UPPER COLORADO RIVER COMMISSION
355 South Fourth East StreetSalt Lake Ci~, Utah 841 ll
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79-1(All Congressional Record references are to Vol. 124, Daily Edition of the 95th Congress, 2d Session, and will be cited as "p. , CR, date.")
FEDERAL REGISTER 43 Fed. Reg. 58030, December 11, 1978
The Fish and Wildlife Service has republished a List of Endangered and Threatened Wildlife and Plants.
43 Fed. Reg. 58066, December 11, 1978
EPA has published the final rule on "State Program Elements necessary for participation in the National Pollutant Discharge Elimination
System--Compliance with 1984 Treatment Deadlines for Discharge of Toxic Pollutants." 43 Fed. Reg. 60662, December 28, 1978
EPA has published a notice finalizing EPA's identification of pollutants suitable for total maximum daily load calculations.
44 Fed. Reg. 119, January 2, 1979
Interior has issued a "Final General Notice of Procedure" whereby the "public" will be allowed to participate in water service and repayment contract negoti-ations.
44 Fed. Reg. 1455, January 5, 1979
EPA has issued a "State of Procedure" which is for the purpose of implement-ing Executive Order 11988 pertaining to Floodplain Management and Executive Order 11990 pertaining to Protection of Wetlands.
COURT CASES
Environmental Defense Fund v. Environmental Protection Agency, C.A. D.C., 12 ERC 1353. EPA's polychlorinated biphenyls (PCB) effluent limitations were under attack in this detailed and complex case. The Court sustained EPA's regulations stating:
1. Toxic Substance Control Act does not deprive EPA of authority to control PCB under Section 307 of the Federal Water Pollution Control Act. 2. EPA methodology of determining the applicability of Section 307 to PCB was proper, and there was substantial evidence in the record to support EPA's action.
Hercules Incorporated v. EPA, C.A. D.C., 12 ERC 1376.
The Circuit Court was reviewing the EPA effluent limitations for endrin and toxapehene. In approving the limitations the Court ruled:
(a) Section 307 of the Water Pollution Control Act was not rendered ineffective by the Toxic Substance Act. The two acts were supplemental to each other.
(b) Toxic substance regulations are not subject to economic and technological feasibility requirements.
(c) The EPA officer charged with developing the decision can consult with other EPA personnel for aid in assembling the record and understanding
the record. Note: The Court was a bit unhappy about the ex parte consulta-tion.
Minnehaha Creek Watershed District v. Hoffman, U.S. Dist. Ct., Minn. 12 ERC 1407. The Court ruled:
1. The Corps does not have regulating authority under the 1899 Rivers and Harbors Act over a lake and creek located wholly within a state and
forming no navigable interstate waterway connection since such arenotnavigable waters within the statutory definition of that term.
2. The Corps has no Section 404, P.L. 92-500, jurisdiction to regulate rip-rap placement and dam construction on such lake since this activity is not the discharge of fill materials which trigger the Corps' authority under the Act.
In Re Garrison Diversion Unit Litigation (Judicial Panel on Multidistrict Litigation) 12 ERC 1414.
The United States is not entitled to have a North Dakota Federal District Court case involving the Garrison Unit transferred to the District of Columbia Federal District Court where there was a pending suit involving the Garrison Unit even though there existed a commonality of questions, since there was an insufficient showing of judicial economy which would result from the
transfer.
United States v. Velsicol Chemical Corporation, U.S. Dist. Ct., Tenn., 12 ERC 1417. Where a pesticide manufacturer is found to have discharged endrin and heptachlor in amounts in excess of its NPDES permit, the Court is justified in imposing a civil penalty under Section 509(d) of the Water Pollution Control Act. The Defendant in this case was supposed to use a treatment system to limit the pollutant discharges. It simply started the planning and construction too late to meet the permit requirement, and thus was stuck for the fine. United States v. Richards, C.A. 10, 12 ERC 1423.
The U.S. Department of the Interior under Section 703 of the Migratory Bird Treaty Act can by regulation bar the private sale of sparrow hawks, a bird covered by the treaty, even though the birds are raised in captivity and have never been "wild" birds.
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City of Bellevue v. King County, Wash. Supreme Court, 12 ERC 1430.
This case is a detailed discussion of the application of the State Environ-mental Policy Act to Board Approval of an annexation of. land to a city.
It involves particularity of Washington law and is not summarized. Manatee County, Florida, v. Train, C.A. 5, 12 ERC 1436.
Where a county properly qualifies for the increase of sewage allocation from 33% to 75% and where the State certifies according to the statute thus completing the statutory requirements, EPA can not deny the increase alloca-tion on the grounds of its disagreement with the state certification.
Congress fixed in the statute the requirements for the increase. The statute does not authorize EPA to pass judgment on the factual background for the state certification.
Monong~hela Power Company v. EPA, C.A. 4, 12 ERC 1440.
·q_'he denial by EPA of an adjudicatory hearing with respect to the July 1,
'\977 best control technology compliance deadline must be set aside because
EPA has, under the 1977 amendments, been authorized to extend the deadline. Note: The Court also instructed EPA on what it could consider in the new hearing.
United States v. Hudson Farms, Inc., U.S. Dist. Ct., Penn., 12 ERC 1444.
The failure of EPA to issue an order or initiate civil action under Section 309(a)(3) of the Federal Water Pollution Control Act does not preclude a federal criminal action for alleged violations of the water act as the order or civil action is not prerequisite to the initiation of criminal action.
Centralia Prison Opposition Group, Inc. v. Department of Justice, U.S. Dist. Ct., Ill., 12 ERC 1447.
General federal funding of the State prison system does not trigger NEPA requiremeu.ts for a federal EIS prior to the State of Illinois' construction of a prison. Specific federal funding for the prison or other federal involvement with this facility is required before NEPA applies.
Central Hudson Gas & Electric v. EPA, U.S. Dist. Ct., N.Y., 12 ERC 1449; C.A. 2, 12 ERC 1454.
The Circuit Court reversed the lower court's decision which denied federal district court jurisdiction to hear a challenge to EPA jurisdiction to
continue a particular hearing with respect to NPDES permit. EPA had approved New York's program for issuing permits. The statute requires that EPA stop its permit issuing program after 90 days from the time of State approval. The hearing in question was in process when the State approval occurred. The Circuit Court ruled that under the special circumstances of this case special jurisdiction resided in the district court to hear the issue raised as to EPA's jurisdiction. Both of the opinions are lengthy and detailed and have received a broad brush sunnnary.
Ewell v. Petro Processors of Louisiana, La. App., 364 So.2d 604.
The appeals court affirmed a judgment for diminished value of a swamp area--the damages being caused by a leak in the toxic substance disposal pit on defendant's land. The toxic material leaked from the pit into the swamp.
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The Court ruled that the defendant landowner was an independent contractor
in the business of disposing of these substances for profit. The only
company which was also found liable was one which contracted for use of
the disposal pit for toxic disposal after knowing of the pit's leaking
condition.
United States v. Frezzo Brothers, Inc., U.S. Dist. Ct., Penn., 12 ERC 1481.
The United States may bring criminal charges for pollution discharges without
a permit even though administrative and civil procedures have not been taken
prior to the filing of criminal proceedings.
Alaska v. Carter, U.S. Dist. Ct., Alaska, 12 ERC 1486.
The Court ruled on the land protection scheme with respect to reserving
Alaskan land that:
1. President does not have to comply with NEPA when action is based
on the Antiquities Act.
2. Since that part of the withdrawal was based on land covered by an
earlier EIS, the supplemental EIS could have a limited comment period.
SUPREME COURT
Arizona v. California, No. 8 original. I
The United States Supreme Court in a percuriam decision on January 9, 1979
entered a supplemental decree which sought to settle present perfected rights
with respect to Arizona, California, and Nevada on the main stream of the
Colorado River. The Court also appointed a Special Master to hear a motion of certain Indian tribes to intervene. The purpose of this intervention
would be to extend Indian claims. The United States has also a motion
before the Court which seeks to enlarge the main stream Indian claims in
two respects: First, the United States seeks additional water for land
which has~been added to the Indian reservations in settlements of boundary disputes. Second, the United States claims water for land which allegedly
was inadvertently omitted when the United States presented the Indian claims
at the original trial.
LAW REVIEW
"Vermont Yankee Nuclear Power Corp. v. NRDC, et al., Three Perspectives," 91 Harvard Law Review 1805-1845. The three articles are by Richard B. Stewart,
Clark Byse, and Stephen Breyer. The articles present three views of this case
which limited Federal Courts in prescribing additional procedural devices which
Administrative agencies must follow in informal rulemaking procedures.
Werhan, "The Sovereignty of Indian Tribes, a Reaffirmation and Strengthening
in the 1970's," 54 Notre Dame Lawyer 5.
Lossing, "Standing, A Balance Approach," 25 UCLA Law Review 1358. Standing
to challenge administrative action may be moving toward a balancing approach, i.e.,
deciding whether in a given case the court is the appropriate institution to resolve
the dispute.
