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79-2(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 SENATE
S. 14
(CHURCH)A bill to amend and supplement the acreage limitation and residency provisions of the Federal reclamation laws, as amended and supplemented, and for other purposes; to the Committee on Energy and Natural Resources.
S. 141 (YOUNG)
A bill to authorize the Secretary of the Interior to engage in a feasibility investigation of a potential water resource development; to the Committee on Environment and Public Works.
S, 242 (BAKER)
A bill to amend the Endangered Species Act (18 USC 1530 et seq.) by elimin-ating the Endangered Species Committee; to the Committee on Environment and Public Works, (Seep. S767, CR, January 29, 1979, for Senator Baker's remarks when introducing this bill.)
S. 243 (BAKER)
A bill to exempt the Tellico Dam Project of the Tennessee Valley Authority
from the provisions of section 7 of the Endangered Species Act; to the Committee on Environment and Public Works.HOUSE
R.R. 160 (STUMP)
A bill to remove residency requirements and acreage limitations applicable to land subject to reclamation law; to the Committee on Interior and
H.R. 176 (CHAPPELL)
A bill to amend the Clean Air Act and the Federal.Water Pollution Control Act to provide that compliance orders shall include cost-benefit analyses; to the Committees on Interstate and Foreign Conunerce, and Public Works and Transportation.
H.R. 178 (CHAPPELL)
A bill to authorize the Secretary of the Interior to classify and inventory wetland resources, to measure wetlands contribution of natural wetlands, and for other purposes; to the Committee on Merchant Marine and Fisheries. H.R. 430 (HANSEN)
A bill to require the Environmental Protection Agency and all other Federal regulatory agencies to evaluate, prior to the issuance of a regulation, the potential economic effect and environmental impact of such regulations; to the Committee on Government Operations.
H.R. 431 (HANSEN)
A bill to provide that the Secretary of the Interior and the Attorney General shall not withhold water deliveries from any beneficiary of a Federal recla-mation project for the purpose of achieving conformity with the reclamation rules and regulations proposed by the Bureau of Reclamation, Department of the Interior, until January 1, 1980; to the Committee on Interior and Insular Affairs.
H.R. 432 (HANSEN)
A bill to amend and supplement the acreage limitation and residency provisions of the Federal reclamation laws, as amended and supplemented, and for other purposes; to the Committee on Interior and Insular Affairs.
R.R. 440 (HANSEN)
A bill to amend the Federal Water Pollution Control Act, as amended, to define the term "navigable waters" as it applies to Corps of Engineers responsibility and authority to regulate the discharge of dredged or fill material; to the Committee on Public Works and Transportation.
H.R. 1146 (UDALL)
A bill to amend an act entitled "An act for the continuance of construction work on the San Carlos Federal Irrigation project iv t\ri:zona, ~nd fo~ "thQr
purposes," approved June 7, 1924 (43 Stat. 475), to permit the San Carlos Indians to store water at the dam authorized to be constructed by such act; to the Committee on Interior and Insular Affairs.
R.R. 1776 (LEVITAS, et al.)
A bill amending title 5 of the United States Code to improve agency rule-making by expanding the opportunities for public participation, by creating procedures for congressional review of agency rules, and "!:>y expanding judicial review, and for other purposes; jointly, to the Committees on the Judiciary and Rules.
R.R. 1845 (EDWARDS of Alabama)
A bill to amend section 3ll(b)(6) of the Federal Water Pollution ContrJl Act relating to civil penalties; to the Committee on Public Works and Transportation.
FEDERAL REGISTER 44 Fed. Reg. 1955, January 9, 1979.
Executive Order 12113, January 4, 1979. The President established an Independent Water Project Review by the Water Resources Council prior to submission to the Office of Management and Budget and the Congress. 44 Fed. Reg. 2586, January 12, 1979.
EPA has issued the Final Rule for Standards of Performance for New Sources for the Coal Mining Point Source Category.
LAW REVIEW
Abrams, "Reserved Water Rights, Indian Rights and the Narrowing Scope of Federal Jurisdiction: The Colorado River Decision," 30 Stanford Law ev__ie_,,._~ ... -An article whose major thesis is that Aiken v.
u. s.,
424 U.S. 800 (1976),raped the Indians by allowing Indian Water Rights to be adjudicated in State courts.
Note: "Judicial Control of Systemic Inadequacies in Federal Administrative Enforcement," 88 Yale Law Journal 407. This Note explains the practicability of Federal courts taking steps to force Federal administrative agencies to carry out their congressional mandates by enforcing these mandates.
Comment: "Pre-emption Doctrine in the Environmental Context: A Unified Method of Analysis," 127 University of Pennsylvania Law Review 197.
COURT CASES
Brantley v. Carlsbad Irrigation District, New Mexico, 587 P.2d 427.
A water right owner cannot supplement his water right to cover the diminution thereof due to carriage loss by drilling a well below his point of diversion. To supplement his water right the owner must establish that he proposes to tap the underground which is the source of the water in which he has a right. He could not establish this fact because he was taping water under his land which was 25 miles below the point of diversion of the water which supplied his right.
Atchison, Topeka and Santa Fe v. Callaway, U.S. Dist. Ct., D.C., 12 ERC 1513. The Court refused to grant a summary judgment to the Plaintiffs who sought to compel the Corps to develop a comprehensive EIS prior to submitting legislation for a lock and dam project on the Mississippi River. The re-fusal was based on the determination that there existed disputed factual issues with respect to the requirement for a comprehensive EIS. The Court also refused to review the Corps' decision to submit the proposed legisla-tion to Congress.
National Association of Recycling Industries v. Interstate Commerce Commission,
C.A., D.C., 12 ERC 1517.
The Court reversed ICC action under Sec. 204, Railroad Revitalization and Regulatory Reform Act. Section 204 required review of the freight rates
on recyclable materials and adjustment of the rates if found to be unjustly
discriminatory. Since ICC followed its long-established rate tnvestigation
practice, little was accomplished by its review. The Court found this would
not do for the Statute mandated a different approach.
Rysavy v. Harris, U.S. Dist. Ct., South Dakota, 12 ERC 1534.
An EIS is not required prior to the execution of a reorganization plan for
HUD wherein there was to be a transfer of certain departmental functions
and personnel.
Woonsocket Historical Society v. Woonsocket, S. Ct., Rhode Island, 12 ERC 1545. The State Court properly dismissed a complaint charging State officials with violating the National Historic Preservation Act inasmuch as this statute applies only to Federal agency action.
Shell Oil v. Train, C.A. 9th 12 ERC
1547.
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--'TheF'e°deral District Court does not have jurisdiction to review a State issued
NPDES permit and to review a State agency's refusal to grant a variance from
an effluent limitation. It was Shell's claim that EPA so influenced the
State decision that it actually was Federal action.
Roaring Springs Associates v. Andrus,
U.S.
Dist. Ct., Oregon, 12 ERC 1557.Private landowners are entitled to a mandamus order requiring the Secretary
of the Interior to remove wild horses which stray from public land onto
unfenced private land. The Secretary has a non-discretionary duty under
the Wild Free-Roaming Horses and Burros Act to get the animals off private
land. Now the Secretary must take care of his "Horses and Asses."
Public Service Company of New Hampshire v. NRC, C.A., 1st, 12 ERC 1561.
NRC may, as part of its licensing authority, require that transmission
lines from a Nuclear Power Plant follow a course to mi.nimize environmental
damages. NEPA requires that Federal agencies exercise their statutory
authority so as to avoid environmental damage as far as possible.
United States v. Tivian Laboratories, Inc., C.A., 1st, 12 ERC 1568.
Under Section 114 of the Clean Air Act and Section 308 of the Clean W~ter
Act, EPA can request certain pollution information from pollution sou-rces
and not run afoul the U.S. Constitution inasmuch as the enforcement of the
request is thrqugh t
Mobay Chemical Corp. v. Castle, U.S. Dist. Ct., Missouri, 12 ERC 1572.
The Federal Insecticide, Fungicide, and Rodenticide Act provides for
pay-ment by a second user for the reuse of data submitted by a registration
applicant when the data is submitted after January 1, 1970. An applicant
is not deprived of a property right where pre-cut-off date data ·is reused by
another. The Court concluded that the Act created a right with respect
to the post cut-off date data which did not exist as to pre-cut-off date
data. (Note: The Supreme Court discussed the appeal of this case in a
Per Curiam Opinion (12 ERC 1581) saying that the issue raised in this case
could not be considered by a three-judge court. Actually no constitutional
statutory issue could be involved for the statute does not deal with data
submitted prior to January 1, 1970.)
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Watergate II Apartments v. Buffalo sewer Authority, N.Y. Ct. of Appeals, 12 ERC 1582.
The plaintiff, as part of its redevelopment project, secured a tax exemption. The plaintiff attacked the sewer rent levied against the project where the basis of the charge was the assessed valuation of the property. The' Court
ruled that the statute which allowed for the charge to be fixed on "any other equitable basis," was authority for the levy and did not violate the tax · exemption previously granted.
La.ke Berryessa Tenants' Council v. United States, C.A., 9th, 12 ERC 1585.
The assumption of complete control of recreation on a Federal lake by the Bureau of Reclamation, and wherein it ordered the removal of private docks, etc. from the lake was not such major federal action requiring a NEPA EIS.
United States v. Marathon Pipe Line Company, C.A., 7th, 12 ERC 1588.
An
oil company can be charged a civil penalty in the Clean Water Act for an01
spf! rom its pipe line, even thorrgh the ~Tn'e was-~rokthird party who never notified the company of the break. Here the line was properly marked according to Federal law.
United States v. Tex-Tow, Inc., C.A., 7th, 12 ERC 1593.
A civil penalty can properly be levied against a barge owner for oil spill which was brought about through the fault of a third party. The Clean Water Act allows for such penalty. This allowance is proper inasmuch as
the penalty is for an economic and remedial purpose rather than a deterrent.
Illinois v. Castle, U.S. Dist. Ct., D. C., 12 ERC 1597.
The Court would set a deadline for EPA's compliance with Resource Conser-vation and Recovery Act, but with a caveat that the parties had better start looking for better devices for securing compliance with environmental laws.
United States v. City of New York, U.S. Dist. Ct., New York, 12 ERC 1600.
New York City cannot impose its regulation on a NRC licensee's atomic plant inasmuch as Federal laws and regulations have, except in specific instances, pre-empted this field. New York City's ordinance does not come within
the area which Congress has allowed to be controlled locally.
United States v. Kaiser Aet.na, C.A., 9th, 12 ERC 1620.
A privately owned marina became navigable waters of the United States
due to dredge and fill operations of the owners. Such became subject
to Section 10, Rivers and Harbor Act regulations and had to be made open to the public.
Coleville Confederated Tribes v. Walton, U.S. Dist. Ct., Washington, 460 F. Supp.
1320 (1978).
This is a lower Court ruling upon the following issues:
1. What water right does a non-Indian secure when he purchases
allotted Indian land?
2. What authority does an Indian Tribe have over Indian reserved
water rights?
3. What authority does State water administration have over
non-Indian application for water rights on land within the boundaries of the
The Court ruled:
1. So long as the allotted land was owned by the Indian allottee,
the allottee owned a share of the Indian reserved water right, Indian
reserved right was actually a tribal right.
2, When the allotted land passes to a non-Indian; such owner acquires
a right to use water to the extent that the land was irrigated at time of · acquisition. The priority date does not date from the creation of the
Indian reservation but rather stems from the time the water was first put
to use on the land. The quantity of water acquired by the non-Indian
purchaser of allotted land diminished the amount of water reserved for
the balance of Indian irrigated land.
3. States may control appropriations on non-Indian held land
with-in a reservation so long as there is no interference with tribal right of
self government.
Concf}.cne_ _ i ti7. -8!1-s.hki-...bl 4 : ' ~ i p ,.__, ~ e , fr;-A. ,=-3-"""1,=-+,;r-'!ffii~
A citizen group filed suit against the Administrator of EPA seeking to stop
a sewer grant until an EIS was filed. EPA agreed to prepare the EIS. The
local sewer authority intervened, seeking to force EPA to honor its grant
commitment. The Appellate Court affirmed the lower court's denial of relief to the intervenor. EPA could always review its proposed grant until the
actual money was dispensed, particularly is this true where there was no
environmental review made prior to the making of the grant.
Hopson v. Kreps, U.S. Dist. Ct., Alaska, 12 ERC 1633.
Regulations issued to carry out requirements and 1949 Whaling Convention
Act enforcing the International Whaling Convention cannot be challenged
in Court because they present issues of foreign policy which are committed
to the Executive Department. Courts simply do not have jurisdiction to
hear a challenge to these regulations. Native Alaskans cannot challenge in court the quota set on taking of the named whales.
PPG Industries, Inc. v. Harrison, C.A., 5th, 12 ERC 1641.
The Court of Appeals does not have jurisdiction under Section 307(b)(l),
Clean Air Act, to hear a challenge to EPA1s ruling that new source per-·
formance standards should apply to Plaintiff's powerplant. The court
ruled that the Federal District Court should hear this action inasmuch
as such court had mechanisms to develop an administration record of the
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--==---South Dakota v. Adams, C.A., 8th, 12 ERC 1648.
The Secretary of Transportation can withhold ten percent of a State's
share of Federal Highway funds pending his investigation of the State1s violation of the statute requiring a State to have an effective regulatory program covering outdoor advertising adjacent to Federally financed highways. Illinois v. Nuclear Regulatory Commission, C.A., 7th, 12 ERC 1652.
NRC is not required to grant a hearing on a State petition seeking an
enforcement action by NRC against a plant licensed by NRC. The
adminis-trative practice set up by NRC cannot be altered by the Courts so as ~o require a hearing. See Vermont Yankee, U.S.L.W. 4301.
