HOUSE
UPPER COLORADO RIVER COMMISSION
355 South Fourth East StreetSalt Lake Ciry, Utah 84111
A
Q U A L A N T E N E W
S L E T T E R
79-8
(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. 4841 (BEARD of Tennessee)
A bill to amend the Endangered Species Act of 1973 to provide for certain pro-cedures to insure the effective administration for such act, and for other purposes; to the Committee on Merchant Marine and Fisheries. (Seep. H6196, CR, July 18, 1979.)
SENATE
S. 1440 (MELCHER, et al.)
A bill to enable the Secretary of Energy to utilize revenues from power marketing, to carry out his responsibilities related to Alaska Power Adminis-tration, Southeastern Power AdminisAdminis-tration, Southwestern Power AdminisAdminis-tration, and Western Area Power Administration, and for other purposes; to the Com-mittee on Energy and Natural Resources. (See pp. S8704-S8709, CR, June 27, 1979, for the remarks of Senator Melcher when introducing this bill.)
S. 1489 {CHURCH, et al.)
A bill to consent to the amended Bear River Compact between the States of Utah, Wyoming, and Idaho; to the Committee on the Judiciary. (See pp. 89285-89289, CR, July 12, 1979, for Senator Church's remarks when introducing this bill.)
S, 1632 (JACKSON, by request)
A bill to authorize the Secretary of the Interior to engage in feasibility investigations of certain water resou.rce developments; to the Connnit tee on Energy and Natural Resources, (See pp. Sll423-Sll435, CR, August 2, 1979.) S, 1639 (GRAVEL)
A bill to amend the Water Resources Planning Act of 1965 (Public Law 89-80; 79 Stat. 244 as amended); to the Committee on Environment and Public Works. (See pp. Sll439-Sll440, CR, August 2, 1979.)
S. 1640 (GRAVEL, by request)
A bill to extend certain authorities of the Secretary of the Interior with respect to water resources research and development and saline water conver-sion research and development programs, and for other purposes; to the Committee on Environment and Public Works. (See pp. Sll440-Sll442, CR, August 2, 1979.)
S. 1644 (STEVENSON)
A bill to declare a national weather modification policy, to establish a national program of research and development in weather modification to provide for the promulgation of regulations related to weather modification, and for other purposes; to the Committee on Commerce, Science, and Trans-portation. (Seep. S11446, CR, August 2, 1979.)
S, 1680 (HATCH, et al,)
A bill to provide_for the cession and conve ance to the States of the federal!~ owned unreserved, unappropriated lands, and to est~ sh policy, methods, -procedures, schedules, and criteria for such transfers; to the Conunittee on Energy and Natural Resources. (See pp. Sl1665-11666, CR, August 3, 1979.)
\
COMMITTEE REPORTS SENATE
S. Rept. 96-235
The Committee on Energy and Natural Resources reported S. 14, to increase the acreage limitations and abolish the residency requirements of the Federal recla-mation laws, with amendments (together with additional and supplemental views).
(Seep. S8930, CR, July 9, 1979.) S. Rept. 96-242
reported H.R. 4388, making appropriations for ~ water resources development projects, with The Committee on Appropriations
fiscal year 1980 for energy and
amendments. (Seep. 89248, CR, July 12, 1979.) S. Rept. 96-304
The Senate Committee on the Judiciary reported
s.
1477, to reform and restructure-the-Fetle-r-a:l-jud±c 1979.)
HOUSE
H. Rept. 96-337
The House Committee on Interior and Insular Affairs reported H. R, 3275, to amend the Small Reclamation Projects Act of 1956, amended. (Seep. H5919, CR, July 13, 1979).
H. Rept, 96-374
The House Committee on Appropriations reported R.R. 4930, making app ropri-ations for the Department of the Interior and selected agencies for the fiscal year ending September 30, 1980. (See p. H6423, CR, July 23, 1979.)
H. Rept. 96-388
The Connnittee of Conference reported H.R. 4388, making appropriations for energy and water development for the fiscal year ending September 30, 1980.
(Seep. H6656, CR, July 25, 1979.) H. Rept. 96-391
The House Cormnittee on Rules reported H. Res. 389, waiving certain points of order against H.R. 4930, making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 1980.
(Seep. H6762, CR, July 26, 1979.)
SENATE ACTION Energy-Water Appropriations
Fish
Senate began consideration of R.R. 4388, making appropriations for fiscal year 1980 for energy and water resources development projects, taking action on amendments proposed thereto as follows:
1. By 46 yeas to 51 nays rejected Cohen unprinted amendment No. 368, to eliminate funds relating to the Dickey-Lincoln hydroelectric project;
2. By 53 yeas to 45 nays, adopted Culver unprinted amendment No. 369, relating to the Tellico Dam, in Tennessee; and
3. Adopted Nelson unprinted amendment No. 370, to delete funds for the Yatesville Lake, Kentucky and the Bayou Badeau, Louisiana projects.
A time limitation agreement was reached concerning further consideration of this legislation. (See pp. S9606-S9639, CR, July 17, 1979.)
By 90 yeas to 6 nays, Senate passed R.R. 4388, making appropriations for fiscal year 1980 for energy and water resources development projects, after agreeing to committee amendments and adopted the following additional amend-ments proposed thereto as follows:
1. Johnston unprinted Amendment No. 372 of a technical nature.
2. By 49 yeas to 46 nays, modified Johnston amendment No. 338, to pro-vide for the completion of the Hart Senate Office Building. During consider-ation of this amendment the following votes were taken, (a) tie vote of 47 yeas to 47 nays on the adoption of the amendment; (b) by 45 yeas to 50 nays rejected motion to table motion to reconsider; and (c) by 49 yeas to 47 nays, agreed to motion to reconsider.
3. Roth unprinted amendment No. 374, reducing by $6,880,000 funds for
the Department of Energy. - ~- ~
Senate insisted on its amendments, requested conference with the House, and appointed the following Senators as conferees: Johnston, Stennis,
Magnuson, Robert
c.
Byrd, Hollings, Huddleston, Burdick, Sasser, DeConcini, Hatfield, Young, Schweiker, Bellman, McClure, Garn, and Schmitt. (See pp. S9702-S9722, CR, July 18, 1979.)HOUSE ACTION and Wildlife Conservation
The House passed H.R. 3292, amended, fish and wildlife conservation plans. 1979.)
to assist the States in developing (See pp. H5502-H5505, CR, July 9,
FEDERAL REGISTER 44 Fed. Reg. 39184, July S, 1979.
The Department of Energy has proposed rulemaking on "Power and Transmission Rate Adjustment Procedures and Public Hearings."
44 Fed. Reg. 40436, July 10, 1979,
The Department of the Interior proposed new rules covering NEPA compliance. 44 Fed. Reg. 41969, July 18, 1979.
The Bureau of Reclamation announced an intent to prepare an EIS on Glen Canyon Peaking Power Study.
44 Fed. Reg. 43749, July 26, 1979.
The Water Resources Council has proposed a rule for compliance with NEPA. This proposed rule is for compliance with CEQ regulations dated November 29, 1978 (40 CFR 1500-1508).
44 Fed. Reg. 44461, July 30, 1979.
The Soil Conservation Service has issued final rule dealing with flood plain management in SCS assistance programs.
44 Fed. Reg. 44464, July 30, 1979.
The Soil Conservation Service has issued final rule dealing with wetland pro-tection as it relates to SCS programs.
44 Fed. Reg. 44718, July 30, 1979.
The Department of Agriculture, Forest Service, has published final rules covering that service's NEPA compliance rules required by CEQ regulations,
(See 44 Fed. Reg. 44802, July 30, 1979, for a similar final rule for the Office of the Secretary of the Department of Agriculture.)
44 Fed. Reg. 45768, August 3, 1979.
The Bureau of Reclamation has set a hearing date, September S, 1979, at Durango, Colorado, on the draft EIS for the Animas-LaPlata Project. 44 Fed. Reg, 45918, August 6, 1979,
The Department of Energy has announced its NEPA compliance rules, (Note, DOE has in effect adopted CEQ regulations covering NEPA as its new
operat-ing regu-la-E--kms.-) - - - -
=~
-44 Fed, Reg. 46386, August 7, 1979.
The Bureau of Land :Management has published its final rule on "Public Lands and Resources: Planning, Programming, and Budgeting."
LAW REVIEW
Binder, "Dam Safety: The Critical Imperative," 14 Land and Water Law
Review
341. The author is critical of the present Federal Dam Safety Program,Comment: "Enforcement of Section 208 of the Federal Water Pollution Control Act Amendments of 1972 to Control Nonpoint Source Pollution," 14 Land and Water
LauJ Revi
ew
419. The author advocates that non-point sources of pollution be controlled by the 208 process..,,, Ripple and Kenyon, "State Sovereignty -- A Polished But Slippery Crown,"
54 N.D.L. 745. The authors reviewed the cases of National League of Cities v.
Usery and Edelman v. Jordan in their relationship to the Supreme Court's new
awareness of State Sovereignty. The authors are not sure that these cases will
be controlling in future constitutional adjudication. Rather they will play a
role in the calculus of this type of adjudication.
COURT CASES
Martinez v. Bona Vista Water Improvement District, Utah, 595 P.2d 869.
Under Utah Statute, property owners may petition for withdrawal from a water improvement district. If the petition is granted, such property will remain liable for a tax levy to pay a share of principal and interest on revenue and general obligation bonds of such district outstanding on date of filing such petition. Such share is limited to amounts needed to forestall or prevent a
default in the payment of said amounts. due. In this case the petitioners
receiveano benerics from the district and had made large payments prior to
the petition and the Court required protection for the district only to the
extent that there would be a default on its obligations outstanding at date
of withdrawal in which case the petitioners would be subject to a levy to
prevent such occurrence.
Alabama Power Co. v. Castle, C.A. D/C, 13 ERC 1226.
In a Per Curiam opinion, the D/C Court of Appeals generally approved EPA's
PSD (prevention of significant deterioration) for air quality regulations
in those "clean air areas." A detailed opinion is to be issued later this
year. No attempt is here made to even outline the various rulings in the
present lengthy statement.
Seacoast Anti-Pollution League v. NRC, C.A. 1, 13 ERC 1243, 9 ELR 20384.
NEPA does not require NRC, in a once-through cooling nuclear plant case, to investigate remote, speculative, incompatible sites alternative to the specific proposed location for the Seabrook Plant. The plant is' probably dead even though the operators won this case.
U.S. v. Maryland, U.S. Dist. Ct., Maryland, 13 ERC 1253.
The Maryland environmental surcharge tax imposed on the production of elec-tricity in the state was so worded that the incident fell on the electric
utility company. The fact that the Federal Government purchased electricity
from a·utility and was required to pay the tax as part of the bill did not
convert the tax to an illegal imposition upon the Federal Government. It
all depends on how the statute is written.
Rollins Environmental Services v. Iberville, Supreme Court, Louisiana.
A local municipal government can not enact a local ordinance dealing with
solid waste disposal which conflicts with State and Federal solid waste laws.
This was a presumption case in which the low man was out.
Pacific Legal.Foundation v. Andrus, U.S. Dist, Ct., Tennessee, 13 ERC 1266. The specific procedures of the Endangered Species Act (ESA) for the
declara-tion of species endangered are in conflict with NEPA requirements. Since
NEPA requires compliance only to the "fullest extent possible," the specific ESA requirements control. NEPA compliance is not required as part of the ESA procedure,
Pacific Legal Foundation v. CEQ, U.S. Dist. Ct., D/C, 13 ERC 1273.
CEQ does not have to conduct its meeting in accordance with the common law quorum rule since its organic act, NEPA, does not require it to act colle-gially. CEQ acted reasonably in its determination that in advising the
President on environmental matters collegial decisionmaking would not be the best procedure.
The Government in the Sunshine Act does not apply to the CEQ function of advising the President. CEQ's status is equivalent to the Council of Economic Advisers in the Executive Office.
National Crushed Stone Association v. EPA, C.A. 4, 13 ERC 1277.
EPA cannot use technical data collected by one of its contractors for its rulemaking in the development of effluent limitation guidelines where the data was not available during the public connnent period. Such practice would violate administrative rulemaking notice and comment procedures.
City of Columbia v. Solomon, U.S. Dist. Ct.': SC, '13 ERC I 01.
The City was denied the attempt to use a claimed NEPA violation as a vehicle to force GSA to change the design structure of a Federal parking facility to suit the aesthetic tastes of the city, The court accepted the GSA determina-tion that a new EIS was unnecessary because there were no adverse environ-mental effects and the real issue was debatable aesthetic impact.
U.S. Brewers Association v. EPA, D/C Circuit, 9 ELR 20395.
EPA regulations issued under the 1970 Solid Waste Management Act and its
1976 amendments which require a 5 cent refundable deposit on all beverage containers sold at federal facilities were a valid exercise of authority granted by said acts.
Citizens Defense Fund v. Gallagher, U.S. Dist. Ct., Montana, 9 ELR 20420,
A preliminary injunction will issue, stopping an urban renewal project where the Plaintiff demonstrates a likelihood of victory on the merits, and shows further great harm to its position should the Defendant be allowed to continue its course. The Plaintiff demonstrated that the federal official failed to observe the requirements of the National Historic Preservation Act. It appeared that the federal official did not
indepen-dently exercise his authority under said act.
Ancarrow v. City of Richmond, C.A. 4, 9 ELR 20421,
A r {par
ian
'!..'and.owner -does ,..n.NNOO-t~ h .... ~r.iov_e_a_f_e_d_e_r_a--:-1- c_a_u_s_e-=-o-f_a_c_t_i_o_n_a_g_a_i_n_s_t_a _______ ~ municipality based on allegations that his property was rendered uselessfor a riparianuse, to-wit, a marina development, by the pollution created
from the defendant city's sewage treatment works. Plaintiff could show no property right which was destroyed by the treatment plant. The Plaintiff under Virginia law did not have a riparian location right which was pro-tected against the state's right to use the river for its sewage effluent.
Katy v. Bodkin, New York Supreme Court, 9· ELR 20423.
A zoning ordinance will be strictly construed to allow a homeowner to install a rooftop solar collector. The court further suggested that
restrictive local zoning would be forced to give way to declared national and state policies of energy conservation,
,.,
Palila v. Hawaii Department of Land and Natural Resources, U.S. Dist. Ct., Hawaii,
9 ELR 20426.
Environmental groups sued on behalf of an endangered species (Palila)
claiming that Hawaii was violating the Endangered Species Act, particularly
Section 9 (Illegal taking). Hawaii's violation was based on its policy of
allowing feral sheep and goats to occupy the critical habitat of the Palila
for hunting purposes. The goats and sheep were destroying such habitat.
The Court agreed with this Plaintiff's claim and ordered Hawaii to take
steps to get the goats and sheep out of the area. The Court offered two
justifications for its actions. One was based on international treaties
wherein the U.S. agreed to protect wildlife, and the Commerce Clause
offered the second grounds for action. Either of the grounds could justify
overruling any state claim based on the 10th Amendment, More will be heard
on this case,
U.S. v. Ric.hardson, ~.A. , 9 ELR 20448,
Under the Surface Resources Act, a party prospecting on national forest
lands must use reasonabl methods and will not be permitted to use
bull-dozing and blasting where such methods are not reasonably related to locating minerals. Note in this case the proper method of prospecting
would have been "core-drilling."
In Re Water Appropriation, Nebraska, 28 NW.2d 75.
A water right is an appropriation of water to actual beneficial use and,
under Nebraska law, the failure to put water to the beneficial use on the
land identified in the appropriation for 3 or more years is grounds for
forfeiture, In this case the state followed the statutory procedure and
secured a forfeiture of the right in question. The Court affirmed the
Administrative ruling. The Court also ruled that an unexcused nonuse of
a water right by a predecessor in title binds the successor in title,
Village of Tequesta v. Jupiter Inlet Corp., Florida, 371 S.2d 663,
The Plaintiffs brought an action for inverse condemnation and injunction
against the city, claiming that the city's pumping of a shallow ground water
aquifer deprived them of the use of such aquifer, The Court ruled in favor
of the city, holding:
a, Division of water from the aquirer was not taking property for a public
purpose which required condemnation.
b. Ground water under the laintiffs' land did not become their property until diverted and put to use,
c. Village not liable to Plaintiffs for its use of the aquifer.
d, Plaintiffs remedy was by way of a permit and use of such water,
Duncan v. U.S., U.S. Circuit Ct., 597 F.2d 1337.
When the U.S. failed to carry out its statutory mandate as a condition to
its termination of the Pomo Indians of Robinson Ranchero, the purported
termination was a breach of trust for which the U.S. is liable in damages,
The condition was that the U.S. would· provide for an adequate water and
sewage system for the Ranchero. This was not done and thus the
U.S. v. Anderson, U.S. Dist. Ct., E. Wash., ~~F.Supp·~~· ~ The U.S. brought suit on behalf of the Indians to establish Winters-type
reserved water rights and the Court granted the whole ball of wax as follows: 1. Since there is a hydraulic relation between surface and groundwater, the reserved rights granted apply to both.
2. Indians will be given water for all land practicably irrigable and defined with the aid of modern technology so that there will be included land presently capable of irrigation which formerly was classified as tim-ber and grazing land.
3, Rights are openended and need not be continuously used.
4. Reserved rights will be given for lands formerly opened for home-steading but unclaimed and restored to the reservation with a priority date the same as the date of the creation of the reservation. This priority is the same as that given to the land found to be practicably irrigable (par. 2 above).
5. The lands reacquired and put in trust for the Indians were granted a reserved right but with a priority as of the date of reacquisition.
6. Reserved rights were given to protect Indian fishing rights. A 20 second-foot flow is to be maintained and the priority date is the date of creation of the reservation.
7. There was no need to rule out the aesthetic and recreational purposes because the fish flow would insure water, availability for this claim.
8, States can control non-Indian claims so long as tribal rights to self-government are not impaired.
9. Jurisdiction will be retained to" . • • permit the Tribe to apply for a modification of the judgment on showing of a substantial change in
circum-stances, unanticipated in the Court's quantification herein, resulting in a need for water greater than the amount reserved for future needs."
10. A water master is authorized to carry out the decree.
