Department of the Army Historical Summary: FY 1981

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Special Functions

Special functions include activities which deeply involve the Army in the life of the civilian community. The civil works program of the Corps of Engineers, which dates from the 1780s, includes navigation aids, waterways improvement, support of the President's hydropower program, and disaster response and recovery. The Army's environmental protection and preservation programs are designed to bring Army practices into conformity with federal laws and regulations in an area of increasing concern to the nation. The energy program involves the Army in a coordinated, governmentwide effort to develop alternative energy sources and to conserve energy. The Army's actions in all three areas have become controversial as public concern about the environment and energy has increased in recent years. As a result, the Army has become involved in litigation concerning these matters. Finally, in compliance with national policy the Army tries to use small and disadvantaged businesses when it awards contracts.

In fulfilling its major water resources development and navigation responsibilities, the Corps of Engineers also maintains, in peacetime, a technical work force essential for successful mobilization. As the decade of the 1970s closed, expenditures for operations and maintenance grew, while those for new construction began to decline. The country's water resources development program lacked new starts and was plagued by excessive delays and sometimes cumbersome regulations.

To invigorate water resources development and put the country's water program on a sound basis, the Reagan administration moved to implement a fresh approach, one built on a new model of public and private partnership. The Assistant Secretary of the Army for Civil Works initiated reforms in the Corps' regulatory program, planning process, project financing, cost sharing, and internal regulations.

On 17 February 1981 President Reagan signed Executive Order 12291 setting up the Presidential Task Force on Regulatory Relief and designated Vice President George Bush as chairman. The Corps worked with the Civil Works Assistant Secretary and

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the Office of Management and Budget (OMB) to identify five basic issues that needed study and evaluation in the Corps' regulatory program. They were as follows: (1) reduction of permit processing time; (2) more authority for the individual states; (3) reduction of overlapping responsibilities; (4) expansion of the Corps' general permit program; and (5) improved definition of program objectives and jurisdictional limits.

Several senators and representatives introduced legislation in the 97th Congress to redefine the jurisdiction of the Army Corps of Engineers in granting permits to nonfederal interests for dredging and filling. The most notable legislation was the Tower-Bentsen Bill (S. 777), which sought to limit Corps jurisdiction to tidal coastal waters, waters now navigable or reasonably capable of being made navigable, and historically navigable waters. The bill would remove streams and adjacent wetlands upstream of these limits from the jurisdiction of the Corps. Congress did not hold hearings on this legislation during fiscal year 1981.

Following the fall 1980 Division Engineers Conference, the Planning Division of the Civil Works Directorate in the Office of the Chief of Engineers initiated an internal Regulation Reform Action Program (RRAP) to review, evaluate, and, as necessary, reform civil works planning directives and publications. The RRAP team recommended canceling thirty-one of the existing 102 publications and consolidating or eliminating the rest. It consolidated guidance into six engineer regulations and four engineer pamphlets. A 450-page Notebook replaced 1,700 pages of guidance and 7,000 pages of information. This internal process continues and will provide updates to the planning guidance.

Beyond the RRAP effort, the Director of Civil Works also instituted a Planning Improvement Program (PIP) to promote timely and economical completion of quality reports. Scheduled for implementation during the PIP of fiscal year 1982 are (1) creation of planning divisions in districts; (2) improvement of the Washington-level report processing system; (3) encouragement of better developmental assignments for planners; and (4) implementation of the recommendations by the Civil Works' blue-ribbon panel on report management. Most far-reaching of these will be the mandatory attendance of district engineers at the Board of Engineers for Rivers and Harbors meetings dealing with reports from their districts. (The Board of Engineers for Rivers and Harbors, established by Congress in 1902, is composed of seven senior engineer officers. Its primary role is to conduct independent reviews of Corps water resources projects and report its conclusions and recommendations to the Chief of Engineers.)

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In March 1981 the Assistant Secretary of the Army for Civil Works transmitted to Congress the administration's proposed legislation for cost sharing of inland waterways and coastal and Great Lakes channels and harbors. These bills, 5.809 and S.810, called for full cost recovery of federal construction and operation and maintenance costs for navigation projects. While the administration indicated its intention to recommend higher nonfederal cost sharing for other types of water projects, it made no further legislative proposals during fiscal year 1981. The Senate Environment and Public Works Committee held hearings on navigation user charges but did not report out any legislation.

Fiscal year 1981 funds appropriated for the Corps of Engineers' Civil Works Program totaled $3,099,962,000. This figure represented a decrease of $163,264,000 from fiscal year 1980 appropriations which had included $170 million in flood control and coastal emergencies and $45 million in operating maintenance and general supplemental funding for Mount St. Helens. The decrease occurred primarily because of the lower level of funding for the Mount St. Helens emergency ($25 million) in the year just ended. The 1981 appropriated funds included a supplemental appropriation of $109.05 million, of which $45.05 million was for pay increases. The table below provides a breakdown by title of the total fiscal year 1981 appropriations. The amounts include funds provided by the 1981 Energy and Water Development Appropriation Act (PL 96-367) and the 1981 Supplemental Appropriations and Recession Act (PL 97-12).

The largest appropriation-Construction, General-permitted work on 213 specifically authorized projects and 13 elements of the Mississippi River and tributaries project. Eighteen projects were completed during fiscal year 1981. The completed projects will provide local flood protection to 301,741 acres of flood-prone

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land; reservoir storage to retain some 203,100 acre-feet of runoff for flood protection; and 167,300 acre-feet of storage for water. Projects included improvements to one coastal harbor, 8.2 miles of deep-draft navigation channels, 5.4 miles of beach erosion control, three hydropower generating units with a total installed capacity of 333,000 kilowatts, and four major rehabilitation projects.

Authorized full-time permanent civilian manpower in the Corps of Engineers has declined 7.4 percent from fiscal year 1971 to 1981. The table below shows the changes from 1971 through 1981.

Beginning in fiscal year 1982, control of the Corps' manpower will be converted to the full-time equivalent of work-years expended rather than the level of full-time spaces authorized for use at the end of the year.

The Interagency Coal Export (ICE) Task Force, in which the Corps played a major role, submitted its report to the President in January 1981. The ICE report concluded the following: (1) world demand for steam coal would grow significantly; (2) the United States would increase its future share of world steam coal; (3) the internal port limitations in the United States would raise the cost of steam coal for foreign buyers; and (4) steps would have to be taken to simplify, coordinate, and remove unnecessary delays from the governmental review process for construction activities and to expedite implementation.

The Corps Institute for Water Resources neared the end of research on two specially mandated studies-the National Waterways Study and the National Hydropower Study. The institute held public meetings to present the basic conclusions that came

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from the studies and to discuss potential recommendations. Most important, the waterways study concluded that waterway traffic, primarily for coal and grain, will increase. Although projected growth will be less than that experienced in recent years, and could be even lower depending on the user fees finally adopted, several locks will become congested by the turn of the century, and the need for more efficient replacement locks will increase. The draft report predicted the need for about $6 billion in new investment (in 1977 dollars) by the year 2003, primarily for new lock chambers which would provide additional capacity and selected deepening of channels to increase transport efficiency in both the inland and deep channel segments of the waterway system. Finally, the National Waterways Study concluded that apparent environmental risks would be predictable and manageable.

The National Hydropower Study, begun in 1977, recommended a national hydroelectric power development program, as well as institutional and policy modifications, to increase the effectiveness of hydro-development in the next twenty years. At the end of the fiscal year the Corps headquarters, Corps elements, and other interested agencies were reviewing the draft.

The Corps, in cooperation with the U.S. Department of Energy, the Federal Energy Regulatory Commission, the Department of the Interior's Bureau of Reclamation, and the Rural Electrification Administration and the Farmer's Home Administration-both from the Department of Agriculture-sponsored an international conference on hydropower, Waterpower '81, in Washington, D.C., on 22-24 June 1981. The conference provided a forum for the exchange of ideas and information on hydropower among interested professionals and nonprofessionals in both government and business throughout the United States and in twenty-three foreign countries. Keynote addresses by the Assistant Secretary of the Army for Civil Works and by Senator Frank Murkowski of Alaska highlighted the conference. The Assistant Secretary challenged both public and private sectors to be more innovative and to search for more effective ways to stimulate and finance hydropower production. Senator Murkowski urged conference participants to continue their efforts to capture this renewable resource.

Under the national program for inspection of nonfederal dams, the Corps of Engineers updated and verified the inventory of dams. The revised inventory listed over 67,000 dams, of which about 21,000 were in the "high and significant hazard" category. By the end of September 1981 the Corps still had not obtained

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the legislative authority it needed to keep the inventory current. Also under the program, the Corps inspected 8,794 dams and judged 2,917 of them, or 33 percent, as unsafe due to various deficiencies, primarily for inadequate spillway capacity. The Corps gave state governors copies of inspection reports on all dams having deficiencies and recommended remedial measures. On the bottom line, the Corps concluded that (1) the updated inventory of dams is a reliable data base for state dam safety programs; (2) the large percentage of unsafe dams and the lack of implementation of remedial measures indicate that dam owners are not willing to maintain their dams and that most states are not willing to require the needed maintenance; and (3) most states have shown a willingness to implement and maintain effective state dam safety programs if federally funded, but only a few states have indicated that they will continue these programs with federal assistance.

The Corps of Engineers Dam Safety Assurance Program was initiated with conditional operational studies conducted in fiscal year 1980. The program is directed toward completed Corps of Engineers projects including those operated and maintained by local interests, which may contain potential safety hazards when viewed from present day engineering standards and knowledge. The program intends to upgrade those features which have design or construction deficiencies related to dam safety without changing the original project's purpose.

The fiscal year 1980 appropriations included $8.1 million for studies and designs involving 170 projects. Fiscal year 1981 appropriations included $20.3 million for studies and designs involving 130 projects and $0.8 million for construction at one project.

Several Corps projects generated special public interest during 1981. The Tennessee-Tombigbee Waterway, which would connect Demopolis, Alabama, to Pickwick Pool on the Tennessee River, proceeded toward completion despite some continuing opposition. Total allocations since 1971 stood at $1.109 billion, leaving $671 million still needed to complete the project.

The Flood Control Act of 1965 (PL 89-298) authorized the Dickey-Lincoln project on the upper Saint John River, in Maine. While the project had reached a stage at which construction could begin, controversy over its usefulness made the prospects of Dickey-Lincoln uncertain; and by the end of the fiscal year no construction funds had been appropriated.

The Lower Snake River Fish and Wildlife Compensation Plan, authorized under the 1976 Water Resources Development

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Act, was designed to compensate fish and wildlife losses associated with the construction and operation of the four dams on the Lower Snake River. Because commercial hatcheries lacked experience with rearing anadromous fish, the Corps argued that it should not seek authority to make a contract with commercial hatcheries to supply steelhead trout.

Heavy rains coupled with saturated ground conditions in the Salt River Basin during 23-28 July 1981 caused high runoff rates and a rapid rise in the pool created by the construction of the Clarence Cannon Dam in Missouri. The resulting overflow caused damage to the main dam embankment, terminal wells, sand chimney, sand drain, and instrumentation. The St. Louis District Engineer modified the existing contract to permit the repair of the main dam: As of 30 September 1981 the repairs were essentially complete. Upstream embankment protection was now provided to elevation 592. To achieve still greater flood protection during the 1982 construction season, the St. Louis District planned to raise the embankment protection.

The Corps also devoted considerable effort to a study of the Atchafalaya Basin, Louisiana. As Mississippi River flood flows increase, the project provides an additional outlet to the Gulf of Mexico by receiving flows through the Old River and Morganza Control Structures thereby relieving the flood threat to Baton Rouge and New Orleans. The floodway was formed by constructing protection levees an average of eight miles to the east and seven miles to the west of the Atchafalaya River. Because of extremely poor foundation conditions, these levees are subject to continuous settlement. The levees are from one to six feet below proper design grade. The floodway is intended to carry one half (1.5 million cubic feet per second) of the Mississippi River project flood flow.

The primary object-of this 1981 study was to develop a multipurpose plan that would protect south Louisiana from Mississippi River floods while retaining and restoring the unique environmental features and long-term productivity of the basin's natural environment. The study addressed the operations of the Old River project; safe conveyance of project flood flows through the floodway and reduction of sedimentation; enhancement of fish, wildlife, and recreation resources on the floodway; safe conveyance of the projected flood waters through the outlets to the Gulf of Mexico; and protection of the backwater area east of Morgan City, Louisiana. A number of alternative plans were developed to meet the study objectives. The New Orleans District submitted a draft report and an environmental impact statement

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to the Mississippi River Commission on 20 March 1981. The report addressed measures requiring congressional authorization, generally those relating to environmental preservation, as well as the features previously authorized by Congress, mainly for flood control.

The Corps held five public meetings between 14 July 1981 and 22 July 1981 to hear comments on the tentatively selected plan. Subsequent to the public meetings, the governor of Louisiana announced a compromise real estate plan for the basin in cooperation with the landowners in the basin, a chemical company, and environmental interests. By the end of the fiscal year the Corps had not officially reviewed the plan. Following a number of public meetings and suggestions by the governor, the New Orleans District Engineer will submit a final report to the Mississippi River Commission.

Continued central management of the Army Pollution Abatement Program (APAP) during fiscal year 1981 resulted in significant progress toward bring Army installations into compliance with applicable air and water standards. The fiscal year 1981 Military Construction, Army (MCA), budget line funded twenty two projects at a cost of $49 million. Of the 116 installations identified in 1978 as not being in compliance with applicable air and water standards, only 17 will remain in noncompliance upon completion of all projects in the fiscal year 1981 and prior year MCA programs. The Pollution Abatement Program will continue under central management by the Office of the Chief of Engineers for the foreseeable future, in anticipation that Congress will require the Army, to comply with solid and hazardous waste standards of the Resources Conservation and Recovery Act (1976) and with the Comprehensive Environmental Response, Compensation, and Liability Act (1980).

Congress passed the comprehensive Environmental Response, Compensation, and Liability Act in December 1980. This legislation, popularly referred to as Superfund, provides for federal response authority and polluter liability for hazardous substances released into the environment. The act also required that businesses or agencies report to the EPA by 9 June 1981 any past practices which might have caused hazardous or toxic substances to be introduced into the environment. The Army reported a considerable number of toxic sites, located on both active installations and land previously disposed of as excess. On 14 Au-

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gust 1981 President Reagan issued Executive Order 12316, "Response to Environmental Damage," which made the Department of Defense responsible for hazardous substances on DOD installations. The department in turn delegated the responsibility to the secretaries of the military services. The Office of the Chief of Engineers informed the field of the areas of shared responsibility for hazardous materials and hazardous waste management between the Army and the Defense Logistics Agency.

A groundwater monitoring program was initiated during fiscal year 1981 under the technical direction of the U.S. Army Environmental Hygiene Agency, a Health Services Command unit, and the Huntsville Division of the Corps of Engineers. The program was designed to comply with the requirements of the Resources Conservation and Recovery Act. As a consequence of this law, all Army activities that handle (transport, treat, store, or dispose) hazardous waste filed applications with the Environmental Protection Agency (EPA) on 19 November 1980, which would allow the facilities to continue operating under an interim status until the EPA promulgates final permit procedures. If the activities had not requested an extension, the law would have required them to cease operation and contract out all functions involving hazardous waste.

In January 1980 the Army published regulations in draft form for comment, which put in force the Council on Environmental Quality regulations implementing the procedural provisions of the National Environmental Policy Act (40 Code of Federal Regulations 1500-1508). The Army published the final regulations in 32 CFR 651 on 20 October 1980, to take effect on 3 November 1980, and issued the same text as AR 200-2 on 1 September 1981.

In 1975 the Army initiated the Installation Restoration Program under the direction of the U.S. Army Toxic and Hazardous Materials Agency (USATHAMA), a DARCOM field operating agency which reports directly to the chief of staff of DARCOM. The program involves the identification, assessment, and restoration of Army properties that have been contaminated by hazardous materials. USATHAMA gave priority to installations where contaminants were migrating beyond the post boundaries and to those that had been identified as excess and were planned for release to other use. Most field work-some 85 to 90 percent-was performed by contractors under the supervision of USATHAMA. Over the past six years USATHAMA has undertaken assessments at 124 installations. The agency performed a record search, the first phase of an assessment, at each installation

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to determine if the potential existed for contaminant migration. USATHAMA recommended follow-up survey work, the second phase of the assessment, for 47 of the 124 installations. As of 30 September 1981 USATHAMA had prepared fourteen survey reports at an average cost of $330,000 per installation. As a result of its assessment efforts, USATHAMA estimated that past operations may have caused environmental degradation at 195 Army installations. Because assessment activities were prioritized, the Army believes that most environmental contamination problems have already been identified and are being addressed.

During fiscal year 1981, USATHAMA performed record searches at 38 installations. It initiated efforts, including groundwater sampling and analysis of data, at 10 installations. USATHAMA completed survey work at 6 of the 10 installations and prepared survey reports on 3 of them: Navaho Depot Activity, Arizona; Fort Wingate Depot Activity, New Mexico; and Sacramento Army Depot, California. The funding level for fiscal year 1981 stood at $17.3 million. USATHAMA scheduled twenty-nine record searches and six surveys for initiation in fiscal year 1982. The agency anticipated the completion of final reports on 12 installations during the same period. The funding guidance for the new year, as of 30 September 1981, was $13.7 million. USATHAMA assisted the Navy in establishing its Installation Restoration Program during fiscal year 1981.

Fort Sill, Oklahoma, won the Secretary of the Army Environmental Quality Award for its superior program during 1980. The Army Environment Committee selected Fort McClellan, Alabama, as first runner-up and Fort Devens, Massachusetts, and Fort Huachuca, Arizona, as second runners-up. The committee judged the ten installations competing for this award on the overall quality of their written presentation and their program achievements. In recognition of the number of times that Fort Sill had won the award, the Undersecretary of the Army, James R. Ambrose, went to Fort Sill to make the presentation personally. The Army had held all previous awards ceremonies at the Pentagon.

The Army Energy Program

In August 1981 the Army Energy Office published the final version of the Army Energy Plan, first distributed in draft form in September 1980. The first major revision since the introduction of the, plan in 1978, the 1981 edition included an update of

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the world energy situation, program and funding information, and consumption data to make the plan more useful.

The Army's total energy consumption, as compared to the fiscal year 1975 adjusted consumption levels is given below in trillion BTUs (British Thermal Units):

*A negative figure reflects consumption exceeding the baseline.
Source: Defense Energy Information System (DEIS)

The Army divides its energy program into two major components: installation operations and mobility operations. Most of the savings since 1975, some 14.89 percent, have accrued in installations operations because of the limits of existing technology and because of the proportionately large amount of energy expended in that area, 83 percent in 1981. The energy conservation program for facilities covers a broad range of actions directed toward an overall reduction in energy consumption of 20 percent by fiscal year 1985 from the 1975 totals. Included within this framework are actions aimed at shifting major energy loads from oil and natural gas to coal, which is far more plentiful, and increasing fuel storage facilities to minimize the impact of sudden supply shortages.

The Army has substantially reduced its energy consumption since the OPEC embargo of 1973. Reductions are continuing, although the descent is less rapid. The decreased consumption has not been enough to offset the increase in total energy costs that resulted from the rapid escalation in the unit costs of energy, basically oil, natural gas, coal, and electricity. Electrical consumption has proven the most difficult to reduce. Many local

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management actions such as consolidation or inactivation of facilities, changes in temperature standards, fine tuning of equipment, and increased motivation of personnel have contributed significantly to overall savings.

The greatest energy-saving contribution within the program is made by the Energy Conservation Investment Program (ECIP). It attempts to reduce consumption through the revamping of existing fixed facilities and will play a large role in achieving the 20-percent reduction in energy consumption per square foot in existing Army facilities, mandated by Executive Order 12003. Additionally, ECIP helped offset the effect of continually increasing unit costs of energy on the Army budget. ECIP includes projects to install insulation, storm or thermal windows, and space temperature controls; to improve heating, cooling, and electrical plants and distribution systems; and to introduce of energy monitoring and control systems that use central processing units, waste heat recovery systems, solar hot water systems, and solid waste incinerators with heat recovery. Begun in the fiscal year 1976 program, ECIP was scheduled in 1981 to extend at least through fiscal year 1987. As of 1981, Congress had appropriated $270.5 million for 253 ECIP projects. The table below summarizes the accomplishments of ECIP (excluding family housing) since its inception, from 1976 to 1981.

The Energy Engineering Analysis Program (EEAP), initiated by the Corps of Engineers in 1976, is an attempt to develop a systematic plan of projects to reduce energy consumption in existing facilities. All energy conservation techniques at each major Army installation are investigated to determine practicality and to quantify energy savings and costs. Techniques analyzed include major and minor building and equipment modifications, equipment replacements, energy management and control systems, and

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operational and procedural revisions. From the EEAP studies came a list of projects, with priorities established by energy savings and economic criteria, for funding under the ECIP or by the military construction authorization. EEAP also develops low-and no-cost projects to be implemented by installation personnel. On a selective basis the studies also analyze conversion from critical petroleum-based fuels to coal or to renewable energy sources, such as solar or biomass.

As of 30 September 1981 the Corps of Engineers had EEAP studies under way at 105 installations in the continental United States, three in Alaska, twenty-nine in Europe, and nineteen in Korea, as well as at ten locations in the Hawaiian Islands and six in Japan and Okinawa. It had completed the initial portion of the studies at an additional thirty-seven CONUS installations and seven European. In the fiscal year 1981 program the Corps awarded 134 contracts and contract increments, valued at $17.4 million, for work at 126 different installations.

Approximately 67 percent of the ECIP projects proposed for fiscal year 1983 in the continental United States resulted from EEAP studies. Although representing only 39 percent of the dollar value of all ECIP projects in CONUS, they account for 47 percent of the projected dollar savings and 54 percent of the energy savings. In Europe 16.7 percent of the fiscal year 1983 ECIP projects resulted from EEAP studies. This represented 5 percent of the dollar value of the European ECIP projects and accounted for 4 percent of the expected dollar savings and 6.7 percent of the energy savings.

The Army continued to expand the use of solar energy on demonstration projects during fiscal year 1981. A family housing unit, heated and cooled by solar energy, became operational. It was the third project partially funded by the Department of Energy. The Department of Defense provided the money for four projects during the same period, making a total of thirteen DOD-funded facilities within the Army. The new projects included a school, a range operations center, a dining facility, and a hospital.

The Military Construction Authorization Acts of 1979 (PL 95-356) and 1980 (PL 96-125) required the installation of solar energy systems in all new facilities to the extent that such systems were cost effective. As a result the Army constructed eight projects that became operational during 1981 including approximately 950 family housing units using solar energy. The Corps of Engineers studied about twenty-five other projects during the year and found them not to be cost effective, except for a few

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projects that were cost effective but which the Army did not have the necessary funds to build.

During 1981, shifting ideas of what constituted "cost effectiveness" had an impact on the Army's effort in solar energy. In January 1980 the Department of Energy published regulations that established a methodology for all federal agencies to use in determining cost effectiveness over the life cycle of a facility. The fiscal year 1981 Military Construction Authorization Act (PL 96418) contained a solar requirement using essentially the same cost-effectiveness criteria as found in previous acts. Some thirty solar projects were cost effective under those guidelines. However, the fiscal year 1981 Military Construction Appropriations Act (PL 96-436) contained a solar requirement that for the first time employed cost-effectiveness criteria similar to the new Department of Energy regulations (10 Code of Federal Regulations, Part 436, Subpart A). Under the new standards only one solar project was cost effective, and Congress only funded it in the fiscal year 1981 Military Construction, Army, program.

Congress subsequently enacted a permanent solar energy evaluation requirement (10 USC 2688). Design studies by the Corps of Engineers for projects in the fiscal year 1982.military construction program took into account the requirements of 10 USC 2688 and 10 CFR Part 436. As the fiscal year ended, Congress was considering changing the requirements of 10 USC 2688 to bring it into conformity with PL 96-436 and 10 CFR 436.

The February 1980 workshop on joint energy activities sponsored by the Department of Defense and the Department of Energy sought to identify specific programs for improving energy efficiency and availability and to locate DOD facilities to use in carrying out projects of mutual interest. As a consequence of its participation, the Army selected during fiscal year 1981 the Red River Army Depot and Lonestar Army Ammunition Plant as the site for an energy "showcase." Major areas of innovation will include biomass, solar thermal, nonfossil fuels, lignites, and terratecture, the construction of underground buildings. The Department of Energy provided $204,500 to help start several of these programs.

Army activities became the subject of frequent litigation in fiscal year 1981. There were few, if any, significant Army programs that were not made the subject of a lawsuit. In particular,

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contractors challenged many actions and decisions relating to commercial interests as they tried to retain or obtain contracts.

The Relook cases, which concerned officers released from active duty because they were not selected for temporary promotion in 1975 and 1976, again constituted a significant workload for the judge Advocate General's Corps. The U.S. Court of Claims had seventy-five cases involving 159 plaintiffs pending at the close of the fiscal year, while the U.S. Court of Appeals for the District of Columbia had another thirty-two cases pending involving 86 additional plaintiffs. The Army was attempting to settle those cases which the earlier decisions in Dilley and Doyle resolved and, where necessary, to litigate the cases on issues not previously decided. In addition, the Army tried to get plaintiffs in the District of Columbia to transfer their cases to the Court of Claims. These cases, however, involved a broad spectrum of issues and would probably require years to resolve. As an alternative to litigation, the Army was considering legislation as the year ended.

Although the Army had made some progress in resolving a number of the cases concerned with the testing of hallucinogens, several remained before the courts as of 30 September 1981. In Stanley v. CIA, the Court of Appeals overturned the decision by the district court favorable to the defendant and remanded the case to the lower court for possible amendment of the complaint. The Court of Appeals for the District of Columbia Circuit dismissed the case of Nagy v. United States for lack of prosecution. Pretrial discovery was completed in Loeh v. United States, and the case was set for trial in district court in November 1981. The case of Chaffin v. United States was remanded in the pretrial discovery stage. Sweet v. United States was tried in the spring of 1981, but the court had not announced a decision by the close of the fiscal year.

Thornwell v. United States was dismissed after Congress passed a private relief bill on Mr. Thornwell's behalf. The federal district court dismissed three related cases - Barrett v. United States, Barrett v. Hoffman, and Barrett v. Arthur - which concerned the death of a civilian after an Army research contractor had administered mescaline, as being barred by the statute of limitations.

Two cases concerning the atmospheric nuclear testing program, Jaffee v. United States and Broudy v. United States, were pending decision by the appellate courts at the end of the fiscal year. Three other cases, Punnett v. Carter, Hinkie v. United States, and Hill v. United States, were still pending trial proceedings in the district court. The district court, however, dismissed Lombard v.

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United States on 30 September 1981. The Judge Advocate General expected the Jaffee and Broudy cases to offer the earliest appellate resolution of the question of whether the Feres doctrine-which holds that the United States is not liable for injuries to service members that arise from or were incurred incident to military service-also bars suits for alleged intentional constitutional torts by individual officials of the government.

The district court had voluntarily dismissed during fiscal year 1980 the case brought by the governor of Utah to prevent the movement of Weteye bombs from Rocky Mountain Arsenal, Colorado, to Tooele Army Depot, Utah, when the Department of Defense decided not to move the bombs. However, movement of the Weteyes became an important issue again in 1981, when the department reverted to its original plan. In Women's International League for Peace and Freedom v. Weinberger the plaintiffs sought an injunction to stop the movement of the bombs. The district court denied the injunction, however, and by August 1981 the Army had safely transported all the Weteye bombs to Tooele Army Depot.

Medical malpractice cases continued to provide a major part of the workload in tort litigation. The Torts Branch of the Litigation Division also handled numerous cases concerning aircraft and industrial accidents. Settlement negotiations were under way at the end of the year in the case of United States v. Chamberland Manufacturing Company and Holcroft and Company.

While the number of medical care recovery claims dropped to 4,281, over 1,000 less than during fiscal year 1980, the total recoveries on behalf of the government actually rose to almost $5.8 million during fiscal year 1981. United States Army, Europe, continued its record of leading all other offices with a recovery of almost $1.4 million. The addition of another attorney in the Tort Branch of the Office of the Judge Advocate General and the implementation of a newsletter to provide quick and uniform guidance to Army attorneys in the field gave new emphasis to medical care recovery efforts during the year.

The U.S. District Court for the Northern District of California returned a decision favorable to the United States in the case of Mable Nevin v. United States, a wrongful death action that arose from biological warfare testing on the West Coast in 1950. The government prevailed on the issues of proximate cause and discretionary function. (Discretionary function is the legal doctrine that an officer of the federal government may not be subjected to civil suits on the basis that he made the wrong policy decision.) In Burchfield v. Gaon-a suit against Army doctors for

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failing to diagnose the long-term effects of nerve gas-the court, after denying a government motion for summary judgment, refused to substitute the United States as the defendant under Title 10, United States Code, Section 1089, which makes the United States the proper defendant for alleged medical malpractice by physicians in the Department of Defense.

In the case of United States v. Reeves Telecom-brought by the government against a land developer who built a dam that ultimately undermined a government railroad right-of-way-a decision on the amount of damages that the developer would have to pay the United States was still pending at the end of the year.

The two class-action cases seeking damages and injunctive relief for alleged violation of civil rights in the Chicago area, American Civil Liberties Union v. City of Chicago and Alliance to End Repression v. Rochford, neared settlement as the fiscal year ended. The defendants had reached a settlement agreement with a majority of the plaintiffs, including a settlement of the class action allegations in both suits, which required only final approval by the court.

The settlement in the case of the Berlin Democratic Club v. Brown, which challenged intelligence-gathering activities in Berlin, was partially completed in the last fiscal year. As required by the settlement agreement, the thousands of documents previously assembled and reviewed were released to the plaintiffs in March 1981. The plaintiffs received several extensions of time in which to make objections to deletions and withholdings made by the Army when it released the documents.

Katcoff v. Alexander, the lawsuit challenging the constitutionality of the Army's chaplaincy program on the grounds that it violates the First Amendment to the Constitution, is still in the pretrial discovery process. The Army will file a dispositive motion in fiscal year 1982, which should resolve the case.

At the end of the fiscal year two cases, Lindenau v. Alexander and Mack v. Rumsfeld, were pending. These challenged the Army's policies on the enlistment of sole parents in the Regular Army, the Army Reserve, and the Army National Guard. Army regulations currently proscribe the first-time enlistment of any applicant, without spouse, who has a child under eighteen years of age, unless the child is placed in the custody of another adult, by court order or as prescribed by state law; the applicant for enlistment is not required to pay child support. The plaintiffs asserted that the policy violates the equal protection and due process clause of the Constitution. The Army won the Lindenau case in district court, but the plaintiff appealed. The appeal was

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pending at the close of the fiscal year. The district court certified that the Mack case was a class action. The plaintiff pursued an extensive discovery process, and the Army expects it to continue during fiscal year 1982 before trial on the merits.

In Rich v. Secretary of the Army the plaintiff is a former Army enlisted man whom the Army discharged because he had fraudulently concealed at the time of his enlistment that he had previously engaged in homosexual acts. He challenged the Army's policy concerning discharge of homosexuals. After trial on the merits, the district court decided in favor of the Army and dismissed the case. The plaintiff filed a notice of appeal; his appeal was pending at the close of the fiscal year.

In Jackson v. Beasley the plaintiffs asserted a class action on behalf of all Army recruiters assigned to the Southeast Region Recruiting Command who received unfavorable personnel actions as a result of violations of recruiting policy. The Army's motion to dismiss or for summary judgment was pending at the end of the fiscal year.

The plaintiffs in Huerfano-Pinon Coalition, Inc. v. Marsh brought suit challenging the proposed acquisition of land in southeastern Colorado for a training area for Fort Carson. They alleged that certain provisions of the United States Code authorizing the Secretary of the Army to purchase land are unconstitutional. The Army moved to dismiss the complaint, and the motion was pending at the end of the fiscal year.

During fiscal year 1981, the Tennessee-Tombigbee Waterway continued to be the focal point of complex litigation. On 20 October 1980, the U.S. Supreme Court denied the plaintiffs' petition for a writ of certiorari concerning the trial court's decision on the authorization questions. On 1 October 1980 the U.S. District Court for the Northern District of Mississippi ruled against the plaintiffs on all remaining counts of their lawsuit, concerning environmental and economic issues. The court's decision touched on six major subject areas.

(1) The Corps of Engineers, ruled the court, was still in full compliance with the National Environmental Policy Act (NEPA). The Corps had not improperly segmented the total project for purposes of its NEPA environmental impact statement, because the Tennessee-Tombigbee Waterway and the Black Warrior-Tombigbee Waterway are separate and distinct projects. The environmental impact statement properly analyzed all significant project alternatives. The Corps did not need to make a formal supplement to its 1971 environmental impact statement on the Tennessee-Tombigbee.

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(2) The Corps' benefit-cost calculations were not reviewable by the courts. Congress determined that those benefit-cost ratios were adequate to justify the project's construction.

(3) The Tennessee-Tombigbee's official discount rate of 3.25 percent was legal, because the Secretary of the Army had the discretion, which he properly exercised in 1971, to determine that local interests had given satisfactory assurances of required local cooperation, thereby "grandfathering in" the 3.25-percent rate. (The official discount rate is the interest rate that the government is expected to pay on money borrowed to construct, operate, and maintain a facility over its lifetime. A statistical fiction used to develop cost-benefit studies, it is customarily based on the prevailing interest rate at the start of a project.) The court also found that the Corps was also in compliance with Section 221 of the Rivers and Harbors Act of 1970, which required that local interests enter into contractual arrangements to pay their portion of project costs before construction began.

(4) The plaintiffs' assertion that the Corps had not properly complied with the Fish and Wildlife Coordination Act was barred, because those claims could have been brought up in the 1971 Tennessee-Tombigbee litigation and because the statute gave plaintiffs no private right of action.

(5) The Corps properly complied with Section 404 of the Clean Water Act and related regulations in dealing with the discharge of dredged material. The Corps also complied with Section 401 of the same act regarding state water quality certifications.

(6) The Corps may or may not have published all of the regulations which it should have published in the Federal Register. The court refused to enjoin Tennessee-Tombigbee construction on the grounds of alleged failure to publish such regulations. If the plaintiffs cared to return to court, the court would consider an order requiring the Corps to publish all heretofore unpublished regulations as the law requires.

In November 1980 the plaintiffs filed an appeal to the Fifth Circuit Court of Appeals concerning judge Keady's decision of 1 October. On 13 July 1981 the court of appeals ruled that the Corps must prepare a supplementary environmental impact statement. The language of the decision appeared to open the possibility that the plaintiffs might seek an injunction to stop all work on the waterway pending the completion of the supplementary environmental impact statement, but on 17 August the court clarified its position: There would be no injunction. In practical terms the July 1981 decision had no impact on construction; as

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of 30 September 1981, completion was still scheduled for 1986. The court also held in its 13 July ruling that the 3.25 percent discount rate was not legal, but it did not stipulate what the rate should be. At the end of the fiscal year this issue remained moot.

The case of Atchison, Topeka, and Santa Fe Railroad Company et al. v. Callaway originated on 6 August 1974 as two actions, subsequently consolidated, which sought to halt construction of Locks and Dam 26. This was one of a series of locks and dams extending from Alton, Illinois, to St. Paul, Minnesota, and a key navigation structure affecting the entire inland waterway system of the mid-western United States. The plaintiffs alleged that the project was the first step in a multibillion-dollar plan to rebuild the upper Mississippi River navigation system without the consent of Congress, as required under Title XXXIII of the United States Code, Section 5, and that the Corps of Engineers had improperly assessed the benefits, costs, feasible alternatives, and impact on national economic development and environmental protection. The major issue was whether Section 5 allowed construction of the project without specific congressional approval. The court issued a preliminary injunction on 5 September 1974 based upon the finding that the plans for the project went beyond the needs of existing navigation by considering expected increase in traffic. The court also judged the environmental impact statement to be inadequate, because it did not consider the project on a systematic basis or investigate all reasonable alternatives. Subsequently, the Secretary of the Army terminated the authority for the project and directed that the Corps submit it to Congress for approval. On 2 May 1977 the court granted a motion by the defense to dissolve the preliminary injunction but denied its motion to dismiss; the court required the federal defendants to respond to a motion for summary judgment filed by the plaintiffs.

The federal defendants filed a response to the plaintiffs' motion along with a cross motion for summary judgment. On 4 October 1978 the U.S. District Court for the District of Columbia denied both motions for summary judgment, except for the part of the federal defendants' motion which argued that seeking congressional authority for a new project was not arbitrary and capricious; the district court then set the case for a status call on 25 October 1978 to discuss the issues to be tried in regard to the environmental impact statement. Before the court could hold status call, Congress passed Public Law (PL) 95-502, which authorized one new 1200-foot lock and dam, created an Upper Mississippi River Basin Commission to prepare a comprehensive master plan for the upper Mississippi River system based on spec-

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ified transportation and environmental studies, and imposed a tax on fuel oil used in commercial waterway transportation.

The district court then allowed the plaintiffs to file an amended complaint. The federal defendants and the defendant intervener, the Association for the Improvement of the Mississippi River, filed a joint answer and renewed separate motions for summary judgment. In its opinion the court held that in passing PL 95-502 Congress did not exempt the replacement Locks and Dam 26 from the National Environmental Policy Act; the plaintiffs were entitled to test the adequacy of the environmental impact statement which the Corps submitted to Congress with legislation that resulted in PL 95-502. On 10 September 1979 the court set the trial date. On the morning of the trial, the court dismissed various counts of the plaintiffs' complaint leaving two issues to be tried: the adequacy of the environmental impact statement under the National Environmental Policy Act, and whether the federal defendants had complied with post-authorization procedures. The case was tried in five days, 10-12 and 18-19 September 1979.

On 23 October 1979 the court filed its memorandum of opinion, which held that the environmental impact statement was adequate under the National Environmental Policy Act but that the federal defendants had failed to hold the required post-authorization meeting. Although the court entered a declaratory judgment to this effect in favor of the plaintiffs, it refused to provide injunctive relief. The court found in favor of the defendant on the issues arising from the National Environmental Policy Act.

On 20 December 1979 the plaintiffs filed a notice of appeal. Briefs were filed, and the court of appeals heard oral arguments on 16 January 1981. On 24 April 1981 the court issued its decision, affirming in part and reversing in part the district court's decision. The reversal was limited solely to the district court's failure to require a post-authorization public meeting. The St. Louis District of the Corps of Engineers held a public meeting in September 1981. The plaintiffs sought a writ of certiorari from the Supreme Court, which was denied in November 1981, thus concluding the litigation.

Loesch v. United States consisted of consolidated claims by six owners of land that was adjacent to or on tributaries of the Ohio River. They sought to receive compensation on the theory of inverse condemnation for damage to their land supposedly resulting from the construction and operation of high-lift dams on the Ohio River which they alleged caused erosion of their prop-

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erties. Secondly, the plaintiffs accused the Corps of Engineers of fraud and misrepresentation in determining the ordinary high-water mark when it obtained flowage easement. In its finding the court indicated that both issues in the Loesch case hinged on the facts rather than on questions of law.

The court found that the record in this case clearly established that the construction and operation of the Ohio River high-lift dams did not cause floods, increase the number of floods, affect peaks, or increase the effects of flooding. The erosion taking place on the plaintiffs' land was not caused by or related to the construction and operation of the high-lift navigation dams. As to the alleged fraud, the court ruled that the record showed an honest attempt by the Corps to be fair and forthright with all riparian landowners in the matters relating to the dam projects. It denied relief to the plaintiffs on this ground as well.

Deltona Corporation v. United States was an inverse condemnation suit in which the plaintiff alleged that the Corps of Engineers' denial of its application for a Section 404 permit to dredge and fill the wetlands at Marco Island in Monroe County, Florida, south of Naples, imposed "a preservation easement" upon their property. On 25 November 1980 the trial judge issued a recommended opinion unfavorable to the government. On 19 August 1981 the Court of Claims rejected the recommended opinion and rendered a decision in favor of the United States.

The court held that while Deltona may have sustained economic loss, these losses did not constitute a Fifth Amendment "taking." The court cited the "stiffening" regulatory requirement of Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act as the key legal event in this case. The important factual event was that Deltona could not show that the benefits of its proposed project outweighed the damage to the wetland resource and that the proposed alteration was necessary to realize these benefits.

The court cited Penn Central Transportation Co. v. New York City when it rejected Deltona's argument that the diminution in property value, standing alone, can establish a taking. The true test for takings is whether or not the governmental action substantially advanced legitimate federal interests. The court held that the permit denial did not extinguish any fundamental attribute of ownership, nor did it prevent Deltona from deriving many other economically viable uses from its parcels. The Corps' regulations substantially advanced legitimate and important federal interests.

In A.F.G.E. v. Brown the American Federation of Government

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Employees challenged contracting out under the Commercial Industrial Type Activities Program at Fort Gordon, Georgia; this case was pending before the appellate court as the fiscal year ended. The union made no appeal, however, from the dismissal of its lawsuit concerning contracting out at Selfridge Air Force Base.

Litigation still continued in the cases against Army hiring policies in U.S. Army, Europe, which favor German nationals or military dependents over other American citizens.

Equal employment opportunity class actions continued to concern the Army during fiscal year 1981. The Army won the first such suit that was actually tried, Lawler v. Alexander. In two other class actions, Godwin v. Alexander and Valdez v. Froehlke, the plaintiffs settled on terms extremely favorable to the Army. Nevertheless, plaintiffs continued to file other significant class actions, most notably Emsley v. Weinberger and Harris v. Marsh. The former was an across-the-board class action based upon alleged sexual discrimination, and the latter was based upon race. Several other class actions were still pending at the end of the fiscal year.

Plaintiffs filed a number of suits involving allegations of personal liability of government officials, including the Secretary of the Army, during fiscal year 1981. For example, in Weiss v. Marsh the plaintiff sued the Secretary of the Army and other Army officials in their individual capacities under the Equal Pay Act and the Civil Rights Act. The government moved to dismiss the allegations against the defendants in their individual capacities, but the court denied the motion pending trial on the merits. The case was in pretrial discovery at the close of the year.

Litigation over the issue of negotiability under Title VII of the Civil Service Reform Act of 1978, which concerns labor-management relations in the federal civil service, had become a major concern to the Army by 1981. The case of Department of Defense v. Federal Labor Relations Authority challenged the decision by the district court that the U.S. Forces, Korea, must negotiate ration control and vehicle registration regulations with the union. The case was briefed and was awaiting argument at the court of appeals at the end of the year.

In one of the two suits challenging the Army policy that prevents the enlistment of individuals who have had sex change operations, Jane Doe v. Secretary of the Army, the court decided in favor of the Army; the plaintiff did not appeal. The other case, Joanne Michelle Clark v. Harold Brown, was pending in the Court of Claims, but the parties were engaged in settlement negotiations.

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During 1981 debarment actions against government contractors continued to be a matter of concern, with some of the cases moving from the administrative process into the courts. Once again the procurement activities of the Army and Air Force Exchange Service became the center of considerable controversy.

In addition to the significant cases mentioned above, over 1,300 other cases were pending against the Army as of 30 September 1981.

The Department of the Army during fiscal year 1981 awarded $5.053 billion in small business prime contract awards, or 25 percent of the amount awarded to all businesses, against a goal of $4.323 billion. Actual accomplishments represented 117 percent of the goal. Contracts set aside exclusively for small businesses, covering those items which can only be bid on by small business, increased to $2.6 billion against a goal of $1.8 billion, or 12.9 percent of the total dollars awarded. This was the highest percentage of contracts set aside for small business attained by the Army in any fiscal year.

Contract awards to small disadvantaged firms totaled $801.4 million in fiscal year 1981, an increase of 46 percent over the previous year. Actual accomplishments represented 118.2 percent of the goal of $667.7 million.

It is federal policy that businesses owned by women should have the maximum opportunity to participate in contracts awarded by the government. Although there is no requirement to give preference to such firms, Army contracting offices tried to help those businesses owned by women to compete for awards. Awards made to such firms reached a total of $122.6 million in fiscal year 1981, greatly exceeding the goal of $74.7 million.

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