UPPER COLORADO RIVER COMMISSION
355 South Fourth East StreetSalt Lake City, Utah 84111
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U A L A N T E N E W S L E T T E R
78-4April 18, 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 HOUSE
H.R. 11489 (RONCALIO)
A bill to authorize the States and the Indian tribes to enter into mutual agreements and compacts respecting jurisdiction and governmental operations in Indian.country; to the Committee on Interior and Insular Affairs.
H.R. 11561 (CRANE)
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 ~nvironmental impact of such regulations; to the Co11111ittee on Government Operations.
H.R. 11568 (EDWARDS of Oklahoma)
A bill to require the Environmental Protection Agency and all other Federal regulatory agencies t evaluate, pr{or to the issuance of a regulation, the potential economic effect and environmental impact of such regulations; to the Committee on Government Operations.
H.R. 11638 (BAUCUS)
A bill to amend and supplement the acreage limitation and residency provisions of the Federal reclamation laws, as amended and supplemented, and for other purposes; to the Committee on Interior and Insular Affairs.
H.R. 11655 (MEEDS, by request)
A bill to amend the Water Resources Planning Act (75 Stat. 244, as amended); to the Committee on Interior and Insular Affairs.
H.R. 11719 (BYRON)
A bill to amend the Clean Air Act with respect to the approval of revisions of implementation plans for standards in air quality control regions; to the
R.R. 11848 (CRANE, 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 Conunittee on Government Operations.
SENATE
S. 2701 (GRAVEL, et al,)
A bill to amend the Water Resources Planning Act (75 Stat. 244, as amended); to the Committee on Environment and Public Works.
S. 2704 (GRAVEL, et al.)
A bill to promote a more adequate and responsive national program of water research and development, and for other purposes; to the Committee on
En-4--ronment and Pub-l i-c-'-Wo-rk s-. -. - - ...,,,._____ - ~ -S. 2826 (McCLURE)
HOUSE
A bill to establish water resources research centers, to promote a more adequate national program of water research, and for other purposes; to the Committee on Environment and Public Works.
COMMITTEE ACTION
House Report 95-954
H.R. 8099, relating to the settlement between the United States and the Ak-Chin Indian community of certain water right claims of such community against the United States, ·amended.
House Report 95-1036
R.R. 10255, to assist the States in developing comprehensive fish and wildlife resource management plans and in implementing such plans with respect to non-game and wildlife, amended.
SENATE
Senate Report 95-702
Special Report of Select Committee on Small Business entitled "Federal Reclamation Policy."
FEDERAL REGISTER 43 Fed. Reg. 9808, March 10, 1978
EPA announced Federal Rule - Effluent Guidelines and Standards for Phosphate Rock Mining.
43 Fed. Reg. 11110, March 16, 1978
EPA has issued a document entitled ''Statement of Interpretation and Enforcement Policy: Notification of Substantial Risk" under the Toxic Substances Control Act.
43 Fed. Reg. 14975, April 10, 1978
The Department of the Interior has proposed a rule tu provide for a definition of "Object of Aptiquity" under the American Antiquities Act of 1906 (34 Stat. 225) (16 U.S.C. 431).
LAW REVIEW
Tbe Land and Water La\'/ Review, XIII, Numbev 2 (1978), contains four lead articles of interest in Water Resources Field:
Meyers, "Federal Groundwater Rights: a Note on Cappaert v. U.S." Olpin, Tarloch, "Water That ls Not Water."
Jonnson, "Our a ty R1ver: Legal and nst tutional Approaches to Salinity Management."
Maloney, "The Ordinary High Water Mark: Attempts at Settling an Unsettled Boundary,"
COl,JRT CASES Bohn v. Kuiper, Colorado, 575 P.2d 403.
A water court cannot grant a coqditional decree to drill a water well where senior rights will be injured unless he is operating .under a plan of augmentation as provided by statute.
Thompson v. Colorado Ground Water Coflllflission, Colorado, 575 P.2d 372.
In determining the availability of ground water on a well application, the Commission cannot simply add the quantities of permits with the proposed quantities of the conditional permits and compare this figure with the availability figure. Effort is required of the Commission to follow the statute in a manner which will convert the cpnditional permits into final permits and/or find ways to meaningfully protect both the conditional permittee and the applicants for new permits,
Kahl v. Texaco, Inc., Oregon, 574 P.2d 650,
IX deferrdan-i., who constructs ~y an indepenclent contractor a retaining wall with a drain structure therein, cannot escape liability for damages caused by the improper placement pf the drain. The defenda,nt can show that the damages were caused by the plaintiff's conduct in causing the drains to be closed.
Chudziuski v. City of Sylvania, Ohio App., 372 N.E.2d 611.
In a case dealing with alleged damages claimed to have been caused by the development of upstream land so as to increa~e the run off therefrom, the Court ruled: The judgment fpr the defendants would be reversed where the city could have prevented the flooding by increasing the size of outlet works for the natural ditch to equal the size of inlet tiles to said ditch. The plaintiffs, on rehearing, should be allowed to show that the defendants' actions were unreasonable ~nd caused the damages claimed.
Provo City v. Lambert, Utah, 574 P.2d 727.
Where a trial court is called upon to construe the meaning of a water right decree, such construction will only be overturned where the construction is not supported by substantial evidence,
Sierra Club v. Interstate Commerce Commission, C.A., D/C, 11 ERC 1241.
In a challenge to a decision granting a certificate to build u trunk rallro~d to haul Wyoming coal, the Court ruled that even though the Petitioners at the
ICC hearing did not raise NEPA issues, such issues would be considered in the Court challenge because these NEPA issues had been called to the attention of ICC when the EIS was considered. Note: No direct challenge to the contents of the EIS had been made. There is a dissent which claims that environmental plaintiffs have the obligation to appraise Administrative agencies of their claims. The relief granted by the Court would indicate that it was not sure of the grounds for the majority decision. It appears that the D/C Circuit is ,.hell berft" nrraTto-wing NEPA -to ttiu1npn-ove
aft;-Green County Planning Board v. Federal Power Commission, C.A. 2, 11 ERC 1258.
The Federal Power Act does not authorize FPC to pay "hungry lawyers" for their "public interest" representation in hearings before the Conunission. Congress, not Courts, can authorize such payments.
Izaak Walton League v. Castle, C.A. 7, 11 ERC 1263.
EPA properly applied "best practicable control technology" in a permit for a power plant discharge permit rather than applying a claimed higher standard. The Petitioners claimed that because P. L·. 89-298, which authorized Burns
Harbor, contained language requiring that Indiana assure that pollution would be controlled to the "maximum extent feasible" a higher standard was required for all discharge permits into Burns Harbor. The Court refused to honor this construction saying that P.L. 92-500 controlled the permit program standards.
Cleveland Electric Illuminating Co. v. EPA, C.A. 6, 11 ERC 1288..
The Sixth Circuit, in a contest attacking EPA's S02 Implementation Plan for Ohio ruled:
1. Ohio was in no position to request that EPA's Ohio plan be rejected and that time be allowed for the State to develop a new plan. Ohio had not acted within the time frame allowed by the Clean Air Act.
...
In --ctrvrsi.ng ctre---p--tmi, EPA--pr:"U'pl=r1.y -used legi:-slat±v e 9: trltura~.,
--"'=='--='=~~~-EPA was not required to grant an adjudicatory hearing in developing the plan. 3, EPA did not violate the law in its model selection procedure.
Ample opportunity was allowed for public conunent on the computer model.
U.S. v. FMC Corporation, C.A. 2, 11 ERC 1316.
A pesticide manufacturer which allows a water storage pond to become con-taminated with products from its processes thereby causing the death of birds may be convicted for violating the Migratory Bird Treaty Act without the proof of intent to conunit a crime.
Alaska v. Andrus, C.A., D/C, 11 ERC 1321.
The Circuit Court found that the Secretary had not complied with NEPA with respect to an oil lease sale in the Gulf of Alaska, but refused to enjoin
consummation of the leasing program. The Court found that protection could
be afforded by requiring the Secretary to consider additional protective
operating orders for these leases. Note the Court also ruled that the
Secretary had authority to include a lease termination clause for
unfore-seen environmental hazards.
Washington v. EPA, C.A. 9, 11 ERC 1339.
The issue for decision was EPA's authority to veto a state-issued NPDES
permit to the Scott Paper Company. The Court ruled:
1. The Court of Appeals has no jurisdiction under 509(b)(l),
P.L. 92-500, to review EPA's veto inasmuch as the veto is not a permit
denial.
2. The fact that Sec. 509(b)(l) does not provide for jurisdiction for review does not end the matter of review. The party is entitled to
review under the Administrative Procedure Act as there is nothing i~ the~
Act to overcome the presumption of reviewability.
-3. EPA cannot veto a permit until it has issued 304(b) guidelines
stating best practicable control technology for the particular point source.
Consolidated Edison v. Hoffman, N.Y. Ct. of Appeals, 11 ERC 1346.
A local zoning board cannot refuse to grant a zoning variance to a pow~r
company for the construction of a cooling tower where the construction was
required for license compliance. Here the company established great
hard-ships to customers, thus the Court ruled that the denial.was arbitrary.
U.S. v. Ouelette, U.S. Dist. Ct., Arkansas, 11 ERC 1350.
The U.S. is not required to prove a "specific.intent" under an information
charging the crime of "knowingly making a false statement" in a report
re-quired by P.L. 92-500 (33
u.s.c.
1319(c)(2)), inasmuch as the charge is a"public welfare offense" which does not require a mens rea as an element
of the crime.
Amoco Oil Co. v. State Highway Department, N. D., 262 N.W.2d 726.
An owner of land bordering on a non-navigable stream owns to the center
of the thread of the stream. When the state condemns land bordering on
a stream, the bed of which had been filled, the state would be required
to pay for the value of the filled area as this is part of the title
secured in the emirr~nt dumatn proceedings.
Undlin v. Surrey, N.D., 262 N.W.2d 742.
In an action based on the theory of inverse condemnation, the plaintiff
established evidence that prior to defendant's pumping her water wells
produced good water, and this was sufficient to raise a question for the
jury. The lower court could not grant a directed verdict for defendant.
Inland Steel Company v. EPA, C.A. 7, 11 ERC 1353.
The provisions of P.L. 92-500 allow the Administrntor of EPA to issue a
NPDES discharge permit containing a condition allowing for a modification
to reflect any toxic poJlutant standard subsequently adopted under 307(a)
Seacoast Anti-Pollution League v. Castle, C.A. 1, 11 ERC 1358.
In an appeal from the Administrator of EPA granting a permit for a nuclear power plant under Sec. 316, P.L. 92-500, the Court ruled:
a. A 316-permit proceedings requires an adjudicatory type of
ad-ministrative hearing conducted according to the r~quirements of the
Administrative Procedures Act.
b. The Administrator cannot rely upon a rep,>rt of a technical review panel to supply the basis for his decision if such report was not a part of the record. Here the technical panel found a deficient administrative
record, and attempted in its report to fill the gap, thus supplying material which the party having the burden of proof had failed to produce. The
Administrator and his panel cannot be the trier and advocate at the same
time.
Smeltzer v. Adams, U.S. Dist. Gt.,- Iowa, 11 ERC 1367.
A segment of an interstate highway system must have an EIS which makes an
analysis of the total freeway project impact, including the secondary impact
of the particular part of the project. Even though the particular project may have independent utility, the EIS must consider adequately the secondary impacts of the project and its alternatives.
New Ikor v. McGlennon, U.S. Dist. Ct., Mass., 11 ERC 1373.
In an appeal from EPA's summary dismissal for untimeliness of a bid rejection protest, the Court ruled that EPA's construction of its own regulations is entitled to be followed. The time limitation required that the appeal be filed "within one week" and EPA construed the term to mean one calendar week. The protester claimed he should have been given seven working days, The
Court rejected the contention,
U.S. v. Little Rock Sewer Committee, U.S. Dist. Ct., Arkansas, 11 ERC 1376.
A local sewer committee, a public body charged with sewer system manage-ment, was found guilty of making false reports to EPA based on the fact
that its supervisor-employee had actually made the false reports. The court relied upon the theory of respondeat superior.
Rite-Research Improves the Environment, Inc., v. Castle, U.S. Dist. Ct., Fla.,
11 ERC 1379.
Plaint.-iffs seelLa-declar.at.ory:. judgment _that_ E._ • .L. _ _92-50J) __ ~Quld al.lgw a _ ~ specialized treatment program for Miami Beach which would permit a direct untreated sewage discharge into the Gulf Stream as a treatment method. To meet the issue of standing, Plaintiffs alleged that their injury resulted from tax dollar waste because of inadequate research and loss of opportunity to learn of the results of the desired project. The Court found that the Plaintiffs did not have standing; the allegations of injury were too abstract
to constitute injury in fact. Also the Court pointed out that it could not really fashion a remedy to give plaintiffs their desired relief, The
plaintiffs' interest in the particularized research can hardly, by Court
declaration, be converted into a Miami Beach pilot plant for sewage treatment.
U.S. v. Eastern Associated Coal Corp., U.S. Dist. Ct., Pennsylvania, 11 ERC 1381.
In a civil action against a violator under Sec. 309(d), P.L. 92-500, the Court
dismissed a Motion to Dismiss by Defendant wherein it claimed that EPA, by
previously issuing a 309(a)(3) compliance order, had waived the right to use
civil penalty procedure, The Court rejected the argument saying that the
Administrator is given a number of tools to insure compliance with the act, and the use of one does not preclude the use of the other.
Proctor Wholesale Co. v. Plaintiff sought to caused by vandals.
1. Plaintiff
oil release.
U.S., U.S. Ct. of Claims, 11 ERC 1383.
recover for an oil spill clean up, which spill was The claim was rejected because the Court found: purchased the property and tanks 40 days prior to the
2. Plaintiff did not investigate to learn of the contents of the
tanks, yet such tanks would indicate that they might be used for oil.
3. No protective measures were taken to insure that damage would not
result from releases from the tank.
4.
Plaintiff's failure to take protective steps created fbr it someresponsibility in this spill and thus precluded recovery for cost of clean up.
SUPREME COURT Vermont Yankee Nuclear Power v. NRDC;
Consumers Power Co. v. Aeschliman, Supreme Court, U.S. , 46 L.W. 4301. The Supreme Court reversed two District of Columbia Circuit decisions, 547 F.2d 622 and 547 F.2d 622, dealing with Circuit Court review of
Administrative decesionmaking, In summary the Court ruled:
a. Circuilt Courts are not at liberty to fashion procedural devices
that administrative agencies must follow. Congress has taken care of the
procedural requirement for agency decisionmaking in the Administrative Procedural Act.
b. Courts should limit themselves to a determination of whether the
posited findings are supported by the administrative record.
c, Appeal courts are not entitled to substitute their judgments for
those of administrative agencies. Review denied:
No. 77-953 -- Buffalo River Conservation and Recreation Council v. National
Park Service, C.A. 8, 558 F.2d 1542, 10 ERC 1428. Below Court refused to convene a three-judge court to consider the Constitutional issue of Congress'
