was determined, in evaluating several programs that were of a lower priority, that this was one that in the interest of holding down our financial outlay, stopping the pressures on the Nation's economy from this kind of work, and shifting the emphasis to the farmer's ability to do this on his own, based on the income that he is receiving in the marketplace; that this was one program that could be borne by non-Federal sources.

Mr. MCCLOSKEY. This is not just an impoundment matter; this is a matter where the Secretary terminated the program entirely, is it not? Mr. BERG. Yes.

Mr. MCCLOSKEY. What was the amount involved? It was a $10 million authorization, was it not?

Mr. BERG. It is a $10 million authorization in terms of outlay each year; yes.

Mr. MCCLOSKEY. What was the stream channelization authorization this year-fiscal year 1973 ?

Mr. DAVEY. We do not have a stream channelization authorization per se. Our funds are derived from the Congress based on watershed project operation for all watershed projects, which would include the land treatment work, flood prevention and channel work-if there is some and that sort of thing.

Mr. MCCLOSKEY. What, in your judgment, would be the annual figure then?

Mr. DAVEY. I believe last year we spent $11 million, was it-around $11 million on channel work itself.

Mr. MCCLOSKEY. Now, has any part of that $11 million been held back to parallel this $10 million cutback in the water bank program?

Mr. BERG. Yes. There have been substantial reductions proposed for fiscal year 1974 in our total watershed construction activities.

Mr. MCCLOSKEY. Can you give me an approximation of the percentage cutback that you have made?

Mr. BERG. We can provide that for the record, sir. It is at least a fourth of our total compared to this year.

[NOTE. The Soil Conservation Service subsequently submitted the following figures for the record:]

EFFECTS OF PROGRAM FUNDING FOR CHANNEL WORK IN WATERSHED AND FLOOD PREVENTION OPERATIONS

The program level of funding for watershed and flood prevention operations, excluding the Section 216 Supplemental Appropriation, is $121,855,000 for fiscal year 1973 and $102,260,000 for fiscal year 1974. This is a reduction of $19,595,000 or about 16 percent. The budget request for fiscal year 1974 is $84,847,000, a reduction of $48.682,000 or about 36 percent from fiscal year 1973. Funds withheld from use in fiscal year 1973 will be available in 1974 which will provide the program level of $102,260,000.

Of the total amount allocated for construction activities in fiscal year 1972$71,133,000-about $23,171,000 or 33 percent was used for construction of channel work. The estimated total amount for fiscal year 1973 is $72,476,000, of which $11,678,000 or about 16 percent is to be used for construction of channel work. And, the estimated total amount for fiscal year 1974 is $59 million of which $9 million or about 15 percent is anticipated to be used for construction of channel work.

Mr. MCCLOSKEY. Well, I want to ask you again on the balance that you suggest between conservation and development: Why is an $11 million annual outlay cut back only one-quarter for stream channelization, but the water bank conservation program is cut back in its entirety? That question bothers me from your earlier testimony on the Secretary's desire to preserve a balance.

Mr. BERG. The 10-year agreements already approved under the program will be honored. This $8.6 million cost covered 90,000 acres in 13 States in the important migratory bird and nesting areas. The water bank program was fairly new-operating for 3 years. It did provide for payments. I was privileged to represent the Department with Congressmen Dingell and his committee to help bring this through the House in terms of the kind of language provided in the original bill. It was to provide an economic return to the farmer primarily and to supplement the activities that the Department of Interior has on wetland acquisition.

Mr. MCCLOSKEY. You understood my question, though?

Mr. BERG. Yes.

Mr. MCCLOSKEY. Why one is cut back a quarter and the other in its entirety?

Mr. BERG. The greater priority in this particular instance in terms of the decision not to go forward with this program was on the basis of concentrating on agricultural programs that generate, rather than supplement, incomes; and it is on that basis that the actions taken on December 26, 1972, were to terminate approvals of applications for benefits under this particular legislation.

Mr. MCCLOSKEY. The priority then was to the generation of income, rather than conservation?

Mr. BERG. Rather than to supplement

Mr. MCCLOSKEY. Did I state it accurately?

Mr. BERG. Rather than to supplement income, provide it as

Mr. MCCLOSKEY. The water bank program was a conservation program; was it not? It was not intended to supplement income?

Mr. BERG. Yes; it is a conservation program to preserve lands in their present wetland status by paying farmers to do primarily three things to not drain, nor burn, nor fill that particular area.

Mr. MCCLOSKEY. Mr. Berg, can you give me an estimate, if the water bank program had been carried out, as to how many acres of wetlands could have been preserved with the $10 million for fiscal year 1974, as compared to how many acres of wetlands will be taken out of existence or damaged by the stream channelization program which is cut back one-fourth for the same fiscal year? Could you do that in writing, perhaps?

Mr. BERG. Yes; I would be pleased to be able to provide information in that regard, Mr. Congressman.

[NOTE. The Soil Conservation Service subsequently submitted the following data for the record:]

EFFECTS OF WETLANDS IF THE WATER BANK PROGRAM HAD BEEN CONTINUED AND FROM CHANNEL WORK TO BE CARRIED OUT IN FISCAL YEAR 1974

If the water bank program would have been funded at the $10 million level for fiscal year 1974, approximately 106,000 acres of wetlands could have been preserved.

Approximately 125 miles of channel work will be carried out during fiscal year 1974 with the $9 million expected to be available for this work. This will not take out of existence the valuable wetlands that may exist in any particular watershed project. It is Soil Conservation Service policy to formulate projects that provide the maximum protection to fish and wildlife resources. Public Law 83-566 assistance, financial or technical, is not provided for the drainage of wetlands of types 3, 4, and 5 as defined in the U.S. Department of the Interior, Fish and Wildlife Circular 39.

Public Law 566 projects are not designed to bring unneeded cropland into production. They are designed to help rural residents improve their economic outlook by solving resource problems such as flooding, water management, erosion, and sedimentation. Channel work is essentially limited to land already in cultivated crops, hay or pasture. The removal of floodwaters makes it possible for farmers to operate more efficiently and often helps whole communities to remain viable.

Incidental damage to wildlife habitat may occur in some instances because of its relative location to the areas needing protection or improvement. In such instances, every attempt is made to minimize the losses and to mitigate them to the maximum practical extent. We make full use of the expertise and advice available within our own agency, the State game and fish agencies, and the Bureau of Sport Fisheries and Wildlife, and some outside consultants who are experts in their field in formulating the most satisfactory plan. Consideration is given to all environmental issues raised.

Mr. MCCLOSKEY. You understand what we are seeking here is just a comparison of how the administration views the preservation of wetlands and the carrying out of the stream channelization program. Thank you, Mr. Chairman.

Mr. REUSS. In that connection, Mr. Berg, the National Wildlife Federation is having its annual meeting in Washington today. Would you care to go before them and explain how at one and the same time, the Department of Agriculture is cutting out entirely the program to pay farmers to preserve their wetlands in the Dakotas and proceeding with the Starkweather project, which-according to the Department of the Interior-will result in the further blotting out of thousands and thousands of acres of valuable waterfowl wetlands?

Mr. BERG. We know it is of concern to this great organization. They were key sponsors of the legislation to begin with and have supported