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Volume 6, Issue 10 — October 1976


Section 208 and §303 Water Quality Planning and Management: Were Is It Now?

by Diane Donley and Khristine L. Hall

After long delays, implementation of §208 of the Federal Water Pollution Control Act Amendments (FWPCA) of 1972 is now underway in every state and most major metropolitan areas. The §208 program was designed to provide a comprehensive umbrella for the FWPCA's water quality planning and management provisions. This program is one of the most innovative and complex elements of the FWPCA and has tremendous potential for improving water quality and land use practices by requiring states and localities to produce enforceable water quality management plans.

Any discussion of the §208 planning process must include an analysis of §303 of the FWPCA, which provides for review and revision of water quality standards and for reform of antidegradation policies. The planning and management requirements of §§208 and 303 are specifically directed toward achieving the main goal of the FWPCA: "water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water,"1 better known as the "1983 goal" or "fishable, swimmable goal."


"Little NEPA's" in the Courts: Washington and Montana Environmental Policy Acts Are Alive and Well

On July 22, 1976, two state supreme courts handed down significant decisions interpreting the requirements of state statutes modeled on the National Environmental Policy Act. One of the rulings dealt with judicial review of an agency threshold determination not to file an environmental impact statement; the other concerned the adequacy of a particular environmental impact statement. And one followed a series of judicial opinions construing the state's statute while the other represented the court's first look at its state environmental policy act. Both opinions, however, signal judicial recognition of the spirit behind the letter of the statutes, whose operative language is identical to that of NEPA, and reflect a deep judicial commitment to full implementation of their basic policy objectives.

President Signs Bill Protecting New River

Concluding, for the moment, a 14-year battle by North Carolina residents—joined by local politicians—and national environmental groups against the nation's largest utility, American Electric Power, President Ford on September 11 signed into law a bill that formally includes a 26.5 mile segment of the New River in North Carolina in the national wild and scenic rivers system.1 The law effectively vacates a license granted by the Federal Power Commission (FPC) to an American Electric subsidiary, Appalachian Power Company, to build a 40,000-acre pumped storage project that would have flooded 70 miles of the New River, including part of the now-protected portion. Not willing to concede the outcome of the controversy, however, Appalachian has threatened to sue the government for $500 million compensation for the added cost it says is necessary to construct a comparable coal-fired electric plant.2

President Ford's signature confirmed the conditional designation of the New as a scenic river by Interior Secretary Thomas S. Kleppe on April 13.3 The effect of this administrative action, which was proposed on March 12, was placed in doubt by the D.C. Circuit's ruling on March 24 in North Carolina v. FPC4 upholding the license against a NEPA challenge by the state. Following the court's decision, the North Carolina congressional delegation introduced several bills to designate the New River under the Wild and Scenic Rivers Act.5 In August, Congress passed one of these bills, H.R. 13372, by overwhelming margins,6 having rejected amendments that would have left the FPC license undisturbed.7

Energy Conservation Through Rate Structure Reform: Electricity Rates Based on Marginal Costs

Barring the introduction of a radical new energy technology that will ease the use of fossil-fuel and nuclear-powered electric generating plants, energy conservation is both the most pragmatic method of reducing the adverse environmental consequences of electricity generation and the best way of assuring that the demand for electricity does not outpace our capability to generate it. It is generally conceded that new, less environmentally harmful energy technologies—such as solar, fusion, or geothermal—cannot be expected to assume a major portion of the nation's energy supply until the 1980s or later. Meanwhile, the "conservation ethic" inspired by the Arab oil embargo in 1973 has faded: current data show that electricity demand is now rising and that utilities may soon be caught in the pincers of rising use and inadequate supply.1

One incremental solution to this energy dilemma has recently attracted notice in several states and the Congress—the use of marginal costs in determining an electric utility's rate structure.2 Simply stated, the economic theory of marginal costs means "charging consumers a price which reflects the additional costs to the producer of an additional unit of consumption."3 Theoretically, if electrical energy were priced according to this principle, energy conservation would be promoted through the market structure, since the true costs, including the environmental impacts, of increasing electricity consumption would be reflected in its price, thus giving consumers a direct economic incentive to conserve energy.

California Enacts Permanent Coastal Protection Act

The California legislature has finally ended four years of suspense by enacting the Coastal Act of 1976,1 which permanently establishes a permit program governing land use along the 1,100-mile California shoreline. The Act is the ultimate product of a process which began with the passage of an Initiative2 in 1972 that set up the California Coastal Zone Conservation Commission and a number of regional commissions and ordered them to develop a comprehensive coastal management plan for submission to the legislature before the end of 1976, when the Commissions were to go out of existence. Although the Act as passed contains a number of modifications from the original Coastal Plan3 submitted in December 1975, it still represents the strongest and most comprehensive coastal zone protection program4 yet adopted by any state, and thus may serve as both an impetus and a paradigm for future efforts by coastal states in the area of land use planning and controls.

The Act's central provision requires that anyone wishing to undertake development projects within a zone from 1,000 yards inland along the coast out to the limits of state territorial waters must obtain a coastal development permit from either a regional commission5 or from the now-permanent state commission. Amendments on the Senate floor, however, carved a number of specific exceptions out of this general rule. No permits are necessary for improvements to single-family residences, for maintenance dredging, or for categories of development later designated by a two-thirds vote of the state commission as having no potential for significant adverse impact on either coastal resources or public access to the coast. Developments located in "urban land areas" are also exempted from the permit requirements. "Urban land areas" are defined as residential areas zoned and developed to a density of four or more dwelling units per acre before January 1, 1977, and areas zoned and developed for commercial or industrial use prior to the same date. In addition, a grandfather clause exempts projects in which the developer obtained a vested right prior to January 1, 1977.

Pounds of Cure: General Electric Agrees to PCB Abatement, Cleanup, and Research

Because there is typically a long period between environmental release of a toxic substance and appearance of chronic adverse health and environmental effects, many industrial and commercial chemicals that initially appeared innocuous have turned out to be dangerous. It is thus not uncommon for companies to have engaged in widespread production of dangerous substances—and for government regulatory agencies to have sanctioned their wide use and disposal—in good-faith ignorance of their potential for harm. Then, when the threat becomes apparent, initiation of effective measures to halt and clean up contamination is likely to prove difficult because of the financial and employment stakes of preserving the status quo, and the uncertain legality and fairness of effectively penalizing a course of conduct that was officially permitted initially.1