HOUSE
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UPPER COLORADO RIVER COMMISSION
355 South Fourth East StreetSalt Lake City, Utah 84111
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78-3March 20, 1978
(All Congressional Record references are to Vol. 124 Daily Edition of the 95th Congress, 2d Session, an~ will be cited as "p. , CR, date.")
BILLS INTRODUCED IN 95th CONGRESS
H.R. 10753 (CUNNINGHAM, et al.)
A bill to amend the act commonly known as the Black Bass Act to provide furtner protection for steelhead trout, and for other purposes; jointly, to the Committees on Interior and Insular Affairs and Merchant Marine and Fisheries.
H.R. 11392 (STAGGERS, et al.)
A bill to authorize appropriations to the Department of Energy and the Federal Energy Regulatory Commission pursuant to section 660 _ of the Depart-ment of Energy Organization Act, and for other purpC1Ses; divided and
referred as follows: Titles I and II, to the Committee on Interstate and Foreign Commerce; title III, to the Committee on Interior and Insular Affairs; title IV, concurrently to the Committee on Interior and Insular Affairs and the Committee on Interstate and Foreign Commerce; title V, concurrently to the Committee on Interior and Insular Affairs, the Committee on Interstate and Foreign.Commerce and.the-Committee on Science and Technology; title VI, concurrently to the Comm~ttee on Interst-ate and Foreign eommerce and the Committee on Science and Technology; titles VII and VIII, concurrently to the Committee on Interior and Insular Affairs,·the Committee on International Relations, the Committee on Interstate and Foreign Commerce and the Committee on Science and Technology, and title VIII, additionally to the Committee on Armed Services.
H.R. 11396 (LUKEN)
A bill to amend the Federal Water Pollution Control Act to require proof that the discharge of pollutants into the navigable waters is not harmful to the public health and welfare or to the environment; to the Committee on Public Works and Transportation.
H. R. 11414 (HAGEDORN)
A bill to amend the Federal Water Pollution Control Act relating to clean lakes; to the Committee on Public Works and Transportation.
SENATE
S. 2500 (BUMPERS)
A bill to amend the Federal Water Pollution Control Act in order to limit the information which may be obtained pursuant to such Act; to the Committee on Environment and Public Works.
S. 2502 (ABOUREZK)
A bill to authorize the States and the Indian Tribes to Enter into Mutual Agreements and Compacts Respecting Jurisdiction and Governmental Operations in Indian Country; to the Select Committee on Indian Affairs.
S. 2577 (McCLURE)
A bill to provide for the conservation, development, and use of the Nation's Natural resources through the coordinated management of water and related _ _!and re~rces, throu_g!i_!_h~_£st~blishment_Qf3
n
Office of Water Resourcesin the Office of the President, by providing financial assistance for State water management, and by providing for creation of Interstate Coordinating Commissions; to the Committee on Environment and Public Works.
S. 2578 (CURTIS)
A bill to amend the Water Resources Planning Act so as to strengthen and protect the rights of the State and delineate Congressional authority and responsibility with regard to national water resources policy; to the Committee on Environment and Public Works.
S. 2606 (CHURCH, et al.)
A bill to amend and to 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. 2654 (ABOUREZK)
A bill to designate a segment ofthe Dolores River in the State of Colorado as a component of the National Wild and Scenic Rivers System, and for other purposes; to the Committee on Energy and Natural Resources. S. 2667 (ABOUREZK)
A bill to designate certain lands in the Canyonlands National Park, Utah, as wilderness_; _ the _C.runnu.tt..ee-0n-Enex.g)l. ..and Natur-a.-1,..Re--sour€e-s.~ -S. 2668 (ABOUREZK)
HOUSE
A bill to designate certain lands in the Capitol Reef National Park, Utah, as wilderness; to the Committee on Energy and Natural Resources.
COMMITTEE ACTION
House Report 95-909
H.R. 3420, to reduce speculation in excess lands purchased under the Federal reclamation laws by imposing additional restrictions on sales and resales of such excess lands originally sold to qual·fy for water rights under such laws, amended. (Seep. Hl548, CR, February 27, 1978.)
EXECUTIVE ACTION Public Law 95-237
R.R. 3454, to designate certain endangered public lands for preservation as wilderness areas. (Signed by the President on February 24, 1978).
(Seep. D204, CR, February 24, 1978.)
PRESIDENTIAL MESSAGE Environmental quality:
Transmitting the eighth annual report of the Council on Environmental Quality--referred to the Committee on Merchant Marine and Fisheries.
(See pp. Hl583-H1586, CR, February 28, 1978.)
FEDERAL REGISTER 43 Fed. Reg. 6560, February 14, 1978
EPA has issued a proposed rule for "Pretreatment Standards for Existing Sources for the Electroplating Point Source Category."
43 Fed. Reg. 7232, February 21, 1978
The Department of Energy has announced proposed rulemaking covering regulations which will cover the Department's compliance with NEPA.
43 Fed. Reg. 8812, March 3, 1978
EPA has proposed an amendment to its regulations covering effluent guidelines and standards for the Steam Electric Power Generating Point Source Category. EPA will consider economic factors when considering a request for variance from the national effluent limitation guidelines.
43 Fed. Reg. 10506, March 13, 1978
EPA has announced the list of Hazardous Substances as required by Sec. 31l(b) of P.L. 92-500, as amended.
LAW REVIEW
Hermann and Hoffmann, "Financing Public Interest Litigation in State Court: A Proposal for Legislative Action," 63
Cornell
Law Review
173. The authors plead for legislation to create a "private attorney general" system through which "public spirited" lawyers could be paid for their work in the "public" interest. We could call this legislation the "Hungry Lawyer Act."Field, "The Eleventh Amendment and Other Sovereign Immunity Doctrines," 126
University of Pennsylvania Law
Review
515. This is part one of a series of three articles on this above-named subject which will explore the sovereign immunity issue.COURT CASES
Adams
v.
Vance,
C.A., D.C., 11 ERC 1113.Eskimos were not entitled to an injunction requiring the Secretary of State to object to the International Whaling Co~ission's ban on hunting of
bowhead whales._ The Court pointed out that the plaintiffs would be required to make an extraordinary showing of irreparable harm to warrant judicial interference with the conduct of foreign affairs. The trust responsibilities toward the Eskimos, while great, was not enough.
Actually the Court seemed to think the ban was really a temporary matter. Indeed it was and the IWC changed its position and allowed subsistence hunting by the Alaskan natives.
Marino Property Co. v. Seattle,
Wash. Sup. Ct., 11 ERC 1118.The Port of Seattle may acquire the ownership of certain Federal surplus part facilitie~ without preparing an EIS uµder the State Envirenmenta~ Policy Act. Here there was no change in use, only the ownership was changed, and the EIS is concerned with use not ownership.
Save Our Wetlands, Inc. v. Rush,
U.S. Dist. Ct., La., 11 ERC 1123.The Corps' EIS covering a hurricane protection project failed to comply with NEPA because:
1. It was based on admittedly inaccurate model studies. The model studies were not for the project proposed in the EIS.
2. Economic benefits were overstated.
3. The EIS was not the result of the use of an interdisciplinary approach.
4. Project alternatives were not adequately evaluated.
Asarco, Inc. v. EPA,
C.A., D.C., 11 ERC 1129.EPA's new source performance standards regulations failed to comply with the Clean Air Act because these sought to expand the definition of stationary source to include facility or combination of facilities. The Act defined stationary source as single facility.
Mooney v. Kuiper,
Colo., 573 P.2d 538.The Court ruled that an applicant for a well permit can secure more than one permit extension so that the holder of a conditional decree, based
- - ~ ~-an s-ue-h--wel-1---c-On-stru-ct-i-orr-pennits, -coul-d-'-pursue the --water rl-gh~o the
-full extent of the decree.
Brown v. EPA,
C.A. 9, 11 ERC 1161.The Ninth Circuit Court of Appeals essentially reaffirmed its previous decision,
Braum v. EPA,
521 F.2d 827. The case was before the Court on remand from Supreme Court, 431 U.S. 99. It was expanded by California's attack on the revised motor vehicle inspection regulations issued by EPA. The Court ruled:(a) The case was not moot.
(b) The Clean Air Act does not authorize EPA to impose sanction on California because of its failure to impose an inspection system for motor vehicles.
·
.
•
Akers
v. Resor,
U.S. Dist. Ct., Tenn., llERC 1199.The Corps' revised EIS for a flood control -project does not pass muster where it failed to adequately discuss the benefits and costs of such project. There was not meaningful discussion of the real benefits from this project, nor was there any discussion of the impacts on the lands and towns because of this project.
Prather
v. Eisewnann,
Neb., 261 N.W.2d 766.In a case.involving a conflict between users of ground water--the plaintiffs for domestic use, and the defendants for irrigation--the Court ruled:
1. Nebraska gives a first preference to 'the domestic users of ground water with no preference as between the domestic users.
2. Irrigation users can never gain a preference over a domestic user. 3. The irrigacion user whose use lowers the water table to the extent that the domestic users' wells were rendered useless is required to answer in damages. The lower court1s decree requiring the defendant to pay for the lowering of plaintiffs' wells so that they could secure a water supply was affirmed.
Organizations
Un
i
ted fo
r
Ecology v. Be
l
l,
U.S. Dist. Ct., Pa., 11 ERC 1177.Plaintiffs, more than three years following granting of a permit for a land fill on defendanc's property, challenged the action on grounds that an EIS had not been prepared. In granting the dismissal of the suit grounded on laches, the Court stated that the defendants had established
(a) The plaintiffs had delayed bringing the suit for three years with full kn0wledge that the permit was granted--no EIS was filed, and work was going forward on the land fill construction.
(b) The delay was not excusable. Courts were opened. The fact that plaintiffs chose to.first attack the program-in·the State courts would not excuse the delay. Plaintiffs must accept the consequences of their tactical methods. Suits in each court could have been filed.
(c) To allow the suit to proceed·at this late date would cause great harm to the .defendants who would use the land fill. In fact,
five and one-half counties in Pennsylvania would benefit from this program. There was great need for this new waste disposal site.
Moore v. Hampton Roads Sanitation District,
11 ERC 1191, 11 ERC 1197, 11 ERC 1202.Three cases are reported covering the original District Court case, the panel decision on appeal to the Fourth Circuit Court of Appeals, and En Banc ruling on rehearing. The plaintiffs sued the City and Sanitation District claiming that, because of discharges of raw sewage into a river, the Virginia Health Department closed part of the river to shell fish harvesting, thus rendering their oyster leases from the State worthless. The lower court ruled:
1. The closing by the State was a valid exercise of the police powers and there was no taking of the lease property in violation of the Fifth and Fourteenth.Amendments.
2. The City which caused or allowed the overflow was protected by Virginia innnunity statutes from liability.
3. State law, not admiralty law, governed the case.
The Circuit Court panel ruled that admiralty law applied and the City would be liable for the admiralty tort of negligent discharge of the sewage and they reversed the lower court for an additional hearing on the issue of laches.
On rehearing, the full en blanc hearing affirmed the lower court's
decision, saying interference with oyster cultivation and harvesting
under a State lease would not create an admiralty cause of action.
United
States v.
1,216.83
Acres of
Land,
Washington Supreme Court, 11 ERC 1205. The Washington Court ruled that the State Game Commission has the authority to give the consent of the State to the acquisition of lands within the State by the United States for a migratory bird refuge; such consent being required by the Migratory Bird Conservation Act.Envirorvnental Defense Fund, Ina.
v. Castle,
C.A., D.C., 11 ERC 1209.The challenge was made to the Safe Drinking Water interim primary
regula-tions. The Court ruled:
(a) The Act contemplated that EPA would cover all organic contaminants
which may be feasible of control if such may prove injurious to health,
Since EPA failed to cover all such organic contaminants, the action was
returned for EPA to consider recent changes in available information and
report to the Court within 60 days. The Act contemplated a progressive attack on the drinking water problem.
(b) The approach of EPA with reference to inorganic contaminants
was approved as it reasonably promoted the legislative intent.
Taylor
v. Corps of
Engineers,
C.A. 5, 11 ERC 1219.The Corps of Engineers is required to follow its own regulations in any
permit denial proceedings, thus the Corps' failure to give the applicant all the comments on the application, together with an opportunity to answer the same, are grounds for remand of the case for further action.
S.W.
Neighborhood Assembly v
.
Eckard,
Dist. Ct., D.C., 11 ERC 1226.Even after G.S.A. ·had leased a private building for governmental offices
and had further caused the same to be oc·cup±e·d, ·the Court will force
the agency to comply with NEPA and prepare an EIS. G.S.A. had acted
following the development of an Environmental Assessment which the
Court found to be inadequate. The Court did not suggest what course
would be available after the preparation of the EIS.
Defenders
of
Wildlife v. Andrus,
Dist. Ct., D.C., 11 ERC 1232.The Department of the Interior seeks dismissal of this suit on grounds - ~ - t!!_at _th_~e is
_
a
__
_:!;:ailure to join an indispensable party __rm4..
appl_icationof res judicata. In a prior hearing, the Court had enjoined the
Department from allowing aerial wolf killing in Alaska over federal
lands by Alaska's Game Department. Also the Court indicated that it
appeared that NEPA would have to be followed. Alaska, following this
action, filed in the Federal District Court in Alaska a suit seeking
to enjoin the Department from stopping its wolf program. Environmental
plaintiffs in the District of Columbia case intervened. The Alaska
Court ruled that NEPA did not have to be followed, and that Department
had authority to stop the program. In the District of Columbia case
here outlined, the Court ruled Alaska is not an indispensable party, and that the issue is not one of res judicata but rather the question
of whether collateral estoppal should apply. Since the Court has
discretion in applying collateral estoppal it would not be applied
in this case because of resulting injustice to the plaintiffs.
SUPREME COURT
Ray
v
• .Atlantic Richfield
Co., et al.,
Supreme Court, U.S. _ _ , 46 L.W. 4200.In an appeal from a Lower Court deci.sion fi.nding Washingt:onis Tanker Law
invalid, the Supreme Courc reversed part of the Lower Courc's decision, holding:
1. Washington could require local pilots on all foreign trade registered traveling Puget Sound, but local pilots could not be
re-quired on domestic coastwise vessels.
2. Washington could not fix safety standards for tankers, but could require tug escort for those not having the safety features.
3. The State could not establish a limit on tanker size as U.S. had occupied this field leaving no room for State regulation.
Oliphant,
et al.
v.
SuquQJnish Indian
Tribe,
Supreme Court~ U.S.46 L.W. 4210.
Indi.an tribal courts do not have inherent criminal jurisdiction to try and punish non-Indians for action-on Indian Reservations. Only by a specially authorized Act of Congress can such jurisdiction be exercised •
.Adams
Wrecking Co. v.
United
States,
Supreme Courc, U.S. , 46 L.W. 4063.EPA developed "work practice" procedure to be followed in building demolition for buildings containing asbestos. These were called air pollution emission standards for asbestos as a hazardous pollutant. The defendant was charged charged with a violation of these regulations in a criminal complaint, The defendant claimed the regulations were not emission standards and the Lower Court agreed, but the Sixth Circuit reversed. The Supreme Court ruled that the "work practice" did not amount to an emission standard and thus the defendant could not be charged with a violation of an "emissic;m standard." The Court based its ruling upon a review of the Act and decided that
"emission standard" has a specific meaning for Congress and the Administra-tion couldnot determine that "work practice" was an emission standard. "Emission standard" had to have a "quantitative" limit on emissions. Review Granted:
No. 77-510,
U.S.
v. N.M.,
ruling below 564 P.2d 615.The New Mexico Supreme Court ruled the United States had no reserved water rights for minimum instream flows and for recreational purpose within Gila National Forest. Issue: Does the U.S. have such rights on the ground that these are valid purposes of national forests under the Organic Administra-tion Act of 1897? 46 L.W. 3426, January 10, 1978.
No. 77-388,
Washington
v. Confederated Bands and T?ibes of the Yakima
Indian
Nation,
C.A. 9, 552 F.2d 1332.Issue: Does partial geographic and subject matter jurisdiction exercised by the State of Washington within the Yakima Indian Reservation, pursuant to Public Law 280, violate either the statutory requirement of Public Law280 or the Fourteenth Amendment's Equal Protection Clause?"
46 L.W. 3537, February 28, 1978.
Review Denied:
No. 77-521,
Upper West Fork River Watershed Association v. U,S
,
Army
Corps of Engineers.
Ruling below, C.A.4.
Ruling below was that the Corps·v EIS was proper for a flood control project and complied with NEPA. 46 L.W. 3430, January 10, 1978.76-1609,
Indiana v. Scottsdale Mall.
Ruling below, C.A. 7, 549 F.2d 484. Indiana could not withdraw a road from federal funding just prior to thePS & E approval and escape preparing an EIS for the same. 46 L.W. 3433,
January 10, 1978.
No. 77-782,
American Iron and Steel Institute v. EPA.
Ruling below,10 ERC 1549. The issue was the validity of the Third Circuit's recall of its mandate and its amendment of that mandate. 46 L.W. 3554,
March 7, 1978.
No. 77-481,
Green County
Planning
Board v. FPC,
C.A. 2. The ruling of the Second Circuit Court was that the Federal Power Act does not authorize the payment of expenses to environmental groups.46 L.W. 3514, February 21, 1978.
No. 77-685,
County of Suffolk v. Secretary of the Interior.
Ruling below, C.A. 2, 8 ERC 1513. At issue was a ruling approving an EIS covering sale of oil leases in the Atlantic Ocean Outer Continental Shelf Tract.46 L.W. 3518, February 21, 1978. Petition Filed:
No. 77-953,
Buffalo
River
Conservation and Recreation Council v. National
Park
Service.
Ruling .below, C.A. 8, 55 F.2d 1342, 10 ERC 1428.Issue: Can Congress constitutionally create national rivers? 46 L.W •. 3854, January 17, 1978.
