195 



particularly with the Interior Department and with other similar 

 conservation oriented organizations. 



I note a reading of the Administration's bill permits the Admin- 

 istrator of the EPA to consult, but does not require him to do so. 



Is it the intention of the Administration by this particular language 

 to change or to amend the Fish and Wildlife Coordination Act? 



Mr. Train. No, it is not my opinion that it does. 



Mr. DiNGELL. The question would be does this amend the Fish and 

 Wildlife Coordination Act? 



Mr. Train. Mr. Chainnan, rather than give an off-the-cuff answer, 

 I would like to look at the exact language of the Fish and Wildlife 

 Coordination Act in this language and render you a legal opinion on 

 that. 



Mr. DiNGELL. Very well. It would be helpful to me if you did, and 

 I also would like you to indicate to us what is your intention, if it is 

 to alter the Fish and Wildlife Coordination Act as it applied tradi- 

 tionally to the Corps of Engineers in its dumping permits. 



As a matter of fact, they are specifically included in that statute, 

 and in their dredging and fill permits, and I would be curious to 

 know why a rather similar permit issued by the Environmental Pro- 

 tection Agency would not be under the Fish and Wildlife Coordina- 

 tion Act, so in your response, would you indicate to me any difference 

 in treatment, if you propose to have a difference in treatment. 



Mr. Train. I would be glad to do that. 



(The information follows :) 



The Fisli and Wildlife, Ooordin'ation Act does not contain a statement defining 

 the territorial extent of its requirements, including the requirement of consul- 

 tation found in Section 2 (16 U.S.C. § 662). NormaUy, however, a statute of the 

 United States is presumed to be applicable only within the territorial jurisdiction 

 of the United States, i.e., includling, but not beyond, the waters of the terri- 

 torial sea. American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) 

 (Holmes, J.). The sp^ecial authorization for consultation contained in Subsection 

 5(a) of H.R. 4723 is designed to allow the Administrator to accomplish con- 

 sultations such as those described in the Fish and Wildlife Coordination Act, 

 even if the terms of that Act might not otherwise apply because the dumping 

 itself is to take place within the contiguous zone or on the high seas. The fact 

 that the material is transported from a U.S. port may not be a factor bringing 

 the Fish and Wildlife Coordination Act's provisions into play. In any eve;nt, 

 there is no intention to amend or limit in any way the terms of the Fish and 

 Wildlife Coordination Act. 



Mr. DiNGELL. Mr. Train, now, this does concern the Chair, because 

 there is no requirement, as I read the bill, that the other agencies pro- 

 vide comments. For example, the Department of Interior would not 

 be compelled to give infonnation as to dumping permits, or gi"^^e 

 comments, and it occurs to me philosophically, there should be di- 

 rection that there be consultation to protect the fish and wildlife 

 values. This would tend to indicate to me there might be some reason 

 to be very apprehensive of a bill of this kind, until and unless there is 

 a requirement for clear consultation and the views from relating 

 agencies to be put in writing. 



This is in direct confrontation to the Fish and Wildlife Coordina- 

 tion Act. 



Would you like to comment on that also, sir ? 



Mr. Train. There is certainly ample authority in the legislation to 

 permit consultation, and I would certainly suggest strongly that the 

 Administrator consult widely in the granting of these permits. 



