AQUALANTE NEWSLETTER, October 1978

HOUSE

UPPER COLORADO RIVER COMMISSION

355 South Fourth East Street

Salt Lake Ciljl, Utah 84111

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78-11

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

COMMITTEE ACTION

House Report 95-1751

Conference report on R.R. 5037, National Energy Conservation Policy Act. (Seep. Hl2120, CR, October 10, 1978.)

House Report 95-1752

Conference report on H.R. 5289, Natural Gas Policy Act of 1978. (See p. Hl2120, CR, October 10, 1978.)

House Report 95-1757

H. Res. 1423, providing for the consideration of H.R. 14104, Endangered Species Act Amendments of 1978. (See P. Hl2272, CR, October 11, 1978.) House Report 95-1804

SENATE

Conference report on S. 2899, to amend the Endangered Species Act of 1973 to establish an Endangered Species Interagency Committee to review certain actions to determine whether exemptions from certain requiremen~s of that Act should be granted for such actions. (See pp. Hl2995-H1299b, CR, October 14, 1978.)

Senate Report 95-1294

Conference Report on R.R. 5037, to establish a comprehensive National Energy Conservation Policy. See pp. 817283-817319, CR, October 6, 1978.

,.

HOUSE ACTION Federal Reclamation Dams Safety

House agreed to H. Res. 1424, providing for the consideration of H.R. 11153, to authorize the Secretary of the Interior to instruct, restore, operate, and maintain new or modified features at existing Federal recla-mation dams for safety of dams purposes. (Seep. Hl3279, CR, October 13, 1978.)

Endangered Species

By a yea-and-nay vote of 384 yeas to 12 nays with 1 voting "present", Roll No. 921, the House passed H.R. 14104, to authorize appropriations to carry out the Endangered Species Act of 1973 through fiscal year 1981.

Agreed To:

The Conunittee amendments;

_An amendment that, among other things, provides for increased notice -~ ~~i-n-=t7he listing and delisting process and reduces extension of

authoriza-tions from 3 years to eighteen months; Two technical amendments:

An amendment that provides that the Missouri Basin Power Project satisfies the requirements of the Act (agreed to by a division vote of 29 ayes to 14 noes). Earlier, two points of order against similar amend-ments were sustained; and a point of order against this amendment was overruled;

An amendment that expands the antique articles exemption;

An amendment that makes the antique articles exemption apply retro-actively to certain articles;

An amendment that exempts the Tellico Dam and Reservoir Project from the provisions of the Act (agreed to by a recorded vote of 231 ayes to 157 noes, Roll No. 920);

An amendment that strikes language directing courts to give preference over other matters before the court to actions for judicial review of Committee decisions;

An amendment that redefines the term "critical habitat"; An amendment that redefines the term "species";

An amendment that requires the Secretary to consider the economic impact in determining the critical habitat of any endangered species; An amendment that exempts military activities directly related to military preparedness from the provisions or the Act; and

An amendment that permits judicial review to begin in the circuit court of appeals rather than the United States district court.

Rejected:

An amendment that sought to strike language providing an exemption for raptors legally held in captivity or in a controlled environment prior to enactment of the 1973 Act, and their progeny (rejected by a division vote of 27 ayes to 53 noes);

An amendment that sought to prohibit sale of peregrine falcons, but would have permitted trading for mating purposes (rejected by a division vote of 22 ayes to 30 noes); and

An amendment that sought to remove requirements for reasonable "enhance-ment" measures to minimize effects of agency actions.

Endangered Species (continued)

Subsequently, this passage was vacated and S. 2899, a similar

Senate-passed bill, was Senate-passed in lieu after being amended to contain the language of the House bill as passed. Agreed to amend the title of the Senate bill.

House insisted on its amendments to S. 2899, and asked a conference. Appointed as conferees Representatives Murphy, Dingell, Leggett, Bowen, Ginn, Ruppe, and Forsythe; and Beard of Tennessee, for the consideration of his amendments to sections 3 and 4 relating to the 18 month extension of the program and modifications thereof. Earlier, objection was heard to a similar request. (See pp. Hl2867-Hl2868, CR, October 14, 1978.) Federal Reclamation Dams Safety

House passed R.R. 11153, to authorize the Secretary of the Interior to instruct, restore, operate, and maintain new or modified features at existing Federal reclamation dams for safety of dams purposes.

Agreed To:

The committee amendment, as amended by an amendment, that makes costs incurred in the modification of structures under the bill because of normal deterioration, or nonperformance of maintenance are reimbursable;

An amendment that expedites the repairs of the Bartlett Dam located near Phoenix, Arizona;

An amendment that authorizes the Secretary to pay and discharge certain costs associated with the American Falls Dam in Idaho;

An amendment that certifies that oversight has been accomplished with respect to 3 temporary water service contracts between the United States and the Westlands Water District;

An amendment that authorizes a study of the Santa Cruz Dam in New Mexico to determine the feasibility of rehabilitating and improving the existing dam;

A conforming amendment; and

An amendment that directs the Bureau of Reclamation to make necessary repairs on the Scoggins Valley Road around Henry Hagg Lake, Oregon.

Subsequently, this passage was vacated and S. 2820, a similar Senate-passed bill was Senate-passed in lieu after being amended to contain the language of the House bill as passed. (See pp. Hl2857-Hl2866, CR. October 14, 1978.) Endangered Species

By a voice vote, House agreed to the conference report on S. 2899, to

amend the Endangered Species Act of 1973 to establish an Endangered Species Interagency Committee to review certain actions to determine whether

exemptions from certain requirements of that Act should be granted for such actions--clearing the measure for the President. (See pp. Hl3579-H13580, CR, October 14, 1978.)

SENATE ACTION Colorado River landowners

Senate passed R.R. 7101, to provide certain landowners along the Colorado River the opportunity to assert legal and equitable defenses against the United States.

Coal leasing

Senate passed S. 3189, authorizing the Secretary of the Interior to acquire Federal coal leases or rights to Federal coal leases by purchase at fair market value, by exchange for another coal lease, or by condemnation--agreed to House amendment. (See pp. Sl8754-S18755, CR, October 13, 1978.) Fish and Wildlife

Senate agreed to the conference report on H.R. 2339, to improve the administration of fish and wildlife programs of the Departments of the

Interior and Connnerce. (See pp. Sl9181-Sl9182, CR, October 14, 1978.) Endangered Species

Senate agreed to the conference report on S. 2899, to extend the Endangered Species Act for three years, and to establish a committee to review Federal projects which have come into conflict with that Act. (See pp.

Sl9160-- - - ~,---GR'"-G-cte-b~4-, 1978.) - - -

-Dam Safety

Senate agreed to the House amendments to S. 2820, to provide permanent authority for the Secretary of the Interior to take necessary actions to ensure the safety of dams under the jurisdiction of the Bureau of Reela-mation--cleared for President. (See pp. Sl8843-Sl8844, CR, October 14, 1978.)

EXECUTIVE ACTION Publici Law 95-465

Making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 1979, and for other purposes.

(October 17, 1978; 92 Stat. 1279). Public Law 95-467

Water Research and Development Act of 1978. (October 17, 1978; 92 Stat. 1305).

Public Law 95-477

Environmental Research, Development, and Demonstration Authorization Act

~ ~ ~--0f 1979. (OctobeF 18, 1978; 92 Sta-t. 1507-t-;

Public Law 95-404

Water Resources Planning Act Authorization. (September 30, 1978.)

FEDERAL REGISTER 43 Fed. Reg. 49792, October 25, 1978.

EPA has issued an Interim Final Rule for Administrative Action Under Water Quality Management Program. (Sec. 208, Public Law 92-500, as amended.) Determination has been made that an EIS is not required. (Sec. 511(e)(l), Public Law 92-500, as amended).

43 Fed. Reg. 50043, October 26, 1978.

EPA has withdrawn its interpretations of Best Practical Technology Variance Considerations found at 39 Fed. Reg. 28926-30073, August 12-20, 1974.

LAW REVIEW

Pelcyger, "The Winters Doctrine and the Greening of the Reservations."

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No. 7, May 1978, is devoted to the Development in the Law of Zoning.

COURT CASES

Freel

and

v. Dicks

on

,

Ill. App., 379 N.E.2d 913.

A defendant can be required to remove a rock obstruction from the mouth of a culvert, which obstruction prevented the natural surface water flow from plaintiff's lands across his land. However, he cannot be required to lower the level of his fields to that of the level of the flow line of the lower end of the culvert located at the edge of his field.

K

elley v. Butz,

U.S. Dist. Ct., Michigan, 12 ERC 1033.

When the Federal agency, in its preliminary environmental analysis, demon-strated that it considered the toxicity and teratogenetic effects of a herbicide which it proposed to use in a certain program, the Court will not set aside an agency finding that an EIS will not be required for a proposed program using the herbicide to control undesirable growth in a forest. Actually the proposed program was limited to a very small area. The assessment properly considered the necessary threshold issues and had developed a proper review record.

Hardage

V.

Atkins,

C.A. 10th Cir., 12 ERC 1043.

Oklahoma's solid waste control statute which banned out-of-state solid wastes except from states which had entered into a reciprocity agreement with Oklahoma was unconstitutional. See

Philadelphia v. New Jersey,

46 U.S.L.W. 4801.

San Diego Unified Port Authority v. Gianturco,

U.S. Dist. Ct., Calif. 12 ERC 1046.

Airport authority is entitled to a preliminary injunction enjoining a state agency from enforcing a provision in the port authority airport variance noise permit granted by said state agency. The airport authority was seek-ing to test the constitutionality of this condition, claimseek-ing that the limitation violated the federal law which had preempted this field. The Court granted the preliminary injunction pending trial on the merits. The state agency had raised an interesting issue, namely, that the port authority, being a municipal organization created by state statute, could not question the constitutionality action of the state regulatory agency. The Court ruled that where the issue was the application of the Supremacy Clause the municipal organization could raise such issue, even against the state itself. A state cannot violate the supreme law of the land.

Sierra Club v. Hathaway, C.A. 9th Circuit, 12 ERC 1062.

The decision of the lower court was affirmed wherein the lower court approved Interior's determination not to file an EIS for exploratory work by a geo-thermal lessee where it was determined that the exploratory work would use existing roads and trails in a known geothermal area. The Court correctly refused to enjoin executing of future leases and to enjoin the lessee from the exercising of lease rights. Note: The Court indicated that an EIS would be expected for any further activity under the lease.

57th Street Management Corporation v. New York, U.S. Dist. Ct., New York, 12 ERC 1067.

The Federal courts do not have }urisdjrti0n to test the constitutionality of a New York City tax on leaJ gasolin~ where the state law affords the plaintiffs a "plain, speedy and eff.i clent" means to challenge the tax.

New York affords such means, therefore, the Tax Injunction Act, 28 U.S.C.

l.3ltl_apµlies ~ _ _ _ _ _

-U.S. Homestake Mining Company, U.S. Dist. Ct., South Dakota, 12 ERC 1071. The extension of time for compliance provisions of Sec. 309(a)(S)(B) of the Federal Water Pollution Control Act applies to all permits issued under the Act, not just BPT permits as claimed by EPA. So long as the permit holder can demonstrate that the requirements for extension have been met, the type of permit is of no consequence.

Inner Sunset Action Corrunittee v. CaZ-1:j'ano, C .A. 9th Circuit, 12 ERC 1074.

The Circuit Court of Appeals approved the lower court's refusal to grant a preliminary injunction against HEW pending trial on the merits of an alleged failure to comply with NEPA on a proposed grant to the University of Cali-fornia for the building of a School of Dentistry on the school's campus.

This case is worth a historical statement. In 1974 the plaintiffs here in the California State Court secured an injunction stopping construction on the building until California's Environmental Quality Act was followed. In 1976 this injunction was lifted after a demonstration of full compliance with CEQA. Less than twenty days following this state court action, the present federal action was filed by essentially the same plaintiffs. Note: HEW had filed a document stating that an EIS was not required for the grant. The Appeals Court indicated that there seemed little likelihood that plaintiffs would succeed on the merits.

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EDF v. Castle, U.S. Dist. Ct., D.C., 12 ERC 1079.

A transfer of venue of the Colorado River Salinity suit was denied. About all that can be said for the reason for the denial is that the judge did not find any real evidence as to why he, on grounds of convenience and justice, should grant the transfer. Admitting that the change would not be improper, the Court decided that the plaintiff's choice of forum should prevail.

EDF v. Blum, U.S. Dist. Ct., D. C., 12 ERC 1088.

EPA cannot avoid judicial review of its decision under Sec. 18, Federal Insecticide, Fungicide and Rodenticide Act to exempt certain pesticides from the registration requirements of the Act. EPA cannot rely upon

material beyond and outside of this administrative record and the decision must be remanded for additional consideration. EPA does not have to comply formally with NEPA. Its rulemaking procedure was functionally equivalent to an EIS.

,

Marathon Oil Company v. EPA, C.A. 9th Circuit, 12 ERC 1098.

Failure of EPA to include relevant data in the administrative record in a proceeding for a NPDES permit for off-shore drilling rig required that the proceeding be remanded for further consideration. EPA cannot rely upon information not made available to the applicant in its setting of limita-tion in such permit.

Western Oil & Gas Association v. Andrus, U.S. Dist. Ct., Calif., 12 ERC 1129. The fact that the Outer Continental Shelf Lands Act authorizes suspension of operations on OCS lease tracts for purposes of national defense or other national emergencies does not authorize Interior regulations which seek to authorize suspension in situations threatening "significant damage" to environment.

EDF v. Castle, U.S. Dist. Ct., D.C., 12 ERC 1131.

Summary judgment on pleadings will not be granted the defendant in the

Colorado Salinity lawsuit because there are factual issues to be resolved in the case.

NRDC v. Berklund, U.S. Dist. Ct., D.C., 12 ERC 1146.

Persons holding preference rights coal claims cannot be denied the coal lease, upon -establishing the existence of minable coal, on environmental grounds. Interior is required to develop an EIS on the proposal to issue the lease rather than solely upon the terms of the lease. Actually i t would appear

that a preference right holder may end up with a naked right to a lease.

The victory may be worthless because the EIS may demonstrate environmental needed restrictions, thus allowing Interior to determine whether to exercise the alternative options open to i t .

Nebraska v. Rural Electrification AdJninistration, U.S. Dist. Ct., Neb., 12 ERC 1156

For a case where the EIS was a total failure, read this case. It is too long

to summarize. The Nebraska Court stopped a Wyoming project because the EIS failed to pass muster.

Natural Resources Defense Council?-'. (.'on!e, l:.s. Dist. Ct., D.C., 12 ERC 1181. Attorneys' fees will be granted plaintiff's attorneys for actual work done on preparing the complaint and summar, iudgment motions, but not for activities resisting motions to intervene where the U.S. was on the same side. Consulting time with fellow attorneys will only receive a reduced fee. Defendant inter-venors can not secure attorney fees because this type of award would not further the purpose of Sec. 505(d) of the Water Pollution Control Act.

Roberts v. Roberts, Utah, 584 P.2d 378.

The evidence in the case indicated that a decreed water right was appurtenant to land conveyed to a son prior to marriage to the plaintiff, thus she was not entitled to any interest in the water right even though some of the water was later used on land to which her statutory rights attached upon death of husband. The particular water was appurtenant to the land first conveyed by the father to the son, and the widow secured no interest in this water upon death of her husband.

American Petrolewn Institute v. Knecht., U.S. Dist. Ct., Calif., 12 ERC 1193. In a challenge by oil companies to approval by Department of Commerce of the California coastal zone management program, the Court approved the Federal action in a complex and lengthy opinion which reviewed the whole admi.nstrative

law process, and ended up by announcing a new standard of review for

adminis-trative actions as follows:

The length, complexity and convolutions of this memorandum and of the findings and conclusions set forth herein speak louder and much

more eloquently than the words themselves. The message is as clear

as it is repugnant: under our so-called federal system, the Congress

is constitutionally empowered to launch programs the scope, impact, consequences and workability of which are largely unknown, at least

to the Congress, at the time of enactment; the federal bureaucracy

is legally penn1.tted to execute the congressional mandate with a

hign degree of hefuddlement a-s long a::, i t --'aet-s no -more befuddled th.an ____ _

the Congress must reasonably have anticipated: if ultimate execution of the congressional mandate requires interaction between federal and state bureaucracy, the resultant maze is one of the prices required

under the system.

See also--American Petrolewn Institute

v

.

Knecht., U.S. Dist. Ct., D.C., 12 ERC 1226. In another challenge to two state coastal zone program5'approval by DBC, the

D.C. federal courts found a lack of jurisdiction to review because the alleged

injuries were too speculative and remote to support standing and ripeness

for adjudication. ·

Mobay Chemical Corp.

v

.

Costle., U.S. Dist. Ct., Missouri, 12 ERC 1228.

The plaintiffs challenged EPA's treatment under FIFRA of right of registrants with respect to subsequent use of material submitted by such registrants to secure a pesticide registration. The statute provides for payment of such

subsequent use by another seeking registration. This opinion is detailed and

basically the Court found that the law was not followed by EPA. This case

illustrates the "befuddled" review process alluded to in American Petroleum.,

supra. It is too laborious to summarize and is cited merely to alert those

who may have a registration problem under FIFRA.

Badoni v. Higginson., U.S. Dist. Ct., Utah, 12 ERC 1248.

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-Judge granted summary judgment for defendant. On the religious issue the

Court ruled that plaintiffs could not show ownership of the monument which

was interferred with. Even if a balancing interest test were applied to

the religious claim of the plaintiffs, the defendant's interest far outweighs

those of the plaintiffs. Plaintiffs' medicine men are not recognized by

the "Navajo Nation." Even the religious use of the Bridge has been limited.

Also the Section I, Colorado River Storage Project Act, argument must fail

because of Friends of the Earth v. Armstrong., 485 F.2d 1. NEPA issue is not

yet ripe for determination. Some dicta to the effect that there will never

be a NEPA issue because of the statutory instructions given the Secretary

EDF v. Castle~ C.A. D.C. Circui~, 12 ERC 1255.

The Appeals Court affirmed the denial of intervention by the District Court

of certain applicants in th~ Colorado River Salinity case on grounds that

applicants did not show that their interests were inadequately represented

by present parti~s.

SUPREME COURT Review Granted:

No. 77-983, Washington v. Washington State Commercial Passenger Fishing

Vessel Ass'n. Ruling below - 88 Wn.2d 677, 89 Wn.2d 276.

No .. 78-119, Washington v. U.S. Ruling below 573 F.2d 1123 and 573 F.2d 1118.

No. 73rl39, Pudget Sound Gillnetters Ass'n v. U.S. District Court for Western

Washington. Ruling below 573 F.2d 1123.

All three of the above-listed cases involved Indian treaty fishing rights as

they relate to non-Indian fishing rights, and the authority of the State to enforce

Indian fishing rights. 47 L.W. 3258, October 17, 1978. Review Denied:

No. 78-83, Timken Co. v. EPA. Ruling below 572 F.2d 1150.

No. 78-84, Cleveland Electric .Illuminating Co. v. EPA. Ruling below 572 F.2d 1150.

These cases involved the authority of EPA to devise sulphur dioxide control

requirements for Ohio's Air Implementation Plan. 47 L.W. 3261, October 17, 1978.

New Cases Docketed:

No. 78-555, Warren v. Kuiper_. Ruling below (580 P.2d 32, Colo. Sup. Ct.)