Mr. HICKS. The ultimate decision, I take it, that is made is that that project is going to go forward? That is the ultimate decision that is made. Now, what does the statute have to say about who makes that determination?

Mr. ROGERS. Well, the statute does not say anything about who is going to make the determination. It only imposes certain obligations and certain criteria for the responsible agency to meet, and one of those is that a substantive decision cannot be arbitrary and capricious in the light of the environmental goal of the statute, and that is the issue that is litigated. But, as far as the transfer of any decisionmaking authority is concerned, no; the statute does not do that.

Mr. HICKS. I am trying to get a little bit of a feel here on channelization. I am willing to assume that channelization by and large is bad, and I came to that conclusion listening to our chairman a couple of years ago, and going out with him on a field trip, and joining him in a demand for a moratorium. But, as long as we have you experts here, I would like to know just a little bit about this environmental impact and what your views are as to where these tradeoffs come. I have in mind a dam that would be built for power, for example. Now, out in my State in the Northwest, we have fought back and forth over this issue of whether you should build the dam or whether it destroys the fish, and if it destroys the fish, whether we should opt not to have the dam; and yet we build them to produce power out there. And it may be a situation that you are talking about, where you have adverse environmental impacts-and no question about it, they are substantial-and yet you also have power needs. Now, once you have these impact statements in, who has the final decision on whether you go forward or do not go forward?

Mr. ROGERS. Under the statute the responsible agency for licensing or building the project, as the case may be, has the authority to decide, and then the only question after that is whether or not that decision is legally supportable, and that decision can be challenged in court. Once the procedural requirements of the statute have been complied with-namely, there has been an impact statement filed, all of the significant environmental impacts are adequately discussed, all of the alternatives are considered, and a rational consideration of all of these matters has taken place then the only question is, was the substantive decision to build that project or to license it legally sound. And the only thing that the court can do in that instance, under the prevailing rule, is to determine if that decision was arbitrary or capricious in light of the environmental objectives of the statute.

Mr. HICKS. Someone has made a decision. This is a social decision. We have taken these things into consideration, and after weighing them we say despite the adverse impact environmentally we are going to go forward anyway. Could that be a legally sound decision-a supported decision?

Mr. ROGERS. Certainly. The court's role is to determine whether or not that decision is arbitrary and capricious. That is the limited judicial review of that decision, and the court cannot substitute its judgment of what is best for that area for that of the agency.

Mr. HICKS. We are going to have the same sort of thing with the Alaska pipeline, for example?

Mr. ROGERS. That is correct.

94-075 (Pt. 6) O 73-7

Mr. HICKS. Whether this is socially worthwhile despite the impact it may have on the environment are the things that will be weighed. But, in the long run an agency makes the determination, and the court finds that it is going to have a bad impact on the environment, but that socially it is desirable to go ahead. Can that be done?

Mr. ROGERS. That is correct. But I would like to say, though, when I refer to the arbitrary and capricious standard of review as limited, at the same time the Supreme Court in the Overton Park and other cases has made it clear that a trial court, in determining whether or not a decision is arbitrary and capricious, is to make a very careful examination of the record. An in-depth scrutiny I think is a fair paraphrase of the court's language there. So, if the challenger to the project can show that the decision is plain wrong-for example, that a power dam does not add sufficient benefit that would offset the adverse effects-that it is plain wrong, really an arbitrary decisionthe environmentalist challenger then should prevail.

Mr. HICKS. And in effect that is what Mr. Carter said-that they look narrowly at the economic benefits instead of looking at the various other things?

Mr. ROGERS. Yes. The virtue of NEPA, it seems to me, is that it is an ecological statute that takes a broad view of a project's impactsocially, environmentally, and economically-and that is what is provided in section 101 (b). As the court said in Calvert Cliffs, it provides an avenue whereby we can reach sound and intelligent decisions for the public good.

Mr. HICKS. When we get to Calvert Cliffs or the Alaska Pipeline cases, it clearly should be done. Now, how far down do you drive this into the little channelization project that we are talking about?

Mr. ROGERS. Well, I think the answer there is that it is not just one, it is the cumulative effect of many of them; and we add them all up, and you have pretty much what the gentleman over here was speaking of-you have obliterated the streams of an entire area. So, the cumulative effect is very serious and, of course, if the Soil Conservation Service is going to look at them one by one, the challengers then are going to have to challenge them one by one.

Mr. HICKS. You do not think that when you get down to these very small projects, then at that point you are just adding to the costs, and harassing to the extent that you are trying to stop projects that normally probably would be done anyway, but if you come in and throw up enough smoke, why they will not go? I mean at least out in my area, we sometimes get somebody who does not want to cut a tree down. But we have to cut a tree down in my area, so when you get too much of that, and go too far and get after too small a project, then you lose me. But, in the areas of these big ones or medium-sized ones, and down to a certain small level, I can certainly appreciate what you are saying and buy every word of it. But, that was the question.

Mr. ROGERS. I think it is a good point. I think that perhaps the answer there is that there should be-and after I finish Tom could probably address himself to this better than I, perhaps there should be more comprehensive statements talking about a larger area and many projects in one impact statement, so that you would have an

overall prospective to see what was going to happen to the entire

area.

Mr. HICKS. Thank you. Thank you all. I have no further questions. Mr. REUSS. Thank you. I think you have added to our understanding by your questions. Mr. Ryan?

Mr. RYAN. No questions.

Mr. REUSS. Mr. Fountain?

Mr. FOUNTAIN. Mr. Chairman, I hesitate to ask any questions since I got in late. I am sorry I did not get a chance to hear all of your testimony. I am delighted to see Mr. Carter here from the district of my colleague, Congressman Walter Jones, a district which adjoins my own. I am sorry I did not get a chance to hear him, but I will read his statement and the others with interest.

Mr. REUSS. He gave us helpful testimony, and he was a credit to your State.

Mr. FOUNTAIN. Thank

you.

Mr. HICKS. You can certainly tell you come from the same section,

too.

Mr. FOUNTAIN. We are rather proud of our section as well as our

accent.

Mr. STEELMAN. Mr. Chairman, might I make one final statement? Mr. REUSS. Surely, Mr. Steelman.

Mr. STEELMAN. I was not here for the formal statement of Mr. Rogers, but I would like to commend to my colleagues his statement, particularly the portion beginning on page 3 on "Recommendations for a Better Decisionmaking Process." As far as coming up with these impact statements, and studying the feasibility of these projects, some of which we desperately need, I think the National Water Commission report is addressing itself to some new methodology to evaluate these projects. I want to compliment you on the statement, Mr. Rogers, and commend it to my colleagues.

Mr. ROGERS. Thank you.

Mr. REUSS. Mr. Carlson, did you have any questions?

Mr. CARLSON. No questions.

Mr. REUSS. Mr. Carter, Mr. Want, Mr. Clapper, Mr. Franson, and Mr. Rogers and Mr. Barlow, thank you all very much. You have enriched our hearings a great deal, and our thanks to you.

We will now hear from the last panel this morning, Mr. John Wilkinson, of Arthur D. Little, Inc., and Dr. Ruth Patrick, chairman of the Department of Limnology of the Academy of Natural Sciences in Philadelphia.

Mr. Wilkinson, we have your comprehensive 43-page statement before us. Under the rule and without objection, it will be admitted. in full in the record. We would like to ask you to proceed now to summarize it in whatever manner you wish.

STATEMENT OF JOHN M. WILKINSON, ARTHUR D. LITTLE, INC.; ACCOMPANIED BY HARRY FODEN; AND WILLIAM CAREY

Mr. WILKINSON. Thank you, Mr. Chairman and members of the committee. I am John Wilkinson of the research and consulting firm, Arthur D. Little, Inc., in Cambridge, Mass.

I have with me, but not at the table today, some colleagues of mine— Mr. Harry Foden, who has been close to this situation with me, and Mr. William Carey, who is a vice president of the Arthur D. Little, Inc., representing the firm's management, and they are available if needed.

I would, Mr. Chairman and members of the committee, appreciate an opportunity to present a brief supplement to the prepared statement that I mailed to you earlier.

Mr. REUSS. Surely. Can you identify that supplement?

Mr. WILKINSON. It is a supplement which I would like to read. It is very short, and it does bring out some omissions and a necessary extension to the prepared statement.

Mr. REUSS. Proceed; and that supplemental statement will appear in the record right after your prepared statement so the relationship can be clear.

[Mr. Wilkinson's prepared statement follows:]

PREPARED STATEMENT OF JOHN M. WILKINSON, ARTHUR D. LITTLE, INC.

Your Committee has asked for a statement and testimony on the Arthur D. Little, Inc. report on channel modifications carried out under contract to the Council on Environmental Quality, Executive Office of the President, specifically relating to the selection of the subjects for study, our findings, and the scope and methods of the study, as well as on several numbered points or issues set forth in your letter to Arthur D. Little, Inc. dated February 23, 1973. This prepared statement responds to the subject matter which your Committee has identified and is submitted for the record. The statement is summarized in oral testi

mony.

The several specific points or issues which you addressed to us for clarification relate primarily to our draft channel modification report to the Council on Environmental Quality dated March 31, 1972. We have since had an opportunity to extend and expand our earlier analysis, which was prepared in extreme haste last year. Therefore, while we will be as responsive as possible to your specific questions, this statement will also reflect our subsequent more detailed studies. As you know, the final report to the Council will be delivered on March 31, 1973.

THE SELECTION OF THE SUBJECTS FOR STUDY

Arthur D. Little, Inc. (ADL) responded initially to a Council on Environmental Quality (CEQ) "Study Prospectus" in May 1971. A mutually