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point out, of course, that the Commission's interest in this bill does arise from its licensing authority under part 1 of the Federal Power Act.
In issuing licenses on lands of the United States—and that is what would be involved here--the Commission has authority to issue licenses on public lands and reservations, as defined in the act, with the exception of national parks and national monuments, which, by special act of Congress, were excluded from the Commission's licensing authority.
So today we do not get applications for projects that would be located within a national park or national monument.
That leads up to some of the questions from Senator Carroll and others this morning, as to what effect this bill establishing a wilderness system would have on the Commission's licensing authority.
There is nothing in the bill that specifically repeals the Commission's licensing authority, and it is the Commission's position, as stated in its report, and mine, as General Counsel, that the Commission would continue to have licensing authority over areas that would be established as the wilderness system or put in the wilderness system by this bill, provided the Commission could make the finding, under the Federal Power Act, that the license would not interfere with or be inconsistent with the purposes for which the wilderness system was created in this bill, that the license would not interfere or be inconsistent with the purposes of the wilderness system.
In reading the bill, and of course after listening to the testimony this morning, it might be very hard as a factual matter for the Commission to make a 4(e) finding, that this would not interfere with the purposes of the wilderness system; which is mainly to keep the people out, as I heard this morning.
So as a practical matter, I think the Commission's jurisdiction would be affected by the definition of "wilderness" as contained in this bill.
Previously we have had the same problem in considering licenses on national forest lands that had been designated by administrative order, not by statute, as wilderness, primitive, and so on, areas, and we have not had the same difficulty, because Congress had not set those up as reservations, and we only considered those wilderness areas set up by administrative order as part of the national forest reservation.
And we have made the finding in some cases (I recall one case where we have conditioned a license to require temporary roads to be obliterated once the project reservoir was built) in order to return the project back into wilderness status.
On the other hand, I can see possibilities where part of a reservoir or part of a small canal or tunnel or parts of a project could very well be located, as they are today, in wilderness areas, and still not destroy the wilderness character as set up by this bill.
That takes me to the point that was raised this morning as to the authority of the President, or the limitations on our licensing authority, under the bill. The CHAIRMAN. Just one second, now. You are going to talk now about transferring primitive areas into wilderness areas?
Mr. Mason. I did not understand you, sir.
The CHAIRMAN. You are going to talk now about transferring a primitive area into a wilderness area?
Mr. Mason. No, sir. I did not intend to get into that. I was going to talk about how the section on page 12, which gives the President authority to make exceptions and to permit uses other than wilderness use, would affect our licensing authority.
The CHAIRMAN. Would you agree that the 4,888,000 acres of land now in wilderness areas would not be changed, as far as your jurisdiction is concerned, by the passage of this bill? Or do you not?
Mr. Mason. I think if the bill were passed, the argument could be made, as was indicated by the Agriculture witnesses this morning, that our jurisdiction would be affected, yes, sir. And that is the next point I was going to get to.
The CHAIRMAN. Now, in my area the largest wilderness is the Gila wilderness area of some 400,000 acres. Is it your contention that you have a right to license a powerplant in that area now?
Mr. Mason. Yes, sir; if there is no other prohibition other than its being in the wilderness area, if that is the prohibition you are talking about. Yes, sir, we have authority, provided we could make a finding under the Power Act that the license issued for a project in that area will not interfere with or be inconsistent with the purpose for which the reservation was created or acquired.
The CHAIRMAN. Well, certainly the construction of a dam and powerplant is a complete negation of wilderness, is it not?
Mr. Mason. It could be, yes, sir. It does not necessarily have to be. We have them there now. It has not destroyed the wilderness effect. We have conditioned licenses to protect the wilderness area after the reservoirs have been constructed under licenses.
As pointed out in the Commission's report, on page 2, the Commission says, and I quote:
Based upon the available but incomplete information concerning wild, wilderness, or primitive areas, the hydroelectric generating capacities of the sites, licensed and potential, which would be affected in those areas are as follows—
The CHAIRMAN. I realize that. But you have changed the language a little bit, you see. You have said this concerns wild, wilderness, or primitive areas. That takes in more areas. I asked you with reference to the 4,488,000 acres of wilderness area.
Is it your contention that you can license a powerplant in those wilderness areas now?
Mr. Mason. Yes, sir, wild and wilderness areas as well as primitive The CHAIRMAN. Please stay on the wilderness.
Mr. Mason. Let me make a statement that I think will help clear it up. I know what
you want to know. The CHAIRMAN. That is what I am trying to have you do; because I thought that the Gila wilderness was protected to the degree that you could not do that. There has been a proposal for some time to develop water on the Gila River at a project called the Hooker Dam, which ties in to an area on the Gila River close to the Gila wilderness, that might flood a portion of the wilderness. And up until now, Í have thought that you could not put a dam there. Probably I was
relying on insufficient evidence. This is the first wilderness area that most of us knew much about.
Mr. Mason. It may be, as a matter of public interest, that all the parties would have an opportunity to make the argument against the issuance of the license, and in given cases the Commission has refused to issue licenses for such reasons as you are giving, because the wilderness should be preserved, or recreation values should not be destroyed by power. But that does not affect the Commission's legal authority to issue the license.
I would like to explain the difference between the wilderness system set up under this bill and why it would be more difficult to license than today under the present wilderness system.
As the Agriculture people told you this morning, Mr. Crafts and Mr. McArdle, the wilderness area today is set up under regulations of the Secretary and does not have the force of statute to the extent that a power site or withdrawal does, which is created by Congress under special statute.
Those wilderness areas have been carved out of the national forest, and historically the Commission, in making this 4(e) finding that the license would not be inconsistent with the purposes of a reservation has usually more or less confined its consideration to the national forest purposes as stated in the statute and has not gone too much into the administrative determination that this is a wilderness area.
Actually, it has not posed any real problem in licensing up to date. But if this bill were passed, then we would have the statutory definition to contend with, and I say, as the General Counsel and a man with long experience in licensing matters, that as a licensing matter we would have much more difficulty licensing under this statute than we have had up to the present time.
And one other point that makes that even more true is this provision on page 12, which says that the President may, within a specific area and in accordance with such regulations as he may deem advisable, authorize prospecting, and so on, and the establishment and maintenance of reservoirs, water-conservation works, and others needed in the public interest.
Certainly the Forest Service and Agriculture Department this morning said they construed this language to be language which would require Presidential approval as well as a license before any water conservation reservoirs could be constructed in the wilderness area.
I do not so construe the bill, necessarily, but certainly if they construe it that way, of course, they are agencies that would have a lot to do with administering it. It does leave an area for future argument. And I am only suggesting that that point be clarified.
One of the things that delays us most in administrative process in licensing is the ambiguities in the statutes and the arguments between agencies as to what particular language means.
We have had three or four cases go to the Supreme Court on that one point. And I am merely suggesting to you, Mr. Chairman, that the committee consider this point. And I think it is congressional policy, not Federal Power Commission policy, as to whether you want the Commission to continue to license in these areas or whether you want to exclude the Commission, as was done in national parks and national monuments.
It is not clear in this bill what is intended.
The CHAIRMAN. Are you referring to cases like the First Tora case ?
Mr. Mason. That and the Roanoke Rapids case, where the Secretary of Interior interpreted the 1944 Flood Control Act one way with respect to authorizing a Federal project there, and the Commission took a different view, and the court finally settled it in the Commission's favor.
The CHAIRMAN. But in the First Iowa case
Mr. Mason. That was an argument between the State and the Federal Government; not two Federal agencies.
The CHAIRMAN. This is dangerous ground for a nonlawyer, but did not the Supreme Court say in that First Iowa case that there was not room for two jurisdictions?
Mr. Mason. That is right.
The CHAIRMAN. There was not room for a separate licensing agency in the State of Iowa. Now, that would not apply in this instance, would it, because this is the President of the United States ?
Mr. Mason. Mr. Chairman, I do not want to be in a position of arguing policy with you, because this is a matter for you people and not the Federal Power Commission, as I see it.
The CHAIRMAN. You have got me thoroughly alarmed, now, because I never dreamed that you would come down to the Gila wilderness and build a dam. But I am going to try to find out some way to stop you from doing that if I can.
Mr. Mason. I did not say the Commission would license it. I said merely that they had authority to, and if it is not the best thing to do, and is not in the public interest, they will not. In numerous cases they have turned down applications.
The CHAIRMAN. The people that might want the current bill might say it is to the public interest to have such a plant put in there, but one of the purposes of wilderness is to prevent developments which disturb natural conditions. And once they put the dam in there, they have destroyed the wilderness character entirely.
Mr. Mason. I think that this bill would certainly improve your condition if you wanted to preserve the wilderness system, because I think it would be harder to license under this bill than it is at the present time.
The CHAIRMAN. I would not anticipate a bit of difficulty with the Federal Power Commission on this, because I am sure they would be reasonable about it.
You have listed the fact that you have capacity under license, existing, of 748,000 kilowatts. Is that in wilderness areas, or is it in primitive areas?
Mr. Mason. I would like Mr. Farley to answer that. He has the figures here in detail for you, Mr. Chairman.
Mr. FARLEY. Those are projects where in three or four cases the headwater reservoir is in a primitive area.
The CHAIRMAN. What I am trying to get to is this: There are primitive areas, there are wilderness areas, there are wild areas, and there are canoe areas. We were trying to find out this morning if a powerplant had been built in a wilderness area.
And you combine them all, here, and say:
Based upon the available, but incomplete information concerning wild, wilderness, or primitive areas, the hydroelectric generating capacities of the sites, licensed and potential, which would be affected in those areas are as follows
Do you know of any case where you have licensed a powerplant in a wilderness area?
Mr. FARLEY. Yes, sir.
The CHAIRMAN. Again I say that a wild area is a little different from a wilderness area. Will you stick to wilderness, please?
Mr. FARLEY. There is a small plant in the High Vintas wilderness area in Utah.
The CHAIRMAN. We looked this morning and saw very little wilderness area in Utah. What is this, now? The High Uintas?
Mr. FARLEY. The High Uintas. It is in the Ashley National Forest.
The CHAIRMAN. We have been trying to get you to use the same language. Is this not a primitive area?
Mr. FARLEY. Well, according to my information, it is a wilderness
The CHAIRMAN. You see, if I asked you how much ocean you would say is around us, you would be saying, by analogy, that Lake Superior has this much and Lake Huron has this much. I did not ask about the lakes, but about the ocean. And in this case I asked about wilderness
I want you to be real sure. I am not trying to say you are not answering correctly. I just want to be real sure that you are answering correctly. Are you sure this is in a wilderness area?
Mr. FARLEY. The information we have is that it was a wilderness
The CHAIRMAN. Is there anybody here from the Forest Service? Is that a wilderness area?
Mr. CRAFTS (Edward C. Crafts, Assistant Chief, Forest Service). No, Senator Anderson. That is a primitive area.
The CHAIRMAN. I am glad to have confirmation of my suspicion. Now, will you try as to a wilderness area?
Mr. FARLEY. My difficulty is that some have been changed from one designation to another.
The CHAIRMAN. Well, they would not change it from wilderness to primitive. It might go the other way. You picked out a poor example. Would you try again, for $64 or whatever it may be ? I do not say there is not one. I just do not know of one. I am trying to find one.
Mr. FARLEY. I do not have any. The others are either wild or primitive.
The CHAIRMAN. Mr. Crafts, do you know of any in a wilderness area? A power dam?
Mr. CRAFTS. I do not know of any, Senator.
The CHAIRMAN. That is why I wonder if all of this argument is necessary. You see, when we try to transfer a primitive area into a wilderness area, that has to be as a result of a very substantial