HOUSE
UPPER COLORADO RIVER COMMISSION
355 South Fourth East StreetSalt Lake Ciry, Utah 84111
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Q U A L A N T E N E W
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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
H.R. 5130 (McKAY, et al.)
A bill to amend title 28 of the United States Code to provide for special venue provisions in cases relating to the -environment; to the Committee on
the Judiciary. (p. H7201, CR, August 2, 1979) H,R, 5196 (PATTERSON)
A bill to authorize the Secretary of the Interior to engage in feasibility studies of a water supply for domestic, recreational, and municipal water users along the Colorado River in California; to the Committee on Interior and Insular Affairs, (p. H7428, CR, September 6, 1979)
H.R. 5199 (JOHNSON of Colorado, et al.)
A bill to authorize certain additional measures to assure accomplishment of the objectives of title II of the Colorado River Basin Salinity Control Act, and to increase the authorized expenditures ceiling for the Paradox Valley Salinity Control Unit, Colorado, and for other purposes; to the Committee on Interior and Insular Affairs. (p. H7428, CR, September 6, 1979)
FEDERAL REGISTER 44 Fed. Reg. 47169, August 10, 1979.
The Bureau of Reclamation announced the availability o~ a Draft EIS for the Upalco Unit. Written comments will be accepted until September 22, 1979.
44 Fed. Reg. 49275, August 22, 1979.
EPA has proposed a rule which requires States to allow public (citizen participation) in enforcement action under all Federal programs wherein States are given authority to act in place of EPA, i.e., Hazardous Waste Management Program, Underground Injection Control Program, NEPDES program, or Section 404 program. Conunents can be made until October 9, 1979.
44 Fed. Reg. 50576, August 29, 1979.
The Soil Conservation Service has issued its Final Rule for NEPA com-pliance, effective August 29, 1979.
44 Fed. Reg. 52582, September 7, 1979.
The Department of the Interior has listed the National Monuments, Pre-serves and Primitive Areas; Review for Class I Redesignation Reconunenda-tion. Comments will be received to October 9, 1979. States and Indian Tribes are urged to comment.
44 Fed. Reg. 52590, September 7, 1979.
EPA has issued its Final Rules for Effluent Guidelines and Standards; Electroplating Point Source Category; Pre-Treatment Standards for
exist-ing sources, effective October 12, 1979.
LAW REVIEW Notes:
Machineir, "Federal Acquisition of Non-Reserved Water Rights after New Mexico," 31 Stanford
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Review 885. The author claims Congress has authority to acquire water rights without regard to State water law. The author further claims the contrary dictum in U.S. v. New Mexico was made without full analysis of Congress' constitutional powers. The author argues the United States can get the water right and the States' law can-not control the acquisition,Comments:
"The Exhaustion Doctrine and NEPA Claims," 79 Colorado Law Review 384. NEPA's regulations inundated upon Federal agencies to raise environmental
issues may modify the requirements of the exhaustion of administrative remedies doctrine requiring the raising of all issues at every stage of the administrative process.
SUPREME COURT
Washington v. Washington State Commercial Passenger Fishing Vessel Associ-ation, U.S. Supreme Court, U.S. , 9 ELR 20517.
This case involved fishing rights for the Pacific Northwest Indians as - - --e.l.aJ.-tner.Lunder-.-t..i:..eat.y rigbts+-whi.ch--U:..ea.t__ie_s c_ontaj.ned a clause readin
"in common with the citizens of the Territory." The Court ruled:
Indians could fish at their accustomed places 011in common with the citizens of the territory," and that this meant Indians were entitled to take a harvest equal to non-Indians. Indians had to count those fish taken on the reservation as part of the
harvest. Non-Indians had to count those fish taken outside State waters if the fish would have been a part of available harvest but for the catch.
This case is interesting for some of the statements made with refer-ence to treaty claims. Without a doubt it will be subject to extended future analysis.
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COURT CASES
Avoyelles Sportsmen's League, Inc. v. Alexander, U.S. Dist. Ct., La., 13 ERC 1353. Land clearing of "wetlands" for farming purposes requires a 404 permit.
The very act of using machinery to move vegetation is dredge and fill material discharge which requires a permit. The farming activities
exempt under 404(f)(l)(A) were farming operations which existed at the passage of the act and do not include land use conversion.
Potomac River Association v. Stewart Investment, U.S. Dist. Ct., D/C., 13 ERC 1362. The Corps authorized the extension of an oil unloading pier by granting a
permit under Section 10, Rivers and Harbors Act of 1899. The Corps took five years to grant the permit, using the time to fully develop an EIS, conduct public hearings at which Plaintiff actively participated, and
develop a decision document which reflected a balanced consideration of all relevant facts. The fully developed administrative record did the Plaintiff in for the Court refused to find any violation of NEPA, Riv~rs and Harbors Act of 1899, National Historic Preservation Act, or Section 9 of the
Administrative Procedure Act.
Wisconsin Electric Power Company v. Wisconsin, Supreme Court, Wis., 13 ERC 1369. Under Wisconsin's statute, thermal discharge limitations from power plants were required to be the same as those fixed by EPA under P.L. 92-500. EPA had exempted older plants from the efflue·nt discharge regulations for economic reasons. Wisconsin regulated the discharge from such plants. The Court rejected the State's attempt to claim that actually Wisconsin had issued water quality standards rather than effluent limitations, and thus did not run afoul of the restriction that the State effluent limita-tions had to be no more restrictive than EPA-issued limitalimita-tions. The Court found that Wisconsin really had issued effluent limitations, not water quality standards, and these were for plants which were not regulated
by EPA, thus the State regulations were illegal.
United States v. M/V Zoe Colocotroni, C.A. 1, 13 ERC 1379.
In an oil spill clean up action, the United States wasallowed to recover interest at 6 percent from the date that the first bill was sent to the defendant on the cost of clean up. Attorney fees were denied the United States because there exists no statutory authority for awarding such fees to the United States.
California"v. Kleppe, C.A. 9, 13 ERC 1381.
·Cal~fornia learned that it would not be allowed to mount a multi-action attack upon Interior's outer continental shelf oil and gas lease program. The doctrine of res judicata requires that all issues,on the subject matter of the suit be raised in one suit, California lost its first action against Interior on the leasing program. In a second action on the same leasing program, California sought to raise issues which were available at the time of the first action, this the Court stated was barted by res judicata,
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On appeal from a criminal conviction for willfully or negligently dis-charging water runoff from a business operation into the navigable waters
of the United States in violation of the Federal Water Pollution Control Act, the Court of Appeals ruled:
1. U.S. did not have to seek civil remedies prior to instituting criminal action.
2. Prior notice of violation was not required.
3. The fact that there were no effluent limitations did not preclude criminal action because the discharge was unlawful.
Note: The Court suggested Defendants should apply for a discharge permit under the provisions of the act which covered situations prior to issuing effluent discharges.
United States v. Earth Science, Inc., C.A. 10, 13 ERC 1417.
The mining company had developed a closed cycle mining operation, but due to snow melt the system overflowed and some effluent escaped into a local creek. After Colorado had taken measures to correct the problem, EPA filed civil enforcement proceedings. The Court ruled:
1. The mining operation here involved could be both a point and non point source and the overflow from the holding pITT1.ds was a point source which was subject to the enforcement proceedings. 2. EPA did not have to establish intentional discharge. Accidental
discharge is enough so far as the Act is concerned.
3. The creek, even though located in one state and used only for recreation and irrigation, comes within the navigable waters of the United States.
4. EPA has choice of enforcement tools, i.e., administrative orders or civil damage, and these are not mutually exclusive.
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Collier, Miss., 13 ERC 1423.A farmer. or group of farmers, cannot spray Toxaphene near a third farmer 's catfish ponds in a manner that contaminates the fish ponds and then escape liability for damage as joint tortfeasors. The spraying actions proximately caused a single individisible injury in destroying the fishing business. United States 1'. Kane, C.A. 2, 13 ERC 1432.
The Army Corps of Engineers sought to enforce an administrative directive issued to Kane requiring that she remove a fence which protected her boat ramp from public trespass. The ACE directive was based upon a claimed right of public access to the navigable waters found in NEPA. The Circuit Court reversed the Federal Court's sustaining of the ACE's request for injunction. The Court held there was no administrative record which justified the isS1fing of the oraer to remove the fence. Public access could not sustain the order. The ACE failed to justify in the record the reason for the order.
Mills v. Plattsburgh, New York, 13 ERC 1435.
Two highways cannot be joined by a new highway segment without first developing an EIS where it is shown that the action would cumulatively produce significant effects on the .environmen .
Phillips Petrolewn Company v. Illinois EPA, Ill. App. Ct., 13 ERC 1438. The State Pollution Control Board could hear a complaint against the owner of the tank car contents and the railroad carrier based on air
pollution resulting from an overturned tank car. The pollution laws of Illinois do not impose absolute liability on Phillips. The State had to show that at the time of the accident Phillips exercised sufficient control over the overturned car. Here there was a failure of such proof and Phillips was relieved of liability.
California v. San Francisco., California, 13 ERC 1440.
California could sue the City for damages for discharge of untreated sewage during a strike, but the recovery was limited to $10,000.00 per day regardless of the number of discharge points. The City could seek recovery from the union on the basis of joint tort-feasors, and the
comparative fault damages may be apportioned among all joint tort-feasors.
In Re Pet'l11anent Surface Mining Regulations, U.S. Dist. Ct., D/C, 13 ERC 1447.
Interior will be enjoined from requiring state plans under the Surface Mining Control Act until March 1980 even though this is beyond the
statutory time placed in the act for such plan. The extension is granted
because Interior took seven months to issue its triggering regulation. Congress intended to give the States one year from the date Interior
issued the permanent regulations. U.S. Steel v. EPA, C.A. 7, 13 ERC 1449.
Statutory deadlines mandated by the' 1977 ~lean Air Act Amendments, which required EPA to designate nonattainment areas which, in turn, provided the basis for State action, were grounds for EPA dispensing with the prior notice and comment provisions of the Administrative Procedure Act under the good cause exception in Section 553.
Sierra Club 1>. California Coastal Corrmission, 13 ERC 1466.
In an attack upon the granting of a development permit under the juris-diction of the Commission, the permittee is an irtdispensible party. The Sierra Club cannot amend its complaint to include the developer after the 60-day statutory period for appealing the Commission action has run. Such would be a new action which is barred by the limitation. Note: The Sierra Club was well aware of the need of the developer as a party because in a similar suit the attorney of the Club, on behalf of the Club, had raised the need for the developers as parties in order that complete relief could be granted.
Get Oil Out, Inc. v. And.Pus, U.S. Dist. Ct., Calif., 13 ERC 1475.
The Department of the Interior could rely on its studies and other en-vironmental impact statements prepared for oil exploration and drilling
in the Santa Barbara Channel in making its determination that two individ-ual drilling platforms in this same area do not require a site-specific EIS. The Department of the Interior took the required hard look and properly articulated its reasons for finding that the two platforms would not have significant environmental impacts.
Morse v. Oregon Divfsion of State Lands., Oregon Supreme Court, 9 ELC 20459.
The Public Trust Doctrine does not prohibit all non-water related land fills in estuarine areas, and permits can be issued for such fills upon a determination of the Director of State Lands that such fills supply a public need that predominates over water-related use of the estuary.
Joseph v. Adams,, 476 F. Supp. 141, 9 ELR 20468.
This opinion is cited because of its detailed analysis of the require-ments of NEPA. The case held that there was a failure to comply with NEPA. The Court reviewed the 11th Amendment claims of the State defend -ant. The standard of review which the Court will use in its
consider-ation of the adequacy of a negative determination was considered. This
is a detailed opinion and no summary will be attempted. It does deal
with most of the NEPA issues.
Monarch Chemical Wo1~ks,, Inc. v. Exon,, U.S. Dist. Ct., Nebraska, 9 ELR 20478.
The Court was considering the impact of HUD statutes which transfer to
the grant applicant NEPA compliance responsibility. Omaha had developed
a plan to redevelop an area with HUD funds and, in the process, an EIS
was prepared, Subsequent to the original EIS, the State of Nebraska
pro-posed the use of the redevelopment area for a correctional institution,
The issue was Omaha's statement that a new EIS was not required to
accommodate the new use within the area. The Court agreed, pointing
out that Omaha did not comply with 102(2)(E) alternative development
in this case because it had no control over the State's authority to
locate the proposed institution. Actually, the Court found Omaha's
negative declaration that a new EIS was not required adequate, This
case demonstrates the problems which arise under some of the Federal
Grant programs. The above summary is not an adequate discussion of the
case, but is only to alert the readers to the problems of the NEPA-Grant
area.
B.R.S. Land Investors v. United States,, C.A. 9, 9 ELR 20486.
The Plaintiff failed to state a cause of action where the claim was made
that the United States has tacitly approved the use of federal land for
a high tower transmission line and had not prepared an EIS. The Court
ruled that "tacit approval" does not amount to Federal action which
triggers NEPA. The Plaintiff jumped the gun. There was no evidence
of Federal action.
West Michigan Environmental Action Council, Inc. v. Natural Resour~es
Com-mission, 275 N.W.2d 538, 9 ELR 20487.
Under Michigan's Environmental Protection Act the trial court must
exer-cise its independent judgment on the issue of whether there will be an
impairment of -the natu1'al resources of a state forest in permit_ting
exploratory oil activities within such forest. In this case, there was
unrebutted evidence in the record that Michigan's only elk herd would
be impaired if the exploratory activities were allowed; therefore, a
permanent injunction would be issued to preclude the e~ploratory activity.
Environmental Defense Fund,, Ina, v. Alexander, 467 F.Supp. 855, 9 ELR 20492.
The U.S. District Court approved the defendant's action with respect to the Tennessee-Tombigbee Waterway. The plaintiffs challenged the Corps'
authority to make design changes in·the project, The Court based its
ruling upon the fact that the plaintiffs had simply waited too long to
raise the challenge. The suit was barred by laches, Other challenges
r . .
State ex rel. Haman v. Foxf Supreme Court, Idaho, 9 ELR 20507.
In Idaho there is no public right to use a private lakefront beach property for recreational purpose:s. There can be no prescriptive easement in the general public. There:was not proof of time immemorial use to trigger the common law "custom.1ry usage" doctrine. There is no right of use under "public trust doctrine'' inasmuch as the property in question is above the mean high water mark and thus is not subject to a public trust.
Consolidation Coal Company v. Castle, C.A. 4, 9 ELR 20511.
The regulations of EPA covering water pollution for the coal industry were approved except for variance criteria. Western coal mining was allowed to be excepted out of the regulations establishing suspended solids limitations pending further study, and where enforcement officials are authorized to set limitations on a case-by-case basis that are as stringent as those applied to eastern mines.
