AQUALANTE NEWSLETTER, September 18, 1978

HOUSE

UPPER COLORADO RIVER co11-.1ss10N

355 South Fourth East Street

Salt Lake City, Utah 841/ 1

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September 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

H.~. 13807 (LEGGETT)

A bill to authorize appropriations to carry out the Endangered Species Act of 1973 through fiscal year 1981 and for other purposes; to the Committee on Merchant Marine and Fisheries.

H.R. 13811 (BOWEN, et al.)

A bill to amend the Endangered Species Act of 1973 to clarify congressional findings, intent, policy and purpose; to provide for economic and inflation-ary assessment of proposed listings; to review certain actions to determine whether exemptions from certain requirements of that act should be granted for such actions; to establish an Endangered Species Committee to review those actions; and for other purposes; to the Connnittee on Merchant Marine and Fisheries.

H.R, 13856 (UDALL, by request)

A bill to amend the Land and Water Conservation Fund Act of 1965, as amended and for other purposes; to the Committee on Interior and Insular Affairs. H.R, 13946 (BROWN of California)

A bill to promote and assist in the conduct of environmental research and· development on ground water; jointly, to the Committee on Science and Technology, and Interior and Insular Affairs.

COMMITTEE ACTION HOUSE

Houpe Report 95-1462

House Report 95-1490

Conference report on H.R. 12928, making appropriations for public works for water and power development and energy research for the fiscal year ending

September 30, 1979. (Seep. H8584, CR, August 14, 1978.)

House Report 95-1492

S. 2101, to modify the boundary of the White River National Forest in the

State of Colorado, amended. (Seep. H8701, CR, August 15, 1978.)

House Report 95-1494

Conference report on S. 2701, to amend the Water Resources Planning Act

(79 Stat. 244, as amended). (Seep. H8701, CR, August 15, 1978.)

Senate

Senate Report 95-1178

S. 2502, to authorize States and Indian tribes to enter into mutual agreements

respecting jurisdiction and governmental operations in Indian country, with

amendments. (Seep. Sl4785, CR, September 7, 1978.)

HOUSE ACTION Interior Appropriations:

House disagreed to the Senate amendments to H.R. 12932, making appropriations

for the Department of Interior and related agencies for the fiscal year ending

September 30, 1979; and agreed to a conference. Appointed as conferees:

Representatives Yates, McKay, Long of Maryland, Evans of Colorado, Murtha,

Duncan of Oregon, Dicks, Charles Wilson of Texas, Whitten,Mahon, McDade,

Regula, Armstrong, and Cederberg. (Seep. H8264, CR, August

10,

1978.)

Public Works Appropriations:

House disagreed to the Senate amendments.to H.R .. 12928, making appropriations

for public works for water and power development,and energy research for the

fiscal year ending September 30, 1979;. and agree'd to a conference. Appointed

as conferees: Representatives Bevill, Boland, Whitten, Slack, Boggs, Dicks,

Shipley, Chappell, Mahon, John T. Myers, Burgener, Smith of Nebraska, and

Cederberg. (Seep. H8450, CR, Ausus=t~l~l~,~-1_9_7_8~·~)

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Water Resources Planning:

House insisted on its amendment to S. 2701, to amend the Water Resources

Planning Act (79 Stat. 244, as amended); and agreed to a conference. Appointed

as conferees: Representatives Meeds, Udall, Vento, and Lujan. (Seep. H8460,

CR, August 11, 1978.)

SENATE ACTION

Public Works Appropriations:

By 89 yeas to 5 nays, Senate passed H.R. 12928, making appropriations for

public works for water and power development and energy research for fiscal year 1979, after agreeing to committee amendments en bloc and taking action on other amendments proposed thereto, as follows:

...

Public Works Appropriations: (Senate action - continued) Adopted:

(1) Johnston unprinted amendment No. 1640, to delete $12 million for Meramac

Park Lake, Missouri;

(2) Modified Church unprinted amendment No. 1641, appropriating $5 million to construct a repository for 5,000 metric tons of spent light water reactor fuel;

(3) Domenici unprinted amendment No. 1643, to appropriate an additional $4.2 million for Plant and Capital Equipment, earmarking $1 million for engineering

and design of an electron beam fusion facility at Sandia Laboratories, Albuquerque; (4) Haskell unprinted amendment No. 1644, to appropriate $5 million for design and construction of Solar Energy Research Institute, Golden, Colorado;

(5) Schweiker unprinted amendment No. 1646, earmarking not to exceed $4 million for bank stabilization measures on the Susquehanna River, Pennsylvania; and

(6) Johnston unprinted amendment No. 1647, of a corrective nature; and

Rejected: Leahy unprinted amendment No. 1642, calling for deletion of $1.7 million in planning funds for the Dickey-Lincoln School Lakes Hydroelectric

Project, Maine.

Senate insisted on its amendments, requested conference with the House, and appointed as conferees Senators Johnston, Stennis, Magnuson, Robert C. Byrd, Hollings, Huddleston, Burdick, Sasser, Hatfield of Oregon, Young, Schweiker,

and Bellman. (See pp. Sl3036-Sl3070, CR, August 10, 1978.)

EXECUTIVE ACTION

Public Law 95-341:

S. J. Res. 102, to reevaluate U.S. policy to protect and preserve American

Indian religious cultural rites and practices. Signed August 11, 1~78.

FEDERAL REGISTER

43 Fed. Reg. 34794, August 7, 1978

EPA has issued Proposed Rule for Public Participation in Programs under the

Resource Conservation and Recovery Act, the Safe Drinking Water Act, and the Clean Water Act.

43 Fed. Reg. 37078

EPA has proposed Revision of Existing Regulations covering NPDES permit. 43 Fed. Reg. 37570, August 23, 1978.

EPA has proposed "Best Conventional Pollutant Control Technology (Reasonable-ness of Existing Effluent Limitation Guidelines)." See correction under

43 Fed. Reg. 389062, August 31, 1978.

43 Fed. Reg. 38534, August 28, 1978

EPA has proposed rule for "Guidelines for Development and Implementation of State Solid Waste Management Plan."

43 Fed. Reg. 38737, August 30, 1978

The Fish and Wildlife Service has proposed Rule to amend regulations covering State Cooperative Agreement under Endangered Species Act, as amended by

43 Fed. Reg. 39276, September 1, 1978.

EPA has proposed rule covering "Hazardous Substances Pollution Prevention

for Facilities Subject to Permitting Requirement."

43 Fed. Reg. 39282, September 1, 1978

EPA has proposed rule "Criteria and Standards for Imposing Best Management Practices for Ancillary Industrial Activities."

LAW REVIEW

Torlock, "Appropriation for Instream Flow Maintenance - a Progress Report on 'New' Public Western Water Rights," Vol. 1978, No. 2, Utah Law Review 211.

(The title summarizes the article.)

Breaker, "Federal Regulatory Statutes and Indians Self-Determination: Some

Problems and Proposed Legislative Solutions." 19 Arizona Law Review 285~ ~-~

,'---'-:r~tm-ar-shmd:d iTave-en"tttled the -arficTe~ethods by whi~ Indian Tribes can exercise Self Determination."

COURT CASES

Hodges v. Oklahoma Water Resources Board, Oklahoma, 580 P.2d 980.

· Where an applicant for a ground water permit indicated that he would use a spray system of irrigation as method of use, the State agency properly found that this

type of use was beneficial; and that the finding that waste would not occur was

also supported by the evidence which was that the applicant would hopor

sugges-tions of methods of application made by the Soil Conservation Service and the

Agricultural Stability and Conservation Service.

Natural Resources Defense Council v. NRC., 2d Circuit, 11 ERC 1945.

NRC properly denied NRDC's petition for rulemaking to determine whether

nuclear reactor wastes can be disposed of permanently so as not to endanger public health and safety and for a licensing moratorium for such reactor pending an affirmative determination of the first above mentioned issue. The Act does not require a determination of the availability of a permanent

disposal for the waste products prior to issuing a reactor license.

Maryland v. Castle, U.S. Dist. Ct., D.C., 11 ERC 1952.

_ _ EPt\. acted r~ _o.Jla.QL~ .n___Lts- .ae~ffla-H:fln-c-not'"'t ~ c t-a "ttrsp15sar system_ because of the findings that the system was too large and also it was not cost effective. EPA does not have to complete an EIS for such system after it decides not to fund the project. Only projects which are to be funded must have an EIS.

Warrior, Inc. v. Easterly, Mississippi, 360 So.2d 700.

In Mississippi the law with respect to surface waters is that an upper owner may reasonably drain his surface waters into a water course, but he cannot

collect such water in an artificial channel and discharge such onto the lower owner in greater volume or more concentrated flow than would have resulted from undisturbed natural conditions. In this case an upper owner,

in developing a subdivision, changed the natural land contours and ditched

the surface waters onto the lower owner. The Supreme Court ruled that such subdivision owner would have to respond in damages, but the lower owner could not enjoin the upper owner's system.

Hiatt Grain and Feed v. Bergland, U.S. Dist. Ct., Kansas, 11 ERC 1961.

Private grain dealers who had only an economic interest in certain USDA grain marketing regulations lack standing to challenge said regulations on NEPA grounds. This is a laborious case which attempts to discuss the whole field of administration law after deciding that none of the plaintiff's issues were of significance.

U. S. v. Long Cove Seafood, Inc., 2d Circuit, 11 ERC 2001.

The U.S. cannot base a felony indictment under the National Stolen Property Act based on the alleged violation of state environmental laws of harvesting undersized clams. The illegally harvested clams were being shipped in interstate commerce. The Government could not establish a larcenous taking. The U.S. claimed that the violation of the New York environmental laws in harvesting constituted the necessary larcenous taking, i.e., the clams are stolen. This theory was rejected because there really is no ownership in the state.

Kuiper

v.

Win.den, Colorado, 580 P.2d 1238.

Defendants, members of an irrigation company who accept pro rata share of the sale of ~ompany water rights,are estopped to continue to irrigate lands

historically irrigated with water shares previously owned by said company by the use of well water. In this case the wells took water tributary to the source of the water supplying the sold water rights. The defendants were attacking a water court decree which confirmed the water rights sale.

In Re Water Rights of Cibolo Creek Watershed, Texas Civil Appeals, 568 S.W.2d 155. An owner of land, title of which came from a Mexican or Spanish land grant, cannot claim riparian irrigation rights by virtue of the grant alone. The

fact that he had used water from the creek for ir~igation does not vest an equitable right to water for irrigation.

Cincinnati Gas

&

EZectria Co. v. EPA, 7th Circuit, 11 ERC 2009.

Where EPA had three independent studies which undermined the validity of a computer model, the continued use of this model constituted arbitrary and

capricious action, particularly where EPA offered no explanation for the

continued use of the questionable model.

ft1a,nufacturing Chemists Association v. CostZe, U.S. Dist. Ct., Louisiana, 11 ERC 2014.

EPA's Section 311 regulations covering hazardous substances are arbitrary and

capricious, and will be enjoined because:

(a) the one pound measurement does not consider "times, locations, cir-cumstances, and conditions" required by the statute,

(b) the classification of "removable" substances erroneously ignored mitigation techniques, and

(c) the dual liability effects under Sections 311 and 402 are irrational.

Niagara of Wisconsin Paper Corp. v. Wisconsin, Wisconsin Supreme Court, 11 ERC 2024.

Wisconsin law provides that State effluent limitations must not exceed those set by the Federal law. Where EPA set limitations less stringent than the State's, a State permit must be amended to reflect the Federal requirements

even though the permit was issued prior to EPA issuing the Federal require-ments.

United States v. Alleyne, U. S. Dist. Ct., New York, 11 ERC 2032.

A defendant in a case seeking to enforce the provisions of Section lQ of the River and Harbors Act would be allowed an evidentiary hearing on the defense of illegal selective enforcement, The defendant had claimed that the enforcement action was taken against him on the basis of race.

Republic Steel v. Costle, C.A., 6th Circuit, 11 ERC 2041

Under the amendment to the Federal Water Pollution Control Act, only the

Administrator of EPA can extend· the deadline for achieving best practical

control technology and therefore properly EPA could object to the State granted NPDES permit which extended compliance deadline.

South Carolina Wildlife Federation v. Alexander, U.S. Dist. Ct., S.

c.,

11 ERC 2045. The allegation in a complaint that claims impounded water at a hydroelectric

dam is oxygen deficient and contains high metal concentrations when released,

constitutes allegations of pollutant additions to navigable waters from a

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po'.i:n t --s-&1:tree uncle-r Secct: i--en-..,-'-o3-0l,.-ef=Ru-hl-iQ--Law 9-2-590-,- as ame-nded ~-n~hm,1.gh, ~ __

EPA has not determined that dams are point sources. Environmental groups may use citizen suit provisions to subject such dams to a Section 402 permit. Actually the court refused to dismiss the compliant on grounds that a cause

of action had not been stated.

Dow Chemical Company v. Costle, U. S. Dist. Ct., Michigan, 11 ERC 2064.

Section 304 Clean Air Act citizen suit provision allows court jurisdiction

over Clean Air Act mandatory duties of the Administrator and the approval of revisions to the State implementation plan involves discretionary action under Section 110(a)(2) of the Clean Air Act, the Court has no jurisdiction to compel the Administrator to approve the proposed revision.

Plaza Bank of West Port v. Board of Governors, C.A., 8th Circuit, 11 ERC 2068.

The Board of Governors for the Federal Reserve System is not required to

prepare an EIS for an approval of a stock transfer for a State-chartered

bank because the Board properly found the transfer created no environ-mental impact.