AQUALANTE NEWSLETTER, October 1979

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SENATE

UPPER COLORADO RIVER COMMISSION

Salt La~e City, Utah 84111

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(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

S. 1969 (DOLE, et al.)

A bill to amend the Administrative Procedure Act to require Federal agencies to analyze the benefits, costs, and other adverse effects of proposed rules, to provide for judicial review of any such analysis, to increase public partici

-pation in agency policy determinations and interpretations, and for other pur

-poses; to the Conrrnittee on the Judiciary. (Seep. 815766, CR, November 2,

1979.)

S. 1942 (McGOVERN)

A bill to provide for a Resource Conservation and Development Program in the

Department of Agriculture, and for other purposes; to the Committee on Agri-culture, Nutrition, and Forestry. (See pp. Sl5180-Sl5183, CR, October 25,

1979, for the remarks of Senator McGovern when introducing this bill.)

HOUSE

H.R. 5594 (AMBRO)

A bill to authorize the National Water Resources Policy and Development Act of 1979, to direct the Water Resources Council to act as the coordinating body for a program of water resources assistance to the States; jointly, to the

Connnittees on Agriculture, Interior and Insular Affairs, and Public Works and Transportation. (Seep. H9255, CR, October 16, 1979.)

H.R. 5623 (PASHAYAN, for himself and Hr. Coelho)

A bill to assure that weather modification activities and the collection of

hydrometeorological information necessary to the management of water resources can be conducted in conjunction with the management and administration of

wilderness and other Federal lands; to the Committee on Interior and Insular

R.R. 5684 (UDALL, by request)

A bill limiting use of project water for production of excess crops; to the Committee on Interior and Insular Affairs. (Seep. R9587, CR, October 23, 1979.)

R.R. 5712 (STUMP, et al.)

A bill to prohibit the U-.-S. Park Service -fr-em limiting the number -of -commere-ia± -motorized water craft trips on the Colorado River through the Grand Canyon; to the C9mmittee on Interior and Insular Affairs. (Seep. R9758, CR, October 25, 1979.)

COMMITTEE ACTION H. Rept. 96-524

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-Committee on Interior and Insular Affairs reported H.R. 4320, a Bill to con-sent to the amended Bear River Compact between \the States of Utah, Idaho, and Wyoming. (See p. H9410, CR, October 18, 1979.)

SENATE ACTION Interior Appropriations:

Senate continued consideration of R.R. 4930, appropriating funds for fiscal

year 1980 for the Department of the Interior and related agencies, taking

action on amendments proposed thereto as follows:.

Adopted:

(1) Tsongas unprinted amendment No. 644 (to Robert C. Byrd unprinted amendment No. 642), of a perfecting nature, to establish a special fund to

be designated as "Solar and Conservation Reserve.11

Rejected:

(1) By 43 yeas to 47 nays, modified Javits unprinted amendment No. 645 (printed amendment 521) (to Robert C. Byrd unprinted amendment No. 642), to

provide emergency fuel assistance funds to be transferred to the Director of the Community Services Administration.

Vote on a motion to table a motion to reconsider. t-.his amendment will occur at 12:30 p.m.

- - - - ~Fenai" g aY-the re-cesswas Rooert C. unprinted amendment No. t>fi:2 (printed amendment No. 520) to add funds alternative fuels production.

Prior to this action this, as a committee amendment, was withdrawn from the

bill. A point of order relative to contingency was not sustained, and by 56

yeas to 34 nays the Senate held the amendment germane.

During consideration of this measure today, by 52 yeas to 22 nays Senate adjourned for thirty minutes, thus changing the legislative day. (See

pp. Sl4551-Sl4583, CR, October 15, 197~.)

Senate continued consideration of R.R. 4930, appropriating funds for fiscal

year 1980 for the Department of the Interior and related agencies, taking action on additional amendments proposed thereto as follows:

Adopted:

(1) Levin unprinted amendment No. 647 (to amendment No. 520), to clarify that the action on synthetic fuels not establish a pattern.

(2) DeConcini unprinted amendment No. 648, to allow the Department of the Interior to disburse certain funds appropriated for fiscal year 1979.

(3) Huddleston unprinted amendment No. 649, to increase from $20.3 million to $30.2 million funds for coal utilization under the Economic Regulatory

Adminis-tra tion.

(4) Modified Javits unprinted amendment No. 651, to provide energy fuel assistance funds.

~5~ Huddleston unprinted amendment No. 653, of a technical nature. (6) Kennedy unprinted amendment No. 656, appropriation $372,000 to the National Park Service for the acqui~ition of the property comprising the former home and office of Frederick Law Olmsted, in Brookline, Massachusetts.

(7) By 59 yeas to 38 nays Rooert C. Byrd amendment No. 520, appropriating $20 billion to initiate a synthetic fuels program.

Rejected:

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(1) By 48 yeas to 49 nays, Roth unprinted amendment No. 654, to reduce total budget authority provided for the administrative and regulatory costs of the Department of Energy in this bill by $103 million, excepting alternative fuels production.

(2) Melcher amendment No. 516, to restore $10,000,000 to the Bureau of Indian Affairs Operations of Incl.ian programs for eduction.

During consideration of this measure today, by 35 yeas to 62 nays, the

Senate held that the Magnuson unprinted amendment No. 655, to require the Energy Information Administration to share information with the Justice Department and Federal Trade Commission, was not germane and the Chair sustained the point of order that the amendment was legislation on an appropriation bill.

By unanimous consent an agreement was reached concerning further consider-ation of this measure on Thursday~ October 18. (See pp. Sl4623-Sl4651, Sl4654-Sl4666, CR, October 16, 1979.)

By 86 yeas to 9 nays Senate passed H.~. 4930, appropriating funds for fiscal year 1980 for the Department of the Interior and related agencies, after

agree-ing to the followagree-ing additional amendments proposed thereto:

(1) Stevens unprinted amendment No. 658, of a technical nature.

(2) Pressler amendment No. 519, ~o increase by approximately $15 million funds for tt~ Rural Fire Protcct4-0B and Control Fund. (~foti0n to t:abJ.':'

re-jected by 38 yeas to 55 nays.)

During consideration of this measure today, by 11 yeas to 85 nays a motion to reconsider Javits unprinted amendment No. 651, to provide energy fuel assist-ance funds was rejected.

Senate insisted on its amendments requested a conference with the House and appointed as conferees Senators Robert C. Byrd, Hollings, Bayh, Johnston, Huddelston, Leahy, DeConcini, Burdick, Durkin, Stevens, Young, Hatfield, Bellman, McClure, and Laxalt. (See pp. Sl4770-Sl4783, CR, October 18, 1979.)

HOUSE ACTION Endangered Species Authorization:

By a yea-and-nay vote of 320 yeas to 9 nays, Roll No. 586, the House agreed to H. Res. 417, providing for the consideration of H.R. 2218, to authorize

appropriations to carry out the Endangered Species Act of 1973 during fiscal years 1980, 1981, and 1982. (Pp. H9445-H9446, H9447-H9448, CR, October 19, 1979.)

House completed all general debate on R.R. 2218, to authorize appropriations to carry ou~ the Endangered Species Act of 1973 during fiscal years 1980, 1981,

and 1982; but came to no resolution thereon. Proceedings under the 5-minute

rule will begin at a later date. (See pp. H9482-H9486, CR, October 22, 1979.)

House passed H.R. 2218, to authorize appropriations to carry out the Endangered

Species Act of 1973 during.fiscal years 1980, 1981, and 1982.

Agreed to:

An amendment, as amended, that designates the Secretary of the Interior as both Scientific Authority and Management Authority for purposes of the

Conven-tion; changes the legal authority of Federal agencies to insure that their actions are "not likely" to jeopardize the continued existei.-tce of endangered

species or their habitats; and amends the permanent exemption provision of the

1978 law; and

An amendment that authorizes additional funds and strengthenes provisions

in the Act to enable the Department of Agriculture to carry out its duties under the Act relating to endangered species of plants.

Agreed to amend the title.

Subsequently, this passage was vacated and S. 1143, a similar

Senate-passed bill, was 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.

(See pp. H9647-H9657, CR, October 24, 1979.)

Interior Appropr~ations:

House disagreed to the Senate amendments to R.R. 4930, making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 1980; and agreed to a conference. Appointed as conferees: Representatives Yates, McKay, Long of Maryland, Duncan of Oregon, Murtha, Dicks, Ginn, Whitten, McDade, Regula, Burgener, and Conte, (Seep. H9480, CR,

October 22, 1979.)

EXECUTIVE ACTION

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199-Proposa1s to add Rivers and Trails to National Wild and Scenic Rivers and

National Trails Systems -- Message from the President of the United States.

Rivers proposed from Upper Basin States: Gunnison River, Colorado

Encampment River, Colorado Dolores River, Colorado

FEDERAL REGISTER

44 Fed. Reg. 58868, October 11, 1979

The Fish and Wildlife Service announced final rule listing Uinta Basin hookless

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44 Fed. Reg. 62116, October 29, 1979.

The Water Resources Council by notice in the Federal Register changed the "interest rate to be used by Federal Agencies in the formulation and evalu-ation of plans for water and related land resources" for the period October 1, 1979 to September 30, 1980. The new rate is 7 1/8%.

44 Fed. Reg. 62810, October 31, 1979.

EPA~as proposed regulations covering Timber Products Processing Point Source Category Effluent Limitations Guidelines Pretreatment Standards and New Source Performance Standards.

44 Fed. Reg. 64080, November 6, 1979.

EPA has announced Interim Final Regulations for Fertilizer Manufacturing Point Source Category under Clean Water Act. Purpose is to amend and clarify

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ing effluent limitations and guidelines for ammonia producing plants. 44 Fed. Reg. 64097, November 6, 1979.

Department of the Interior has given the "Proposed Uniform Procedures for Coordination Act."

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notice of inten't to prepare an EIS on Compliance with Fish and Wildlife

LAW REVIEW Note:

"Jurisdiction to Review Informal EPA Influence upon State Decisionmaking Under the Federal Water Pollution Control Act," 92 Harvard La1.J RevieLJ 1814. The author explores the implications of Shell Oil Corrrpany v. Train, 585 F.2d 408 (CA 9). In this case the Ninth Circuit had denied Federal Court jurisdiction to review a State decision under the Clean Water Act not to grant a discharge permit. EPA had informally caused the rejection of the permit by the State. It appears that by using the Shell technique EPA can escape review of its actions in the States' Clean Water Act permit program. Comments:

"TSCA and Trade Secrets: Third Circuit Upholds EPA's Broad Authority to Obtain Health Studies under Section 8(d)," 9 ELR 10163. The author explores

the implications of Dow Chem{cal -Corrrpany v. EPA, F. 2d , 9 ELR 20640 (Third Circuit, August 24, 1979), wherein the Court approved the authority of EPA to demand studies covering health and safety of chemical substances over the objections of Dow. Such studies could be demanded for chemical substances even at the risk of revealing trade secrets.

"Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages," 9 ELR 10168. These comments review

City of Evansville v. Kentucky Liquid Recycling, Inc., F.2d

9 ELR 20679, 13 ERC 1509, wherein the Seventh Circuit allowed the City to sue a private pollutor resident of Kentucky for damages under the theory of Federal Common Law of Nuisance. This is an extension of the concept started in Texas v. Panky, 441 F.2d 236 (10th Circuit), and approved in

Illinois v. City of Milwaukee, 406 U.S. 91. The author is advocating the

use of Federal Conunon Law of Nuisance as a means of private parties secur-ing redress for damages caused by pollutors~

Watch v. Harris, C.A. 2, 9 ELR 20565.

Federal agencies which have a continuing control over an ongoing program must comply with Section 106, National Historic Preservation Act, and must consider the impact of their programs on not only listed properties but also those properties which are eligible for listing, as defined by the Act. Federal agencies are required to consult with that agency charged with en-forcement of the National Historic Preservation Act. In this case it was the continuing control which the Federal agency (HUD) had over the program

(urban renewal) which prevented the Federal agency from escaping responsi-bilities under the National Historic Preservation Act.

Corrmittee for Auto Responsibility v. Solomon, C.A. D/C, 9 ELR 20575.

GSA's leasing of the Great Plaza in Washington, D.C. as a parking lot was not major Federal action requiring an EIS

because--1. this leasing was a continuation pf a parking program which was long standing;

2. there was no change in the environmental impact resulting from this lease, because there was no change in use; and

3. GSA had taken a hard look at the problem, and its determination of no major action was not unreasonable.

League to Save Lake Tahoe, Inc. v. Trounday, C.A. 9, 9 ELR 20598.

Amended Sec. 304, Clean Air Act, authorized a citizen suit challenge to violations of State transportation control measures and air quality

main-tenance plans, and this being the case, Federal courts have jurisdiction to hear challenges claiming violations of any indirect review requirement set forth in a State SIP.

Stuckey's Stores, Inc. v. O'Cheskey, N. M. Sup. Ct., 13 ERC 1673.

New Mexico Highway Beautification Act does not offer the First Amendment right of freedom of speech. Such act also passes constitutional muster

with respect to the restrictions on taking property without just compensa-tion or the taking of property without due process. The Act thus is con-stitutionally sound. The Highway Department cannot accept the payment of a permit fee for some signs and afterward claim the right to destroy the signs without compensation. The Highway Department cannot direct the change

of location of some of the plaintiff's signs and later claim that the

re-loc~ted signs dn be removed without ee>mvensation. The S~ate will not be

permitted to mislead the plaintiff in this fashion.

Clover Leaf Creamery Co. v. Minnesota, Sup. Ct., Minn., 13 ERC 1682.

Minnesota law banning the use of plastic, nonrefillable cartons for milk was found to violate the equal protection clause of the 14th amendment.

The classification was found to be not rationally related to the State interest of encouraging use of refillable milk containers and reducing harm of the environment. Note: the dissent raised the issue of the right of the legislature to attack the problem in stepped action.

Can Manufacturers Institute, Inc. v. Minnesota, Sup. Ct., Minn., 13 ERC 1691. Minnesota "State Package Review Act" does not impermissibly burden inter-state commerce. The Act provided a system of review for all package con-tainers introduced into trade in Minnesota. The review process sought to determine the environmental impact of each new package container. If the

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impact was greater than the agency in charge determined was permissible, the package under review could be banned until the end of the next

legis-lative session. A detailed review process was part of the Statute. It

seems likely that attempts will be made to secure a review of the Commerce

Clause ruling before the Supreme Court of the United States.

Anderson

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The Court, in construing the State's surface mining reclamation act, refused to construe the 1971 amendment as requiring its reclamation requirements to be applied to mine reclamation completed under a former statute. The Court

-he1.d- -the act-constitutional, even though a -state inspector was authorized to_

close a mine operation on grounds of public safety and welfare. The Court found the legislature had provided legislative guidance for the inspector's action, and further that there was a statutory scheme of appeals to test the inspector's action. The Court also cautioned the Administrator of the Depart-ment of Natural Resources that unreason4ble delay in hearings on the cessation orders could be grounds for loss of jurisdiction and court action.

Union Electric Co. v. EPA, C.A. 8, 13 ERC 1705.

The Court refused to interfer with EPA's proposed enforcement action against the Electric Company even though the Company was seeking a variance before

the Missouri State Air Administrator, which would have eliminated the reason

for EPA's action. It was the Court's position that Congress intended that

drastic enforcement measures were required under the Clean Air Act. The

Court refused to accept the Company's argument that the proposed EPA's

enforce-ment actions could generate such fines and penalties that no executive could

afford to test the validity of EPA's action, saying that Union had not yet

faced this possibility because EPA had a number of options, some of which

would not result in drastic penalties.

Pesklakai v. Duncan, U.S. Dist. Ct., D.C., 13 ERC 1721.

Department of the Interior's approval of a pilot project using underground

water injection technique for uranium mining does not require an EIS because

a "hard look" was taken in the decision not to prepare an EIS for the project.

All possibilities were considered in the preliminary review of the plan

sub-mitted by the mining company. Note: Here the Court pointed out that the

plaintiffs really wanted the stopping of uranium mining. This decision is

not judicial but legislative.

EDF v. Higginson, C.A. D/C, 13 ERC 1731.

Municipal state organizations are not entitled to the right to intervene in

a suit to compel the Bureau of Reclamation to prepare a comprehensive EIS for the Colorado River System because parent states are already parties to

the suit and such petitioners are deemed to be represented by the States.

See the dissent which would allow intervention.

In Re: Determination of Rights to Waters of Long Valley Creek Stream System,

California Supreme Court, 599 P.2d 656, 158 Cal. Rep. 350.

In a water adjudication suit wherein there was a conflict between

appropri-ation and unexercised riparian rights, the California Supreme Court ruled: "(l) The Board is authorized to decide that an unexercised riparian

and that future riparian rights shall have lower priority than any use

authorized before riparian in fact attempts to exercise his rights, and

the Board may make determinations as to scope, nature and priority of

right that it deems reasonably necessary to the promotion of state's

intenest in fostering the most reasonable and beneficial use of such water

resources.

"(2) The Legislature did not intend to authorize complete extinction

-~any future,riparian-rights where it had not been shown that water

con-servation policies could not be promoted as effectively by placing less severe restrictions on such rights."

State of Wisconsin v. Dwyer, CL of App., 283 N.W.2d 448.

A person seeking to dredge a drainage channel on state land was required

to secure a permit even though the stream was non-navigable and there

':'-~;steJ a statute ~vhich permitted a landowner to remove obstructions j_n

a water course on another land without connnitting a trespass. Here the

farmer was seeking o make his land tillable. Under the natural

condi-tions, it was too wet to plow. The cause of the problem was the stream

obstructions on the state land.

Porter County Chapter of the Izaak Walton League v. NRG, C.A. D/C, 9 ELR 20626.

NRC did not violate the Atomic Energy Act, Sec. 186, when it refused to

grant an adjudicatory hearing on the petition to suspend and revoke a

construction permit for a nuclear power plant on grounds of new technical

problems. The Court pointed out that all claims ~hich the Petitioner sought

to raise would be available at the time the operating license permit would

be heard. All the risks would be on the plant owners, therefore, safety

of the plant was not a real issue at this time. The plant was not nearly

constructed at the time of the Petitioner's filing.

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