AQUALANTE NEWSLETTER, January 10, 1978

HOUSE

UPPER COLORADO RIVER COMMISSION

Salt Lake Civ,, Utah 84 J JI

A

Q U A L A N T E

N E W S L E

T T E R

January 10, 1978

(All Congressional Record references are to Vol. 123, Daily Edition of the 95th Congress, 1st Session, and will be cited as "p. , CR, date.")

BILLS INTRODUCED IN 95th CONGRESS

H.R. 10186 (LUJAN)

A bill to increase the amount of privately owned land eligible to receive irriga-tion water under the Federal reclamairriga-tion laws, and remove Federal subsidies from water delivered to excess lands, and for other purposes; to the Committee on

Interior and Insular Affairs. H.R. 10242 (MILLER, et al.)

A bill to require the Secretary of the Interior to establish a table of water rates to be charged irriiators who contract for water resources for agricultural purposes from the United States through the U.S. Bureau of Reclamation, and for other 2ur2oses; to the Committee on Interior and Insular Affairs.

H.R. 10255 (FORSYTHE, et al.)

A bill to assist the States in developing comprehensive fish and wildlife resource management plans and in implementing such plans with respect to nongame fish and wildlife; to the Committee on Merchant Marine and Fisheries.

COMMITTEE ACTION HOUSE

House Report 95-830

Conference report on H.R. 3199, to amend the Federal Water Pollution Control Act to provide for additional authorizatiuns. (Seep. Hl2749, CR, December 6, 1977.)

HOUSE ACTION Clean Water

By a yea-and-nay vote of 346 yeas to 2 nays, Roll No. 778, the House agreed to the conference report on H.R. 3199, to amend the Federal Water Pollution Control Act and to provide for additional authorizations--clearing the measure for the Senate.

Subsequently agreed to H. Con. Res. 444, directing the Clerk to correct the enrollment of H.R. 3199.

H. Res. 935, the rule waiving points of order against the consideration of the conference report, was agreed to earlier by a yea-and-nay vote of 326 yeas to 6 nays, Roll No. 777. (See pp. Hl2916-Hl2965, CR, December 15, 1977.) Sine Die Adjournment

Agreed to H. Con. Res. 442, providing for the sine die agjournment of__th~_first __ session of the Ninety-fifth Congr~ss. (See p. Hl2915, CR, December 15, 1977.)

SENATE ACTION Clean Water

Senate agreed to the conference report on H.R. 3199, proposed Clean Water Act, thus clearing the measure for the President. (See pp. Sl9636-Sl9686, CR, December 15, 1977.)

Sine die adjournment

Senate agreed to H. Con. Res. 442, the Congress on Thursday, December the Senate and Clerk of the House, President during such adjournment.

to provide for the sine die adjournment of 15, 1977, and to authorize the Secretary of respectively, to receive messages from the

(Seep. 819497, CR, December 15, 1977.) EXECUTIVE ACTION

P. L. 95-190

S. 1528, 11_{Safe Drinking Water Amendments of 1977." Signed November 16, 1977.} (Seep. 01645, CR, November 18, 1977.)

P.L. 95-217

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--=~---H.R. 3199, to amend the Federal Water Pollution Control Act, Signed December 27, 1977.

FEDERAL REGISTER 42 Fed. Reg. 61066, December 1, 1977

The Council on Environmental Quality has published a series of Informational Memoranda dealing with Administrative Interpretation. Titles are listed: "Interim Guidance to Federal Agencies on Referrals to the Council of Proposed Federal Actions Found to be Environmentally Unsatisfactory," August 11, 1977, (two memos with same title); "Memorandum to Heads of Agencies on Applying the EIS Requirement to Environmental Impacts Abroad,"September 24, 1976 (two memos with same title); "Memorandum to Heads of Agencies on 'Kleppe v. Sierra Club' and 'Flint Ridge v. Scenic Rivers Assn. of Oklahoma,' September 16, 1976; "Analysis of Impacts on Prime and Unique Farmland in Environmental Impact

Statements," August 30, 1976.

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42 Fed. Reg. 62368, December 12, 1977

EPA issued "Final Rulemaking" setting Effluent Guidelines and Standards for Corn Wet Milling Portion.

42 Fed. Reg. 63394, December 16, 1977

The Bureau of Indian Affairs has issued final rule effective December 16, 1977 covering surface mining reclamation on Indian Reservations.

42 Fed. Reg. 65209, December 30, 1977

EPA has issued "Notice of intent to develop rulemaking." Rule is to cover the amounts of pollutants in existing discharge as disclosed by permit application which will be incorporated in the permit as limitation unless otherwise modi-fied. No discharge of pollutants other than listed in the permit will be allowed except in amounts equal to those found in the intake waters. 43 Fed. Reg. 870, January 4, 1978

The Department of Commerce and the Department of the Interior have jointly announced procedural regulations under Section 7 of the Endangered Species Act covering relations of other Federal agencies under Section 7 of said Act.

LAW REVIEW

Stewart & Grow, "The Winters Doctrine as Federal Common Law," Vol. X Natural Resources Lawyer 457.

Choper, "The Scope of National Power Vis-a-Vis the States: the Dispensability of Judicial Review," 86 Yale Law Review 1552. Another article on the impact of Usery, 426 U.S. 833 (1976). wherein the author claims that the Supreme Court should not decide cases wherein States challenge National action on grounds that the

action violates States rights to existence. He claims that these issues should be left for political determination.

Law Note: Hutchinson, "Determining Priority of Federal Reserved Rights," 48 University of Colorado Law Review 547. An outline of the problems relating to the priority system as it applies to Federal Reserved Rights is discussed in this note.

COURT CASES

Chamber of Commerce v. Department of Interior, U.S. Dist. Ct., D.C., 10 ERC 1929. A private organization does not have standing to attack a failure of Interior to prepare an EIS on its submission of a proposal to Congress concerning pending legislation. Here the plaintiff failed to establish an injury in fact. Plaintiff's injury would result from Congressional action, not the failure to prepare the EIS. Note: Also the Court was concerned with judicial interference with the legislative process.

Ohio Environmental Council v. U.S. District Court, C.A. 6, 10 ERC 1934.

A District Court abused its discretion in granting a stay of an enforcement proceeding under the Clean Air Act pending the judicial review of amendments to the State Implementation Plan. Here the Court seemed to follow the rule that any review must be on the company's time--thus compliance cannot be delayed.

County of Suffolk v. Secretary of the Interior, U.S. Dist. Ct., E.D.N.Y., 10 ERC 1938. The granting of costs to the victorious side rests with the District Court;

and in this case such will not be taxed to the losing environmental plaintiffs. They acted in good faith and contributed important benefits to the public. Also they are "poor."

Steele Creek Conununity Association v. Department of Transportation, U.S. Dist. Ct., W.D.N.C., 10 ERC 1941,

Even though the Court was not sure that the proper decision had been made, it could and would not interfer with that decision so long as a proper EIS

was developed. In this case, the second EIS passed muster~ and the injunction

preventing development was dissolved.

National Association of Demolition Contractors v. Castle, C.A. D/C, 10 ERC 1944.

In a-pp-roving EPA' r .gulations for --asbestos emiss.i.ons- from...demo.1-i.tion- s.ites,--

-the Court ruled:

(a) EPA does not have to perform new tests at a test site if the

pro-posed test procedure is found to be inaccurate.

(b) EPA may use scientific reports not in the record and the record will

not be reopened where no contradictory reports are cited.

(c) EPA may for worker safety reasons provide a variation in its

pro-cedures during subfreezing temperatures.

U.S. v. Chrysler Corporation, U.S. Dist. Ct., D/C, 10 ERC 1948.

A defendant automobile manufacturer is liable under Section 203(a)(l) of the

Clean Air Act where it uses parts in its engine assembly which were not in-cluded in the application for certification even though there was no showing

that such engines did not meet the emission standards. In fact, the tests

for California indicated that the emission standards were met.

Myers v. Caple, Iowa, 258 N. W. 2d 301.

The Supreme Court reversed a District Court's action in granting an injunction forbidding the completion of a levee which protected some 70 acres of

defen-dant's land from flooding. In reversing the case, the Supreme Court ruled

that the plaintiff did not have to exhaust his administrative remedies by

appealing the plan approved by the Natural Resources Council. The mere

possibility of flooding of plaintiff's land is not sufficient to show the sub.stant4.al d-a-mages :;eq.uired to trigge;r-d :J1-e-= Cour._.t.! s grant_ing o_L in..iunct_i,y_

relief. The plaintiff is not left without remedy for if damage occurs in

the future, he may secure relief.

Vepco v. Castle, C.A. 4, 10 ERC 1961.

The Circuit Courts of Appeal have exclusive jurisdiction under Sec. 509(b), P.L. 92-500, to review 316(b) regulations re: cooling water intake structures.

Appalachian Power v. Train, C.A. 4, 10 ERC 1965.

EPA's Section 316 regulation covering cooling water intake structures are defective because EPA failed to properly comply with the Administrative

Pro-cedure Act in its publication. It failed to publish a vital development

document or properly incorporate the same by reference. The Section 316(b)

requirements apply to all sources which use cooling waters by taking the same from navigable waters not just steam electric plants.

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Rhode Island Committee on Energy v. GSA, C.A. 1, 10 ERC 2011, Plaintiff in lower court had claimed:

l, GSA had to prepare an EIS prior to sale of surplus property.

2. Under Federal Property and Administrative Service Act, GSA could not

make a private sale if another Federal agency wanted the property,

The lower court had ruled that an EIS was required; that Plaintiff had no standing to raise the issues under FPAS, and that GSA had discretion as to sales under FPAS and GSA would not be enjoined from making a private sale after NEPA compliance.

On appeal, the Circuit Court ruled:

1. Lower court was correct on the NEPA issue.

2. Plaintiff had no standing to raise FPAS issues, and the lower court

had no business construing FPAS on the discretion issue.

3. Plaintiff was not entitled to attorney fees under the bad faith

exception to the American rule because Federal government by statute is protected from paying attorney fees.

Melville v. Salt Lake County, Utah, 570 P.2d 687.

The plaintiffs sought to force the County to issue building permits for multiple unit dwellings and at issue was the question of whether the

plain-tiffs had a water supply for such units. Plaintiffs claimed that the spring

on the land would supply the water, but plaintiffs had not made an

appropri-ation for this water. The Court held:

1, A spring which supports no plant life on the land of the owner but

sank in a mine tailings not conferring any benefit on the land of location

was not owned by owner of the land on which the spring was located. It was

subject to appropriation, and thus was not a supply for the housing unit.

2. The plaintiff's contract rights for 50 gallons per day per housing

unit did not satisfy the health requirements of 400 gallons per day. U.S. v. Scott Paper Company, U.S. Dist. Ct., W.D.W., 10 ERC 2017,

The fact that the defendant has properly secured stay orders with respect to certain provisions of its permit issued from the State under an EPA-approved program which included an appeal procedure followed by the defendant does not preclude EPA from enforcing the original permit provisions during the

stay period in this separate action. The stay orders are not a part of the

permit. EPA did not approve the stay orders. Until EPA has had an opportunity

to review the modification proposed to the State Appeal Board, there has been

no effective changes made in the original permit. All risks must fall upon

the defendant. EPA can force compliance.

Natural Resources Defense Council v. Castle, C.A. D/C, 10 ERC 2025.

EPA cannot exempt entire classes of point sources under P.L. 92-500, such as

agriculture, silvicultural, and storm water runoff point sources. EPA may

have to devise new types of permits to meet the statutory requirements, such as general or area permits.

Pack v. Corps of Engineers, U.S. Dist. Ct., Florida, 10 ERC 2036.

Where there is little likelihood that plaintiffs, shrimp fishermen, will prevail

on the merit, there will be no preliminary injunction. The EIS under attack

covers a beach fill project on the Florida coast. The EIS fully discussed and

considered the damages to the shrimp population. In fact, the Corps, as a

result of discussions with plaintiffs, altered the project for protection of

Sierra Club v. Leslie Salt Company, U.S. Dist. Ct., Calif., 10 ERC 2042.

The Corps of Engineers' regulatory authority on the Pacific Coast extends to the mean higher high water line. The fact that the defendants diked areas were under the mean higher high water line in its natural state would give

the Corps jurisdiction to act with respect to any new activity in this area. As to dikes which have been in place for many decades, the defendant Salt Companywill not be required to secure a permit.

Sovereign Construction Company v. City of Philadelphia, U.S. Dist. Ct., Penn., 10 ERC 2048.

A disappointed low bidder has no cause of action under Pennsylvania law which denies an unsuccessful bidder a cause of action to secure the award of a dis-puted contract. P.L. 92-500 gives no private right for such disappointed bidder. Such right of action would frustrate the purposes of Title II by another review procedure. Further to grant a federal cause of action woul o travene the general rule that state and municipal contracts are governed by state law. General Motors v. United States, Court of Claims, 10 ERC 2055.

Where in a former case U.S. admitted that General Motors was not at fault with respect to an oil spill, U.S. was estopped to deny oil spill reimbursement for clean up activities performed by General Motors.

State of Oregon, ex rel. Cox v. Hibbard, Oregon, 570 P.2d 1190,

A holder of permits to mine on Federal lands would be subject to Oregon laws which required a permit to remove more than 50 cubic yards of materials per annum from any creek. Properly the administer of State Lands Department could bring an action to force the miner to restore an unpermitted ditch dug to supply water to his Federal mining, and the lower court's grant of relief requested

by the State would be affirmed. There existed no Federal pre-emption of the operation of State laws in this case.

Pennsylvania v. Wheeling-Pittsburgh Steel Corp., Pa. Supreme Ct., 10 ERC 2057. A defendant to an enforcement proceeding for failure to comply with a prior order which included a favorable variance for a short period, together with compliance requirements followi~ the granted variance period would not be allowed to challenge the order on the basic regulations in this proceedings. Failure to follow the appeal procedure with respect to the order, precluded the attempted collat~ral attack.

Albert Elia Building Company v. Sioux City, U.S. Dist. Ct., Iowa, 10 ERC 2062. An EPA regional administrator is authorized to make a determination of whether a particular bid for a waste treatment facility which will receive Federal financing is responsive even though such determination overrules a previous ruling by the owner municipality that such bid was unresponsive. Here the administrator need look no further than the face of the bid itself. The record before such administraLor svpported the determination of responsiveness. The listing of suppliers alleged not to have the capabilities of furnishing

re-quired equipment was irrelevant because the bidder was still ultimately responsible for meeting the specification for the project.

Sevanada, Inc. v. Irwin, U.S. Dist. Ct., Georgia, 10 ERC 2065.

A citizens' group seeking to enjoin the spraying of Mirex cannot ground their claims:

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(a) On the Federal Insecticide, Fungicide, and Rodenticide Act since that Act covers only the sale and delivery, and not use of Mirex.

(b) On P.L. 92-500, as that Act grants citizen suit rights for effluent standard or limitation violation or an EPA order. No offer is made or claimed that there exists EPA regulations covering Mirex.

(c) On the Federal Conunon Law of Nuisance as this is a narrow doctrine available to Federal, State, or local political subdivisions for the protection of interstate water courses.

Umatilla Indian Reservation v. Alexander, U.S. Dist. Ct., Oregon, 10 ERC 2068.

The Indian plaintiffs could protect their 1885 Treaty fishing rights from destruc-tion by a Corps dam construcdestruc-tion project by an injuncdestruc-tion. The mere authorization of the project was not sufficient Congressional decision to take the Indian

fishing rights.

City of Pawtucket v. U.S., U.S. Ct. of Claims, 10 ERC 2070.

A city cannot recover for clean up costs for an oil spill based on the claim that the "sole" cause of the spill was vandals (33 U.S.C. 132l(i)(l). The city failed to take the necessary protective security measures to prevent the vandal entry. In fact, it appeared that the city employees had to use a hole in the fence to enter the tanker grounds. It was the city's behavior which contributed to the spill, thus no recovery.

United States v. Bunker Hill Company, U. S. Dist. Ct., Idaho, 10 ERC 2071,

The United States, prior to entering upon defendant's property for purposes of carrying out discovery procedures for trial preparation in a water pollution enforcement action, is not required to execute an indemnity agreement to protect the defendant company for any injuries or actions which might result from U.S. discovery actions.

Friends of the Earth v. Washington, U.S. Dist. Ct., D/C, 10 ERC 2073.

Plaintiffs are entitled to an order requiring Washington to take action which will lead to compliance with the Clean Air plan for the city with respect to a

city hospital and nursing home, even though such order will cause the city to readjust its budget to secure the funds to provide for compliance.

Reserve Mining v. Minnesota Pollution Control Agency, Minn. Dist. Ct., 10 ERC 2084. Another round in the battle in Minnesota with respect to tailings disposal by Reserve Mining. The Court forced the State agency to limit the permit conditions to those set forth in a previous Supreme Court decision (10 ERC 1479), About all that can be said for this litigation is that each side refuses to give up even after a court decision seemingly settles the problem.

United States v. Rowe, C.A. 10, 10 ERC 2086.

Defendant complained of the fact that the lower court allowed the jury to hear in the present trial charging illegal sale of golden eagle parts (feathers) a taped conversation between defendant and another party covering his prowse as a lawyer in another case concerning the sale of golden eagle parts (feathers). Note: Defendant acted as his own attorney in the New Mexico case as he had done in the former case. The taped conversation was properly admitted as tend-ing to show intent, motive, opportunity, and plan. You better know to whom you are talking when you attempt to violate the Bald Eagle Act.

SUPREME COURT Review Granted:

No. 77-380, Andrus v. Charleston Stone Products Co., C.A., 553 F.2d 1209. Question: Is water locatable mineral under mining law of 1872?

46 Law Week 3351, November 29, 1977.

No. 77-285, California v. U.S. (C.A. 9, 9 ERC 2062).

Question: Is U.S. under Section 8 Reclamation Act required to follow State law in acquiring water for a reclamation project?

46 Law Week 3365, December 6, 1977.

No. 77-404, City of Philadelphia v. New Jersey {N.J. Supreme Ct., 10 ERC 1312). Question: Is solid and liquid wastes for purposes of resources recovery commerce within the Commerce Clause? Can one state bar the entry of another state's

wastes?

46 Law Week 3365, December 6, 1977. Cases filed in Supreme Court:

No. 77-782, American Iron and Steel Institute v. EPA, C.A. 3 (ruling below 9 ERC 1321).

Circuit recalled its mandate and amended its judgment in a case involving effluent limitations.

46 Law Week 3390, December 13, 1977.

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