AQUALANTE NEWSLETTER, May 1979

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HOUSE

UPPER COLORADO BIVEB COIIIIISSION

Salt LaJu City, Utah 84 I I I

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U A L A N T E N E W S L E T T E R

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(All Congressional Record references are to Vol. 125, Daily Edition, of the 96th Congress, let Session, and will be cited as "p. , CR, date.")

BILLS INTRODUCED .IN 9&th CONGRESS

H.R. 4127 (UDALL)

A bill to provide for financing, cost and revenue sharing of Federal water resource development projects; jointly, to the Committees on Agriculture, Interior and Insular Affairs, and Public Works and Transportation. (See p. H3411, CR, May 16, 1979.)

H.R. 4135 (JOHNSON, et al.)

A bill to provide for financing, cost and revenue sharing of Federal water resource development projects; jointly, to the Committees on Agriculture, Interiot and Insular Affairs, and Public Works and Transportation. (See p. H3448, CR, May 17, 1979.) .

H.R. 4148 (McKAY, et al.)

A bill to amend and supplement the acreage limitation and r~sidency provisions of the Federal reclamation laws, as amended, and supplemented, and for other purposes; to the Committee on Interior and Insular Affairs. (Seep. H3547, CR, May 21~ 1970, )

H.R. 4170 (BURGENER)

A bill to provide for the settlement of certain questions concerning the ownership of certain land within, or adjoining, the present and former beds of the Colorado River, and for other purposes; to th~ Committee on Interior and Insular Affairs, (See p, H3600, CR.-! _.May 22, 19:79,)

H, R, 4196 (ANDRE\.JS of North D*ota)

A bill to amend the National Environmental Policy Act of 1969 to provide for a statute of limitations with respect to judicial review of environ-mental impact statements to the Committee on Merchant Marine and.Fisheries.

(Seep. H3674, CR, May 30, 1979), H.R. 4243 (BINGHAM)

SENATE

S. 1181 (DeCONCINI, et al.)

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 Select Committee on Indian Affairs. (For the remarks of Senator DeConcini when introducing this Bill, see pp. S6259-S6261, CR, May 21, 1978.)

S. 1241 (DOMENIC!, et al.)

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

the Connnittee on Environment and Public Works. (See pp, S6617-S6624, CR, May 24, 1979, for the remarks of Senator Domenici when introducing the bill.) S. 1313 (MOYNIHAN)

A bill to amend the Federal Water Pollution Control Act, as amended; to the Gomrnittee on Environment- an Pub"'. W-orks. (See p. --ST4'1il, CR, June 1979 for Senator Moynihan's remarks when introducing this bill.)

COMMITTEE REPORTS SENATE

S. Rpt. 96-181

The Committee on Energy and Natural Resources reported ·S, 496, authorizing an aditional $333,382,000 to control the salinity of water in the Colorado River basin area, with amendments. (Seep. 86088, CR, May 16, 1979.) S. Rpt. 96-204

HOUSE

The Committee on Energy and Natural Resources reported S. 948, a bill to amend the Public Utility Regulatory Policies Act of 1978 (92 Stat. 3117) to revise the limitation on size of small hydroelectric power projects, with an amendment. (Seep. 87301, CR, June 11, 1979.)

H. Rpt, 96-177

The Committee on Interior and Insular Affairs reported H.R. 2609, a bill to increase the a ro riations ceilin for title I f

Basin Salinity Control Act (act of June 24, 1974; 88 Stat. 266), and for other purposes; with amendment. (Seep. H3283, CR, May 15, 1979.)

H. Rept. 96-243

The Committee on Appropriations reported H.R. 4388, making appropriations for energy and water development for the fiscal year ending September 30, 1980. (Seep. H4258, CR, June 7, 1979.)

SENATE ACTION Colorado River Salinity:

Senate passed with amendments, S. 496, authorizing an additional $333,382,000 to control the salinity of water in the Colorado River basin -area. (See pp. 86780-86781, CR, June 4, 1979.)

44 Fed. Reg. 28383, May 15, 1979

REA issued "Notice of Proposed Rulemaking" covering REA's compliance with NEPA. 44 Fed. Reg. 28524, May 15, 1979.

The Corps of Engineers issued "Final Rule" implementing Executive Order 11988 on Flood Plain Management.

44 Fed. Reg. 29300, Hay 18, 1979.

Department of the Interior, et al., has issued a Notice of Proposed Rulemaking covering the development of uniform procedures for federal agencies compliance with the Fish and Wildlife Coordination Act.

44 Fed. Reg. 29566, Nay 21, 1979

The Fish- and Wildlife Service .has issued a "Notice o£ Status Review" covering_

a review of Species and Plants listed prior to 1975 in compliance with

Endan-gered Species Act.

44 Fed. Reg. 30194, May 24, 1979

The Water Resources Council has proposed rules covering Procedures for

Evalua-tion of NaEvalua-tional Economic Development (NED) Benefits and Costs in Water Resources Planning Level (C) and Proposed Revisions to the Standards for Planning Water and Related Land Resources.

44 Fed. Reg. 32047, May 24, 1979

The Water Resources Council has proposed Revisions to the Principles and

Standards for Planning Water and Related Land Resources. 44 Fed. Reg. 31673, June 1, 1979

EPA has issued a Proposed Rule and Notice of Public Hearings covering "Proposed

Consolidated Permit Regulation; Re: Proposed Underground Injection Control Regulations."

44 Fed, Reg. 32006, June 4, 1979

EPA has proposed a Rule covering the Race to the Courthouse with respect to

judicial review under the Clean Water Act. The problem arises because of

Section 509(b) of the Act.

44 Fed. Reg. 35752, June 7, 1979.

The Bureau of Reclamation has issued Notice of Intent to negotiate a contract

with the Central Utah Water Conservancy District and the Ute Indian Tribe for

construction costs repayment for the Upalco Unit.

44 Fed. Reg. 32854, June 7, 1979.

EPA has issued Final Rules covering Revision of Regulations for the National

Pollutant Discharge Elimination System.

44 Fed. Reg. 34204, June 14, 1979.

Bureau of Land Nanagement issued notice of Intent to Prepare an EIS and conduct

a Scoping Meeting for Alden Warner Valley, Utah Power Project, July 26, 1979

44 Fed. Reg. 34207, June 14, 1979

The Bureau of Reclamation has issued notice of Intent to Prepare an EIS for Meeker Dome Unit, Colorado River Water Quality Improvement Program. 44 Fed. Reg. 34243, June 14, 1979

EPA has issued Proposed Consolidated Permit Program under a number of statutory authorities. See Part II.

44 Fed. Reg. 34345, June 14, 1979.

For Draft of Consolidated Permit Forms and Proposed NPDES Regulations covering toxic substances see Part III.

LAW REVIEWS

Trelease, "The Changing Water Market for Energy Production," 5 JoUPnal of Contempor>ary Law 83. Trelease presents a study in the inadequacy of the "market place" as the means of transferring water rights from farm use to "higher" types of-,.,-u-s e.

Knuth, "Bases for the Legal Establishment of a Public Right of Recreation in Utah's 'Non-Navigable' Waters," 5 Journal, of Contemporary Law 95. The author re -views ways and means by which Utah Courts can define the public's right to use for recreational purposes "non navigable" waters.

SUPREME COURT

Hughes v. Oklahoma, U.S. Supreme Court, 12 ERC 2106.

Oklahoma statute barring shipment out of state for sale of natural minnows taken from state water failed to pass muster. The Court ruled, that Oklahoma could not place full burden of protecting its minnow population on intetstate commerce. Oklahoma environmental argument did not impress the Court. Note the Court over-ruled Geer v. Connecticut, 161 U.S. 519 (1896).

COURT CASES

Honey Boy Haven Inc. v. Roybal, New Mexico, 592 P.2d 959.

An appropriator is required to secure the approval of the State Engineer of a change in a point of diversion where the appropriator had secured a decreed --~~~w-a~t-er rig t.

Foreman, et al. v. Indiana Department of Natural Resources, Ct. of App. 387 N.E.2d 455.

Under Indiana Flood Control Act, the State may in the public interest prevent a property owner from making deposits in the floodway of a river . Such action is in the nature of the control of the use of the land and does not constitute the taking of a flood easement.

Drainage District v. Village of Green Valley, Ill. App., 387 N.E.2d 422.

A village cannot by a pipeline drain its sewage system into a Drainage District 's ditch without just compensation, Here the village was not within the natural drainage of the particular ditch and thus was actually using property of another to solve its drainage problems. The Court found this to be available only by paying for such use.

The Court refused to dismiss a suit which attacked the Secretary of the Interior's transferring of walrus hunting control to Alaska. The suit claimed that Alaska's regulations controlling walrus hunting was preempted by the Marine Mammal Protection Act provision allowing native subsistence hunting. The Court found enough validity in this argument to base its refusal to dismiss the complaint.

People of South Naknek

v,

A municipal state organization cannot tax the land and affix improvements of native allotments or restricted lots in native townsites inasmuch as the Federal government has preempted this taxing authority. The personal property of the natives living on the restricted real property does not enjoy the tax immunity.

City of Frisco v. Texas Water Rights Commisa~on, 519 S.W.2d 66~

The Texas Water Commission was correct in finding that the Dallas ''over-draft" concept was a wise use of a l'llultiple reservoir system, Dallas proposed to over use one reservoir during non-drought years because of lower delivery costs, and during drought years the "expensive delivery costs" reservoirs would be used,

Virginia Surface Mining and Reclamation Aaaociation, Ina. v. Andrus, U.S. Dist.

Ct., Virginia, 9 ELR 20235.

A temporary injunction was issued against enforcement of certain sections of the Surface Mining Control and Reclamation Act of 1977 pending a ruling on the merits to Plaintiff's challenge of the constitutionality of the Act. The Court found that the Act would foreclose mining of 95% of the coal reserves in Virginia, The hardships imposed on Plaintiff by the Act was not conterbalanced by public interest or hardship on the Defendant; there-fore, the temporary injunction was proper.

Knake v. National Supply Division of Armao Steel Corp., C.A. 5, 9 ELR 2057.

A plaintiff is entitled to damages for loss of profit, for aecline in market

value of property and for loss of productivity where the jury found that defendant's discharges into a creek running through plaintiff's farm ruined the plaintiff's dairy business. Also, the jury found adequate grounds for awarding exemplary damages. the Circuit Court approved the jury finding,

Agins v. City of Ti.buron, 591 P.2d 514 (Cal.), 9 ELR 20260.

A plaintiff who claims a taking of his property through a zoning ordinance cannot secure relief by an action for inverse condemnation. He must challenge such ordinance as being invalid. Here the review by the lower court of the ordinance found actually that the restrictions placed on the property did not amount to a taking. This plaintiff did not seek to invalidate the

ordinance, he only wanted to be paid for what he claimed was a loss of value

which resulted from the restrictions on the property use. The Court refused to consider this exercise of judicial power suggesting that it gave the courts too much control over the financial affairs of the municipal zoning authorities.

Metromedia Incorporated v. City of San Diego, Calif. Sup. Ct., 12 ERG 2089. A municipal ordinance barring off-site billboards and which also requires removal of existing billboards, after an amortization period, grounded on traffic hazards elimination and city aesthetics improvement is a

con-stitutional exercise of police power. The Court reviewed various

con-stitutional attacks against this ordinance to and including First Amend-ment claims.

City of BZue Ash, Ohio v. McLucas, C.A. 6, 12 ERC 2115.

The city sought to force FAA to amend its regulations with respect to a certain airport to prohibit the landing of jet planes at such airport, The city claimed that the jet band agreement had been made part of the EIS covering work performed on the runways of the airport and thus FAA had to honor this part of NEPA in its regulations covering use or the

airport. The Court rejected the city's claim, saying that

FAA

a party to the jet band agreement. NE£.A __ gave no cause_.o_f action to enfo-r.ce

the third party connnitment incorporated in the statement, The city had a

state cause of action to enforce the jet band agreement,

HeaZth Research Group v. Kennedy, U.S. Dist. Ct., D/C, 9 ELR 20183.

To be a representative plaintiff,_ there must exist a special relationship

between the plaintiff organization and the member which it seeks to

repre-sent. The members must have some control. In this case, a Nador special

organization was denied standing because it had no direct relationship with those it sought to represent.

(Note: this case has caused some real concern within the "Environmental

community.) See article 9 ELR 1073, April 1979.) Standing may not be a

dead issue.

Purgatory River Water Conservancy v. Kuiper, 503 P.2d 333.

In a dispute over right to store water in a reservoir, the Court enjoined

the state engineer's operation plan on the grounds that the proposed winter

storage blocked return flow so as to deprive the complaining ditch company

of water. The Supreme Court of Colorado reversed, pointing out that the

state engineer, not the Court, must determine whether the plan of operation

safely protected the downstream users. The lower court's injunction

prematurely prevented the state engineer's determination.

Seaco _s JJJ;hPal lut.J'.on [,eague v Cost[...(l.,---1.,;.,,.A.,~!c...--Jc~-t'rl~-±-Y-Y'-:h- - - . . - . e ' .

In a Section 316 hearing (Thermal Discharge, Clean Water Act) EPA staff

on instructions took a neutral position. The plaintiff challenged this

action in its suit attacking the granting of a permit for once-through

cooling of the Seabrook Nuclear Plant. The Court ruled that there is no

requirement that EPA take an adversary role in order to meet a Congres-sional mandate to protect the environment.

Sha,1?on SteeZ Corp. v. EPA, C.A. 2, 13 ERC 1005.

Under the 1977 amendments to the Clean Air Act requiring the Administrator of EPA to designate state status of air quality for certain areas of the

country, the Administrator issued his final rule without issuing a prior

notice or allowing for a connnent period. The Court. ruled that EPA failed to show good cause for his dispensing of the notice and connnent period.

The allowing of a comment period following the promulgation of the rule

Minnehaha Creek Watershed District v. Hoffman, C.A. 8, 13 ERC 1009.

The Rivers and Harbors Act of 1899 does not give the Corps regulatory authority over an interstate lake or creek which does not become a part of an interstate waterway connection. The construction of a dam and riprapplaced in such lake and creek constitutes discharges of dredge and fill material within Section 404, Clean Water Act, and thus subjects the Corps' jurisdiction under last cited section. Note the parties conceded that the waters in question are "navigable waters" as defined by the Clean Water Act.

U.S. v. Homestake Mining Co., C.A. 8, 13 ERC 1018.

The Clean Water Act amendments providing for time extension (Sec. 309 (a)(S)(B)) for permit holder who fails to meet the July 1, 1977 deadline

apply only

limitations

baaed on best practicable

control

technology. Such time extension does not apply to permits leased on ~state water qual~ty standards,

McCoy Elkhorn Coal Corp. v. EPA, U.S. Dist. Ct., Kentucky, 13 ERC 1025.

Section 125, Clean Air Act, which, under the statutory conditions, .requires

utilities to use local coal or coal derivatives to comply with State i m-plementation plans in order to "prevent or minimize significant local or

regional economic disruption or unemployment" passes constitutional muster

under the Commerce Clause and the Fifth Amendment,

Salsbury Laboratories v. Iowa (Iowa), 13 ERC 1037,

In order to avoid the requirement for exhaustion of administrative remedies,

a plaintiff, in directly attacking a ruling by an administrative agency on constitutional grounds prior to following the administrative procedure

act of Iowa, must demonstrate irreparable injury. The Court in the case found that plaintiff had not demonstrated that such injury would result

in following the administrative review process,

Illinois V. City of Milwa.ukee, C.A. 7, 13 ERC 1049.

Clean Water Act does not preempt federal common law and does not limit the available relief that can be given by the Federal District Court, The

dis-charge of raw sewage into Lake Michigan to the ultimate harm of an adjoin-ing state amounts to a public nuisance under federal connnon law, The

discharge of raw sewage was properly enjoined. The setting of effluent limitations more stringent than required by EPA in !ts permit to the

defendants was ui1supported in. the record and, therefore, will be reversed.

California v. Depai,tment of Navy, U.S. Dist. Ct •• California, 13 ERC 1082.

Section 233, Clean Air Act, which preempts state regulations governing

aircraft emissions does not preempt state regulation of stationary test facilities wherein repaired Navy jet engines are tested; therefore, an

injunction will be issued requiring the Navy to comply with the States'

air standards,

Homeowners Association v. Castle, U.S. Dist. Ct., Kentucky, 13 ERC 1088, Where the only injury in fact which plaintiffs will suffer is that of

having their property taken by condemnation, such plaintiffs lack standing

NEPA. The Court then reviewed EPA's decision to issue an EIS for part of the project and a negative declaration for the balance. This procedure was approved because EPA had taken the necessary "hard look" in making the threshhold decision.

Tenneco OiZ Company v. EPA, C.A. 5, 13 ERC 1092.

ln a case wherein the venue provision of Section 509(b){l)(F) of the Clean Water Act was at issue, the Court ruled that the plaintiffs could challenge a NPDES permit covering off-shore drilling in the Fifth Circuit since the

plaintiffs established that each "transact such business" with reference to platforms in the said circuit. The venue provision authorizes review by any interested party in the Court of Appeals for the Federal judicial district in which such person resides or transacts such business upon application by

such person. Plaintiffs did not reside in the Fifth Circuit area, but there

was some business onnection with-reference to the off-shore drilling which

was transacted within the area which triggered the second part of the venue statute,