AQUALANTE NEWSLETTER, February 16, 1978

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UPPER COLORADO RIVER COMMISSION

Salt Lake City, Utah 84111

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February 16, 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.R. 10589 (RUNNELS)

A bill to amend section 402(d) of the Federal Land Policy and Management Act of 1976; to the Committee on Interior and Insular Affairs.

H.R. 10716 (BROWN of California, et al.)

A bill to encourage the continuation of family farming as a part of the agricultural system in the United States; jointly, to the Committee on Agriculture and Ways and Means.

SENATE

S. 2517 (DOMENICI, et al.)

HOUSE

A bill to amend section 402(d) of the Federal Land Policy and Management Act of 1976; to the Committe~ on Energy ~nd Natural Resources.

COMMITTEE ACTION

House Report 95-861

Conference report on H.R. 3454, Endangered American Wilderness Act of l978. (Seep. H451, CR, January 31, 1978.)

HOUSE ACTION American Wilderness

By a yea-and-nay vote of 333 yeas to 44 nays, Roll No. 54, the House agreed to the conference report on R.R. 3454, Endangered American Wilderness Act of 1978. House receded and concurred in the Senate amendment to the

title--SENATE ACTION Wilderness Areas

By 83 yeas to 5 nays, Senate agreed to the conference report on H.R. 3454, to designate certain endangered public lands for preservation as wilderness areas, thus clearing the measure for action of the House. (See pp. S1497-S1498, CR, February 8, 1978.)

FEDERAL REGISTER 43 Fed. Reg •. 1256, January 6, 1978

EPA proposed a· rule to amend regulations governing the NPDES Programs. This rule covers· EPA's veto authority·over state-issued permits.

43 Fed. Reg. 1343, January 9, 1978

EPA issued "Final Rule" for Effluent Limitation Guidelines, New Source

Performance Standards--Pretreatment Standards for Carbon Black Manufacturing Point Source Category.

43 Fed. Reg. 1902, January 12, 1978

EPA has published "Interim Guidelines" for involving the public in the develop-ment, revision, implementation, and enforcement of any regulation, guideline, information or program under the Solid Waste Disposal Act, as amended.

43 Fed. Reg. 2663 and 2665, January 18, 1978

EPA has announced the availability of two publications of interest to Water Administrators:

"The Integrity of Water," GP0-055-001-01068-1--$3.75 (43 F.R. 2663) "Quality Criteria of Water," GP0-055-001-01049-4--$3.75 (43 F.R. 2665) 43 Fed. Reg. 5545, February 9, 1978

The Corps of Engineers has proposed Rulemaking covering "Public Use of Water Resources Development Projects Administered by the Chief of Engineers." The proposed rule covers 36 CFR, Parts 313, 322, 327.

43 Fed. Reg. 5559, February 9, 1978

i--~~~~~~,.,-,,::-~e-Depa-rttfient of Energy has ~an-n-'=-o-u~n-c~e~d~~=n~e~w....c.-,'~'G~e~n-e=r-a~l- ~P-o=w-e-r-a-M~a~r.k~e~t~1~·n-g~ C~r---;-i~t-e~r~i-a-==--~~~~ for Colorado River Storage Project."

43 Fed. Reg. 5821, February 10, 1978

The Forest Service has published a "Final Rule" covering the regulation which will govern "the set-aside and designation of tracts of land from National Forest Systems land for townsite development." The new regulations are required by the Federal Land Policy and Management Act.

43 Fed. Reg. 6030, February 10, 1978

The Water Resources Council has issued "Flood Plain Management Guidelines for Implementing Executive Order 11988."

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LAW REVIEW

Comment: "Colorado River Water Conservation District v. ·U.S.: An Increased Role for State Courts in the Adjudication of Federal Reserved Water Rights." Vol. 1977 Utah Law Review 315. · A summary and criticism of the Supreme Court's decision 424 U.S. 800 (1976). The author was disturbed that the Court failed to allow Federal reserved water claims to be adjudicated in Federal Courts. Apparently State Courts will clue the Federal rights in.

COURT CASES

Daniels Irrigation Company v. Daniels, Summit County, Utah, 571 P.2d 1323.

A state engineer's decision allowing a change of point of diversion does not preclude a plaintiff in~ ' suit challenging such change from seeking to quiet title to its rights. The state engineer's decision is not a judicial

determination. The plaintiff could seek to quiet its title in the same suit challenging the point diversion decision.

Salmon River Canal Co., Ltd. v. Bell Brand Ranches, Inc., C.A. 9, 564 F.2d 1244. Plaintiff brought action to enjoin pumping by defendant on lands adjoining plaintiff's ranch. Plaintiff claimed that defendant's action violated a decree to which both were parties. Defendant defended by claiming a right granted by a State permit which had not been protested by plaintiff. The Lower Court ruled for defendant, treating the permit as an adjudication of right to use the water.

In reversing, the Circuit Court ruled:

(a) The permit is an administrative tool and does not bind a non-protesting, pre-existing right holder.

(b) Pre-existing holder of water right can institute a suit to adjudicate rights even against a permit holder.

Note: This decision is based upon the construction of Nevada's statutory law. It is interesting to note that the State Engineer of Nevada was

supporting the Lower Court's decision.

No Power Line, Inc. v. Minnesota Environmental Quality Council, Minn. Sup. Ct., 11 ERC 1001.

The defendant Council, under the environmental legislation of Minneota, including the Power Plant Siting Act, had jurisdiction over the construction

of high voltage transmission lines, and its action in the case followed the essential procedure outlined in the Acts. The Court did say that the

defendant could have put a better act together by preparing an EIS at an earlier stage of the case. The interesting point of the cas.e was that the applicant had the right not to follow the Power Plant Siting Act because it could have used the grandfather clause exemption. It became evident that following the exemption procedure would have involved dealing with a number of counties and thus run the risk of being defeated in the effort to develop the line. The applicant filed under the Power Plant Siting Act, and the Court ruled that such choice was available.

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Ford Motor Company v. EPA, C.A. 6, 11 ERC 1018.

EPA cannot veto a state-proposed m.odification of a discharge permit issued under a state program, which mo4ification allowed for flow augmentation to meet water quality sta~dards. The reason given by the Court for preventing the veto was that EPA had not published regulations or guidelines which cover flow augmentation with reference to water quality, There was a strong dissent.

Monroe County Conservation Council v. Adams, C.A. 2, 11 ERC 1037.

The Court·, in approving an EIS and a Sec, 4 (f) decision to use park lands for a highway, made a detailed analysis of the alternatives considered by the. EIS and the 4 (f) statement and concluded that the decision to use the park lands passed muster. Note: The case was before the courts for over ten years.

In Re Ryerson Hill Disposal Site, Maine Supreme Judicial Court, 11 ERC 1042. The Administrative Agency in charge of issuing permits under the State Site Location of Development Law could condition its permit for proposed

sewage sludge disposal dump to make abundantly sure that the public health was protected. Such condition system did not indicate that the applicant failed to carry its burden of establishing that it would meet the statutory requirements.

People Ex Rel. Scott v. Hoffman, U.S. Dist. Ct.,Ill., 11 ERC 1049.

The Attorney General of Illinois can bring suit against the Corps of

Engineers seeking to cause the Corps to force a restoration of a navigable stream, which had been dammed and diverted into a new channel. All the Court really decided was that the Federal interest could not secure a summary judgment. The plaintiff had alleged statutory violations of 33

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1311, and 16 U.S.C. 662. Plaintiff also sought to force EPA to enforce the provision of the Federal Water Pollution Control Act. There was a NEPA allegation. The defendant lost on the Summary Judgment issue. This will be a case worth watching.

Wyoming v. Hoffman, U.S. Dist. Ct., Wyo., 11 ERC 1054.

The Section 404 regulations and guidelines can not be limited to waters

~-=--=~-,ic trad.:i-ti-onally meet t-he test=of r1avigairil-fty. Obv1ous-i--y Congress ,----..=:--""cc.-..- - - -intended P.L. 92-500 to cover the waters of the United States in the

"broadest possible constitutional" sense.

National Audubon Society v. Andrus, U.S. Dist. Ct., D.C., 11 ERC 1057.

The District Court ruled:

(a) The stipulation between parties which allowed a stay in the case for time for presidential consideration of project modification and project impact on a treaty with Canada does not render the suit, attacking the NEPA EIS for the project, moot.

(b) Congressional appropriation for the project does not amount to an amendment of NEPA exempting the project from NEPA or approval of the EIS.

(c) Congress cannot-legislate through the appropriation process.

(d) Congress cannot constitutionally rule on judicial question of EIS adequacy,

(e) There is no clear evidence that Congress intended to remove the project from the Court's jurisdiction.

San Francisco v. U.S., U.S. Dist. Ct., Calif., 11 ERC 1065.

The Navy is not required to prepare an EIS on the proposed leasing of a surplus naval shipyard where the use will be commercial ship repair facility because·the environmental assessment revealed that the use would be the same under the lease as it had been under the Navy use, and no impact

would result.

Darling Delaware C9rp. v. District of Columbia, D.C. Court of Appeals, 11 ERC 1079.

Defendant was convicted of transporting solid wastes without a license. Defendant purchased rrom stores frozen meat trimmings and bones which were later sold for purposes of manufacture of cosmetic base stock, lard, and other useful products, On appeal, the case was reversed. The Appeals Court ruled chat these products could not be considered solid waste

inasmuch as there was a market for the materials and thus the materials would not constitute "discarded waste."

National Advertising Company v. New Mexico, N.M. Supreme Ct., 11 ERC 1094.

The Supreme Court ruled that the New Mexico Highway Beautification Act,

requiring removal of advertising signs along highways but only allowing payments of compensation·for certain categories of signs, is a con-stitutional exercise of the State's police powers.

1000 Friends of Oregon v. Kreps, U.S. Dist. Cc., Ore., 11 ERC 1098.

The Department of Commerce, as part of the processing of applications under

the Local Public Works Act, does not have to prepare-an-EIS inasmuch as

only 60 days is allocated for the consideration of the application. This time frame would not allow for the preparation of an EIS. There is provided an environmental review by the Department prior to action on the application and this satisfies the Department's environmental responsibilities.

Park and Shop Markets, Inc. v. City of Berkeley, Calif. Supreme Court, 11 ERC 1101.

A municipality can enact an ordinance requiring a deposit on each beverage

container purchased as a means of controlling solid waste. The ordinance questioned provides that the seller could either mark the containers or

issue a special coupon, and only those issued by the seller would have to

to redeemed upon return of the containers.

Modjeska Sign Studios v. Berle, Ct. of App. N.Y., 11 ERC 1107.

New York's highway sign law covering the Catskill and Adirondack Parks passed muster as to forbidding all future signs. The law provided that all existing

signs had to be removed at the end of six and one-half years after the date

of the enactment of the law. The Court remanded the case to the Lower Court

to determine whether the six and one-half year amortization period for those

signs existing at the time of enactment was reasonable. The Court did say that providing for a period of amortization for uses existing at the date of

the new law was a proper way to avoid constitutional questions where there

Orr v. City and County of Denver, Colo., 572 P.2d 805.

In Colorado, when the issue of abandonment is raised with respect to a water right, a question of.intent is involved. Such "intent" presents a question of "fact." It is incumbent upon the protester to establish the necessary element of "abandonment,"

State Ex Rel. Ashcroft v. Union Electric Company, Mo. Ct. of Appeals, 559 S.W.2d 216. The State of Missouri sought to enjoin defendant's method of operation of its electric generation at its privat:e dam. The State claimed that by its operation the dissolved oxygen level of the river below the dam fell below the required Missouri· standard. The Court affirmed the Lower Court's dismissal of the suit, saying:

1. The Missouri·Clean Water Act was concerned with pollution from external causes,

2. The State did not allege that the defendant caused the water flowing roti11:he

dam

be

3. The mere operation of the dam for power generation does not come within the Clean Water Act's control as a pollutor,

Note: This case may have turned on the fact that the State chose to rely upon the wrong definition of pollution, namely, that the dam was a point source,

Environmental Defense Fund v. East Bay Municipal Utility District, Calif., 142 Cal. Rept. 904.

The Supreme Court ruled that the plaintiffs could not challenge the defendanc's purchase of water from a Federal reclamation project on the grounds that the defendanc had violated State law in its failure to

establish a waste water reclamation program, thus eliminating the need for Federal water.

In so ruling, the Court stated:

1. Federal law controls contracts for water under the reclamation programs, and the defendant was nae prohibited from purchasing water by Federal law.

2. To raise the issue, waste water reclamation, under State law the plaintiffs have to follow the statutory procedure of seeking relief from the regional water quality control board.

==-'--~N~____:_:Thi§_ OJ~_ini~~ c11ted the o inion_s.!l eati..11 _<!t 52~ 1 . App2..34 - ~==-=~ ... -828, 12S Cal, Repts. 601.

SPECIAL NOTE

Secretary Andrus (Interior) by Interior Order 3017 has created Heritage Conservation and Recreation Service in Interior which will:

(a) Oversee Federal natural and historic preservation activities. (b) Identify and protect historic sites and natural resources in all of the United States.

(c) Replace the Bureau of Outdoor Recreation and assume responsibilities for other Interior agencies.

Through this agency stress will be placed on preservation of natural resources. The agency will identify, classify, establish, and maintain an heritage resources registry. The agency will assume the Federal responsibilities under the Federal Water Project Recreation Act,