AQUALANTE NEWSLETTER, May 16, 1978

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HOUSE

UPPER COLORADO R

I

VER COMMISSION

355 South Fourth East Street Salt Lake Ciry, Utah 84111

A

Q U

A L A N T E N E W

S L E T T E R

78-5

May 16, 1978

(All Congressional Record references are to Vol, 124 Daily Edition of the 95th Congress, 2d Session, and will be cited as "p. _ _ , CR, date.")

BILLS INTRODUCED IN 95th CONGRESS

H.R. 11959 (CONABLE, et al.)

A bill to assist the States in developing fish and wildlife conservation plans and in carrying out projects consistent with such plans with respect to non-game fish and wildlife, and.for other purposes; to the Committee on Merchant Marine and Fisheries.

H. R. 11962 (EDWARDS of Oklahoma, et al.)

A bill to require the Environmental Protection Agency and all other Federal regulatory agencies to evaluate., prior to the issuance of a regulation, the potential economic,effect and environmental impact of such regulations; to the Connnittee .. on Government Operations.

H.R. 12187 (STUMP, et al.)

A bill to remove residency requirements and acreage limitations applicable to land subject to reclamation law; to the Committee on Interior and Insular Affairs.

H.R. 12351 (RONCALIO, et al.)

A bill to amend the Federal Coal Leasing Amendments Act of 1975 (Public Law 94-377; 30 U.S.C. 181 et seq.); to the Committee on Interior and Insular Affairs.

SENATE

S. 2818 (CHURCH, et al.)

A bill to amend and supplement the acreage limitation and residency pro-visions of the Federal reclamation laws, as amended and supplemented, and

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--S. 2896 (GARN)

A bill to amend the Endangered Species Act; to the Connnittee on Environm£nL and Public Works.

S. 2899 (CULVER, et al.)

A bill to amend the Endangered Species Ace of 1973 to establish an Endangered Species interagency Connnittee to review certain sections to determine whether exemptions from certain requirements of chat Act should be granted for such actions; to the Committee on Environment and Public Works.

S. 2988 (HANSEN, et al.)

A bill to authorize the Secretai;:y

QJ

che Interior ....t.0-..engage

m-

a fea-s4.bHity

-invest gation-for-t~modification of the Riverton Reclamation Projecc in Wyoming, and for other purposes; to the Committee on Energy and Natural Resources.

S. 3047 (BUMPERS)

A bill to amend the Mineral Leasing Ace of 1920, and for other purposes; to the Committee on Energy.and Natural Resources.

COMMITTEE ACTION HOUSE

House Report 95-1063

H. Res. 1139, providing for the consideration of R.R. 8494, Public Disclosure of Lobbying Act of 1978. (Seep. H3009, CR, April 18, 1978.)

H.R. 12140, to amend the Federal Water Pollution Control Act to provide addi-tional authorizations for certain operating programs under the Act. (See p. D614, CR, May 1, 1978.)

H.R. 12139, River-Basin Authorizations, amended. (Seep. 614, CR, May 1, 1978.)

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-SENATE

Senate Report 95-700

S. Res. 435, to print as a Senate document report of Committee on Environ-ment and public works entitled "Progress in the Prevention and Control of Air Pollution in 1977." (Seep. S6406, CR, April 26, 1978.)

SENATE ACTION American Indian religious freedom

Senate agreed to S.J. Res. 102, to reevaluate U.S. policy to protect and preserve American Indian religious cultural rites and practices, with amendments. (See pp. S4590-S4591, CR, April 3, 1978.)

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Flood Control--Rivers and Harbors

By 80 yeas to 13 nays, Senate passed R.R. 8309, to authorize funds for works of improvement for navigation in U.S. inland waters and sundry water resources projects, after agreeing to five additional amendments proposed thereto. (See pp. S6926-S6937, CR, May 4, 1978.)

FEDERAL REGISTER 43 Fed. Reg. 17375, April 24, 1978

The Department of the Interior, Fish and Wildlife Service, has proposed a rule declaring the bonytail chub an endangered species and the razorback sucker threaterred :-species. . The habitat of these two fish is the Colorado River Basin. Conunent period: June 26, 1978 - Public; Governors of States involved·--July 24, 1978.

43 Fed. Reg. 17776, April 25, 1978

EPA has issued final rule - Effluent Guildeines and Standards for Pesticide Chemical Manufacturing Point Source Category.

43 Fed. Reg. 17821, ApriL 26, 1978

EPA has issued amended regulations (Effluent Guidelines and Standards) for Fertilizer Manufacturing Point Source Category.

43 Fed. Reg. 17910, April 26, 1976

Fish and Wildlife Service named in Final Rule eleven Plant Taxa as Endangered and two Plant Taxa as Threatened Species. One of the Threatened is located in utah -- "Rydberg milk vetch."

43 Fed. Reg. 17918,.April 26, 1978.

The Department of the Interior has announced a proposed rule on Abandoned Mine Land Reclamation Programs.

43 Fed. Reg. 19176, May 3, 1976

Fish and Wildlife Service has announced Advance Notice of Potential Rulemaking

under Endangered Species Convention. A survey has been conducted on status of liste species. Purpose seems- to be to review the stacus of species on list.

LAW REVIEW

Hull, Stephen, "Nondeterioration and the Protection of High Quality Waters Under Federal Water Pollution Control Law,"

Uta.h LClJ.J Review,

Volume 1977, p. 737.

Young, George S., "Prevention of Significant Deterioration of Air Quality: The Clean Air Act Amendments of 1977 and Utah's Power Generating Industry,

Utah

Law

Review,

·

Volume-1977, p. 775.

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-COURT CASES

City of St. Petersburg v. Southwest Florida

Water

Management

District,

Fla, App., 355 S.2d 796.

Under Florida Water Management law the Administrative Permitting Agency can

base a permit on the safe annual yield of the ground water system measured in terms of the surface land ownership, i.e., the yield can be in terms of

gallons of water per acre of land. This tool can be used in addition to a water level withdrawal system,

Shell Pipe Line

Corp.

v,

U.S.,

U.S. Court of Claims, 11 ERC 1385.

·

-=.-An Oi ompany~ ana0t reeover-fer=o:f:el-spill~ean up -easts dueTo apipeline

-break which was alleged to have been caused by an Act of God and by acts of a third party. The Act of God was extremely heavy rainfall. The Court rejected the Oil Company claim, pointing out that by proper inspection the Company should have realized the dangers to the pipeline at the river crossing and should have

taken steps to protect the line.

Burgess

v.

M/V Tamano,

C.A. 1, 11 ERC 1395.

A ship owner cannot escape liability for an oil spill cleanup cost by

claim-ing that U.S. had improperly placed a buoy too close to the ledge which was

struck by the ship. Also the fact that the ship was under the control of

a pilot would not protect the owner because the pilot was not a third party within the meaning of Section 3ll(f)(l), P.L. 92-500. The evidence

estab-lished that there was a navigational error caused by the pilot which caused

the striking of che ledge and thus the spill.

Northern

Ohio Lung Association v.

EPA,

C.A. 6, 11 ERC 1411,

In a contest over the authority of EPA's approval of compliance dates in

Ohio's Clean Air Implementation Plan, the Court ruled:

1. Technological infeasibility is not grounds for rejecting a state plan.

2. EPA has some flexibility in fixing deadlines for attainment of standards made a part of the plan; and since EPA did not act in an

arbitrary and capricious manner, the action will be approved. ---- - - - ::_... - - ; c ~ ~

-Dougan

v.

Rossvill

e

Drainage

District,

Kan. App., 575 P2d. 1316.

"An upper proprietor of land may not gather and divert surface water from

its natural course of flowage and thereby exceed the carrying capacity of the natural water course in which the surface water is deposited if that action causes damages of a serious and sensible nature to a lower landowner."

State ex

rel

Reynolds

v. Molybdenum Corp.,

C.A. 10, 570 F.2d 1364.

In a general adjudication suit, the Company claimed that the State Engineer, by placing a wetted acreage limitation on user's application for alternate diversion point had in fact adjudicated its depletion right. The Court rejected the argument ruling that in determining a change of diversion point application, the State Engineer must determine whether the change

will harm other users. In the permit for which the change was sought there

was a stipulated "wetted acreage limitation." Since the application in

question was not for a new right, the State Engineer acted within his

'

..

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Toumship of Long Beach v. City of New York,

U.S. Dist. Ct., N. J., 11 ERC 1417,

The Plaintiff's complaint alleging failure of New York City to control

discharges of wastes into the navigable waters was properly filed in New

Jersey even though the citizen enforcement provision required that the

action be brought in the district where the source is located. This does

not apply here because the action is also against the Federal agency and

the particular provision could only apply to New York City which waived

the issue. The 60-day notice provision does not apply where the Plaintiff

properly raises a federal question and jurisdiction is secured under

23 U.S.C. 1331(a), Sec. SOS(e) preserves other rights of action to seek

relief. Plaintiff can seek relief under the Federal Common law of nuisance

as outlined in

I

l

i

noi

s

v. Ci

ty of M

i

lwauke

e,

406 U,S. 91.

City of New Haven v

.

Chandler,

U.S. Dist. Ct., Conn., 11 ERC 1426,

The Court approved the Corps' decision thac an EIS was not required prior to issuing a permit for building transmission cowers in the New Haven Habor.

The issue was: Did the Corps meet the threshold requirement announced in

Hanly II, 471 F.2d 823? Hanly II ruled: "First the agency must determine

the extent to which the action will cause adverse environmental effects in

excess of those created by existing uses in the area affected by it. Second,

the agency must consider 'the absolute quantitative adverse environmental

effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions on uses in the affected

area.'" In a searching review of the Corps' procedure, the Court concluded

that it met the requirements. In fact, the Corps almost produced an EIS in the process,- All that seemed to be lacking was a compiled statement and

comments, It seemed that the Corps' approach satisfied the Court, that

indeed the Corps took a hard look at the situation prior to making its

decision.

U.S.

v. Texas Pipe Line Company,

U.S. Dist. Ct., Okla., 11 ERC 1465.

In an action to collect a civil penalty administratively assessed the Court

ruled:

1. Jurisdiction over oil spill does not depend upon showing a continuous flow at the time of spill from point of spill in a tributary to the navigable

stream.

2, Judicial review of the levy will be based on whether the findings of

the agency are supported by substantial evidence in the record,

3. Pipeline Company cannot claim that since the penalty is criminal in

nature the reporting provision violates the Fifth Amendment, inasmuch as the

protection against self incrimination does not apply.

4. Even though the spill was caused by a third party, the penalty was

within statutory authority and will not be disturbedo U.S,

v. Moss-Am

erican, Inc

.

,

U.S. Dist. Ct,, Wis. , 11 ERC 14700

In an action wherein the United States sought damages and injunction against

an alleged polluter, the Court will dismiss the action where it is learned

that the government's investigator falsified information with respect to

river samples taken, The Court awarded costs, but not attorney fees to the

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Culpeper League

v.

NRC,

U.S. Ct. of Appeals, D.C., 11 ERC 1473.

In a challenge to NRC ruling on power line locaction, the Court dismissed

the challenge, saying:

1. The order clearly showed the consideration which the Board gave

to the alternative -routes.

2. A reasoned explanation was given for the decision made,

3. A "hard look" was-taken by the Board and the record so indicates

as to all relevant.factors, including environmental factors.

Chesapeake Bay Foundation

.

v.

U.S.,

U.S. Dist. Ct., Va., 11 ERC 1475.

In an attack upon the issuance of a NPDES permit by Virginia under its

EPA-approved plan, ~he Court rule~

1. It would retain jurisdiction to d€termine whether an EIS had to

be prepared by the State prior to issuing the permit.

2. EPA decision not to object to the permit cannot be challenged in

a citizen suit action as such is discretionary and only nondiscretionary

duties are subject to Section 505.

3. District Courts have no jurisdiction over EPA's approval of the

Virginia program for issuing the permits. Such can only be tested in

U.S. Courts of Appeal.

PEER

v. Minnesota Envirorvnental Quality Counoil,

Minn. Supreme Court, 11 ERC 1481.

Minnesota Environmental Rights Act requires that a new power line use

existing power line route unless home owners on such existing route can

establish unique characteristics for which compensation is inadequate. If

such showing is made, then the administrative agency must make a balanced choice between the proposed routes.

WOIDA

v.

U.S.,

U.S. Dist. Ct., Minn., 11 ERC 1492.

Minor changes in transmission line route can be made and supplements on such

changes can be added to the Final Route EIS without going through the whole

NEPA procedure. Under proper circumstances laches apply to NEPA enforcement

suits, and where plaintiffs choose different attacks on the proposed action, a late date NEPA attach will not be tolerated, particularly where expensive

delays would be involved by granting relief, and where plaintiff's complaints

oa±d have:-been -a:d-etrnatefy-consniere had they arc'ic pa ed in 1: e NEPA

-procedure.

SWorob v. Harris,

U.S. Dist. Ct., Pa., 11 ERC 1502.

A NEPA suit attacking a housing project will be dismissed where the same

issues with the same parties went to final judgment on the merits in a

prior suit. Here the Court had determined that NEPA did not apply to

major federal action which occurred prior to effective date of NEPA.

SUPREME COURT·

Summary Disposition:

No. 76-548,

BaZtimore

Gas

&

Electric

Co. v NRDC

No. 76-745,

Long

Island

Lighting Co.

v.

Lloy Harbor

Study Group, Inc

.

In the above cases the Court vacated the District of Columbia Circuit's

opinion and returned the cases to that Court in light of