B-167941.OM, APR 6, 1981

B-167941.OM, APR 6, 1981

SUBJECT: TENNESSEE-TOMBIGBEE WATERWAY (TTW) PROJECT (FILE B-167941-O.M.; CODE 080570)

DIRECTOR, CED:

BY MEMORANDUM OF MARCH 16, 1981, THE OFFICE OF GENERAL COUNSEL RESPONDED TO CERTAIN QUESTIONS RAISED IN A DECEMBER 22, 1980, MEMORANDUM FROM FORMER SENIOR GROUP DIRECTOR, CED, DON B. CLUFF. THIS MEMORANDUM RESPONDS TO THE REMAINING QUESTIONS RAISED IN THE DECEMBER 22, 1980, MEMORANDUM.

ISSUE I - LOCAL COST SHARING OBLIGATION:

QUESTION: IS THE USE OF FEDERAL HIGHWAY TRUST FUNDS TO MEET COST SHARING OBLIGATIONS ALLOWED IN THIS CASE?

ANSWER: YES.

ISSUE II - FISH AND WILDLIFE COORDINATION ACT

QUESTION: IS THE CORPS REQUIRED TO COMPLY WITH THE FISH AND WILDLIFE COORDINATION ACT (FWCA) ON THIS PROJECT?

ANSWER: SECTION 2(G) OF THE FWCA PROVIDES THAT THE FWCA SHALL APPLY TO ALL PREVIOUSLY AUTHORIZED PROJECTS NOT SUBSTANTIALLY COMPLETE ON THE DATE OF ENACTMENT OF THE FWCA IN 1958. SINCE THE TTW WAS NOT SUBSTANTIALLY COMPLETE IN 1958, THE FWCA IS GENERALLY APPLICABLE TO THE TTW.

HOWEVER, THE REPORTING REQUIREMENTS OF SECTION 2(B), INSOFAR AS PERTINENT HERE, ANTICIPATE THE SUBMISSION OF A WILDLIFE MITIGATION PLAN TO CONGRESS AT THE TIME OF PROJECT AUTHORIZATION OR AT THE TIME CONGRESS IS ASKED TO APPROVE THE MODIFICATION OR SUPPLEMENTATION OF PLANS FOR PREVIOUSLY AUTHORIZED PROJECTS. SINCE THE TTW WAS AUTHORIZED 12 YEARS PRIOR TO THE ENACTMENT OF THIS PROVISION, THE PROVISION IS BY ITS OWN TERMS INAPPLICABLE TO THE TTW. NOR ARE WE AWARE THAT THE CORPS HAS SUBMITTED ANY REPORTS TO CONGRESS SEEKING CONGRESSIONAL APPROVAL OF PROJECT MODIFICATION OR SUPPLEMENTATION WHICH, UNDER SECTION 2(B), WOULD REQUIRE THE SUBMISSION OF A WILDLIFE MITIGATION PLAN.

QUESTION: SHOULD THE COSTS OF THE FISH AND WILDLIFE MITIGATION PROGRAMS BE INCLUDED AS A PROJECT COST WHEN CALCULATING THE PROJECT'S BENEFIT COST RATIO?

ANSWER: SECTION 2(C) OF THE FWCA DIRECTS THAT THE COST OF MODIFICATIONS OR LAND ACQUISITIONS TO MITIGATE FISH AND WILDLIFE DAMAGES "SHALL BE AN INTEGRAL PART OF THE COSTS OF CORPS PROJECTS." WITH RESPECT TO THE COST OF MODIFYING PROJECT STRUCTURE ON THE TTW TO MITIGATE FISH AND WILDLIFE DAMAGES, SUCH COSTS ARE TO BE BORNE AS AN OVERALL COST OF PROJECT CONSTRUCTION AND SUBSUMED THEREIN. WITH RESPECT TO THE COST OF LAND ACQUISITIONS TO MITIGATE FISH AND WILDLIFE DAMAGES, UNTIL CONGRESSIONAL AUTHORITY TO ACQUIRE SUCH LANDS IS OBTAINED, IT WOULD BE INAPPROPRIATE TO INCLUDE SUCH COSTS IN THE PROJECT'S BENEFIT COST RATIO.

ATTACHED IS A MORE DETAILED ANALYSIS.

ATTACHMENT

TENNESSEE-TOMBIGBEE WATERWAY

DIGEST:

1. FEDERAL HIGHWAY TRUST FUNDS ALLOCATED TO STATES OF MISSISSIPPI AND ALABAMA IN ACCORDANCE WITH TERMS OF SECTION 132 OF PUB. L. 94-280, 90 STAT. 441 (1976) (23 U.S.C. 156) ARE ELIGIBLE TO MEET LOCAL COST SHARING OBLIGATIONS SPECIFIED IN HOUSE DOCUMENT 486, 79TH CONG. 2D SESS. (1946), INCORPORATED BY REFERENCE INTO PUB. L. 79-525, 60 STAT. 634 (1946) AUTHORIZING CONSTRUCTION OF THE TENNESSEE-TOMBIGBEE WATERWAY.

2. ALTHOUGH SECTION 2(G) OF FISH AND WILDLIFE COORDINATION ACT, 16 U.S.C. 662(G)(1976) MAKES FWCA GENERALLY APPLICABLE TO WATER PROJECTS AUTHORIZED PRIOR TO 1958, CORPS FAILURE TO DATE TO SUBMIT WILDLIFE MITIGATION REPORT TO CONGRESS DOES NOT APPEAR TO VIOLATE ACT SINCE SECTION 2(B)'S REPORTING REQUIREMENTS, 16 U.S.C. 662(B)(1976), ANTICIPATING POTENTIAL SUBMISSION OF WILDLIFE MITIGATION REPORT AT ASCERTAINABLE POINT IN TIME ARE EITHER INAPPLICABLE BY THEIR OWN TERMS OR BY FACTS AND CIRCUMSTANCES SURROUNDING DEVELOPMENT AND CONSTRUCTION OF TENNESSEE-TOMBIGBEE WATERWAY.

3. SECTION 2(C) OF FISH AND WILDLIFE COORDINATION ACT (FWCA), 16 U.S.C. 662(C)(1976), DIRECTS THAT COSTS OF PROJECT MODIFICATIONS AND LAND ACQUISITIONS TO MITIGATE FISH AND WILDLIFE DAMAGES ARE TO BE "INTEGRAL PART" OF PROJECT COSTS. COSTS TO MODIFY PROJECT STRUCTURES ARE TO BE BORNE AS OVERALL COST OF PROJECT CONSTRUCTION AND SUBSUMED THEREIN. COSTS OF LAND ACQUISITIONS TO MITIGATE FISH AND WILDLIFE DAMAGES WOULD NOT APPEAR APPROPRIATE FOR INCLUSION UNTIL CONGRESSIONAL AUTHORITY TO ACQUIRE SUCH LANDS IS OBTAINED IN ACCORDANCE WITH FWCA.

I.

LOCAL COST SHARING OBLIGATION

QUESTION: IS THE USE OF FEDERAL HIGHWAY TRUST FUNDS TO MEET COST SHARING OBLIGATIONS WITH RESPECT TO THE TENNESSEE-TOMBIGBEE WATERWAY (TTW) ALLOWED?

ANSWER: YES.

DISCUSSION:

THE RIVERS AND HARBORS ACT OF 1946, PUB. L. 79-525, 60 STAT. 634 (1946), AUTHORIZED CONSTRUCTION OF THE TTW IN ACCORDANCE WITH THE TERMS OF HOUSE DOCUMENT 486, 79TH CONG., 2D SESS. (1946). HOUSE DOCUMENT 486 DIRECTS THAT "NON-FEDERAL AGENCIES SHOULD BEAR THE CONSTRUCTION COST OF ALL HIGHWAY BRIDGES AND HIGHWAY RELOCATIONS, THE COST OF NEW TRANSFER FACILITIES, RECONSTRUCTION OR ALTERATION OF SEWERS, DRAINAGE, AND WATER SUPPLY WORKS, AND MAINTAIN AND OPERATE ALL BRIDGES AND UTILITY CROSSINGS EXCEPT NEW RAILROAD BRIDGES ACROSS THE DIVIDE CUT." HOUSE DOCUMENT 486, ABOVE AT 49.

IN THE FEDERAL HIGHWAY ACT OF 1976, PUB. L. 94-280, 90 STAT. 441, SEC. 132 (1976), CONGRESS AUTHORIZED THE SECRETARY OF TRANSPORTATION TO USE $100 MILLION DOLLARS "TO CONSTRUCT AND RECONSTRUCT ANY PUBLIC HIGHWAY OR HIGHWAY BRIDGE ACROSS ANY FEDERAL PUBLIC WORKS PROJECT, NOTWITHSTANDING ANY OTHER PROVISION OF LAW ***." 23 U.S.C. 156 (1976). THIS GRANT OF AUTHORITY WAS CONDITIONED UPON A FINDING THAT THERE HAD BEEN "A SUBSTANTIAL CHANGE IN THE REQUIREMENTS AND COST OF SUCH HIGHWAY OR BRIDGE SINCE THE PUBLIC WORKS PROJECT WAS AUTHORIZED" AND THAT THE "INCREASED COSTS WOULD WORK AN UNDUE HARDSHIP UPON ANY ONE STATE." ID. IN THIS REGARD, WE HAVE BEEN INFORMALLY ADVISED BY THE AUDIT STAFF THAT THE SECRETARY OF TRANSPORTATION HAS SO FOUND.

THE LEGISLATIVE HISTORY OF THE FEDERAL HIGHWAY ACT MAKES CLEAR THAT THIS PROVISION WAS "TO APPLY TO WATER RESOURCES DEVELOPMENT PROJECTS, SUCH AS THOSE OF THE CORPS OF ENGINEERS ***" 1976 U.S.C. CONG. & ADM. NEWS, 811. FURTHER, SINCE PRESENT POLICY IS THAT NECESSARY HIGHWAY AND BRIDGE RELOCATIONS AND ALTERATIONS ARE FEDERAL RESPONSIBILITIES, THE PURPOSE OF THIS SECTION WAS TO BRING EARLIER AUTHORIZED PROJECTS "IN LINE WITH PRESENT DAY POLICY." ID. ACCORDINGLY, BASED ON THE LANGUAGE OF SECTION 132 OF THE FEDERAL HIGHWAY ACT OF 1976 AND ITS LEGISLATIVE HISTORY, WE CONCLUDE THAT THE $89.5 MILLION ALLOCATED BY THE SECRETARY OF TRANSPORTATION TO THE STATES OF MISSISSIPPI AND ALABAMA, CUMULATIVELY, IS ELIGIBLE TO FUND LOCAL COST SHARING OBLIGATIONS.

II.

FISH AND WILDLIFE COORDINATION ACT

QUESTION: IS THE CORPS REQUIRED TO COMPLY WITH THE FISH AND WILDLIFE COORDINATION ACT (FWCA) ON THIS PROJECT?

ANSWER: SECTION 2(G) OF THE FWCA PROVIDES THAT THE FWCA SHALL APPLY TO ALL PREVIOUSLY AUTHORIZED PROJECTS NOT SUBSTANTIALLY COMPLETE ON THE DATE OF ENACTMENT OF THE FWCA IN 1958. SINCE THE TTW WAS NOT SUBSTANTIALLY COMPLETE IN 1958, THE FWCA IS GENERALLY APPLICABLE TO THE TTW. HOWEVER, SINCE SECTION 2(B)'S REPORTING REQUIREMENTS THAT ANTICIPATE THE SUBMISSION OF A WILDLIFE MITIGATION REPORT AT AN ASCERTAINABLE POINT IN TIME ARE EITHER INAPPLICABLE BY THEIR OWN TERMS OR BY THE FACTS AND CIRCUMSTANCES SURROUNDING THE DEVELOPMENT AND CONSTRUCTION OF THE TTW, THE CORPS' FAILURE TO DATE TO SUBMIT A WILDLIFE MITIGATION PLAN TO CONGRESS DOES NOT VIOLATE THE FWCA.

DISCUSSION:

SECTION 2(G) OF THE FWCA PROVIDES THE INITIAL ANSWER TO THIS QUESTION:

"(G) APPLICABILITY TO PROJECTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE WITH RESPECT TO ANY PROJECT FOR THE CONTROL OR USE OF WATER AS PRESCRIBED HEREIN, OR ANY UNIT OF SUCH PROJECT AUTHORIZED BEFORE OR AFTER THE DATE OF ENACTMENT OF THE FISH AND WILDLIFE COORDINATION ACT FOR PLANNING OR CONSTRUCTION, BUT SHALL NOT BE APPLICABLE TO ANY PROJECT OR UNIT THEREOF AUTHORIZED BEFORE THE DATE OF ENACTMENT OF THE FISH AND WILDLIFE COORDINATION ACT IF THE CONSTRUCTION OF THE PARTICULAR PROJECT OR UNIT THEREOF HAS BEEN SUBSTANTIALLY COMPLETED. A PROJECT OR UNIT THEREOF SHALL BE CONSIDERED TO BE SUBSTANTIALLY COMPLETED WHEN SIXTY PERCENT OR MORE OF THE ESTIMATED CONSTRUCTION COST HAS BEEN OBLIGATED FOR EXPENDITURE." 16 U.S.C. 662(G)(1976). FN1

THE CORPS DOES NOT DISPUTE THE GENERAL APPLICABILITY OF THE FWCA TO THE TTW. LETTER OF CHIEF COUNSEL, CORPS OF ENGINEERS, LESTER EDELMAN, TO MILTON J. SOCOLAR, GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, DATED JANUARY 15, 1981, AT 3. INSTEAD THE CORPS ARGUES THAT THE LANGUAGE OF SECTION 2, WHICH ANTICIPATES PRE-AUTHORIZATION CONSULTATION OR REPORTING TO CONGRESS, IS INAPPLICABLE TO THE TTW, WHICH WAS AUTHORIZED PRIOR TO THE ENACTMENT OF THESE REQUIREMENTS. THUS, THE CORPS IS UNDER NO STATUTORILY MANDATED TIME FRAME FOR MEETING SECTION 2(B)'S REPORTING REQUIREMENTS. THE CORPS' CHIEF COUNSEL EXPLAINED THEIR POSITION AS FOLLOWS:

"NO CONSTRUCTION WORK ON THE TTW HAD BEGUN IN 1958, WHEN SECTION 2 OF THE FWCA WAS ENACTED, SO THAT SECTION'S CONSULTATION AND REPORTING REQUIREMENTS APPLY TO THE TTW. HOWEVER, TTW CONSTRUCTION WAS AUTHORIZED BY CONGRESS IN 1946, TWELVE YEARS BEFORE ENACTMENT OF THE FWCA RELEVANT PROVISIONS. CONSEQUENTLY, THE TERMS OF THE FWCA RELATING TO PREAUTHORIZATION REPORTS TO CONGRESS ARE NOT APPLICABLE TO THE TTW. IN FACT, NO PART OF THE FWCA PROVIDES ANY PARTICULAR TIMETABLE OR TIME CONSTRAINT MANDATING WHEN THOSE CONSULTATION AND REPORTING REQUIREMENTS MUST TAKE PLACE OR BY WHAT DATE THEY MUST BE COMPLETED FOR THE TTW. THAT IS, THE LANGUAGE OF 16 U.S.C. 662(B) WHICH IMPLIES A MANDATORY DEPARTMENT OF THE ARMY FWCA REPORT BY A DATE CERTAIN REFERS TO THE PROJECT REPORTS WHICH FEDERAL AGENCIES (E.G., CORPS OF ENGINEERS) NORMALLY SUBMIT TO CONGRESS BEFORE PROJECT AUTHORIZATION AND AS PART OF THE CONGRESSIONAL AUTHORIZATION PROCESS. THAT PARTICULAR LANGUAGE DOES NOT APPLY TO THE CIRCUMSTANCES OF THE TTW PROJECT, SINCE THE TTW'S PREAUTHORIZATION REPORTS HAD BEEN SUBMITTED TO AND APPROVED BY THE CONGRESS TWELVE YEARS BEFORE THIS FWCA LANGUAGE WAS ENACTED AS LAW. NEVERTHELESS, THE CORPS OF ENGINEERS IS COMPLYING WITH THE LETTER AND SPIRIT OF THE FWCA, IN THE SAME MANNER AS FOR OTHER PROJECTS AUTHORIZED BEFORE 1958 ***."

A.

CONSULTATION REQUIREMENTS

AS INDICATED IN THE CORPS LETTER, THE FWCA IMPOSES TWO GENERAL REQUIREMENTS ON THE CORPS - TO CONSULT WITH THE FISH AND WILDLIFE SERVICE, SECTION 2(A), 16 U.S.C. 662(A) (1976), AND TO REPORT TO CONGRESS THOSE MEASURES THE CORPS BELIEVES ARE JUSTIFIED FOR WILDLIFE CONSERVATION, INCLUDING AS AN INTEGRAL PART THEREOF THE REPORT AND RECOMMENDATIONS OF THE SECRETARY OF THE INTERIOR, SECTION 2(B), 16 U.S.C. 662(B) (1976).

WITH RESPECT TO CONSULTATION, SECTION 2(A) DIRECTS THAT

"*** WHENEVER THE WATERS OF ANY STREAM OR OTHER BODY OF WATER ARE PROPOSED OR AUTHORIZED TO BE IMPOUNDED, DIVERTED, THE CHANNEL DEEPENED, OR THE STREAM OR OTHER BODY OF WATER OTHERWISE CONTROLLED OR MODIFIED FOR ANY PURPOSE WHATEVER, INCLUDING NAVIGATION AND DRAINAGE, BY ANY DEPARTMENT OR AGENCY OF THE UNITED STATES, OR BY ANY PUBLIC OR PRIVATE AGENCY UNDER FEDERAL PERMIT OR LICENSE, SUCH DEPARTMENT OR AGENCY FIRST SHALL CONSULT WITH THE UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, AND WITH THE HEAD OF THE AGENCY EXERCISING ADMINISTRATION OVER THE WILDLIFE RESOURCES OF THE PARTICULAR STATE WHEREIN THE IMPOUNDMENT, DIVERSION, OR OTHER CONTROL FACILITY IS TO BE CONSTRUCTED, WITH A VIEW TO THE CONSERVATION OF WILDLIFE RESOURCES BY PREVENTING LOSS OF AND DAMAGE TO SUCH RESOURCES AS WELL AS PROVIDING FOR THE DEVELOPMENT AND IMPROVEMENT THEREOF IN CONNECTION WITH SUCH WATER-RESOURCE DEVELOPMENT." 16 U.S.C. 662(A) (1976).

SECTION 2(A) WAS ADDED TO THE ACT OF MARCH 10, 1934, BY THE ACT OF AUGUST 14, 1946. AS ADDED, SECTION 2(A) DIRECTED THE FEDERAL CONSTRUCTION AGENCIES TO FIRST CONSULT WITH THE FISH AND WILDLIFE SERVICE WHENEVER ANY STREAMS OR OTHER BODIES OF WATER "ARE AUTHORIZED TO BE IMPOUNDED, DIVERTED, OR OTHERWISE CONTROLLED." ACT OF AUGUST 14, 1946, PUB. L. 79-732, 60 STAT. 1080. THE ACT OF AUGUST 12, 1958, REENACTED SECTION 2(A) ADDING, INSOFAR AS PERTINENT HERE, THAT FEDERAL CONSTRUCTION AGENCIES SHALL FIRST CONSULT WITH THE FISH AND WILDLIFE SERVICE WHEN THE PROJECT IS "PROPOSED OR AUTHORIZED." NOTWITHSTANDING CONGRESS' APPARENT EMPHASIS IN THE 1958 ACT ON EARLIER CONSULTATION WITH THE FISH AND WILDLIFE SERVICE AND NOTWITHSTANDING THE FACT THAT THE TTW WAS PROPOSED AND AUTHORIZED PRIOR TO BOTH THE 1946 AND 1958 ACTS, SECTION 2(G) MAKES SECTION 2(A)'S CONSULTATION DUTY GENERALLY APPLICABLE TO THE TTW. HENCE, THE CORPS HAS A DUTY TO CONSULT WITH THE FISH AND WILDLIFE SERVICE. FN2 B.

REPORTING REQUIREMENTS

THE CRITICAL LEGAL ISSUE HERE IS WHETHER THE CORPS' FAILURE TO DATE TO SUBMIT A WILDLIFE MITIGATION REPORT TO CONGRESS VIOLATES SECTION 2(B) OF THE FWCA, 16 U.S.C. 662(B) (1976). WE CONCLUDE THAT IT DOES NOT. DISCUSSED BELOW, WE BELIEVE THE LANGUAGE OF SECTION 2(B) ANTICIPATING A PRE-AUTHORIZATION WILDLIFE MITIGATION REPORT IS BY ITS OWN TERMS INAPPLICABLE TO THE TTW. IN ADDITION, SINCE THE CORPS HAS NOT SOUGHT OR BEEN REQUIRED TO SEEK CONGRESSIONAL APPROVAL FOR THE MODIFICATION OR SUPPLEMENTATION OF TTW PROJECT PLANS, SECTION 2(B)'S LANGUAGE SUGGESTING THE SUBMISSION OF A WILDLIFE MITIGATION REPORT ALONG WITH ANY REPORT SEEKING CONGRESSIONAL APPROVAL OF PROJECT MODIFICATION OR SUPPLEMENTATION IS LIKEWISE INAPPLICABLE TO THE TTW. WE HAVE BEEN UNABLE TO DISCERN IN THE FWCA ANY OTHER STATUTORILY MANDATED TIME AT WHICH THE CORPS SHOULD HAVE REPORTED TO CONGRESS IN ACCORDANCE WITH SECTION 2 OF THE FWCA.

SUBSECTION (B) OF SECTION 2, LIKE SUBSECTION (A), WAS ADDED BY THE ACT OF AUGUST 14, 1946, ABOVE. AS ADDED, SECTION 2(B) DIRECTED THAT

"*** THE REPORTS AND RECOMMENDATIONS OF THE SECRETARY OF INTERIOR *** BASED ON SURVEYS AND INVESTIGATIONS CONDUCTED BY THE FISH AND WILDLIFE SERVICE *** FOR THE PURPOSE OF DETERMINING THE POSSIBLE DAMAGE TO WILDLIFE RESOURCES AND OF THE MEANS AND MEASURES THAT SHOULD BE ADOPTED TO PREVENT LOSS AND DAMAGE TO WILDLIFE RESOURCES, SHALL BE MADE AN INTEGRAL PART OF ANY REPORT SUBMITTED BY ANY AGENCY OF THE FEDERAL GOVERNMENT RESPONSIBLE FOR ENGINEERING SURVEYS AND CONSTRUCTION OF SUCH PROJECTS."

PUB. L. 79-732, 60 STAT. 1080 (1946). SEE ALSO H.R. REP. NO. 1944, 79TH CONG., 2D SESS. 3 (1946).

AS NOTED EARLIER, THE 1958 AMENDMENTS SOUGHT TO REMEDY THE "QUESTIONABLE APPLICATION" OF THE FWCA "TO MANY AUTHORIZED PROJECTS" SUCH AS THE TTW. AT THE SAME TIME THAT CONGRESS WAS EXTENDING THE REACH OF THE FWCA TO PREVIOUSLY AUTHORIZED PROJECTS, IT WAS ALSO ADDING CLARIFYING LANGUAGE TO SECTION 2(B) CLEARLY INDICATING THAT CONGRESS DESIRED PRE-AUTHORIZATION REPORTS. AS AMENDED, SECTION 2(B) DIRECTS THAT THE REPORTS AND RECOMMENDATIONS OF THE SECRETARY OF THE INTERIOR SHALL BE MADE AN INTEGRAL PART OF ANY REPORT PREPARED OR SUBMITTED BY A FEDERAL AGENCY RESPONSIBLE FOR ENGINEERING SURVEYS

"WHEN SUCH REPORTS ARE PRESENTED TO THE CONGRESS OR TO ANY AGENCY OR PERSON HAVING AUTHORITY OR POWER, BY ADMINISTRATIVE ACTION OR OTHERWISE, (1) TO AUTHORIZE THE CONSTRUCTION OF WATER-RESOURCE DEVELOPMENT PROJECTS OR (2) TO APPROVE A REPORT ON THE MODIFICATION OR SUPPLEMENTATION OF PLANS FOR PREVIOUSLY AUTHORIZED PROJECTS, TO WHICH THIS ACT APPLIES. ***"

PUB. L. 85-624, SEC.2, 72 STAT. 564 (1958) (CODIFIED AT 16 U.S.C. 662(B) (1976)).

THE HOUSE REPORT ACCOMPANYING THE 1958 AMENDMENTS EXPLAINS THAT THE REPORT OF THE FISH AND WILDLIFE SERVICE, "WHETHER ACCEPTED OR REJECTED BY THE CONSTRUCTING AGENCY, MUST BE SUBMITTED TO THE CONGRESS FOR ITS CONSIDERATION AS A PART OF THE AUTHORIZING LEGISLATION FOR EACH PROJECT." H. REP. NO. 2183, 85TH CONG., 2D SESS. 2 (1958). THE SENATE REPORT ALSO INDICATES WHEN CONGRESS DESIRED MITIGATION REPORTS:

"UNQUESTIONABLY, THE BILL, IF ENACTED, WOULD RESULT IN THE CONGRESS HAVING BETTER INFORMATION ON THE EFFECTS OF WATER PROJECTS ON FISH AND WILDLIFE RESOURCES WHILE CONSIDERING PROJECT-AUTHORIZING LEGISLATION. WILL THEN, OF COURSE, BE FOR THE CONGRESS TO DECIDE WHAT CONSERVATION MEASURES SHOULD BE INCORPORATED IN ANY PROJECT.

"THE CONGRESS, MOREOVER, WOULD RETAIN FULL CONTROL, THROUGH ITS CONSIDERATION OF PROJECT-AUTHORIZING LEGISLATION, AND THE REVIEW OF SUPPLEMENTAL REPORTS, IN THE CASE OF PROJECTS ALREADY AUTHORIZED, OF ANY COSTS INCURRED FOR FISH AND WILDLIFE CONSERVATION PURPOSES."

S. REP. NO. 1981, 85TH CONG. 2D SESS. 6 (1958).

HENCE, AT THE SAME TIME THAT CONGRESS WAS EXPANDING THE APPLICATION OF THE FWCA TO PREVIOUSLY AUTHORIZED PROJECTS, IT WAS ALSO ADDING LANGUAGE CLEARLY INDICATING THAT WILDLIFE MITIGATION REPORTS WERE TO BE SUBMITTED AT THE TIME OF PROJECT AUTHORIZATION. HOWEVER, CONGRESS DID NOT TRANSLATE ITS CONCERN WITH THE APPLICATION OF THE FWCA TO PREVIOUSLY AUTHORIZED PROJECTS INTO A CLEAR TIME FRAME FOR THE SUBMISSION TO CONGRESS OF WILDLIFE MITIGATION REPORTS. ALTHOUGH WE CAN ONLY SPECULATE, CONGRESS' RELUCTANCE TO SPECIFY WHEN THE FWCA'S REPORTING REQUIREMENTS MUST TAKE PLACE OR WHEN THEY MUST BE COMPLETED MAY WELL HAVE RELATED TO THE SHEER SIZE OF THE BACKLOG OF AUTHORIZED PROJECTS (650 CORPS PROJECTS AND ABOUT 150 BUREAU OF RECLAMATION PROJECTS, SEE S. REP. NO. 1981, QUOTED ABOVE) TO WHICH THE POLICIES AND PROCEDURES OF THE FWCA WERE NOW TO APPLY.

THE FWCA ALSO DIRECTS A CONSTRUCTION AGENCY TO SUBMIT A WILDLIFE MITIGATION REPORT TO THE CONGRESS WHEN SEEKING CONGRESSIONAL APPROVAL OF "A REPORT ON THE MODIFICATION OR SUPPLEMENTATION OF PLANS FOR PREVIOUSLY AUTHORIZED PROJECTS ***." 16 U.S.C. 662(B) (1976). THIS PRESENTS TWO INQUIRIES.

FIRST, AS A FACTUAL MATTER, HAS THE CORPS SUBMITTED TO THE CONGRESS ANY POST-AUTHORIZATION REPORTS SEEKING APPROVAL OF PROJECT MODIFICATION OR SUPPLEMENTATION? AND, IF THE CORPS SUBMITTED SUCH REPORTS, WERE THE ACT'S REPORTING REQUIREMENTS SATISFIED? IN A LETTER DATED MARCH 18, 1981, THE CORPS' CHIEF COUNSEL REPORTED THAT THE CORPS HAS NOT SUBMITTED ANY POST AUTHORIZATION REPORTS ABOUT THE TTW THAT REQUIRED CONGRESSIONAL AUTHORIZATION. MARCH 18, 1981, LETTER TO MILTON J. SOCOLAR FROM LESTER EDELMAN, CHIEF COUNSEL, CORPS OF ENGINEERS, AT 3, 7. INFORMAL DISCUSSION WITH YOUR STAFF CONFIRMED IN ADVANCE OF THE LETTER THAT NO SUCH POST- AUTHORIZATION REPORTS HAVE BEEN PRESENTED TO CONGRESS.

SECOND, HAS THE CORPS FRUSTRATED THE ACT'S PURPOSE BY FAILING TO SEEK POST-AUTHORIZATION CONGRESSIONAL APPROVAL OF PROJECT MODIFICATIONS WHICH WOULD REQUIRE SUCH APPROVAL? ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, 467 F. SUPP. 885 (N.D. MISS 1979), AFF'D., 614 F.2D 474 (5TH CIR. 1980), CERT. DEN. 49 U.S.L.W. 3289 (OCTOBER 21, 1980) ANSWERS THIS INQUIRY.

IN 1976, A GROUP OF ENVIRONMENTALISTS AND THE LOUISVILLE AND NASHVILLE RAILROAD INITIATED ACTIONS AGAINST THE SECRETARY OF THE ARMY, THE CORPS OF ENGINEERS, AND OTHERS ALLEGING, INSOFAR AS PERTINENT HERE, THAT "THE CORPS LACKED LEGAL AUTHORITY TO CONSTRUCT THE TTW, AS IT IS DOING, WITH A 300' WIDE NAVIGATIONAL CHANNEL AND OTHER STRUCTURES REQUIRING MAJOR CHANGES IN DESIGN." ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, 467 F. SUPP. AT 887. IF, AS THE PLAINTIFFS CONTENDED, THE CORPS LACKED THE DISCRETIONARY AUTHORITY TO INCREASE PROJECT WIDTH TO 300' AND TO MAKE THE OTHER DESIGN CHANGES TO THE PROJECT PLAN AS PRESENTED IN HOUSE DOCUMENT 486, POST- AUTHORIZATION CONGRESSIONAL APPROVAL OF SUCH CHANGES WOULD HAVE BEEN REQUIRED, THEREBY TRIGGERING THE POST-AUTHORIZATION REPORTING REQUIREMENT OF SECTION 2(B) OF THE FWCA. THE DISTRICT COURT REJECTED THE CHALLENGE TO THE CORPS' AUTHORITY HOLDING THAT:

"(1) THE ATTACK ON THE WIDENING OF THE CHANNEL TO 300 FEET WAS BARRED BY LACHES; (2) CERTAIN CHANGES IN DESIGN OF THE CHANNEL WERE WITHIN THE DISCRETIONARY AUTHORITY OF THE CORPS OF ENGINEERS, AND (3) THE CONSTRUCTION OF SEVERAL DIKES, CAUSEWAYS AND DAMS IN THE WATERWAY PROJECT WITHOUT OBTAINING THE CONSENT OF CONGRESS AND HAVING THE PLANS APPROVED BY THE CHIEF OF ENGINEERS AND THE SECRETARY OF THE ARMY DID NOT VIOLATE FEDERAL LAW."

ID. AT 885-86, QUOTING FROM HEADNOTE.

ON APPEAL, THE FIFTH CIRCUIT COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S HOLDING THAT PLAINTIFFS' CHALLENGE TO THE SECRETARY OF THE ARMY'S AUTHORITY TO INCREASE PROJECT CHANNEL WIDTH TO 300' WAS BARRED BY LACHES. ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, 614 F.2D 474 (5TH CIR. 1980). THE APPELLATE COURT'S OPINION MERITS QUOTATION:

"IT IS DIFFICULT TO SAY THAT A GOVERNMENT AGENCY CAN BE PREJUDICED BY FORCING IT TO COMPLY WITH THE LAW. THE CITIZENRY ARE PREJUDICED BY THE IMPROPER OUTLAY OF PUBLIC FUNDS AND IT IS THEY WHO SUFFER IF GOVERNMENTAL AUTHORITIES VIOLATE THE LAW. HOWEVER, THERE IS PUBLIC INTEREST IN THE PROMPT PRESENTATION OF EVEN THE MOST VALID OBJECTIONS TO PUBLIC PROJECTS FROM ANOTHER POINT OF VIEW: THOSE WHO OPPOSE THE UNAUTHORIZED EXPENDITURE OF PUBLIC FUNDS SHOULD ACT TIMELY IN ORDER TO PREVENT THE UTTER WASTE THAT RESULTS IF WHAT IS DONE MUST BE UNDONE.

"WHETHER OR NOT CONGRESS AUTHORIZED WIDENING THE CHANNEL, IT HAS CONSIDERED ENVIRONMENTAL IMPACT STATEMENTS ON THE PROJECT AND DETERMINED TO GO AHEAD. ENVIRONMENTAL DEFENSE FUND, INC. V. CORPS OF ENGINEERS OF THE UNITED STATES ARMY, 492 F.2D 1123 (5TH CIR. 1974). IT HAS CONTINUED TO APPROPRIATE MONEY FOR THE PROJECT. ALTHOUGH THE PUBLIC INTEREST AND PREJUDICE TO THAT INTEREST CANNOT ALWAYS BE DETERMINED BY A KIND OF ECONOMIC WEIGHING OF HOW MUCH HAS BEEN SPENT, IT IS A FACT THAT OVER $176 MILLION HAD BEEN SPENT AT THE TIME THE AMENDED COMPLAINT WAS FILED AND THAT MUCH OF THE WATERWAY HAS BEEN BUILT. THE CORPS HAS SHOWN AMPLE PREJUDICE HERE BOTH IN THE WASTING EXPENDITURE THAT HAS OCCURRED AND THE ADDITIONAL EXPENSE OF NARROWING WHAT HAS ALREADY BEEN BUILT.

"IT IS TENDENTIOUS TO ASSERT THAT THE DISTRICT COURT HAD A DUTY TO DECIDE THE CASE ON THE MERITS AND NOT TO CONSIDER THE DEFENSE OF LACHES. THE COURT SURELY HAS A DUTY TO DECIDE ALL CASES AND CONTROVERSIES WITHIN ITS JURISDICTION, BUT WE KNOW OF NO DUTY TO RESOLVE THE CASE ON A PARTICULAR BASIS. WHILE THE DEFENSE OF LACHES IS, AS WE HAVE ALREADY POINTED OUT, DIRECTED TO THE REMEDY, THE DECISION OF THE CASE ON THAT BASIS NEED NOT TURN UPON OR FOLLOW A DECISION ON THE MERITS. ID. AT 480.

ACCORDINGLY, WE CONCLUDE THAT SO LONG AS THE CORPS HAS NOT OTHERWISE SOUGHT POST-AUTHORIZATION CONGRESSIONAL APPROVAL FOR TTW PROJECT MODIFICATION OR SUPPLEMENTATION WITHOUT SATISFYING THE FWCA'S REPORTING REQUIREMENT, THE CORPS FAILURE TO DATE TO SUBMIT A WILDLIFE MITIGATION REPORT DOES NOT APPEAR TO VIOLATE SECTION 2(B) OF THE FWCA.

WE OBSERVE THAT THIS CONCLUSION IS AT ODDS WITH THE POSITION TAKEN BY THE PLAINTIFFS IN THE MOST RECENT TTW LITIGATION. FN3 PLAINTIFFS' PRINCIPAL ARGUMENT IS THAT THE CORPS FAILURE TO DATE TO PREPARE AND FILE A WILDLIFE MITIGATION PLAN WITH CONGRESS VIOLATES THE FWCA. COUNT XIII OF AMENDED COMPLAINT AT 65-66, ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, EC77-53-K, EC77-54-K (N.D.MISS OCTOBER 1, 1980). TO SUPPORT THIS CONTENTION PLAINTIFF RELIES ON THE CASE OF AKERS V. RESOR, 339 F. SUPP. 1375 (W.D. TENN. 1972), INJUNCTION CONT'D., 443 F. SUPP. 1355 (W.D. TENN. 1978). PLAINTIFFS ALSO HAVE ARGUED, INTER ALIA, THAT

- THE CORPS FAILURE TO SUBMIT A PLAN OF MITIGATION TO CONGRESS VIOLATES NEPA AS WELL AS FWCA, SEE MEMORANDUM OF AUTHORITIES IN SUPPORT OF THE PLAINTIFFS' RENEWED MOTION FOR SUMMARY JUDGMENT AT 71-72;

- THAT THE CORPS HAS NOT SUBMITTED ANY FISH AND WILDLIFE SERVICE REPORTS CONCERNING POSSIBLE DAMAGE TO WILDLIFE RESOURCES OR CONCERNING MEASURES TO MITIGATE DAMAGE TO SUCH RESOURCES WHEN THE CORPS SUBMITTED PROJECT REPORTS TO CONGRESS, ID. AT 73; AND

- THAT THE CORPS FAILURE TO SUBMIT THE FISH AND WILDLIFE SERVICE'S OCTOBER 1, 1979, PROJECT MITIGATION REPORT VIOLATES 16 U.S.C. 662(B) OF THE FWCA "REGARDLESS OF WHETHER THE CORPS CHARACTERIZES THE REPORT AS A 'PRELIMINARY ANALYSIS,'"

SEE PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE ON MOTION FOR SUMMARY JUDGMENT AT 54 AND MEMORANDUM IN SUPPORT OF PLAINTIFFS' RENEWED MOTION FOR SUMMARY JUDGMENT AT 74-76.

THE DISTRICT COURT'S OCTOBER 1, 1980, OPINION AGAIN REJECTED PLAINTIFFS' FWCA CHALLENGES. THE DISTRICT COURT WAS OF THE OPINION THAT PLAINTIFFS WERE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL FROM RELITIGATING THE CORPS COMPLIANCE WITH THE FWCA. ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, EC77-53-K, EC77-54-K AT P. 49 (N.D.MISS. OCTOBER 1, 1980). IN ADDITION, THE COURT RULED THAT 16 U.S.C. 662 PROVIDES NO PRIVATE RIGHT OF ACTION, OR AT LEAST THAT THERE IS NO INDEPENDENT REVIEW OF FWCA COMPLIANCE WHERE PRIVATE PARTIES ALSO CHALLENGE NEPA COMPLIANCE. ID. AT 50. IN THIS REGARD, THE COURT SPECIFICALLY "ENDORSED THE *** REASONING" OF ENVIRONMENTAL DEFENSE FUND V. FROEHLKE, 473 F.2D 346, 356 (8TH CIR. 1972), THAT

"*** IF THE CORPS COMPLIES WITH NEPA IN GOOD FAITH, IT WILL 'AUTOMATICALLY TAKE INTO CONSIDERATION ALL OF THE FACTORS REQUIRED BY THE FISH AND WILDLIFE ACT AND IT IS NOT REASONABLE TO REQUIRE THEM TO DO BOTH SEPARATELY."

ACCORDINGLY, THE DISTRICT COURT DISMISSED COUNT XIII FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. FN4 PLAINTIFFS APPEAR TO RELY PRIMARILY ON THE AKERS CASE, ABOVE, TO SUPPORT THEIR CLAIM THAT THE CORPS' FAILURE TO DATE TO SUBMIT A WILDLIFE MITIGATION PLAN TO CONGRESS VIOLATES THE FWCA. THE AKERS CASE HELD THAT, FOR PROJECTS ALREADY AUTHORIZED, THE CORPS HAD TO SUBMIT A NEW MITIGATION PLAN TO CONGRESS WHEN REQUESTING APPROPRIATIONS FOR PROJECT CONSTRUCTION, AND THAT A NEW PLAN HAD TO BE SUBMITTED BEFORE THE CORPS COULD PROCEED WITH CONSTRUCTION OF THE ALREADY FUNDED MENGELWOOD SEGMENT. AKERS V. RESOR, 339 F. SUPP. 1375, 1380 (W.D. TENN. 1972). IN THAT CASE, PLAINTIFFS SOUGHT TO STOP ANY FURTHER CONSTRUCTION OF A CHANNEL ENLARGEMENT AND REALIGNMENT PROJECT AUTHORIZED BY CONGRESS IN 1948, INCLUDING THE "MENGELWOOD" SEGMENT. THE REPORTED DECISION FURTHER INDICATES THAT THE CORPS SUBMITTED A MITIGATION PLAN TO CONGRESS IN 1963, AT A TIME ROUGHLY CONTEMPORANEOUS WITH THE START-UP OF PROJECT CONSTRUCTION, 339 F. SUPP. AT 1379. AN ADDITIONAL MITIGATION PLAN, DATED MARCH 1971, WAS BEING CIRCULATED FOR COMMENTS AMONG INTERESTED AGENCIES AT THE TIME OF THE LITIGATION, AND AN ENVIRONMENTAL IMPACT STATEMENT (EIS) ON THE PROJECT, INCLUDING THE MITIGATION PLAN, HAD BEEN SUBMITTED DURING MARCH 1971 TO THE COUNCIL ON ENVIRONMENTAL QUALITY.

THE AKERS PLAINTIFFS CONTENDED THAT THE CORPS "MAY NOT PROCEED FURTHER WITH THE PROJECT UNTIL *** ITS MITIGATION PROPOSAL IS TENDERED TO CONGRESS." 339 F. SUPP. AT 1380. THE CORPS ARGUED THAT "IT NEED NOT MAKE A MITIGATION PROPOSAL, AND THAT, IF A MITIGATION PROPOSAL MUST BE TENDERED TO CONGRESS, THAT PROPOSAL PROFFERED IN 1963 *** SATISFIES SUCH REQUIREMENT." THE AKERS COURT AGREED WITH THE PLAINTIFFS' ARGUMENT, BASED IN PART ON NEPA'S ADMONITION TO CONSTRUE OTHER LAWS IN ACCORDANCE WITH NEPA'S POLICIES:

"IT ALSO SEEMS CLEAR FROM SENATE REPORT NO. 1981 ALMOST FRUITLESS NOT TO PROVIDE FUNDING FOR THE CHANNELIZATION AND FOR WHATEVER MITIGATION IS TO BE FUNDED AT THE SAME TIME SO THAT THE WORK COULD PROCEED CONCURRENTLY. THIS CONCLUSION COVERS THOSE ITEMS OF THE INVOLVED PROJECT THAT HAVE NOT YET BEEN FUNDED BY CONGRESS, BUT DOES NOT COVER THE MENGELWOOD ITEM THAT IS NEXT IN LINE FOR COMPLETION AND WHICH IS ALREADY FUNDED. WITH RESPECT TO THIS ITEM, AND CONSIDERING ONLY THE ACT OF 1958, IT IS QUITE ARGUABLE THAT THE MITIGATION REPORT TO CONGRESS OF 1963 WOULD BE SUFFICIENT. HOWEVER, IN THE LIGHT OF THE REQUIREMENT OF NEPA (SEC. 4332(1)) THAT THE ACT OF 1958 BE INTERPRETED AND ADMINISTERED IN ACCORDANCE WITH NEPA AND (SEC. 4331(B)) THAT ALL FEDERAL PLANS AND PROGRAMS BE IMPROVED TO ATTAIN ENVIRONMENTAL OBJECTIVES, WE BELIEVE THAT THE ACT OF 1958 MUST BE INTERPRETED TO REQUIRE THE CORPS TO SUBMIT A NEW PLAN OF MITIGATION TO CONGRESS BEFORE IT PROCEEDS FURTHER WITH ITS MENGELWOOD ITEM."

SUBSEQUENT TO THE ABOVE DECISION, THE DISTRICT COURT DETERMINED THAT THE CORPS HAD FAILED TO COMPLY WITH NEPA. AKERS V. RESOR, 443 F. SUPP. 1355, 1357-58 (W.D. TENN. 1978). IN THE SECOND REPORTED AKERS DECISION, THE DISTRICT COURT DID NOT, ON THE AGREEMENT OF THE PARTIES, ADDRESS CLAIMED FWCA VIOLATIONS, BUT DID ADDRESS NEPA CLAIMS, HOLDING THAT THE CORPS' SECOND EIS WAS DEFICIENT UNDER NEPA. ID.

WE DO NOT AGREE WITH THE AKERS CASE, WHICH IN ANY EVENT WE FIND DISTINGUISHABLE FROM THE CASE HERE. FIRST, UNLIKE THE AKERS COURT, WE DO NOT FIND EITHER IN THE LANGUAGE OF SECTION 2(B) OF THE FWCA OR IN ITS LEGISLATIVE HISTORY A REQUIREMENT THAT A CONSTRUCTION AGENCY SUBMIT TO CONGRESS A WILDLIFE MITIGATION REPORT AT THE TIME CONGRESS IS ASKED TO APPROPRIATE FUNDS FOR THE PROJECT ITSELF OR FOR AN ITEM THEREOF. SUPPORT THIS CONCLUSION, THAT COURT RELIED ON THE SENATE REPORT ACCOMPANYING THE 1958 AMENDMENTS. THE SENATE REPORT, QUOTED EXTENSIVELY IN THE FIRST FOOTNOTE TO THIS PAPER AND EARLIER IN THIS SECTION B, INDICATES THAT A MITIGATION REPORT MUST BE SUBMITTED TO CONGRESS AT THE TIME OF PROJECT AUTHORIZATION AND, FOR PREVIOUSLY AUTHORIZED PROJECTS, AT THE TIME CONGRESS IS ASKED TO APPROVE A SUPPLEMENTATION OR MODIFICATION OF PLANS. UNLESS AN APPROPRIATION REQUEST ALSO INVOLVES A REQUEST FOR SUCH APPROVAL, WE DO NOT BELIEVE THAT A MITIGATION REPORT IS NECESSARILY REQUIRED AT THAT TIME. SECOND, WITH REGARD TO THE CONCLUSION THAT ALREADY FUNDED ITEMS OF CONSTRUCTION MUST BE ENJOINED PENDING THE SUBMISSION OF A NEW WILDLIFE MITIGATION PLAN, THE AKERS COURT RELIED AS MUCH IF NOT MORE ON NEPA THAN FWCA TO REACH THIS CONCLUSION. AT THE TIME OF THAT COURT'S OPINION NO LEGALLY ADEQUATE ENVIRONMENTAL IMPACT STATEMENT EXISTED. HERE, UNLIKE IN AKERS, THE CORPS' EIS FOR THE TTW HAS BEEN FOUND TO BE LEGALLY ADEQUATE. MOREOVER, WE ARE NOT ASKED WHETHER NEPA IN CONJUNCTION WITH FWCA REQUIRES THE SUBMISSION OF A MITIGATION REPORT, BUT WHETHER THE CORPS HAS COMPLIED WITH FWCA.

THE TTW PLAINTIFFS ALSO ARGUE THAT UNTIL THE CORPS SUPPLEMENTS ITS EIS WITH MITIGATION MEASURES, IT IS IN VIOLATION OF NEPA, CITING TEXAS COMMITTEE ON NATURAL RESOURCES V. ALEXANDER, 12 E.R.C. 1676 (E.D. TEX. 1978), WHERE THE CORPS' ENVIRONMENTAL IMPACT STATEMENT WAS FOUND TO BE LEGALLY INSUFFICIENT FOR FAILURE TO COMPLY WITH THE MITIGATION REQUIREMENTS OF FWCA, AMONG OTHER REASONS. AGAIN WE ARE NOT HERE CONCERNED WITH THE CORPS' COMPLIANCE WITH NEPA, SINCE THE CORPS' EIS PREPARED FOR THE TTW WAS FOUND TO BE LEGALLY ADEQUATE. ENVIRONMENTAL DEFENSE FUND V. CORPS OF ENGINEERS, 348 F. SUPP. 916 (N.D.MISS. 1972), AFF'D., 492 F.2D 1123 (5TH CIR. 1974).

PLAINTIFFS HAVE ALSO CHARGED THAT THE CORPS HAS NOT SUBMITTED ANY MITIGATION PLANS TO CONGRESS "EVEN THOUGH THE CORPS HAS SUBMITTED NUMEROUS PROJECT REPORTS TO CONGRESS SINCE ENACTMENT OF 16 U.S.C. SEC. 662(B) IN 1958." MEMORANDUM OF AUTHORITIES IN SUPPORT OF PLAINTIFFS RENEWED MOTION FOR SUMMARY JUDGMENT AT 73. AS WE NOTED EARLIER, THE STATUTORY LANGUAGE OF THE ACT MAKES CLEAR THAT NOT EVERY PROJECT REPORT FINDING ITS WAY TO CONGRESS MUST CARRY WITH IT A MITIGATION PLAN. RATHER, AS EVEN PLAINTIFFS APPEAR TO RECOGNIZE, ONLY THOSE REPORTS MUST DO SO THAT SEEK CONGRESSIONAL APPROVAL OF A REPORT ON THE MODIFICATION OR SUPPLEMENTATION OF PLANS FOR PREVIOUSLY AUTHORIZED PROJECTS. PLAINTIFFS HAVE NOT IDENTIFIED ANY SUBMISSIONS BY THE CORPS MEETING THIS DESCRIPTION.

FINALLY, PLAINTIFFS CONTEND THAT THE CORPS MUST ACCEPT THE FWS' OCTOBER 1, 1979, MITIGATION PLAN AND TRANSMIT IT TO CONGRESS REGARDLESS WHETHER THE CORPS CHARACTERIZES IT AS A "PRELIMINARY ANALYSIS." THE SHORT ANSWER TO THIS IS: THERE IS NO INDICATION IN THE LANGUAGE OF THE STATUTE OR ITS LEGISLATIVE HISTORY THAT THE CONGRESS WAS INTERESTED IN RECEIVING EACH AND EVERY "DRAFT" (AS THE OCTOBER 1, 1979, REPORT WAS LABELED) MITIGATION PLAN THE FWS MAY SUBMIT FOR COMMENTS TO THE CORPS OR ANY OTHER FEDERAL CONSTRUCTION AGENCY. INDEED WE UNDERSTAND THAT THE FWS HAS REDESIGNATED ITS OCTOBER 1, 1979, REPORT "PLANNING AID." ACCORDINGLY, WE DO NOT FIND IN THE STATUTE A DUTY ON THE CORPS TO SUBMIT SUCH DRAFT PLANS TO THE CONGRESS.

QUESTION: SHOULD THE COST OF THE FISH AND WILDLIFE MITIGATION PROGRAMS BE INCLUDED AS A PROJECT COST WHEN CALCULATING THE PROJECT'S BENEFIT COST RATIO?

ANSWER: SECTION 2(C) OF THE FWCA DIRECTS THAT THE COST OF PROJECT MODIFICATIONS OR LAND ACQUISITIONS TO MITIGATE FISH AND WILDLIFE DAMAGES "SHALL BE AN INTEGRAL PART OF THE COSTS OF CORPS PROJECTS." WITH RESPECT TO THE COST OF MODIFYING PROJECT STRUCTURES OR OPERATIONS TO MITIGATE FISH AND WILDLIFE DAMAGES, SUCH COSTS SHOULD BE INCLUDED IN THE PROJECT'S BENEFIT COST RATIO ONCE CONGRESSIONAL AUTHORITY TO ACQUIRE SUCH LANDS IS OBTAINED.

DISCUSSION:

AS WE UNDERSTAND THE ISSUE HERE, IT DOES NOT CONCERN THE ACCURACY OF THE FISH AND WILDLIFE BENEFIT COST DATA DEVELOPED TO DATE BY THE CORPS. RATHER, THE ISSUE IS WHETHER THE COST OF FISH AND WILDLIFE MITIGATION PROGRAMS SHOULD BE INCLUDED AS A PROJECT COST WHEN CALCULATING THE PROJECT'S BENEFIT COST RATIO.

WE BELIEVE THE FWCA PROVIDES THE ANSWER TO THIS QUESTION. SECTION 2(C) OF THE ACT STATES THAT:

"FEDERAL AGENCIES AUTHORIZED TO CONSTRUCT OR OPERATE WATER-CONTROL PROJECTS ARE HEREBY AUTHORIZED TO MODIFY OR ADD TO THE STRUCTURES AND OPERATIONS OF SUCH PROJECTS, THE CONSTRUCTION OF WHICH HAS NOT BEEN SUBSTANTIALLY COMPLETED ON THE DATE OF ENACTMENT OF THE FISH AND WILDLIFE COORDINATION ACT, AND TO ACQUIRE LANDS IN ACCORDANCE WITH SECTION 3 OF THIS ACT IN ORDER TO ACCOMMODATE THE MEANS AND MEASURES FOR SUCH CONSERVATION OF WILDLIFE RESOURCES AS AN INTEGRAL PART OF SUCH PROJECTS: PROVIDED, THAT FOR PROJECTS AUTHORIZED BY A SPECIFIC ACT OF CONGRESS BEFORE THE DATE OF ENACTMENT OF THE FISH AND WILDLIFE COORDINATION ACT (1) SUCH MODIFICATION OR LAND ACQUISITION SHALL BE COMPATIBLE WITH THE PURPOSES FOR WHICH THE PROJECT WAS AUTHORIZED; (2) THE COST OF SUCH MODIFICATIONS OR LAND ACQUISITION, AS MEANS AND MEASURES TO PREVENT LOSS OF AND DAMAGE TO WILDLIFE RESOURCES TO THE EXTENT JUSTIFIABLE, SHALL BE AN INTEGRAL PART OF THE COST OF SUCH PROJECTS; AND (3) THE COST OF SUCH MODIFICATIONS OR LAND ACQUISITION FOR THE DEVELOPMENT OR IMPROVEMENT OF WILDLIFE RESOURCES MAY BE INCLUDED TO THE EXTENT JUSTIFIABLE, AND AN APPROPRIATE SHARE OF THE COST OF ANY PROJECT MAY BE ALLOCATED FOR THIS PURPOSE WITH A FINDING AS TO THE PART OF SUCH ALLOCATED COST, IF ANY, TO BE REIMBURSED BY NON-FEDERAL INTERESTS."

16 U.S.C. 662(C) (1976). AS PERTINENT HERE, SECTION 3, REFERENCED IN SECTION 2(C), PROVIDES THAT:

"WHEN CONSISTENT WITH THE PURPOSES OF THIS ACT AND THE REPORTS AND FINDINGS OF THE SECRETARY OF THE INTERIOR PREPARED IN ACCORDANCE WITH SECTION 2, LAND, WATERS, AND INTERESTS THEREIN MAY BE ACQUIRED BY FEDERAL CONSTRUCTION AGENCIES FOR THE WILDLIFE CONSERVATION AND DEVELOPMENT PURPOSES OF THIS ACT IN CONNECTION WITH A PROJECT AS REASONABLY NEEDED TO PRESERVE AND ASSURE FOR THE PUBLIC BENEFIT THE WILDLIFE POTENTIALS OF THE PARTICULAR PROJECT AREA: PROVIDED, THAT BEFORE PROPERTIES ARE ACQUIRED FOR THIS PURPOSE, THE PROBABLE EXTENT OF SUCH ACQUISITION SHALL BE SET FORTH, ALONG WITH OTHER DATA NECESSARY FOR PROJECT AUTHORIZATION, IN A REPORT SUBMITTED TO THE CONGRESS, OR IN THE CASE OF A PROJECT PREVIOUSLY AUTHORIZED, NO SUCH PROPERTIES SHALL BE ACQUIRED UNLESS SPECIFICALLY AUTHORIZED BY CONGRESS, IF SPECIFIC AUTHORITY FOR SUCH ACQUISITION IS RECOMMENDED BY THE CONSTRUCTION AGENCY." 16 U.S.C. 663(C) (1976).

IN A LETTER TO THE CHAIRMAN, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, THE SECRETARY OF THE ARMY, COMMENTING ON THE DISTINCTION DRAWN IN THE 1958 AMENDMENTS TO THE ACT OF MARCH 10, 1934 (AND LATER REPEALED BY SECTION 6(B) OF PUB. L. NO. 89-72, 79 STAT. 216 (1965)) BETWEEN THE COST TREATMENT OF ENHANCEMENT COSTS FOR CORPS PROJECTS VERSUS RECLAMATION PROJECTS, SUMMARIZED THE TREATMENT OF MITIGATION COSTS AS FOLLOWS:

"*** ON THE OTHER HAND, FOR OTHER FEDERAL PROJECTS CORPS COSTS OF MEASURES FOR PREVENTION OF LOSS WOULD BE JOINT OR INTEGRAL PROJECT COSTS CHARGEABLE TO OTHER PROJECT FUNCTIONS SUCH AS HYDRO-POWER OR FLOOD CONTROL), AND FOR COSTS ALLOCATED TO THE IMPROVEMENT OF THE RESOURCE THE BILL WOULD REQUIRE A FINDING OF THE AMOUNT WHICH SHOULD BE REIMBURSED BY NON-FEDERAL INTERESTS. ***"

SEN. REP. NO. 85-1981, 85TH CONG. 2D SESS. 11 (1958). THE FEDERAL WATER PROJECT RECREATION ACT, PUB. L. 89-72, SEC. 6(B), 79 STAT. 216 (1965).

ALTHOUGH THESE REMARKS WERE MADE WITH RESPECT TO SECTION 2(D), THE LANGUAGE OF SUBSECTIONS (C) AND (D) OF SECTION 2 AS IT CONCERNS THE TREATMENT OF MITIGATION COSTS IS SUBSTANTIALLY THE SAME. WE BELIEVE THAT SECTION 2(C)'S DIRECTIVE MEANS IN EFFECT THAT THE COST OF MODIFYING PROJECT STRUCTURES OR OPERATIONS ON A PREVIOUSLY AUTHORIZED PROJECT SUCH AS THE TTW ARE TO BE BORNE AS PART OF THE OVERALL COST OF CONSTRUCTING THE PROJECT AND, UNLIKE THE STATUTORILY MANDATED TREATMENT OF ENHANCEMENT COSTS, ARE SUBSUMED THEREIN. HENCE, TO THE EXTENT THE CORPS USES ITS AUTHORITY UNDER SECTION 2(C) TO MODIFY A PROJECT STRUCTURE TO MITIGATE LOSS OF AND DAMAGES TO WILDLIFE RESOURCES, THE COST OF SUCH ACTION WOULD BE INCLUDED WITHIN THE OVERALL CONSTRUCTION COST AND PRESUMABLY WOULD APPEAR AS SUCH IN THE COST SIDE OF THE PROJECT'S BENEFIT COST RATIO. FN5

SIMILARLY, SECTION 2(C) DIRECTS THAT THE COST OF LAND ACQUIRED TO MITIGATE LOSS OF AND DAMAGE TO WILDLIFE RESOURCES DUE TO PROJECT CONSTRUCTION ARE TO BE TREATED AS "AN INTEGRAL PART" OF PROJECT COSTS. HOWEVER, SECTION 3(C) SPECIFICALLY PRECLUDES THE CORPS FROM ACQUIRING LAND UNTIL AND "UNLESS SPECIFICALLY AUTHORIZED BY CONGRESS." 16 U.S.C. 663(C) (1976). INDEED, THE FWCA SCHEME APPEARS TO ENVISION THAT THE REQUEST FOR CONGRESSIONAL AUTHORIZATION WILL BE MADE IN LIGHT OF THE WILDLIFE MITIGATION REPORT, IF ANY, SUBMITTED TO CONGRESS AND WHICH INCORPORATES THE REPORT AND RECOMMENDATIONS OF THE SECRETARY OF THE INTERIOR. U.S.C. 662(B), (C), AND 663(C) (1976) AND ER 1105-2-129, AUGUST 15, 1973, APPENDIX A. TO DATE NO MITIGATION PLAN, LET ALONE A CORPS LAND ACQUISITION PROPOSAL, APPEARS READY FOR SUBMISSION TO CONGRESS. UNLIKE THE OTHER GENERAL COSTS ASSOCIATED WITH PROJECT CONSTRUCTION INCLUDED IN THE CORPS' BENEFIT COST RATIO, NO AUTHORITY PRESENTLY EXISTS TO ACQUIRE MITIGATION LANDS. HENCE, UNTIL SUCH TIME AS THE ACQUISITION OF MITIGATION LAND IS AUTHORIZED BY CONGRESS, THE COST THEREOF WOULD APPEAR TO BE SPECULATIVE AND IT WOULD NOT APPEAR APPROPRIATE TO INCLUDE SUCH COSTS IN THE BENEFIT COST RATIO. FN1 THE FWCA HAD ITS ORIGIN IN THE ACT OF MARCH 10, 1934, PUB. L. 73-121, 48 STAT. 401, WHICH WAS SUBSTANTIALLY AMENDED BY THE ACT OF AUGUST 14, 1946, PUB. L. 79-732, 60 STAT. 1080. THE ACT OF MARCH 10, 1934, AS AMENDED, WAS AGAIN SUBSTANTIALLY REVISED IN 1958 BY PUB. L. 85-624, 72 STAT. 563 (1958). ONE OF THE DEFICIENCIES THAT THE 1958 AMENDMENTS SOUGHT TO REMEDY WAS THE APPLICATION OF THE POLICIES AND PROCEDURES OF THE ACT TO PREVIOUSLY AUTHORIZED PROJECTS:

"EXISTING LAW IS OF QUESTIONABLE APPLICATION TO MANY AUTHORIZED PROJECTS, A VERY SERIOUS SHORTCOMING. THE CORPS OF ENGINEERS, FOR EXAMPLE, HAS A BACKLOG OF 650 ACTIVE AUTHORIZED PROJECTS WITH AN ESTIMATED COST OF ABOUT $6 BILLION ON WHICH CONSTRUCTION HAS NOT YET STARTED. MANY OF THESE COVER VAST AREAS, CONTAINING SOME OF THE MOST IMPORTANT FISH AND WILDLIFE RESOURCES OF THE NATION. THE BUREAU OF RECLAMATION HAS ABOUT 150 PROJECTS OR UNITS AT AN ESTIMATED COST OF $3.7 BILLION IN THIS CATEGORY. MOST OF THESE PROJECTS HAVE NEVER BEEN INVESTIGATED FROM THE STANDPOINT OF THEIR EFFECTS ON FISH AND WILDLIFE RESOURCES. MANY OF THEM WERE AUTHORIZED 15 OR 20 YEARS AGO OR MORE. IT WOULD MAKE GOOD SENSE TO HAVE THE POLICIES AND PROCEDURES OF THE COORDINATION ACT APPLICABLE TO THEM IN ORDER THAT THE WISHES OF THE CONGRESS IN ENACTING THE 1946 STATUTE AND THE PROPOSED AMENDMENTS CAN BE OBSERVED." S. REP. NO. 1981, 85TH CONG., 2D SESS. 4 (1958).

FN2 OUR CONGRESSIONAL REQUESTORS HAVE NOT, TO OUR KNOWLEDGE, PUT IN ISSUE THE LEGAL ADEQUACY OF THE CORPS CONSULTATION WITH THE FISH AND WILDLIFE SERVICE. ACCORDINGLY, WE OFFER NO VIEWS THEREON OTHER THAN TO DIRECT YOUR ATTENTION TO THE LETTER OF JANUARY 15, 1981, FROM LESTER EDELMAN, CHIEF COUNSEL, CORPS OF ENGINEERS.

FN3 IN THE FIRST LAWSUIT FILED IN 1971, THE PLAINTIFFS ALSO ALLEGED CORPS NONCOMPLIANCE WITH THE FWCA. THE DISTRICT COURT DISMISSED PLAINTIFFS' CAUSE OF ACTION BASED ON THE FWCA, HOLDING THAT THE FWCA DID NOT PROVIDE A RIGHT OF ACTION FOR PRIVATE PARTIES SINCE, IN THE COURT'S VIEW, THE PURPOSE OF THE STATUTE WAS TO DIRECT RESPONSIBLE FEDERAL OFFICIALS TO CONSULT WITH OTHER GOVERNMENTAL AGENCIES AND TO FURNISH CONGRESS DATA AND INFORMATION TO ASSIST IT IN CARRYING OUT ITS OWN LEGISLATIVE PURPOSES. ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, 348 F. SUPP. 916, 921-922, N. 4 (N.D. MISS. 1972). ON APPEAL, THE FIFTH CIRCUIT COURT OF APPEALS AFFIRMED, ENVIRONMENTAL DEFENSE FUND V. ALEXANDER, 492 F.2D 1123, 1138 (5TH CIR. 1974), ADDRESSING AND REJECTING, HOWEVER, PLAINTIFFS' ARGUMENT THAT TO COMPLY WITH THE FWCA, CORPS CONSULTATION WITH OFFICIALS OF THE DEPARTMENT OF INTERIOR IS INSUFFICIENT UNLESS DONE AT THE CABINET LEVEL.

FN4 PLAINTIFFS FILED TIMELY NOTICE OF APPEAL FROM THE ORDER OF OCTOBER 1, 1980, DISMISSING WITH PREJUDICE ALL OF PLAINTIFFS REMAINING COUNTS EXCEPT ONE COUNT, NOT AT ISSUE HERE, THAT WAS DISMISSED WITHOUT PREJUDICE. ORAL ARGUMENTS ARE SCHEDULED FOR APRIL 6, 1981.

FN5 THIS CONCLUSION IS ALSO CONSISTENT WITH THE EXPRESS INTENT OF THE SENATE COMMITTEE REPORTING OUT THE 1958 AMENDMENTS TO THE ACT OF MARCH 10, 1934, AS AMENDED. THE REPORT STATES THAT MITIGATION "MEASURES WOULD NOT HAVE TO BE JUSTIFIED UNDER THE USUAL BENEFIT-COST TYPE OF ANALYSIS" BECAUSE SUCH MEASURES "WOULD NOT PRODUCE 'BENEFITS.' THESE MEASURES WOULD BE FOR REDUCING OR COMPENSATING FOR LOSSES." S. REP. NO. 1981, ABOVE AT 4.