We value your personal concern and interest in the activities of the Bureau of Sport Fisheries and Wildlife. Certainly, we are pleased with the role that the Audubon Society plays in conservation matters, and it is good to know that you speak highly of our leadership in matters relating to migratory bird nesting and staging areas in Alaska. Hopefully, we can reconcile our divergent views on the authorized Starkweather project when you have had the opportunity to review our rationale in dealing with this complex problem.

It is not a question of agreeing or disagreeing with the analysis of the Starkweather situation as prepared for you by Mr. Brigham. There are differences of opinion, most of which concern judgment decisions not yet proven or disproven by time, some relate to statutory limitations, and still others deal with what appears to be a misinterpretation of background data available to each of us. We will not take the time in this letter to comment on each point addressed by Mr. Brigham, but we enclose the views of the Bureau of Sport Fisheries and Wildlife on items discussed in his review. We believe that your insight of the project will be enlarged by this résumé.

The Starkweather project has a long history, dating back to the late fifties. Emotions run high, not only on the local scene but throughout the State of North Dakota, with reverberations in national circles. Certainly, politics have been involved. This is not an unusual situation, and the pressures which you speak of are quite normal in projects of this nature and complexity.

The State's congressional delegation, of course, has an intense interest in the Starkweather issues. Also, it is no secret that Governor Guy of North Dakota feels that the project is absolutely essential for the welfare of residents at the lower end of the watershed. He and the residents have a well-documented case of need for flood damage abatement, which the Bureau and others must recognize. Even though the threat of drainage is essentially an anticipated indirect result of the plan to abate flood damages, it is nonetheless a real threat. Our people will continue to strive for a solution acceptable to all interests, particularly to fish and wildlife. We will not relinquish our resolve to protect waterfowl, other wildlife, and their habitats in the watershed.

We recognize that the water problems of Starkweather cause both social and economic losses to the local populace. Whether these problems are due to natural or induced flooding because of poor land use practices, unplanned upstream drainage, or poor channel maintenance, is immaterial; the water problems are there, they are widely recognized, and they will not disappear. Hundreds of acres of cultivated lands are inundated by overbank flows, travel is hampered, and related damages occur each spring. Some refer to this situation as the collection of sheet water on what could be broadly considered the "flood plain"; others believe that this concentration of water is rightly called floodwater. New ditching and channel modification appear to be the only feasible approach to the problems since reservoir construction opportunities do not exist. Unfortunately, a ditch is not specific to any one purpose. It will not only reduce floodwater heights and lower surface ground water, it will also provide an outlet for further drainage of wetland basins. Herein lies the problem concerning waterfowl and other wildlife. Wetland preservation has been and will continue to be our primary objective in Starkweather. Federal purchase in fee and easement is a means of accomplishing this end. In fact, we had such a program in effect before the small watershed project came into being, and it has been intensified to help resolve the present situation.

It must be remembered that wetland drainage was an ongoing activity well before Public Law 83-566 planning was initiated. This drainage was being effected by private enterprise without Federal technical and financial assistance. No immediate relief was in sight and one could easily visualize the almost total loss of wetlands through private endeavor within a short span of years. Therefore, the Bureau of Sport Fisheries and Wildlife, in concert with other public agencies and local people, made the judgment that the solution to the water and wildlife problems probably could only be achieved through small watershed planning with assistance from the Department of Agriculture. We believe that a Federal program of this type was the only viable means of actually controlling drainage, which at that time was running rampant. Basically, the price for our so-called approval of the Starkweather project was a guaranteed agreement for a high degree of wetland preservation, provision for mitigation of terrestrial wildlife habitat losses, and the stabilization and control of water within Dry Lake. This is what we have achieved so far. The work plan authorized by the Congress provides for the preservation of 13.500 acres of wetlands or its equivalent, the allocation of about $490,000 to minimize other habitat losses, and an outlet

structure on Dry Lake. Construction cannot proceed until the Bureau of Sport Fisheries and Wildlife certifies that the above conditions have been met. Provisions of such relative magnitude for wildlife protection are not contained in any other small watershed work plan in the country, and few others, if any, provide for such a large amount of money to effect wildlife loss mitigation.

We are not entirely satisfied with the present situation. There have been delays, and we are experiencing difficulties in obtaining the required degree of wetland preservation. The goal to acquire the wetland was not achieved by January 1, 1972, as we had hoped, but our effort will continue. We must remind you, too, that our prerequisite for project construction is not the only obstacle in project planning. There are other problems, and some change of heart has taken place within the ranks of the local people. As construction costs continue to rise, the local people are becoming more and more concerned with their potential tax load. In all truth, we cannot predict the final outcome of Starkweather.

The Starkweather project is not a funded program of this Department; it was designed and approved under the authority of the Watershed Protection and Flood Prevention Act (Public Law 83-566), which designates the Department of Agriculture as the lead planning agency. That Department, through the Soil Conservation Service and the project sponsors, bears primary responsibility for all resource matters involving project purpose, design, funding, and installation, including those concerning fish and wildlife. The Department of the Interior, as a cooperating agency, has the responsibility to report on project proposals, and does exercise significant influence indirectly, but we do not have veto authority on small watershed project measures. Although the project is multipurpose in design, the project objectives deal primarily, of course, with benefits to agriculture. Wildlife and all other considerations remain secondary to these objectives. You urged a full review of the project. This has been a continuing process for several years. The Bureau of Sport Fisheries and Wildlife has been directly involved with project decisions. Expertise and professional aid have often been solicited from within and from outside of the Department. In fact, Mr. Bohlen, Deputy Assistant Secretary for Fish and Wildlife and Parks, met on October 5, 1971, with Governor Guy, local sponsors, and personnel of the Soil Conservation Service and the Bureau of Sport Fisheries and Wildlife in the Governor's Office in Bismarck, N. Dak. No good purpose would be served by another high-level review at this time.

We trust that we have clarified Interior's position relative to the Starkweather watershed. If you wish, we will be most happy to arrange for our people to further discuss this matter with you here in Washington.

Thank you for expressing your interest in this important matter.
Sincerely yours,

CURTIS BOHLEN,

Acting Assistant Secretary of the Interior.

STARK WEATHER WATERSHED PROPECT, NORTH DAKOTA.-PUBLIC LAW 566 (Refer to Mr. Brigham's memorandum to Mr. Callison of January 8, 1972) 1. A $5 million drainage project, 60 miles of ditches.

BSF&W comment.-The statement is basically correct although primary benefits relate to flood control according to the SCS work plan. The total cost of the project is $5,513,042. The Federal share through Public Law 83-566 is $3,636,372. Cost "other" than Public Law 566 is $1,876,670.

2. There is no geologic Starkweather watershed. The promoters simply drew a line around enough acres to qualify under Public Law 566.

BSF&W comment.-The watershed boundary undoubtedly conforms to SCS policies governing the Watershed Protection and Flood Prevention Act. There does exist a Starkweather Coulee which is the primary watershed drain. Total runoff, however, is being directed beyond natural boundaries through Dry Lake and onward to Devils Lake.

3. The area (watershed) originally contained some 30,000 acres of prime waterfowl nesting habitat. Approximately 12,000 acres have already been lost. BSF&W comment.-The original wetland acreage or acreage of such land before the advent of cultivation is unknown; but in a broad sense, the entire watershed could have been considered prime waterfowl nesting habitat. Our best estimate indicates that there were approximately 26,000 acres of semipermanent

wetlands (types 3 and 4), in the watershed at the first talking stage of the SCS project in 1965. This acreage excluded about 9,000 acres of type 1 wetlands and slightly more than 7,000 acres of lake water.

The project came to a definite planning stage in 1967, and private drainage, that is, landowners at their own expense, had drained wetlands until only about 18,400 acres of semipermanent wetlands remained in the spring of 1968. It can be easily documented that these private interests were rapidly destroying the wetlands in Starkweather.

4. Of the 18,000 remaining acres in the "watershed," the BSF&W is requiring that 13,500 acres be guaranteed against drainage (not bad, perhaps, until you see how they count acres).

BSF&W comment.-At the start of serious planning all cooperating agencies recommended the preservation of all type 4 wetlands, 85 percent of the type 3 wetlands not already under public ownership, and the replacement in kind of all wetlands directly destroyed by channel work. This degree of wetland preservation was not acceptable to the Sweetwater-Dry Lake water management district which is considered to be the principal local project sponsor.

A few years later and following the defeat of local endeavor, the watershed plan under authority of Public Law 83–566 was reformulated. At this time, wildlife interests recommend and the condition was accepted that 75 percent of all remaining type 3 and type 4 wetlands be protected against drainage. To our knowledge, this was the first time in the history of small watershed planning that such a guarantee had been given for wildlife habitat preservation. Actually, there will be no construction until the Bureau acquisition of wetlands is attained. 5. Only a few farmers were willing to sell, or give easement; so the BSF&W has not been able to acquire all the required wetland areas.

BSF&W comment.-Our agreement with the local sponsors, SCS, and North Dakota Water Commission provides that the preservation of the 13,500 acres could be accomplished by several methods, that is, Federal (BSF&W) purchase by fee and easement, sponsor purchase by fee and easement, or State purchase by fee and easement. Because the BSF&W had the only adequately funded going program, most of the effort fell to the Bureau. Local sponsors, in this case the Sweetwater-Dry Lake water management district, did get life-of-the-project (50 years) easements from landowners on approximately 2,000 acres, although the actual wetland acreage as yet has not been fully delineated and certified. Some landowners would guarantee protection on only a minimum acreage of wetlands, particularly in the case of local easements since little or no money was involveda gratis situation. It must be remembered that the protection of the required wetland acreage was to be a joint responsibility involving both local people and public agencies. In essence-no wet'ands-no project.

It is of interest to know that there now exist 144 water management district easements and 126 Federal easements. In other words, over 250 landowners have become involved in the wetland preservation program through sale or grant of easements prohibiting drainage.

In fact the Federal Government today has 5,458 acres of semipermanent wetlands (excluding type 1 basins) under easement control. The Government owns 300 acres of wetlands and has optioned for fee purchase another 272 acres of wetlands. Besides the wetlands owned, the Government owns in fee title 1.069 acres of valuable uplands suitable for waterfowl nesting purposes and in addition has 1,768 acres of similar habitat under option for purchase. On the other hand, the watershed management board has under easement 1.359.5 acres of wetlands (not delineated). In total and by joint effort (water management district and Federal Government) 10,226.5 acres of land are either owned, under easement, or optioned for fee title purchase. Of this acreage, 7,389.5 acres are semipermanent wetlands and 2.837 acres are uplands valuable to wildlife.

6. BSF&W started out agreeing to a plan that would permit the ultimate drainage of 55 percent of the wetland acres in one of the best waterfowl nesting areas in the 48 States.

BSF&W comment.—We are not aware of an agreement that would permit the ultimate drainage of 55 percent of the wetland acres. Such a figure may be mathematically possible depending on what base wetland acreage figure was used and taking into consideration the undelineated acreage of type 1 wetland. We refer you to items 4 and 5 which best answer this statement.

7. The acreage left has been compromised away by the BSF&W.

BSF&W comment.-We do not fully understand this statement. There has been much unwarranted talk on the issue of "selling wetlands down the river." To clarify our position, refer to item 8.

94-075 (Pt. 6) O 73 - 4

8. At a January 19, 1971, meeting the Bureau agreed to:

(a) Give credit against the 13,500-acre goal 1or 4,600 acres already removed from involvement in the issue by previous acquisition under the BSF&W small wetland program financed by duck stamp money.

BSF&W comment.-In early planning and certainly prior to 1971, the BSF&W agreed to give credit toward the preservation goal of the 4,600 acres of wetlands already under Federal control. This was a judgment decision made on our part in the interest of good faith and project feasibility.

(b) Give credit against the 13,500-acre goal for 2,000 acres already under easement by the State water board. This would be OK except that, instead of perpetual easements, these are for only 50 years.

BSF&W comment.-Similarly, it had been agreed by cooperating agencies that the wetlands acres taken under easement by the water management district (local sponsors) would be given credit toward the preservation goal. The easements are 50-year contracts and are taken locally and not by a State administration. The BSF&W expects to have the opportunity to convert some of these "local easements" to Federal easements or fee title purchase when the project is cleared for construction. Some of these landowners granted the easements with this condition in mind. Again, and in the interest of project feasibility, the Bureau agreed to offer 50-year Federal easements as an incentive to realizing the preservation goal.

(c) Credit any land purchase outright on a 2-for-1 basis. This would mean that, if all the acres needed under the agreement were purchased, only 3,450 additional acres would be preserved for a total of not 13,500 acres but only 10,050 acres (or, after 50 years, only 8,050 acres).

BSF&W comment.-Since the type of land and location to be purchased was to be solely a Bureau decision, policy criteria for purchase demanded that the land contain a high degree of wetlands. Purchase areas would of necessity be small, with irregular boundaries in order to secure a high ratio of wetlands to uplands. On this basis the 2: 1 credit was devised knowing full well that uplands were necessary to obtain a high degree of duck production, especially in this area which features "puddle ducks."

The need for protected upland for waterfowl nesting has been demonstrated conclusively in the Dakotas. Nesting density and success is much higher on such areas owned and managed by the Bureau of Sport Fisheries and Wildlife than on land owned and managed by farmers. This is the rationale for the method of wanting such areas.

9. At a later date, Jim McBroom agreed to a situation in which one acre of type IV wetland, plus 2 acres of upland, if purchased by the BSF&W, would be credited as 6 acres of wetland preserved.

BSF&W comment.-No one man, one group of men, or even one division (BSF&W) was solely responsible for decisions made on Starkweather. Our involvement was a cooperative effort with other agencies and decisions on Starkweather received Directorate approval of the BSF&W.

It can be said that after the 2:1 program had been implemented, the BSF&W clarified their criteria for purchase. The so-called 6:1 ratio is no different than the 2:1 program as it relates to actual wetlands creditable toward the preservation goal. We were given the opportunity of enlarging on the acreage of uplands to facilitate a purchase, but no credit was given for this additional acreage.

10. With the 4,600 acres from the small wetlands program, this means that the BSF&W has backed a plan that could result in the ultimate preservation of, not 13,500 acres of wetlands in the Starkweather "watershed," but only 5,750 *** less than one-half of what the BSF&W originally said was essential to preserve.

BSF&W comment.-The 13,500-acre preservation goal is based on our requirement that 75 percent of the 18,400 base acres of types 3 and 4 wetlands had to be protected. About 4,600 such acres already were under Federal control. This left 8,900 acres to be secured before the project could become a reality. Presently, we are attempting to fulfill the preservation goal on a 1:1 basis.

11. Of course, there is a grave danger in this kind of a precedent. The BSF&W set (or had set for it?) a January 1 deadline, which to the best of my knowledge has not been met. If things happen according to precedent, this will call for still more compromising of this vital resource using the sort of arithmetic that would do credit to Lewis Carroll !

BSF&W comment.-Certainly, a precedent was set. The BSF&W established once and for all the fact that wetland preservation was in the national interest; and that water development agencies must be cognizant of this fact in

future planning. Starkweather also was the first watershed project in which such extensive wildlife habitat preservation and replacement were guaranteed commitments set forth in the work plan. Admittedly, wildlife interests do not realize a perfect situation; but it represents a firm base which can be improved upon by all agencies dealing with a similar situation in the future. Final judgment cannot be made; Starkweather is yet to be constructed and we continue to obtain options to purchase the needed acres. We intend to continue on the 1:1 basis until the acreage commitment is met even though this may not be accomplished before next summer.

Mr. REUSS. We will now hear from Mr. Edward L. Rogers, general counsel of the Environmental Defense Fund.

STATEMENT OF EDWARD LEE ROGERS, GENERAL COUNSEL, ENVIRONMENTAL DEFENSE FUND

Mr. ROGERS. Mr. Chairman and members of the committee, I am Edward Lee Rogers. I am an attorney with the Environmental Defense Fund.

On behalf of the EDF, I wish to thank you for your invitation to participate in these hearings.

Our activities relating to water resource development have consisted primarily of our attempts to obtain the modification or abandonment of certain Corps of Engineers' projects that, after thorough examination, we have determined to be ill advised and not in conformity with law. Usually, but not always, it has been necessary to seek relief in the courts, as was true with regard to the proposed channelization of the Cache and Bayou de View Rivers and the proposed TennesseeTombigbee Waterway, which will also require extensive channelization of some of the streams there involved. Our experience compels us to conclude that while there is sufficient statutory basis in the National Environmental Policy Act of 1969 (43 U.S.C., sec. 4321, et seq.), the Fish and Wildlife Coordination Act (16 U.S.C., sec. 661, et seq.), and the Water Bank Act of December 19, 1970 (16 U.S.C., sec. 1301, et seq.), and several other statutes, for assuring sound management of our water resources and surrounding flood plains and bottomlands, administrative practice and decisionmaking by the relevant agencies continue to be premised on the notion that the primary mission of the agency is to build specified projects, with environmental factors given. only secondary consideration, to the extent that they are considered at all.

I hasten to add that the failure of the agencies to implement fully the mandates and philosophies of these environmental statutes is exacerbated by the great backlog of previously authorized projects, the construction of which has only commenced in recent years or is yet to begin. The agencies appear to be predisposed to the construction of those projects as originally designed regardless of the mandates of these environmental protection statutes. Indeed, in virtually all of the water resource project cases we have litigated, the final decision by the corps after the filing of a final environmental impact statement has been to construct or complete the project in accordance with the design adopted prior to the initiation of the NEPA review.

The court, in Sierra Club v. Froehlke, involving the Wallisville and Trinity Rivers, pointed out that was true in that case, and also indicated that the commitment of the corps there to continuation of the project as originally designed, after the NEPA review, was in itself