Chairman MORGAN. Mr. Fitzpatrick, would a serious lowering of the water table in Lake Erie interfere with the New York Power Authority's operation? Mr. FITZPATRICK. For every thousand cubic feet per second we lose a year it costs about $1,860,000 to replace lost power. Any serious fluctuation in the water level is of concern to us. Chairman MORGAN. I don't know whether you are aware or not that last week in the public works bill that passed the House of Representatives there was a provision to finance the start of planning for construction of an Ohio River-Lake Erie Canal to be 15 feet deep and 125 miles long. We, who oppose the canal, feel this would lower the water table in Lake Erie. My question is this: Can the Great Lakes Commission handle a serious water problem like this that is going to affect your authority if it has congressional approval? Mr. FITZPATRICK. I am delighted to know we are on the same side in that issue, because we have filed against that particular proposal for obvious reasons because of the water that it would deprive us of. Second, I think the answer to your question is "No." Initially, the determination as to whether this should or should not be constructed is a matter for Congress in the first instance, it would seem to me, as well as the adjoining States. There are States in the Great Lakes compact who are not directly concerned with this particular canal and who should, therefore, in my humble opinion, not concern themselves with it. In other words, if you have a problem, as you have in Pennsylvania, I don't think you would be concerned about having a gentleman from California having a vote as to how you should handle it. This would in effect be the fact if the Great Lakes Commission were concerning itself with problems not common to all of the States in the Great Lakes. Chairman MORGAN. Mr. Fitzpatrick, when the public works bill was on the floor I personally counted 387 Members of Congress who had projects in that bill. In my opening statement when I proposed the amendment to strike the $500,000 for this canal out of the bill I said that I felt like the man who got caught trying to shoot Santa Claus on Christmas Eve. I knew my speech wasn't going to get a single vote. We face these facts when we face projects of this kind in the public works bill. A Member from California who has all kinds of water projects in the public works bill certainly has a voice in lowering the water table in Lake Erie by building this canal. How do we handle a problem like this if we don't have an effective organization that can deal with this matter? Mr. FITZPATRICK. You have one in the Water Resources Planning Act. You have authority to set them up, and I am sure it will do that. Mrs. KELLY. Set up what? Mr. FITZPATRICK. It will have Federal sponsorship. It brings everyone in on the high level that is required. I think this is the answer. Chairman MORGAN. You think that is going to stop the canal? Mr. FITZPATRICK. I didn't mean that. The answer to that is "No." Mrs. KELLY. Could I have one more question? I am really out in left field in thinking about what is coming up Wednesday. 70-234-66-8 New York has been doing a tremendous job as far as the power authority goes. Michigan has its own situation. Ohio has its own. Suppose, just let us suppose this is a problem that comes up between any two of these authorities. Who is going to settle that, a conflict of interest between these? How is that problem settled? You have your authority, Michigan has, and Ohio, and you have a problem involving some sort of problem with Canada. Can you solve it? Would you say the new bill that we would pass would do it, the Water Resources Act, that could solve the problem? Mr. FITZPATRICK. No. 1, Mrs. Kelly, may I say that I am not an authority on that particular legislation. I am not an authority on any legislation I presume. My answer to the chairman's question was, as I understood it, he was saying is there not need for some cohesive body with authority to settle all the problems of the adjoining States. I have simply said, as I understand it, when Congress passed the Water Resources Planning Act and provided for the Basin Commission that they were doing just exactly that. And if authorities within the area of the basins have problems it is my understanding, again please realize that I may be wrong in my understanding, it is my understanding they would have first of all a forum in which to exchange their opinions and debate. That forum would have representation from the Government of the United States. Having come to a community opinion, a common opinion as to approach, they would then, through the medium of that collective medium, approach whatever agency, whether it be in Canada or the United States, in Canada through the State Department, to solve it. Am I correct in my understanding of that, Mr. Chairman? Any further questions? Thank you, Mr. Fitzpatrick. I think you have made a very excellent witness. The committee stands adjourned until further notice. (Whereupon, at 12:30 p.m., the committee was adjourned.) APPENDIX (The following was supplied subsequently in response to questions by Mr. O'Hara and Mr. Fulton during the meeting on September 27— see pp. 41 and 45.) DEPARTMENT OF STATE, Washington, October 4, 1966. Hon. THOMAS E. MORGAN, Chairman, Committee on Foreign Affairs, DEAR MR. CHAIRMAN: During the September 27 Committee hearings on several bills granting the consent of Congress to a Great Lakes Basin Compact, Congressman Fulton requested the Department's witness, Rufus Z. Smith, to provide further information concerning: the position of the Department of State and the Government of Canada if the consent of Congress were not withheld to Article II, paragraph B of the Compact; and the Department's interpretation of the word "cooperate" in Article VI, paragraph L of the Compact, as conditioned by Section 2 of the proposed legislation (H.R. 937, H.R. 12294, H.R. 12299 and H.R. 12692). Congressman O'Hara asked for further information on compacts in which there was foreign participation. The following information may prove helpful. 1. Article II, paragraph B of the Great Lakes Basin Compact provides that the Canadian Provinces of Ontario and Quebec may become states party to the compact. The proposed consent legislation withholds Congressional consent from that provision. If consent were not so withheld, the two Provinces could become parties to the compact. The Department of State would probably oppose any such change in the consent legislation. Matters relating to the international waters of the Great Lakes are regarded in Canada as highly sensitive public issues. In the first place, they raise controversial constitutional questions regarding the authority of the national government vis-a-vis that of the provinces; secondly, widespread Canadian fears are being expressed concerning possible United States demands on Canadian water sources. As a consequence, these matters have a high degree of political sensitivity and are a fundamental part of our relations with the Government of Canada. Moreover, Canada and the United States have established intergovernmental mechanisms which have important functions in this area and which include extensive local as well as national participation. I have in mind the International Joint Commission and the Great Lakes Fisheries Commission, established by treaties in 1909 and 1954, respectively. For Canadian provinces to be permitted to become parties to the Great Lakes Basin Compact would turn the compact into an international body empowered to deal with these sensitive matters. We would be reluctant to see the establishment of additional stateprovincial mechanisms which might either work at cross-purposes with the existing arrangements or needlessly duplicate them. We would have further concern that studies, proposals and recommendations adopted by the states and the provinces-acting under the compact-could very likely be misinterpreted in Canada as having the approbation of the United States Government. Such misunderstanding in these sensitive matters could cause serious difficulty with the conduct of our foreign relations. While the Department would for these reasons oppose any provision permitting the Provinces of Quebec and Ontario to join formally the interstate compact as states party, the Department would not wish to hinder proper cooperation between the provinces and Great Lakes Commission on matters of common concern. Indeed, the proposed consent legislation provides for such cooperation with the Government of Canada or its political subdivisions, as well as with any international agency having jurisdiction in the basin. This provision— with the editorial suggestions offered by the Department in our letter of July 15, 1966 ensures, however, that such dealings shall be undertaken only through or with the approval of the Department of State. We believe it necessary that the authority of the Federal Government in this important area be thus safeguarded, but it is entirely possible that within this framework of policy control there could also be direct informal contact between the lesser authorities on specific common problems. The Department has asked the Government of Canada for its views on legislation which would not withhold the consent of Congress to Article II, paragraph B of the compact. As soon as we have the Canadian Government's response, we shall forward it to you. 2. It is difficult for the Department to predict with any precision the nature and extent of the cooperation by the Great Lakes Commission under Article VI, paragraph L of the compact. This cooperation could, for example, take the following forms: assistance in the collection and correlation of data relating to the water resources of the basin; harmonization of conservation measures; synchronization of public works and other improvements; and the organization of reports considering navigation and fisheries questions. These helpful and cooperative endeavors could be undertaken by the Great Lakes Commission in conjunction with the Government of Canada, the Provinces of Quebec and Ontario or with the International Joint Commission and Great Lakes Fisheries Commission. Of course, under the proposed legislation any such cooperation could be extended only through or with the approval of the Department of State in the light of its effect on our relations wtih Canada. Only as specific proposals for cooperation arise, once Congressional consent is obtained, could the Department be in a position fully to consider their nature and extent as well as the proper method of execution. 3. The consent of Congress has been given to compacts between states of the United States in which participation by Canadian provinces was permitted. In 1949 Congress consented to the Northeast Interstate Forest Fire Protection Compact (63 Stat. 271). Though the compact provided that any contiguous province of Canada might join, the legislation granting Congressional consent expressly provided that "before any province of the Dominion of Canada shall be made a party to such compact, the further consent of Congress shall be obtained." Three years later, Congress approved the participation of any such contiguous province (66 Stat. 71). Congressional consent has also been given to New York State to negotiate and enter into a compact or agreement with the Government of Canada for the operation of a bridge by the Buffalo and Fort Erie Public Bridge Authority, established thereby (70 Stat. 701; 71 Stat. 367). The State of Minnesota was given consent to negotiate a compact with the Province of Manitoba for the development of an access highway through that Province to the Northwest Angle of the State (70 Stat. 1701). Agreement on the highway was reached in 1962. The Senate, on September 28, 1966, passed S. 2138 which grants the consent of Congress to the Agreement subject to certain conditions. There is also proposed legislation, S. 3476, which offers Congressional consent to an agreement between Maine and the Province of New Brunswick for the construction and maintenance of a bridge between those two entities. The Department is unaware of any other recent examples of compacts involving foreign participation to which Congressional consent is proposed or has been given. There undoubtedly exist, however, many local working arrangements between citizenry on both sides of the border. These local arrangements have not been considered to have the dignity of compacts or agreements within the meaning of Article I, section 10 of the United States Constitution, and therefore Congressional consent would not be required for them. May I restate that with the suggestions noted in my letter of July 15, 1966, the Department has no objection from a foreign relations viewpoint to the enactment of the proposed legislation granting Congressional consent to the Great Lakes Basin Compact. If I may be of any further assistance, please do not hesitate to call upon me. Sincerely, DOUGLAS MACARTHUR II, Assistant Secretary for Congressional Relations. (The following was received subsequent to the hearing of October 4 and requested to be included in the record of hearings:) Dr. THOMAS E. MORGAN, GREAT LAKES COMMISSION, U.S. House of Representatives, Washington, D.C. DEAR DR. MORGAN: At the hearing before the Committee on Foreign Affairs, U.S. House of Representatives, in Washington, D.C. on October 4, 1966, Mr. Fitzpatrick, Chairman of the Power Authority of the State of New York, presented a lengthy statement in opposition to H.R. 937 and companion bills which grant the consent of Congress to the Great Lakes Basin Compact. There was no opportunity to respond to or rebut Mr. Fitzpatrick's statement, but, I believe, a few brief comments should be made on his grounds for objection. I refer to pages 22 and 23 of Mr. Fitzpatrick's statement: Items Number 1 and 2. Congressional consent is unnecessary; or if necessary to permit the Commission to be represented on a Great Lakes (River) Basin (Planning) Commission, Chapter 186 of the Laws of 1911, 36 Stat. 961 provides for granting necessary consent. Comment. In the final analysis, Congress itself determines whether consent to an interstate compact is necessary. In several instances in the past, the Senate has indicated that consent is necessary and has twice passed legislation which grants Congressional consent to the Great Lakes Basin Compact. The House Committee on Foreign Affairs has in Report No. 2587, 85th Congress, 2nd Session, page 5, indicated that consent for the Great Lakes Basin Compact is necessary, and has favorably reported on bills which would grant consent. The State of New York, in the past, officially has indicated the desirability and necessity for consent to the Compact. (See Statement by Mr. Nicholas Olds, Assistant Attorney-General, Michigan, appearing on behalf of Attorney-General Frank Kelley on September 27, 1966 in hearings before the Foreign Affairs Committee of the U.S. House of Representatives.) The Governors of six of the eight states have recognized the need for and approve of the legislation which grants consent. (See copies of letters from the Governors as presented by Mr. Edgar D. Whitcomb, Chairman of the Great Lakes Commission, and inserted into the record of hearings on September 27, 1966.) The Power Authority of the State of New York stands alone in its position on these two items and is the only objector to consent to the Compact. Item Number 3. "Enactment of proposed bills would cast doubt on the legality of the past and current activity of the Commission *** and activities by the Power Authority in dealing with Canadian entities ***” Comment. The then Deputy Attorney-General of the United States, Nicholas deB. Katzenbach, in his letter of May 1962, which has been entered in the record of the hearing, did not see fit to conclude as the Power Authority has done on this ground for objection. There has been no semblance of doubt cast on the legality of the activities undertaken by the Commission. The Commission has never undertaken to analyze the legality of the dealings of the Power Authority with Canadian entities. Item Number 4. The savings clause in Section 3 (of H.R. 12294 and similar bills) and the use of the word "sanction" in that clause. Comment. There is no known sinister meaning of the word "sanction" as used herein. Section 3 was designed and was included primarily to protect the interests of the states and states' entities in the working arrangements between and among themselves and with the provinces of Canada. There is no known objection to Section 3 in the Congress or the Administration, and presumably it would be retained in the bill. The Senate bill for the same purposes, S. 2922, contains an identical Section 3. The Power Authority of the State of New York is the only known objector to Section 3 of the bill, and is apparently the only entity which is fearful of some implied harmful effect. Item Number 5. "Passage of any one of the bills would bring the existing Great Lakes Commission to an end ***” Comment. This item has been explored in previous hearings on bills which would grant the consent of Co to the Compact. Congress is the sole |