AQUALANTE NEWSLETTER, June 19, 1978

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June 19, 1978

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

BILLS INTRODUCED IN 95th CONGRESS

H.R. 127240 (STANGELAND, et al.)

A bill co require the Secretary of the Interior to allow the use of wildlife refuge lands for che passage of pipelines, powerlines, and telephone lines, in all cases in which the proposed route of such a line crosses private lands as well as refuge lands; to the Committee on Merchant Marine and Fisheries. H.R. 12850 (RYAN)

A bill co amend the Federal Water Project Recreation Act to provide for recreation facilities to meet demonstraced public need, and for other pur-poses; to the Committee on Interior and Insular Affairs.

R.R. 12898 (DOWNEY)

A bill to amend the Federal Water Pollution Control Act to provide Federal funding for the costs of operation and maintenance of waste treatmenc works; to the Connnittee on Public Works and Transportation.

R.R. 12928 (BEVILL)

A bill making appropriations for public works for water and power develop-ment and energy research for the fiscal year ending September 30, 1979, and for other purposes.

R.R. 12932 (YATES)

A bill making appropriations for the Departmenc of the Interior and relaced agencies for the fiscal year ending September 30, 1979, and for other pur-poses.

SENATE

S. 3097 (HATFIELD, et al,)

A bill to require the Secretary of the Interior, the Secretary of Agriculcure, and the Secretary of che Army to utilize specified procedures in carrying out: the Federal reclamation program, che small watershed programs, and che civil works program, and for other purposes; to the Committee on Environment and Public Works.

COMMITTEE ACTION HOUSE

House Report 95-1125

H.R. 11153, to authorize the Secretary of the Interior to construct, resto e, operate, and maintain new or modified features at existing Federal reclamation dams for safety of dams purposes; with amendment. Referred to the Committee of the Whole House on the State of the Union. (Seep. H3757, CR, May 10, 1978.) House Report 95-1158

H.R. 11655, to amend the Water Resources Planning Act (75 Stat. 244, as amended), amended. (See pp. H3948-H3949, CR, May 15, 1978.)

SENATE

~ ~S~e~n=ate Report

95-835

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--S. 2701, authorizing funds for fiscal year 1979 for the Water Resources Planning Council, with amendments. (Seep. S7461, CR, May 15, 1978.) Senate Report 95-872

S. 1140, to encourage and assist States to develop improved programs for the conservation of "nongame" species of fish and wildlife, with amendments.

(Seep. 87461, C.R., May 15, 1978.) Senate Report 95-874

S. 2987, authorizing funds for fiscal years 1979-1982 for programs administered under the Endangered Species Act, and to establish an Endangered Species

Interagency Committee, with amendments. (Seep. 87462, CR, May 15, 1978.)

SENATE ACTION Water research and development

Senate passed with committee amendments S. 2704, to promote a more adequate and responsive national programs of water research and development. (See pp. S8395-S8399, CR, May 25, 1978.)

FEDERAL REGISTER 43 Fed, Reg. 20938, May 15, 1978.

The Fish and Wildlife Service announced the determination of Critical Habitat for the Whooping Crane (New Mexico and Colorado areas are involved).

43 Fed. Reg. 21254, May 16, 1978

The Department of Agriculture, Forest Service, has issued final guidelines covering the Forest Service NEPA process,

43 Fed" Reg. 21266, May 16, 1978

EPA has announced the Interim Final Rules covering 1977 deadline compli-ance extension under NPDES program.

43 Fedo Rego 21381, May 17, 1978

The Bureau of Reclamation has issued a Notice of Public Hearing on the Draft EIS, Paradox Valley Unit, Colorado River Salinity Control, June 17, 1978, Nucla High School, Nucla, Colorado.

43 Fed. Reg. 21506, May 18, 1978

EPA has issued a Notice soliciting comments on technical guidelines for deriving water quality criteriao

43 Fed. Reg. 22160, May 23, 1978

EPA has issued Final Rule covering

(a) Requirements of the decree in NRDC v. Train, 8 ERC 2120 (toxic pollutants), and

(b) Clarification of EPA's exercise of veto powers over State-issued NPDES permits,

43 Fed. Reg. 22167, Ma

EPA pr oposed a- rule covering compliance deadlines for coxic pollutants by the use of shore and long term opcions, within permits.

43 Fed, Reg, 24309, June 5,. 1978

EPA has published Correction and Clarification of Provisions--"Determination of Harmful Quantities for Hazardous Substanceso" These correct a publica-tion dated March 15, 1978 (43 F.R. 10474).

LAW REVIEW

Bryden, "Environmental Rights in Theory and Practice, 62 Minnesota Law

Review 163. Author discusses the use of the Courts by private citizens to protect "Environmental Rights~" New remedies via legislation affording court access

do not seem to have fully accomplished their intended purposes,

Schwartz, Of Administrators and Philosopher-kings: The Republic, the Laws, and Delegations of Power," 72 Northwestern Law Review 443. The author suggests there is a need to reapply the Delegation of Power concept to

Administrative Law.

McGowan, Congress, Court and Control of Delegated Power,"· 77 Colorado Law Review 1119. The author extensively disc..usses proposal for the control of the authority of Federal Administrative Agencies, It is apparent that this area is ripe for reorganization.

COURT CASES

Markiewiez v. Sale River Valley, etc., Ariz, App., 576 P2d 517 o

At issue in the case was the applicable rule of liability for owners of an irrigation canal for flood damage caused by breach of the canal by flood waters, The Court ruled:

1, Arizona law does not impose absolute liability on canal owners for flood damages.

2. Owners may be held liable for damages if they fail to reasonably operate the canal to prevent a break in the canal which results in flood waters entering the canal.

3. Here the canal owners were aware of flood waters which entered the canal and had developed no flood water operation system.

4, It was a jury question as to whether the operation was reasonable under the circumstances of this case.

Fitzgerald v. Baxter State Park Authority, Maine Supreme Court, 11 ERC 1513, The lower court correctly construed the intent of a trust grant to the State of Maine wherein it forbade the use of heavy equipment to remove blown down trees from the trust area, A number of witnesses testified that the use of heavy equipment would not constitute best forest manage-ment practice.

Image of Greater San Antonio v. Brown, CA 5, 11 ERC 1529.

NEPA does not require the Air Force to prepare an EIS covering a job

~ ~ ~ ~e~l=i-minacion acci0n. The socio-economi. impa~L does not affect the

-environment within NEPA context. (See Maryland-National Capital Planning Commission v. Martin, U. S. Dist. Ct., D.C., 11 ERC 1537, for like ruling.) Avondale Irrigation Dist-::ict v. Northern Idaho Properties, Inc., Idaho, 577 P.2d 9.

At issue was the extent of Federal reserved water rights on National Forest lands. The Idaho Supreme Court ruled:

(a) Federal Forest reserved rights were limited by the amount needed for the preservation of Forest purposes, namely, providing for a perpetual supply of timber and watershed protection needed to secure favorable conditions of water flow.

(b) Non-consumptive uses can be reserved to carry out these purposes, (c) Entire stream flow is noc an uncertain claim, and U.S. can reserve this amount in screams located in the natural forests if needed for purposes set out j n · (a) . "

Johnson v. Whitten, Maine, 384 A.2d 698.

Defendant may take any action needed to protect his land from surface waters without regard to the impact of such action on his neighbors,

Sunday v. EPA, U.S. Dist. Ct,, Pa., 11 ERC 1561.

EPA's environmental assessment covering a proposed waste treatment plant

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~ a b l e conc:lu-diRg that an EI-S-was not: nee<ied--1:f~~i:teh-~rl:'m~---=---..c=--=

environmental impact from such plant was insignificant. Here EPA's assess-ment covered the possible impact from plant odors, flood plain location, visibility, sludge disposal, population growth potential, and new

effluent limitations.

Stream Pollution Control Board v. Alexander, U.S. Dist. Ct., Ind., 11 ERC 1565.

Under the authority of Sec. 303, P.L. 92-500, the Administrator of EPA has authority to review, reject, and promulgate water quality standards of the various states. Courts will not determine reasonableness of EPA standards until the standards have actually been promulgated.

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Reserve Mining v. Minnesota Pollution Control Agency, Minn. Sup, Ct., 11 ERC 1568, There seems to be no end to this litigation, The latest is that the Supreme

Court reinstated a set of permit conditions which the District Court had

declared illegal, This case simply does not admit to a short summary.

The best that can be said concerning the litigation is that there is a clear

demonstration here evidencing that courts are not always the best tool for

solving complex environmental political problems.

Concerned Citizens of Bushkill Township v. Castle, U.S. Dist. Ct., Pa., 11 ERC 1574. Sovereign immunity bars federal courts from forcing EPA to proceed with the

disbursement of grant funds for sewer treatment works which EPA had once approved but later sought to reconsider its approval. The legal remedy would be a suit in the Court of Claims on breach of contract theory, Sierra Club v, Cavanaugh, U.S. Dist. Ct,, S. D., 11 ERC 1580.

Sierra Club was gL1lty of laches in its failure to bring a NEPA suit for a long-p-er~i d af· er ~ ion as s'tart:ed on buiTiing a rural water system. The delay was inexcusable and the Club was aware of the work being done to develop

the water supply system with Federal aid.

Kennecott Copper Corporation v, Costle1 CA 9th, 11 ERC 1585.

Sec. 304, Clean Air Act, does not grant the District Court jurisdiction to

direct EPA to approve a revision of a state implementation plan, Revision procedures under Sec, 110(a)(2) involve discretionary action, and Sec. 304

grants jurisdiction to compel mandatory duties only,

AndrusF Secretary of the Interior, v, Charlestone Stone Products Co., Inc.,

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U.S. , 46 L.W. 4561, May 30, 1978,

The Supreme Court reversed a decision of the 9th Circuit Court of Appeals which

held that water is a "valuable mineral" and thus is a locatable mineral under

30 U.S.C. 22, The Court basically held that Congress had no intent to

include "water" within the concept of a "valuable mineral," the discovery of

which would be the basis for securing valuable property rights in public lands. Historically, water had been given a separate treatment by Congress,

and the 9th Circuit Court of Appeals failed to recognize this distinction. Surface Mining Regulation Liti gation, U.S. Dist, Ct., D. S., 11 ERC 1593.

In an extended opinion, the District Court generally approved the interim

regulations of the Secretary of the Interior under the Surface Mining Control and Reclamation Act of 1977, Ther'e"were some areas wherein the regulation

were disapproved. It

is

necessary to read the opinion in order to understand these areas which were rejected by the Court, as they are too complex for summary treatment.

NRDC v. ERDA, U.S. Dist, Ct. , D. C., 11 ERC 1607.

ERDA has to prepare a site specific EIS covering the construction of interim atomic waste storage tanks--evaluating tank safety features and the effects

of such construction on long-term storage planning and decision making,