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Volume 13, Issue 5 — May 1983


Emerging Possibilities for State Control of Hydroelectric Development

by Thomas B. Arnold

Editors' Summary: Almost 40 years ago, in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, the United States Supreme Court ruled that the Federal Power Act preempted almost all state controls on hydroelectric development. Over the last 10 years, though, court decisions and statutes have afforded the states increasing power to regulate areas concurrently under federal control. In this Article, Mr. Arnold examines First Iowa in light of these trends. He concludes that courts may read First Iowa today to open some avenues for the states to regulate the environmental effects of hydropower projects. Also, the states may be able to regulate these effects through §401 of the FWPCA and through other federal statutes.

The Mono Lake Decision: Protecting a Common Heritage Resource From Death by Diversion

by Harrison C. Dunning

Editors' Summary: In the landmark Mono Lake case, National Audubon Society v. Superior Court, 13 ELR 20272, the California Supreme Court ruled that long-established water rights are subject to limitations protecting the public trust in navigable waters. The decision is introduced in Rossmann, The Public Trust in Appropriated Waters: California High Court Decides Mono Lake Case, 13 ELR 10109 (1983). In this Article, Harrison C. Dunning analyzes the implications of the decision. Professor Dunning explains that the ruling is a logical extension of the application of public trust protection in land law. It also is a significant change in California water law because it establishes that the state water board has the duty both to consider public trust values in approving and reviewing water allocations and to minimize harm to those values to the maximum extent feasible. In addition, the case is significant because the court seemed to treat the public trust as an expression of the authority of the sovereign over "common heritage" resources. Professor Dunning assesses the accommodation of the Mono Lake decision with existing California water law and analyzes its likely application to groundwater management and federal water rights. He also suggests that the court's reluctant affirmation of dual court and water board jurisdiction over water resource public trust cases was intended to allow judicial usurpation of water board jurisdiction only to the extent necessary to ensure that the board properly exercised its newly articulated responsibility to protect public trust values. He concludes by noting that the decision should be viewed not as a disruption of a stable body of law, but simply as the most recent in a series of adaptations of California water law to keep it in step with contemporary needs for water resources.

The California Coastal Regulatory Experience

by Richard C. Jacobs

Editors' Summary: In the interests of preserving the scenic and recreational values of its long coastline and guaranteeing the public access necessary for general exploitation of those values, California has developed a system for strictly regulating coastal development. The regulatory system, born in a public initiative in 1972, developed during a four-year planning period, and enacted in the 1976 Coastal Zone Conservation Act, has been a controversial experiment in state land use control to protect an invaluable public resource. Mr. Jacobs outlines the legal history of California coastal regulation and reviews the current legal status of the major features of the 1976 Coastal Act. He notes that the Act has withstood most of the legal challenges to its key provisions, but that uncertainty in the law of takings continues to make application of the Act a delicate matter. He concludes by noting that the current administration in California is reconsidering the wisdom of such intensive state regulation of land use, but that the development and implementation of the Coastal Act may have permanently heightened public concern over the risk of loss of coastal recreational and scenic values.


Corps Recasts §404 Permit Program, Braces for Political, Legal Skirmishes

by Frances L. McChesney

Editors' Summary: Section 404 of the Federal Water Pollution Control Act, the Corps of Engineers' dredge and fill permit program, is once again the focus of legislative and administrative reform efforts. Legislative reforms include proposed bills to return the Corps' jurisdiction to traditionally navigable waters and to limit permitting time to 90 days. Administrative reforms have been more concrete. In July 1982, the Corps issued amendments to its regulations in response to the goals of the President's Task Force on Regulatory Relief. It also made substantial changes in memoranda of agreements between the Corps and other agencies, including the Environmental Protection Agency and the U.S. Fish and Wildlife Service, involved in reviewing permits. Environmental groups and some states are alarmed about the possible impacts on wetlands that such changes may allow. The National Wildlife Federation and other groups filed suit last December challenging many of the regulations. In addition, interest in §404 is heating up on Capitol Hill with hearings to consider the effectiveness of the program.


Old Style Conservation—Once More Unto the Breach?

by Henry L. Diamond

It is time for a fresh, bipartisan review of outdoor recreation policy in this country to close a circle begun 25 years ago. In 1958, Congress created the Outdoor Recreation Resources Review Commission (ORRRC) to study the nation's outdoor recreation needs. The ORRRC was composed of four members of the Senate, two from each party, and four members of the House, again, two from each party. President Eisenhower appointed seven public members, including ORRRC's chairman, Laurance S. Rockefeller.

The Commission submitted its report to President Kennedy in January 1962. That marked the beginning of a new era in outdoor recreation in America. The Commission found that there were serious shortages in the nation's supply of outdoor recreation, particularly near metropolitan areas, and recommended corrective action.