HOUSE
UPPER COLORADO RIVER COMMISSION
355 South Fourth East StreetSalt LAkt City, Utah 84111
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U A L A N T E N E W
S L E T T E R
79-12
(All Congressional Record references are to Vol. 125, Daily Edition, of the 96th Congress, 1st Session, and will be cited as "p. _ _ , CR, date.")
BILLS INTRODUCED IN 96th CONGRESS
H.R. 5845 (UDALL, et al.)
A bill to revise requirements under the Federal reclamation laws relating to acreage limitations, equivalency, and residency, to provide for vali-dation of repayment contracts and written representations, and for other purposes; to the Committee on Interior and Insular Affairs. (H10473, CR, November 8, 1979.)
COMMITTEE ACTION H. Rept. 96-604
The Committee of Con£erence reported H.-R. 49-30, making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 1980. (Seep. Hl0473, CR, November 8, 1979.) S. Rept. 96-439
The Committee on Rules and Administration reported S. Res. 266, Resolu-tion authorizing the printing of the report entitled "The Cost of Clean Air and Water" as a Senate document. (Seep. 817639, CR, November 30, 1979.)
SENATE ACTION Endangered Species
Senate disagreed to the House amendments to S. 1143, authorizing funds for fiscal years 1980, 1981, and 1982 for programs under the Endangered Species Act, requested a conference with the House and appointed as Conferees
Sl6159-Interior Appropriations
Senate agreed to the conference report on H.R. 4930, appropriating funds for fiscal year 1980 for the Department of the Interior and related
agencies. Senate agreed to House amendments to Senate amendments Nos. 1, 3, 17, 24, 30, 37, 38, 40, 48, 49, 50, 51, 52, 53, 56, 58, 59, 67, 64, 91, 94, 107, 108, and 109. (See pp. Sl6421-Sl6432, CR, November 9, 1979.)
HOUSE ACTION Interior Appropriations:
By a yea-and-nay vote of 271 yeas to 46 nays with 1 voting "present," Roll No. 647, the House agreed to the conference report on H.R. 4930, making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 1980--clearing the measure for Senate action.
House receded from its disagreement and concurred in Senate
amend-ments Nos. 15, 2 , 31,~ 4, ~ 4__~~23 82,.... 8-1-, 8.9 90., -l--W an.d 1± - -House receded from its disagreement and concurred, with amendment,
in Senate amendments Nos. 1, 3, 17, 24, 30, 37, 38, 40, 48, 49, 50, 51, 52, 53, 56, 58, 59, 67, 74, 91, 94, 107, 108 (motion agreed to by a yea-and-nay vote of 182 yeas to 103 nays, Roll No. 648), and 109.
Earlier, agreed to a unanimous-consent request that it be in order to consider the conference report today. (See pp. Hl0509-Hl0525, CR, November 9, 1979.)
House agreed to H. Con. Res. 209, authorizing the Clerk of the House of Representatives to correct the enrollment of H.R. 4930. (See pp. Hl0582-Hl0583, CR, November 13, 1979.)
Endangered Species Authorization
House insisted on its amendments to S. 1143, to extend the authorization of appropriations for the Endangered Species Act of 1973; and agreed to a conference. Appointed as conferees: Representatives Murphy of New York, Breaux, Dingell, Bowen, McCloskey, and Forsythe. (Seep. Hl0665, CR,
November 14, 1979.) Bear River Compact
The House sent to the Senate, without amendment, H.R. 4320, to consent to the amended Bear River Compact between the States of Utah, Idaho, __ _ and Wyoming._ (See pp. H_lill7-Hl]..1,6_l. CR Nov{;!UbeL 27, 1_972._._l ~
EXECUTIVE ACTION Public Law 96-69
The President signed into law H.R. 4388, an Act making appropriations for energy and water development for the fiscal year ending September 30, 1980, and for other purposes. (September 25, 1979)
FEDERAL REGISTER 44 Fed. Reg. 65680, November 14, 1979
The Bureau of Land Management announced the availability of Desolation and Gray River Management Plan - a portion of Green River.
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4 Fed. Reg. 66699, November 20, 1979
The Fish and Wildlife Service, Department of the Interior, has issued Final Rule as to how it will comply with Executive Order No. 11988
(Floodplain Management) and Executive Order No. 11990 (Protection of Wetlands). This publication sets forth the procedure rules to be fol-lowed_by the Fish and Wildlife Service in the execution of its programs impacting areas covered by the two Executive Orders.
44 Fed. Reg. 67383, November 26, 1979
The Department of the Interior issued a Public Land Order restoring 808 acres of land to the Navajo Tribe pursuant to the authority of Public Law 93-493 (The Reclamation Development Act of 1974, Title I, Incorporation of Page, Arizona).
44 Fed. Reg. 67644, November 27, 1979
The Department of Energy, Federal Energy Regulatory Commission, issued Federal Rules "Regulations-Governing Applications for License for Major Projects -- Existing Dams."
44 Fed. Reg. 68489, November 29, 1979
EPA proposed amendment to regulations covering "Polychlorinated Biphenyls Manufacturing, Processing, Distribution in Commerce, and Use Prohibitions; Clarification and Proposed Amendment on Hydraulic Machines.
44 Fed. Reg. 68710, November 29, 1979
EPA proposed regulations covering "Gum and Wood Chemicals Manufacturing Point Source Category Effluent Limitations Guidelines; Pretreatment Standards, and New Source Performance Standards.
LAW REVIEW Note:
"Indian Reserved Water Rights: The Winter of our Discontent," 88 Yale Law Journal 1666. Another comment on Indian Water Rights, not new. Courts must protect the Indian.
SUPREME COURT
Andrus v. Allard, Supreme Court, 48 Law Week 4013.
The Eagle Protection Act and the Migratory Bird Treaty Act "contemplated regulatory prohibition of commerce in the parts of protected birds, with-out regard to when the birds were originally taken. With respect to birds taken prior to the Act, the Congress allowed only possession and
transportation of such parts and all other activities with respect to the parts came within the commercial prohibition. Birds could not be
taken after the effective date of the Act and there was a total ban on
all activities with respect to such. While the Migratory Bird Treaty Act contains no specific exception found in the aforementioned Act, the
structure and context suggests that such treatment could be effectuated
by regulation." Fifth amendment property rights are not violated by the application of these acts to pre-effective date acquisition of the parts.
COURT CASES
Dow Chemical Company v. EPA, C.A. 3, 9 ELR 20640.
The Third Circuit accepted EPA's expansive reading of Sec. 8d, Toxic Substances Control Act (TSCA), and allowed EPA to demand all studies
in_possession from chemicalmaoufacturers covering chemicals produced
or used for purposes of research and development. EPA had given
"commercial purposes" in the reporting provision of TSCA a broad reading so that it included "research and development" chemicals.
The report had to include all studies on the chemicals of which the
manufacturer had knowledge. Dow had claimed that this reading would
stullify research and development.
EDF v. Johnson, Dist. Ct., So. N.Y., 9 ELR 20650.
Relying on Kleppe v. Sierra Club, 427 U.S. 390, and Andrus v. Sierra
Club, 47 U.S.L.W. 4676, the Court refused to enjoin the Corps' seekingof congressional authorization for a general design study for a Hudson
River Skimming Project pending the completion of a final EIS. The
recommendation that a study be authorized for a certain project does
not constitute major federal action within the meaning of NEPA. This
also did not constitute final agency action within Section 704 of the
Administrative Procedure Act.
Provo City v. Hansen, Utah, 601 P.2d 141.
A plaintiff cannot dilly and dally in the prosecution of his actions to overturn an administration decision of the State Engineer on water
matters. Such suit must be dismissed if there is a failure to prosecute
to final judgment within two years.
Ventura County v. Gulf Oil Company, C.A. 9, 9 ELR 20653.
Relying on Kleppe v. New Mexico, 426 U.S. 529 (Burro Case), the Court
ruled that a holder of a federal mineral lease and oil drilling permit
did not have to secure a county permit required by the county zoning
ordinances. Under the property clause of the U.S. Constitution, the
Federal government has the power to preempt local rules with respect to the use of Federal property.
California V. Kleppe, C.A. 9, 9 ELR 20661.
The 1978 amendments to the Outer Continental Shelf Land Act provide a
compr~hensive program of controls over drilling activities int:his-area
and give admiaistration over these activities to the Secretary of the
Interior. EPA's attempt to exercise jurisdiction over air quality under
the Clean Air Act for off shore OCS facilities would be in conflict with
the scheme devised by Congress in the 1978 amendments. Even though the
1978 amendments did not specifically deny jurisdiction to EPA under the
Clean Air Act, EPA's attempt to exercise Clean Air Act authority over
these facilities would frustrate the explicit authority granted the
Secretary of the Interior by these amendments of 1978. EPA must be
denied jurisdiction under the Clean Air Act so that the explicit
require-ments of the OCSLA 1978 amendrequire-ments can be effectuated.
Montana Power Company v. EPA, C.A. 9, 9 ELR 20667.
The Court determined that EPA's construction of the Clean Air Act with respect to when "construction commenced" must be given due deference. Mon~ana Power was attempting to avoid Prevention of Significant
Deteriora-tion (PSD) review under the grandfather clause for two of its units. The company claimed that its contractual obligations brought it within the terms of the grandfather clause of EPA's PSD regulation. EPA denied the company's claim, saying that there had not been a significant commit-ment of funds to trigger the "commence construction" exception. Also,
the Court ruled that the Company could not qualify for the statutory grandfather clause set forth in the 1977 Clean Air Act amendments inas-much as all permits had not been secured by the company prior to the
cut-off date set forth in the Statute.
Motor and Equipment Manufacturers' Ass'n v. EPA, C.A. D/C, 13 ERC 1737. The Court ruled EPA could waive federal preemption of California in-use maintenance regulations for automobiles under the Clean Air Act because
these were part of the California emission standards for which the Federal preemption may be waived under Section 209, Clean Air Act. See also 13 ERC 1762. In this second case, the Court approved EPA's waiver of the Federal preemption with respect to California's 100,000-mile certification procedure as part of its enforcement of the State's nitrogen oxides emission standard. EPA's waiver authority was grounded in Section 209, Clean Air Act.
Peterson v. Department of Ecology, Washington Supreme Court, 13 ERC 1785. The State Engineer issued a cease and desist order against a well owner on the grounds that a permit had not been issued. The well owner brought a mandamus action in the District Court seeking to compel the State
Engineer to issue such permit. The District Court refused to allow the State Engineer to introduce evidence outside the administrative record made in the cease and desist hearing. The Supreme Court reversed the Lower Court's ruling, holding that the State must be allowed to present evidence on the availability of ground water in any case involving a permit to drill a well. A Court is not permitted to direct the issuance of any well permit, and the jurisdiction of the Court is limited to ordering the agency to act upon the permit application. The actual issuing of a well permit is a discretionary Act which cannot be contolled by mandamus.
Ritchie v. Markley, Washington Court of Appeals, 13 ERC 1789.
A county cannot require a shoreline permit for construction activities which have been exempt under the State Shoreline Act. Here the defendant had excavated a reservoir near a river which filled by percolation which he claimed would be used for irrigation. The State Shoreline Act granted an exemption to agricultural works. The county ordinance did not. The county attorney had secured a temporary restraining order against the defendant's activities, demanding that said defendant secure a county permit. The Court of Appeals affirmed the Lower Court's dismissal of the suit.
California
v. Bergland,
U.S. Dist. Ct., California, 13 ERC 1795.In a case involving the challenge to the adequacy of the EIS for the Rare II designation, the Court allowed a number of parties to intervene
~here there was a showing of inadequate representation. One county
was allowed to be joined party plaintiff on the side of the attacking state because its attack upon the EIS seeked to go beyond the State's
stated basis. Parties have been allowed to join as defendants even
though it would seem that the U.S. would seek to show the adequacy of the EIS. Those allowed to join did convince the Court of their individualized interest which might not be represented to the U.S.
Village
of Wilsonville v. S.C.A. Services
Inc.,
Ill. App. Ct., 13 ERC 1809.The Lower Court properly granted an injunction barring the use of a land fill for toxic substances disposal where the evidence indicated
that serious and substantial public harm may occur even if the occurrence
of harm may be in the distant future.
Krahl
v. Nine Mile Creek Watershed District,
Minn. Sup. Ct., 13 ERC 1821.State watershed districts may develop flood plain plans which restrict
the use of the flood plains by riparian owners. The taking issue will
be determined by balancing the usability of the riparian land by its
owner against the harm which may result from the failure to regulate.
Badgley
v. City of New York,
C.A. 2, 13 ERC 1833.A riparian land owner cannot sue a water user in another state for
alleged damage to his riparian interest when the defendant's use of
water was based upon a Supreme Court decree in an original interstate
water apportionment case. The plaintiff's rights were confined to
those granted the State of his residence in the original suit.
Commoni,Jealth
of Massachusetts v. Andrus,
U.S. Dist. Ct., Mass., 13 ERC 1857. In an action attacking the defendant's outer continental oil and gas leasing program on NEPA grounds, the plaintiff must demonstrate a like-lihood of ultimate success on the merit in order to secure a preliminary injunction barring the questioned sale. Where the ultimate success likelihood was not shown, the requested pretrial relief will be denied.California
v. Andrus,
C.A. 9, 13 ERC 1862.Suing the Secretary of the Interior claimin~ a NEPA viola~i~ iI,L.,bis~
proposed sale 3- (oil drilling rights off-shore California) may be fun,
but the plaintiff state is still required to demonstrate standing by
alleging an injury to itself as a result of the proposed sale.
Cali-fornia refused to set forth its injury, therefore, the Court dismissed the suit. _ Standing may not be dead.
