[Senate Report 105-113]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 218
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-113
_______________________________________________________________________


 
                KING COVE HEALTH AND SAFETY ACT OF 1997

                                _______
                                

                October 15, 1997.--Ordered to be printed

  Filed under authority of the order of the Senate of October 9, 1997

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 1092]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 1092) to provide for a transfer of land 
interests in order to facilitate surface transportation between 
the cities of Cold Bay, Alaska, and King Cove, Alaska, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                         purpose of the measure

    S. 1092 would provide for a transfer of land interests in 
order to facilitate surface transportation between the cities 
of Cold Bay, Alaska, and King Cove, Alaska.

                          background and need

    The communities of King Cove and Cold Bay are located in 
the westernmost region of the Alaska Peninsula. These 
communities are accessible only by sea or by air. King Cove is 
predominately an Alaska Native community with about 900 full 
time residents and an additional 400-600 workers who are 
transported in and out of King Cove at least four times a year 
to work in the local fish processing plant. Cold Bay has about 
150 residents employed in a variety of services supporting the 
Aleutian Island and Alaska Peninsula region. Cold Bay supports 
a world-class airport built during World War II. The airport 
has the third largest runway in the state, equipped with 
instrument landing system that allows operations 24 hours a 
day, and serves as an alternative jet aircraft runway for 
Anchorage during times of emergency.
    King Cove and Cold Bay are separated by less than twenty 
miles, but there is no road between the two communities. A road 
is needed for two primary reasons: transportation accessibility 
and safety. The residents of King Cove currently have only two 
transportation options, planes and boats, that connect them 
with the rest of Alaska. Unfortunately, the weather makes King 
Cove one of the worst places in all of the United States to 
access by either of these transportation modes. Air travel is 
limited by both the weather and topography.
    The King Cove airport has a 3,360 foot long dirt runway 
approximately 115 feet wide. The strip is surrounded by 
mountains and sharp valleys which cause venturi, both northerly 
and southerly winds to increase wind speed dramatically. During 
the winter, the prevailing northerly winds combined with the 
heavy snow showers, strong crosswinds and heavy turbulence 
virtually bring all air traffic to a halt.
    Since 1981, eleven air crash fatalities involving small, 
single and twin engine aircraft have occurred in the flying 
corridor between Cold Bay and King Cove. Numerous other air 
crashes have occurred as well. One of these flights was a 
medivac flight headed for Anchorage that killed all four people 
aboard immediately after leaving the King Cove airport. The 
only reason the pilot attempted to get into King Cove was to 
try and assist a patient in a ``life and death'' situation.
    Any road route between the two communities would pass 
through lands that are owned by the Federal Government, or the 
regional and village native corporation. Lands owned by the 
Native Corporations are inholdings within the Alaska Peninsula 
National Wildlife Refuge or the Izembek National Wildlife 
Refuge. Inholdings in the Alaska Peninsula Refuge are owned 
entirely by the Native Corporation and are not subject to 
refuge control. The Izembek Refuge, because it predated the 
Alaska Native Claims Settlement Act that allowed native 
selection of Federal lands, is a different case. The Refuge 
retains ownership of the subsurface estate and the King Cove 
Corporation owns the surface. The Izembek Refuge also has an 
additional layer of land use complexity as virtually all of the 
refuge has been designated by Congress as part of the National 
Wilderness Preservation system.
    S. 1092 authorizes the King Cove Corporation to exchange 
lands with the Fish and Wildlife Service as part of an effort 
to build the King Cove-Cold Bay Road. The Corporation owns the 
surface estate of lands for half the road route within the 
Izembek Refuge. The Corporation has proposed an exchange of 
wetlands areas south of Cold Bay which act as important marine 
habitat for fish and wildlife resources within this marine 
ecosystem. The Corporation is also willing to discuss 
alternative sites in the Izembek or Alaska Peninsula Wildlife 
Refuges if the Fish and Wildlife Service identifies such lands.

                          LEGISLATIVE HISTORY

    S. 1092 was introduced by Senator Murkowski on July 30, 
1997. A hearing was held before the full Committee on September 
11, 1997. At the business meeting on September 24, 1997, the 
Committee on Energy and Natural Resources ordered S. 1092, 
favorably reported.

           COMMITTEE RECOMMENDATIONS AND TABULATION OF VOTES

    The Committee on Energy and Natural Resources, in open 
business session on September 24, 1997, by a majority vote of a 
quorum present, recommends that the Senate pass S. 1092, if 
amended as described herein.
    The roll call vote on reporting the measure was 12 yeas, 8 
nays, as follows:
        YEAS                          NAYS
Murkowski                           Bumpers
Domenici                            Ford
Nickles \1\                         Bingaman \1\
Craig                               Dorgan
Campbell                            Graham \1\
Thomas \1\                          Wyden \1\
Kyl                                 Johnson
Grams                               Landrieu
Smith
Gorton
Burns \1\
Akaka

    \1\ Voted by proxy.

                      SECTION-BY-SECTION ANALYSIS

    Section 1--Short Title.--This section cites the short title 
of the Act to be the ``King Cove Health and Safety Act of 
1997''.
    Section 2--Land Exchange.--Section 2(a) requires that if 
within 6 months after the date of the enactment of this Act, 
the King Cove Corporation transfers to the United States all 
right, title, and interest of the Corporation in and to the 
land described in subsection 2(b), the Secretary of the 
Interior shall, not later than 30 days after such transfer, 
grant the Aleutians East Borough a perpetual right-of-way of 
100 feet in width through the lands described in section 3(b), 
for the construction, operation, and maintenance of certain 
utility-related fixtures and of a public road between the city 
of Cold Bay, Alaska, and the city of King Cove, Alaska. Section 
2(b) describes the Corporation land referred to in subsection 
(a) as land owned by the Corporation in sections 5, 6, and 7 of 
T 57 S, R 88 W, Seward Meridian, Alaska. Section 2(c) requires 
that upon transfer to the United States of the Corporation land 
referred to in subsection (a), such lands shall be managed in 
accordance with section 1302(i) of the Alaska National Interest 
Lands Conservation Act.
    Section 3--Right-of-way.--Section 3(a) requires that unless 
otherwise agreed to by the Secretary and the Aleutians East 
Borough, the right-of-way granted under Section 2 shall: (1) 
include sufficient lands for logistical staging areas and 
construction material sites used for the construction and 
maintenance of a public road on the right-of-way; (2) meet all 
requirements for a public highway right-of-way under the laws 
of the State of Alaska; and, (3) include the right for the 
Aleutians East Borough, or its assignees, to construct, 
operate, and maintain electrical, telephone, or other utility 
facilities and structures within the right-of-way. Section 3(b) 
provides the legal descriptions where the right of way granted 
under Section 2 shall be located unless otherwise agreed to by 
the Secretary and the Aleutians East Borough. Section 2(c) 
provides for the center line of the right-of-way referred to in 
subsection (b) shall be determined by mutual agreement between 
the Secretary and the Aleutians East Borough.
    Section 4--Miscellaneous Provisions.--Section 4(a) defines 
certain terms used in the legislation. Section 4(b) provides 
that the Secretary and the Aleutians East Borough shall: (1) 
prior to any improvement to the right-of-way, jointly develop 
and agree to reasonable terms and conditions for the use of the 
right-of-way, including the construction, operation, and 
maintenance of the public road and utility-related fixtures, 
which will protect the Federal lands, interest in lands, and 
resources beneath and adjacent to the right-of-way without 
imposing undue costs on either party; and (2) may make mutually 
agreed upon modifications to an agreement reached pursuant to 
paragraph (1). Section 4(c) exempts certain provisions of law 
from applying to any right-of-way granted pursuant to this Act 
or any road constructed on such right-of-way. Section 4(d) 
authorizes the Secretary to implement and administer the rights 
and obligations of the Federal Government under any agreement 
reached pursuant to subsection (b). Section 4(e) provides that 
implementation of any agreement reached pursuant to subsection 
(b) shall not be deemed to be a major Federal action 
significantly affecting the quality of the human environment, 
nor shall such implementation require further consideration 
pursuant to the National Historic Preservation Act (16 U.S.C. 
470 et seq.), Title VIII of the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 3118 et seq.), or any other law.

                   cost and budgetary considerations

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 1, 1997.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1092, the King Cove 
Health and Safety Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Victoria V. 
Heid.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

S. 1092--King Cove Health and Safety Act of 1997

    CBO estimates that enacting this bill would have no 
significant impact on the federal budget. Because the bill 
would not affect direct spending or receipts, pay-as-you-go 
procedures would not apply. S. 1092 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 and would impose no costs 
on state, local, or tribal governments. The land exchange 
authorized in this bill would be voluntary on the part of the 
affected local and tribal governments.
    S. 1092 provides that if the King Cove Corporation 
transfers to the United States certain lands within the 
boundaries of the Izembek National Wildlife Refuge in Alaska, 
then the Secretary of the Interior is directed to grant to the 
Aleutians East Borough a perpetual right-of-way 100 feet wide 
through the Izembek National Wildlife Refuge. The right-of-way 
would be used for utility-related fixtures and for a public 
road between the cities of Cold Bay, Alaska, and King Cove, 
Alaska. The bill provides that the land transferred to the 
United States be managed by the U.S. Fish and Wildlife Service 
as part of the Izembek National Wildlife Refuge. Based on 
information from the U.S. Fish and Wildlife Service, CBO 
estimates that enacting the bill could increase management 
costs for the refuge because it might result in additional 
traffic through the area, but any such additional costs would 
likely total less than $500,000 per year and would be subject 
to appropriation action.
    The CBO staff contact for this estimate is Victoria V. 
Heid. This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

                      regulatory impact evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 1092. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 1092, as ordered reported.

                        executive communications

    The pertinent legislative report received by the Committee 
from the Department of the Interior setting forth Executive 
agency recommendations relating to S. 1092 is set forth below 
in a letter dated September 25, 1997 along with the testimony 
provided by the Department at the Committee hearing:

                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                Washington, DC, September 25, 1997.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
Washington, DC.
    Dear Mr. Chairman: This letter presents the Department's 
position with regard to S. 1092, the King Cove Health and 
Safety Act of 1997. The Department strongly opposes S. 1092 
and, if presented to the President in its current form, the 
Secretary will recommend that the President veto the 
legislation.
    Although the Department understands and supports the desire 
to ensure safe transportation between the King Cove and Cold 
Bay communities, S. 1092 would result in a perpetual right-of-
way through the lands and waters of Izembek National Wildlife 
Refuge and Izembek Wilderness. This right-of-way would be for 
the purpose of constructing a public road, and constructing, 
operating, and maintaining utility related fixtures between two 
rural communities located near the tip of the southern Alaska 
Peninsula. The proposed corridor would bisect a narrow isthmus 
between Isembek and Kinzarof Lagoons while traversing 10 miles 
of Refuge lands, including 7 miles of designated wilderness.
    The Department is sympathetic to safe and economical 
transportation for remote communities in the State of Alaska. 
At the same time, we, as an agency, must also safeguard the 
resources of the National Wildlife Refuge System. The Izembek 
Lagoon complex is vital habitat to hundreds of thousands of 
waterfowl, including the world's population of the regal 
emperor goose and the Pacific black brant. These waterfowl 
species descend on Izembek and Kinzarof lagoons during spring 
and fall migrations.
    Construction and the use of the proposed road as outlined 
in S. 1092 would disturb internationally-unique waterfowl 
populations. Construction through this fragile tundra 
environment also would result in increased silt loads and alter 
drainage patterns into Kinzarof Lagoon. Increased siltation 
will affect the health of the eelgrass beds upon which these 
waterfowl species depend.
    The proposed road also would parallel the Joshua Green 
River system, a key brown bear denning area, and bisect an 
important wintering and primary migration corridor of the 
southern Alaska Peninsula Caribou Herd. Vehicular traffic and 
increased human presence will affect adversely seasonal 
distributions and migration routes for this important species.
    Construction of a road through this pristine wilderness 
area would not be compatible with the purposes for which the 
Izembek National Wildlife Refuge was established. We believe, 
however, that viable alternatives to a proposed road exist and 
warrant further evaluation.
    The Alaska Department of Transportation and Public 
Facilities (ADOT/PF) is currently evaluating transportation 
alternatives. Some of these alternatives have the potential to 
provide safe, highly reliable, and environmentally-compatible 
travel between the Cold Bay and King Cove communities. We urge 
further consideration of these alternatives.
    The communities of King Cove and Cold Bay are separated by 
approximately 20 miles of marine waters that have provided 
passage between the communities for over 50 years. Enhancing 
the marine transportation and shipping facilities would provide 
improved safe travel to the entire region. Regularly scheduled 
ferry service between King Cove and Cold Bay would provide safe 
and reliable travel with fewer environmental impacts than a 
road. The development of routine marine service would entail 
improving the docking facility at Cold Bay and providing a 
vessel equipped with state of the art navigational aids to 
travel between the two communities. In addition, improvements 
to air travel would also benefit the King Cove and Cold Bay 
communities. Relocating or upgrading the current air facility 
could greatly improve air access.
    The Department is working cooperatively with the state in 
the consideration and planning of alternatives to meet the 
transportation needs of King Cove and the surrounding 
communities. The Department does not see the goals of safety 
for Alaskan citizens and conserving vital fish and wildlife 
populations and habitat of the Izembek National Wildlife Refuge 
as mutually exclusive. We support working within the framework 
of existing public processes to reach a solution that provides 
safe and reliable transportation for the citizens of Alaska, 
without compromising the ecological integrity of this pristine 
wildland area.
    In addition to the above concern, the Administration 
strongly objects to language in Sections 4(c) and (e) that 
exempts the land exchange from requirements of the National 
Environmental Policy Act, 49 U.S.C. 303(c), the Alaska Native 
Claims Settlement Act, the Alaska National Interest Lands 
Conservation Act and the National Historic Preservation Act. 
Such exemptions undercut the applicability of the laws, 
undermine enforcement, possibly lead to serious environmental 
problems, and set a dangerous precedent by encouraging similar 
waivers.
    The Office of Management and Budget advises that there is 
no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                          William L. Leary,
        Acting Assistant Secretary for Fish and Wildlife and Parks.


   statement of john rogers, deputy director, united states fish and 
              wildlife service, department of the interior


    Mr. Chairman, I appreciate the opportunity to provide 
testimony on S. 1092. Although we understand and support your 
desire to ensure safe transportation between the King Cove and 
Cold Bay communities, we strongly oppose S. 1092. If enacted, 
the Secretary of the Interior will recommend to the President 
that he veto S. 1092 because of the negative impact it would 
have on a fragile wilderness area within the Izembek National 
Wildlife Refuge, the bill's broad waivers from application of 
important environmental laws, and because there are other 
transportation alternatives currently under consideration by 
the State of Alaska.
    S. 1092 would result in a perpetual right-of-way through 
the lands and waters of Izembek National Wildlife Refuge and 
Izembek Wilderness. This right-of-way would be for the purpose 
of constructing a public road, and constructing, operating, and 
maintaining utility related fixtures between two rural 
communities located near the tip of the southern Alaska 
Peninsula. The proposed corridor would bisect a narrow isthmus 
between Izembek and Kinzarof Lagoons while traversing 10 miles 
of Refuge lands, including 7 miles of designated wilderness.
    We are sympathetic to safe and economical transportation 
for remote communities in the State of Alaska. At the same 
time, we, as an agency, must also safeguard the resources of 
the National Wildlife Refuge System. The Izembek Lagoon complex 
is vital habitat to hundreds of thousands of waterfowl, 
including the world's population of the regal emperor goose and 
the Pacific black brant. These waterfowl species descend on 
Izembek and Kinzarof lagoons during spring and fall migrations.
    Each fall, approximately 150,000 Pacific black brant 
converge on these lagoons coming from distant breeding grounds 
in Russia, Canada and Alaska. In recent years, an increasing 
proportion of brant remain to overwinter on Kinzarof and 
Izembek Refuge lagoons. The wilderness character of the Izembek 
Lagoon complex provides vital habitat for these species of 
international significance.
    Over half of the world's population of the threatened 
Stellar's eider also flock to the Izembek lagoons to molt and 
spend the winter in the security of the tidal waters. The 
extensive eelgrass beds, among the largest in the world, 
provide the food necessary for this species to replenish the 
nutrients depleted by migration, molting and brood rearing.
    Construction and the use of the proposed road as outlined 
in S. 1092 would disturb these internationally-unique waterfowl 
populations. Construction through this fragile tundra 
environment would also result in increased silt loads and alter 
drainage patterns into Kinzarof Lagoon. Increased siltation 
will affect the health of the eelgrass beds upon which these 
waterfowl species depend.
    The proposed road would also parallel the Joshua Green 
River system, a key brown bear denning area, and bisect an 
important wintering and primary migration corridor of the 
southern Alaska Peninsula Caribou Herd. Vehicular traffic and 
increased human presence will affect adversely seasonal 
distributions and migration routes for this important species.
    Construction of a road through this pristine wilderness 
area would not be compatible with the purposes for which the 
Izembek National Wildlife Refuge was established. We believe, 
however, that viable alternatives to a proposed road exist and 
warrant further evaluation.
    The Alaska Department of Transportation and Public 
Facilities (ADOPT/PF) is currently evaluating transportation 
alternatives. Some of these alternatives have the potential to 
provide safe, highly reliable, and environmentally-compatible 
travel between the Cold Bay and King Cove communities. We urge 
further consideration of these alternatives.
    The communities of King Cove and Cold Bay are separated by 
approximately 20 miles of marine waters that have provided 
passage between the communities for over 50 years. Enhancing 
the marine transportation and shipping facilities would provide 
improved safe travel to the entire region. Regularly scheduled 
ferry service between King Cove and Cold Bay would provide safe 
and reliable travel with fewer environmental impacts than a 
road.
    The development of routine marine service would entail 
improving the docking facility at Cold Bay and providing a 
vessel equipped with state of the art navigational aids to 
travel between the two communities. In addition, improvements 
to air travel would also benefit the King Cove and Cold Bay 
communities. Relocating or upgrading the current air facility 
could greatly improve air access.
    We are working cooperatively with the state in the 
consideration and planning of alternatives to meet the 
transportation needs of King Cove and the surrounding 
communities.
    The Service does not see the goals of safety for Alaskan 
citizens and conserving vital fish and wildlife populations and 
habitat of the Izembek National Wildlife Refuge as mutually 
exclusive. We support working within the framework of existing 
public processes to reach a solution that provides safe and 
reliable transportation for the citizens of Alaska, without 
compromising the ecological integrity of this pristine wildland 
area.
    In addition to the above concerns, the Administration 
strongly objects to language in Sections 
and (e) that exempts the land exchange from requirements of the 
National Environmental Policy Act, 49 U.S.C. 
303, the Alaska Native Claims Settlement 
Act, the Alaska National Interest Lands Conservation Act and 
the National Historic Preservation Act. Such exemptions 
undercut the applicability of the laws, undermine enforcement, 
possibly lead to serious environmental problems, and set a 
dangerous precedent by encouraging similar waivers.
    Thank you for the opportunity to testify on S. 1092. I 
would be happy to answer any questions you may have.

                   MINORITY VIEWS OF SENATOR BUMPERS

    S. 1092 directs the Secretary of the Interior to transfer a 
perpetual 100-foot right of way through the Izembek National 
Wildlife Refuge, including a wilderness area, to the Aleutians 
East Borough for the purpose of constructing a public road from 
King Cove to Cold Bay. The total length of the proposed road is 
approximately 30 miles. Of that total, approximately 11 miles 
traverse the Izembek National Wildlife Refuge, eight of those 
11 miles would be within lands designated as wilderness.
    While I understand and can appreciate the desire of the 
residents of King Cove for improved access to adequate health 
care, I believe that this legislation is premature at this 
point because I am not convinced that other available 
alternatives have been thoroughly evaluated.
    Given the potential federal funding requirements and the 
fact that the road is proposed to cross a wildlife refuge 
wilderness, it is imperative to adequately examine all 
available alternatives. The current estimate to construct the 
proposed road is $40 million. Normally, federal highway funds 
cover ninety percent of such construction costs. Maintenance of 
the proposed road will cost at least $500,000 per year. Federal 
highway funds are also available for such maintenance costs. 
Within this level of federal expenditures, I am quite certain 
that acceptable alternatives exist that can meet the village's 
needs without the road.
    Upgrading the existing medical facilities in King Cove 
should definitely be considered as a component of any effort to 
better meet the health care needs of the community of King 
Cove. My understanding is that an Indian Health Service 
facility is currently operated in King Cove. Indian Health 
Service facilities are funded through the Interior 
Appropriations bill. In addition, medical facilities funded and 
operated by other entities should be examined as a possibility.
    The Alaska Department of Transportation and Public 
Facilities is currently conducting a study, called the King 
Cove-Cold Bay Transportation Improvement Assessment, to assess 
the need to improve the transportation connection between King 
Cove and Cold Bay and develop options to improve the 
connection. The study includes an economic analysis which will 
be used to determine the level of need, as well as an 
assessment of health and safety issues. The study will identify 
a variety of aviation, highway, marine, or a combination of 
alternatives that could meet this need. The study will consider 
community impacts, wildlife and environmental factors, fiscal 
implications, and the use of alternative communication 
technology, including telemedicine. Transportation options 
being considered include the establishment of an all weather 
port facility and marine ferry system, with state of the art 
navigational aids, to run between King Cove and Cold Bay; a 
road from King Cove to a new airport that would be constructed 
north of Mt. Dutton; a hovercraft from Lenard Harbor to Cold 
Bay; and an emergency helicopter to serve the entire region. 
The final report defining the purpose and need of the project 
will be available in November 1997. It is obvious that critical 
and appropriate information will be available next month that 
will enable everyone to more adequately assess the situation.
    I am concerned about two other issues regarding this bill. 
First, the bill contains provisions that contain specific 
waivers to existing federal laws including the National 
Environmental Policy Act, the National Historic Preservation 
Act, the Alaska Native Claims Settlement Act, and the Alaska 
National Interest Lands Conservation Act. Second, no valuation 
work has been initiated to my knowledge to determine whether 
this would be an equal value exchange.
    The Secretary of the Interior has repeatedly stated that he 
will recommend that the President veto this bill. I know that 
the Majority is not interested in passing a bill that will not 
be signed into law and I am willing to work with Senator 
Murkowski and others on legislative language that is acceptable 
to all parties. If this bill comes before the full Senate in 
its current form, I plan to oppose it and urge my colleagues to 
do the same.

                                                      Dale Bumpers.

                        changes in existing law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 1092, as 
ordered reported.