AQUALANTE NEWSLETTER, November 1978

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UPPER COLORADO RIVER COMMISSION

355 South Fourth East Street

Salt Lake Ciry, Utah 84111

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U A L A N T E N E W S L E T T E R

78-12

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

EXECUTIVE ACTION Public Law 95-632

Endangered Species Act Amendments, November 10, 1978, 92 Stat. 3751. Public Law 95-616

Fish and Wildlife Improvement Act of 1978, November 8, 1978, 92 Stat. 3110.

FEDERAL REGISTER 43 Fed. Reg. 52179, November 8, 1978.

The Bureau of Land Management has issued interim guidelines for protection of wetland riparian areas which apply to BLM lands.

43 Fed. Reg. 55978, November 29, 1978.

The Council of Environmental Quality (CEQ) has issued new regulations covering Implementation of the Procedural Provisions of NEPA.

LAW REVIEW

Luneburg, "The Nationa•l Quest for Clean Air, 1970-1978 - Intergovernmental Problems and Some Proposed Solutions:• 73 N.L.R. 397, October, 1978.

COURT .CASES

Trinity Episcopal School v

.

Harris,

U.S. Dist. Ct.,

This case is the consideration of the issue sent Second Circuit

(Trinity

v.

Romney,

523 F.2d 88). the application of Sec. 102(2)(E) of NEPA. This ment of consideration of alternatives wherever a

N. Y., 12 ERC 1281.

back to the lower court by the The case on rehearing involved subsection involves the require-proposed Federal action

involves unresolved conflicts concerning alternative uses of available

resources. In this case the Federal agency on remand drafted an EIS wherein the alternatives were carefully detailed. The Court found this adequate holding this treatment was much more intense than have been required by Section 102(2)(E).

Albrechtsen v. Andrus,

C.A. 10, 12 ERC 1296.

Interior is not required to hold an administrative hearing on necessity of comp y1ng w

:n

NEPA -on an rder wh-i-eh s u s ~ s s u a n c e _ Lcoal ros-pecting permits because the very purpose of the suspension was to provide a time frame within which to develop a coal resource development program which would be environmentally sound.

Daingerfield Island

Protective

Society,

Inc.

v.

Andrus,

U.S. Dist. Ct., D.C., 12 ERC 1300.

Before an EIS can be required, the Federal action must be so specific that there exists an actual proposal for action. Here the private parties were submitting a proposal for preliminary approval which had been rejected by the Federal administrator, therefore, there existed no basis. for Federal action.

Parkview Corp. v.

Department

of the Army,

U.S. Dist. Ct., Wisconsin, 12 ERC 1302. This case was at the p"reliminary injunction stage and it was granted because the Court found a likelihood that plaintiff would succeed on the merits. The Corps, claiming jurisdiction under the Federal Water Pollution Control Act, had ordered a removal of fill material alleged to have been illegally placed

in the wetlands. The Court suggested that Sec. 309, P.L. 92-500, did not grant the Corps authority to issue the order of removal.

United States v. Allied Towing Corporation,

C.A. in cor oration which reports its oil of P.L. 92-500, as amended, is

because:

t.,

12 ERC 1305.

spills as required by Sec. 311

(a) (b)

The penalty is civil in nature, not criminal, and

Fifth Amendment protection against self incrimination is not avail-able to corporations.

Natural Resources Defense Council v. NRC,

C.A. 10, 12 ERC 1306.

Private uranium mill operators established that (a) they had an interest in the litigation, (b) said interest would not be adequately represented by present parties. At issue in the case were NEPA requirements with respect to a mill operating permit issued by the State of New Mexico under delegated authority from NRC.

United States v. Corbin Farm Service,

C.A. 9, C.A. 9, 12 ERC 1310.

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Casper-Alaova Irrigation Distriat v.

Irvi

ng,

et

a

l.,

Wyo., 584 P.2d 1064. Statutes allow Irrigation Districts to levy a minimum charge against each water user so long as the levy is not arbitrary and an abuse of discretion. This statutory levy authority is an alternative to the allowance of a levy based on irrigable acre-bases.

State v. San Luis Obispo

Sportsman Assoaiation,

Calif. Sup. Ct., 584 P.2d 1088. The California Constitution which protects peopleis rights to fish upon public land of the State requires that a reservoir built for providing a domestic

· water supply for a city, a State college, and a State prison must be made available for public fish and recreation, particularly in view of the fact that it is admitted that the use will not interfere with the primary purpose of the reservoir.

HaPt and

Mil

l

er Islands v

.

Cor

ps of Engineer

s,

U.S. Dist. Ct., Md., 12 ERC 1311. The Corps' issued permit is not sufficient to allow the dike and fill program

-~roposed to~dr~dge ~alti~ore~arbor wh~-ctre 011<e wlrl-'be p--raced in Chesapeake Bay to provide a disposal area for the dredged material. Where a dike is

proposed to be placed in navigable waters, Section 9 of the 1899 Rivers and Harbors Act applies and Congressional authorization is required in addition to the Corps' permit.

Gonzale

s v. Ca

st

le,

U.S. Dist. Ct., Calif., 12 ERC 1321.

It is not illegal for an agency using Sec. 208 grant funds to expend some of the money for air and solid waste planning. EPA has issued reasonable regulations under the Water Act which permit such action. Pollution con-trol requires consideration of the total pollution problem.

United St

ates v. C

ity o

f C

ol

orado Springs,

U.S. Dist. Ct., Colo., 12 ERC 1329. The Water Pollution Control Act allows EPA a number of tools to enforce the alleged violation of NPDES permits. EPA thus was not required to follow the Section 309(a)(l) requirement which requires a 30-day notice prior to action. EPA could use either the 309(a)(3) or 309(b) requirement to enforce permit compliance.

Matsumoto v. Brinegar,

C.A. 9, 12 ERC 1331.

The EIS prepared for an airport properly complied with NEPA. Sufficient consideration was given to alternatives. Decisionmakers must have a complete statement of the effect of the proposed action, including the comparative

-..c· effe·ct of no acti:on. There is to be no review of the merits of the proposal.

"The project when finished may be a complete blunder--NEPA insists that it be a knowledgeable blunder."

You must be a smart dwnmy.

Town of Gloaester v. Rhode Islund Solid Waste,

Sup. Ct., R.I., 12 ERC 1334. A city cannot by ordinance forbid the use of a solid waste disposal area

for waste disposal of other city's municipal wastes where the state has created a state-wide program for solid waste disposal administered by a state agency which approved the multiple city use of the particular area.

Cherokee Water District v. State

of

Colorado, Ground Water Comnission,

Colorado, 585 P.2d 586.

In those designated ground water basins where a ground water management district has not been formed, the State Ground Water Commission has control over granting the required permit to change the type of use and place of use to an area beyond the designated basin boundaries.

Huselsmann v. Ohio,

381 N.E.2d 950.

A well owner cannot secure damages from the State for drying up of the well which was claimed to be due to a highway construction project. The water supply from the well was from percolating waters and a user is not entitled to protection of such source from action by other land owners which may damage the supply source.

Gemeinschaft

zum Schutz

des

Berliner

v. Narienthal,

U.

s.

Dist. Ct., Dist. of Col., 12 ERC 1337.

A

German environmental group will not be granted a preliminary injunction, .,..8!Qun_ged on allgged NEP~ no~ compliance, seek;i.ng_to_stop Ge__onan_hcuts.ing

project which will be used by the U.S. military personnel. Actually the ownership and construction were totally German. The plaintiff claimed that because the U.S. military could veto the project, an EIS was required. The Court ruled this was too wet to plow. The veto connection could not make the project a Federal action. Also there was a foreign policy problem.

Libby

Rod

and Gun Club

v.

Poteat,

U.S. Dist. Ct., Mont., 12 ERC 1338.

A preliminary injunction was granted· enjoining the Corps' attempt to build a reregulating dam below Libby for the following reasons:

(a) 33 U.S.C. 401 requires Congressional authorization for a dam in a navigable river, and appropriation of funds for construction does not amount to authorization of construction (TVA

v.

Hill,

11 ERC 1705).

(b) NEPA was violated inasmuch as an inadequate consideration was given to alternatives.

United States v. Outboa:rd Marine Corporation,

U.S. Dist. Ct., Ill., 12 ERC 1346. A defendant cannot escape liability for discharge of polychlorinated biphenyl into Lake Michigan on grounds that its NPDES permit gives immunity to violation of the 1899 Rivers and Harbors Act. Federal Enforcement Act can also occur under the Water Pollution Control Act wherever there is a factual issue as to whether the permit conditions have been violated. In this case the U.S.

claims that the defendant's application represented that PCB was not an

element in its discharge. The permit was granted on the basis of this claim therefore an issue exists as to whether PCB can be discharged under the per-mit. EPA has authority to issue a compliance order and also seek civil en-forcement action.

Environmental Defense Fund v. Higginson,

U.S. Dist. Ct., D.C., 12 ERC 1349. The EIS case on the Colorado River will not be transferred from the D.C. Court to the District Court in Colorado. There was a failure to overcome plaintiff's choice of forum right.

Environmental Defense Fund v. Higginson, U.S. Dist. Ct., D.C., 12 ERC 1351. Arizona, Colorado, Nevada, Wyoming, and Utah Power and Light were allowed to intervene in the suit seeking to compel the Department of the Interior to develop the Colorado Grand EIS.

SUPREME COURT Review Denied:

No. 78-555, Warren v. Kuiper, ruling below 280 P.2d 32. The case involved the Colorado Ground Water Management Act .

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