the plans that have been projected have to still meet the acceptability of the Secretary of the Interior?

Dr. CAIN. The explanation of that is as follows: There is nothing retroactive about this as to already authorized construction.

Further, in section 8 this refers only to a national estuarine area that has already been designated by Congress and if they never designate one, there would be no question raised with respect to what the corps was doing.

Mr. LENNON. The reason I ask that question is because I see in the analysis of the bill here in front of the members that the Department of the Army urges the modification of the bill to exempt from the control of the Secretary of the Interior those Federal projects which have already been duly authorized and which Congress has by law placed under the jurisdiction of some other Federal agency official. Why would the Department of the Army in its report on this bill request or urge the modification of the bill so as to exempt froin the control of the Secretary those funded Federal projects which have already been authorized and you now say that this would not be retroactive?

Mr. FINNEGAN. Mr. Lennon, I think the Army is mistaken.

Mr. LENNON. We have a number of such projects in North Carolina. Mr. FINNEGAN. I know, sir. I think the Army is mistaken on this and we didn't have a chance to talk to them before the hearing. The bill, as we have stated in our report, does not affect any of the operations of the Corps of Engineers.

There is already on the books an Executive order of the President regarding the Corps of Engineers, which would affect the Corps of Engineers in their direct operation in connection primarily with pollution control. This would apply to their own dredging.

Insofar as they do shore erosion control work or any of that work under authorized projects, this bill would not affect them whatsoever. If somebody would suggest an amendment to make that clear, we would have no objections.

Mr. LENNON. I was coming to that point, because the coastline of North Carolina is such that these erosion and hurricane protection projects would be involved in an estuarine area, as I know the coast of North Carolina.

Mr. FINNEGAN. The corps agreed last year and I am sure they agree this year that just as we do in the case of Fire Island and Assateague and others where we have a national area set aside, the corps is to work out a plan with the Department for the control of beach erosion so that there won't be any damage.

That is what section 8 intends. It is only for future effect and has no retroactive effect, and we would not object to such an amendment.

Mr. LENNON. Section 12 of the bill, which is omitted from one of the member's bills, Mr. Keith's bill, all of section 12 being omitted from his bill and then the section of Mr. Morton's bill, which omits that portion of section 12 (a) relating to single-family residences, that is requiring first that a permit would have to be obtained from the Secretary of the Interior before commencing any work of that nature, would that be a concurrence between the Secretary of the Interior

and the Department of the Army, the Corps of Engineers, or would it be exclusively within the authority of the Secretary of the Interior?

Dr. CAIN. This, in effect, would, if passed in this form, require an applicant for permit to dredge or fill to have two permissions, the Corps of Engineers' permission which is largely related to whether or not dredging and filling and excavating and so on would be damaging to navigation, and the Interior permit, which would seek to protect in such cases the habitat for fish and wildlife and other purposes and uses of estuaries besides navigation.

It is a double permit system that is proposed here.

Mr. LENNON. Now, the bill would authorize under section 12(d) that

The Secretary o fthe Interior is authorized to prescribe regulations to govern the dumping of dredgings, earth, garbage, or refuse materials of every kind or description other than oil * * *.

Why is oil, which is just as damaging to fish life as garbage would be, I would think, omitted?

Dr. CAIN. Oil pollution is already covered under a Federal act. Mr. LENNON. They are already covered?

Dr. CAIN. Yes, sir.

Mr. LENNON. Does the Secretary have the right of condemnation under this legislation? If so, what are the circumstances and conditions under which the right of condemnation is given?

Dr. CAIN. I would like to make a general statement and then ask Mr. Finnegan to make a more detailed statement. This language seems to me to be very similar to the language that has been used in recent years in national recreation areas and seashores, with respect to condemnation.

The condemnation power is limited by the zoning that local government produces. This is a short statement. Mr. Finnegan can explain it very well for you.

Mr. FINNEGAN. Sir, we do have condemnation authority in the bill. If the Congress was to pass a statute authorizing a specific estuarine area at a later time or if we entered into an agreement with the States to administer an area that is now in public ownership and there were some private lands in the vicinity, we could condemn under either situation.

However, there are two restrictions. One is that the Secretary is to develop some general standards for a national estuarine area for local communities to issue bylaws or zoning regulations and within those areas if there are private residences. Those private residences or hunting clubs could retain their land as private residences or hunting clubs and they would not be subject to condemnation by the Secretary of the Interior so long as they lived within those bylaws or zoning regulations of the local community.

Mr. LENNON. It would have to be as I read.

Mr. FINNEGAN. They are single-family residences or hunting clubs. This is in section 6.

Mr. LENNON. Is there any land area involved in the legislation with respect to the acreage that would be subject to condemnation or that would not be subject to purchase or condemnation without the owner's consent?

Mr. FINNEGAN. In the case of a single-family residence, I believe, there is a 3-acre limitation. In the case of the hunting club, there is no acreage limitation as long as it is used for that purpose.

Mr. LENNON. I have taken enough time, Mr. Chairman.

Mr. DINGELL. Mr. Morton?

Mr. MORTON. Dr. Cain, I would like to pursue the problem of the small community that is located in the estuarine area. In the Chesapeake the lower Eastern Shore and lower Western Shore of the MaryÎand portion of the Chesapeake contains a great many small communities, some of which have Federal projects for the development of their harbor facilities, some of which don't have.

The ones that don't have would like to have. They need jetties. They need bulkheads, they need a different arrangement than they have.

Now, do you visualize that the development of such facilities would be drastically curtailed if we created this estuarine system and if we require permits from both the corps and from the Department of the Interior?

Dr. CAIN. No, I do not. I don't think this would be any great difficulty or embarrassment to any community as you have described it. In a case like this where they do need a protecting wall, a slip or a channel for small boats like small fishing boats or pleasure craft. The only problem that I can see here is if the dredged material is deposited on salt marsh, thereby destroying it. It is a kind of problem that is not unique to Maryland, but occurs in Long Island Sound, for example, where there are actually permit requests for dredging out the mouth of a stream as it enters, say, Long Island Sound.

What is done in this process besides making a channel for small boats often is very destructive to estuarial systems simply because of the lack of control of the disposition of the spoil. I think that reasonable judgment here would accomplish all that you desire with no damage to your goals whatsoever if, and I put the "if" in there, in the judgment of the people involved they can handle spoil, for example, so that it is not damaging to salt marshes and other values.

Mr. MORTON. Many of these communities are really almost marsh communities. They are built up on stilts and they want the spoil in the worst way, to try and build their roads and build foundations for buildings, which sometimes are covered by exceedingly high tides. The thing I want to be able to assure the fishing communities of the lower Eastern Shore and Western Shore of the Chesapeake Bay in my district is that we are not going to curtail the development of their communities, not going to do anything to prevent them from getting some high ground.

This is where the balance between man's civilization and nature has got to be managed, I realize, but we inevitably will have to damage some estuarine values if we are going to develop these communities and get them higher above mean high water.

Dr. CAIN. I would like to respond to this.

We do not seek to block or prevent water development projects. In this connection we have the same interest that your fishing communities do in the preservation of the fish habitat or shell fish, as the case may be, or whatever.

The distinction needs to be kept in mind as to what this bill does and does not do. It does not affect Corps of Engineers' projects, its own projects, but goes to the permits requested by local communities or even individuals.

In our statement to Mr. Garmatz, we say on page 5, Mr. Morton:

The bill will not-and should not-strike down all shore development in estuarine areas. Instead, what it will do is seek a balance between the pressure to develop and the need to conserve. This balance must, if it is to succeed in its objective, reflect a system of priorities which is responsive not only to private interests, but also to the public interests.

We would like to be reasonable.

Mr. MORTON. I think you will run into a lot of trouble in that area if you are not.

Another concern that I have had, and I must admit that it was because of this concern that I objected last year to last-minute passage of the former bill, is the relationship between the State and the Federal Government.

We say in the bill, that we want a consultation between the State and Federal interests. I really want to be reassured on this point. What is your feeling of the priorities between State and Federal programs that will develop from this?

Dr. CAIN. You remind me in this connection of the complaint that is in my statement this morning that where there is consultation and the Fish and Wildlife Service, under the Coordination Act, reports to the Corps of Engineers on their projects with respect to fish and wildlife habitat, that we have not had perfect compliance.

In respect to what you have just raised, the States that we would consult with could very well feel that we have not complied perfectly to their wishes. This could happen, I must admit, because what we are suggesting is that the Federal Government would seek to protect the people somewhat from themselves.

I would like to explain that because that sounds awful just to leave it hanging that way.

One fishing village in its interest in developing its waterfront property one way or another could very well feel, as one individual property owner might, that this isn't very destructive to the very thing that makes these people's living, the habitat for the various species of crustacea and shellfish and finfish, but when all up and down the shoreline we have that same sort of thing, somebody has to help people protect themselves from themselves.

Local government can do this by zoning. The States can help the local government in a zoning process or can have its own sets of conditions, and some States have passed very effective laws to protect estuaries.

But what we are suggesting here because of the 50 States and because of the irregularity which exists in the degree of concern which the States have so far shown for this is that we need an overall device for cooperation.

Mr. MORTON. Yes; I agree with this. I think you do, because I don't think we are breaking even.

Another area that concerns me a great deal is the area of erosion control in the estuaries. The recent study made during Governor

Tawes' administration of erosion on the Eastern Shore of the Chesapeake indicates that about 750 acres of highlands are being lost each year.

Now, if we get into the preservation and conservation of estuarine areas versus the control of erosion that is taking place in these areas, what is going to be the conflict between bulkhead building and conservation of the wet lands.

Dr. CAIN. Beach and dune erosion problems, and this coastline is very dynamic and these problems are occurring all the time and will continue to occur, are within the province of the Corps of Engineers and not interferred with by this bill in any way.

Mr. MORTON. I think this is not altogether true. It is true on the coast but not being carried uot by the corps in the estuaries. They immediately throw up their hands and say, "We can't do anything about protecting private property." And nearly all of the erosion on the Eastern Shore of the Chesapeake is on private property, because nearly all the property along the shores is in private hands.

In order to stop this, there are going to have to be some bulkheads built. There is going to have to be in some cases some marsh filled in. This is disturbing. The point is, how are we going to attack it if we are going to be a little bit too pure in our saying "Don't touch this shoreline because it is a vital habitat." The farmer doesn't touch it, but he loses maybe 4 or 5 feet a year on the south 40.

Dr. CAIN. There is section 12, paragraph (b), which prescribes that the Secretary of the Interior shall not issue a permit under certain circumstances and when you come down to line 19, you have a protective clause there for what you are interested in, that he shall not issue any permit unless the Secretary of the Interior determines that the public interest requires the work to be undertaken..

And I think what you are talking about is clearly that the larger public interest requires that protection be taken.

Mr. MORTON. I think we ought to have that in the legislative history of this bill. I also believe that we ought to cover these points in the report. This is an area that is almost as destructive as other things that we are doing to damage our estuarine areas.

In the 15 short years I have lived on the Eastern Shore, I have seen four islands go underwater. This is the kind of thing that I think we have got to stop. The only way that I know it can be stopped is through construction of bulkheads, jetties, and the like.

I think there will be a conflict in some areas and I think we are going to have to face up to it. We must devise some way of getting the corps or the States interested in stopping erosion.

We passed a couple of bills through the State legislature, authorization bills. We never have funded the program and I want to make sure that the people don't feel that we are doing anything here that will hinder the progress we must make toward protecting our high ground and our marshland.

Do you feel that in the discussions of this bill, the question of erosion has been thoroughly worked over and talked about in your own Department?

Dr. CAIN. I believe so. I would note that in the list of 12 reasons why permits have been requested that came back in our survey, one