Delaware River Basin Commission v. Bucks County Water & Sewer Authority, 641 F.2d 1087, 3rd Cir. (1981)
Delaware River Basin Commission v. Bucks County Water & Sewer Authority, 641 F.2d 1087, 3rd Cir. (1981)
2d 1087
The Bucks County Water and Sewer Authority (the Authority) appeals from an
order of summary judgment entered against it by the district court. The
Delaware River Basin Commission (the Commission) had sued the Authority in
an attempt to impose charges for water that the City of Philadelphia had drawn
from the Delaware River and sold to the Authority. Because we are not
convinced that the Commission's assessment of charges against the Authority
comports with the constitutional guarantee of equal protection, we vacate the
judgment of the district court, 474 F.Supp. 1249, and remand.
* From its headwaters in the Catskill Mountains of New York, the Delaware
River flows generally southward, framing the greater part of the border
between Pennsylvania and New Jersey before reaching the sea off the coast of
Delaware. Coherent development of the River's resources proved impossible
when left to the uncoordinated decisions of each of the four riparian states.1 In
order to ensure adequate management and conservation of the River and its
tributaries, collectively referred to as the Delaware River Basin, the riparian
states in 1961 entered into the Delaware River Basin Compact. Recognizing the
federal interests in proper supervision of the River, the United States also
became a party to the Compact, which was ratified by Congress pursuant to
Article I, Section 10 of the Constitution.2
3
During its first ten years, the Commission did not exercise its authority to levy
charges for use of Basin water. In 1971, however, the Commission passed
Resolution 71-4, authorizing charges. The Commission did not actually begin
to collect charges until 1974, when, with the adoption of Resolution 74-6, it
implemented a system of rates and exemptions for the use of the surface waters
of the Delaware.4
(i) a valid and subsisting permit, issued under the authority of one of the
signatory parties, if such permit was required as of October 27, 1961, or
thereafter;
(iii) the total allocable flow without augmentation by the Commission, using a
seven-day, ten-year, low-flow criterion measured at the point of withdrawal or
diversion.
10
Resolution 74-6 imposed a charge of $.04 per thousand gallons for surface
water consumed by users and $.0004 per thousand gallons withdrawn for nonconsumptive uses; these rates have since been increased to $.06 and $.0006,
respectively.
11
In 1966, eight years before the Commission began to assess charges for use of
Basin water, the Bucks County Water and Sewer Authority entered into an
agreement with the City of Philadelphia, under which the City contracted to
supply the Authority with 35,000,000 gallons of water per day. The Authority
submitted this agreement to the Commission for approval under Section 3.8 of
the Compact. The Executive Director of the Commission responded that
Section 3.8, which requires the Commission's endorsement of any project
"having a substantial effect on the water resources of the (B)asin," did not
require review of the contract between the Authority and the City. Philadelphia
began delivering water to Bucks County in 1970, and has done so continually
since then.
12
Late in 1976, the Commission requested that the City of Philadelphia bill the
Authority, based on the charges called for by Resolution 74-6, for the water the
City supplied to Bucks County. Philadelphia refused, stating that it did not wish
to function as a "collection agency" for the Commission. The Commission then
wrote to the Authority, indicating that the Authority had no legal entitlement to
any water from the Basin free of the Commission's charges, and requesting that
the Authority remit to the Commission the money owed under Resolution 74-6.
The Authority replied that it owed no money. It contended that the water it
purchased from Philadelphia could have been withdrawn by the City free of
charge on the effective date of the Compact, and hence fell within the "legal
entitlement" exemption of Resolution 74-6.
13
The Commission eventually brought suit against both the Authority and the
City of Philadelphia. Philadelphia crossclaimed against the Authority for
indemnification in the event the City was held liable to the Commission. The
district judge granted the Commission's motion for summary judgment.6 Since
the Authority acknowledged that neither it nor its predecessors enjoyed any
independent legal entitlement to draw water from the Delaware, the district
court reasoned that the Authority's claim to exemption could succeed only if, as
of the effective date of the Compact, Philadelphia had "a valid and subsisting
permit, issued under the Authority of Pennsylvania," to take water from the
Delaware in the quantity and for the purpose comprehended by the City's
agreement with Bucks County. The district court concluded, after reviewing
Pennsylvania law, that the permit authorizing Philadelphia's massive daily draw
from the River did not contemplate Philadelphia's resale of a portion of this
water to outlying municipalities. Bucks County thus was not entitled to
exemption from the Commission's charges. The court also rejected the
Authority's contentions that the Commission had actually approved the
County's use of Delaware River water free from charges, and that Section
15.1(b) of the Compact, as implemented by Resolution 74-6, violates Federal
constitutional principles of equal protection.
II
14
On appeal, the Authority challenges the district court's holding on the equal
protection issue. The Authority does not frame its constitutional challenge as an
attack on Section 15.1(b) of the Compact, however. Instead, it maintains that
Resolution 74-6 implements the Compact's "grandfather" provision in an
unconstitutional manner. Thus, the Authority does not contend that any
difference in treatment as among users of Basin water would violate equal
protection, but only that a discrimination based on "legal entitlement" as
defined by Resolution 74-6 cannot survive constitutional scrutiny.
15
The Authority does not challenge the other holdings of the district court. In
particular, the Authority does not press the principal argument on which it
relied in the district court: that, as of the Compact's effective date, the City of
Philadelphia had a valid and subsisting permit under Pennsylvania law to
withdraw water from the Delaware and sell it to other municipalities.
Moreover, the Authority makes no claim that, as of the effective date of the
Compact, it had an independent legal entitlement to divert water from the
Delaware River Basin. Both in its brief and at oral argument, the Authority
acknowledged that it has never enjoyed such an entitlement. In effect, Bucks
County concedes that if it were to build its own facilities for withdrawing River
water, the terms and charges of Resolution 74-6 would apply to such
diversions.
16
Comm'n, 399 F.Supp. 469 (E.D.Pa.1975), aff'd per curiam, 532 F.2d 745 (3d
Cir. 1976), where it was held that the Commission acted within its authority in
adopting Resolution 74-6. The Morrisville decision helps illuminate the
Authority's claim to challenge the constitutional validity only of the
implementation of Section 15.1(b), rather than of the Section itself. Section
15.1(b) immunizes from water use charges any "withdrawals or diversions
which could lawfully have been made without charge on the effective date of
the Compact." Although use of the term "lawfully" might suggest that a user's
rights under state law to withdraw water should serve as the measure of its
exemption, Resolution 74-6 grants immunity only to the extent of pumping
capacity for those users whose intake capabilities on the Compact's effective
date fell short of the amount they were authorized by state law to withdraw. By
endorsing Resolution 74-6 as a proper implementation of Section 15.1(b), the
courts have indicated that the Compact tolerates measuring the extent of the
"grandfather" exemption by standards other than the state law entitlement of
the user. Moreover, there has been no indication that tests different from those
codified in Resolution 74-6 might not also constitute proper applications of
Section 15.1(b). Thus in challenging the constitutionality of exemptions based
on the criteria of Resolution 74-6, the Authority need not necessarily challenge
the constitutionality of Section 15.1(b) itself, since there might be other
methods of implementing the Section that are consistent both with the Compact
and the Constitution.
17
We note that the constitutional challenge the Authority raises was not presented
in Borough of Morrisville. To the contrary, the district court in that case stated:
"Plaintiff has not raised any equal protection challenge to Section 15.1(b) as it
has been applied here, and we take no position on its constitutionality." 399
F.Supp. at 474 n.4. We now take up the merits of the equal protection
challenge posed by the Authority.III
18
(C)ourts are quite reluctant to overturn governmental action on the ground that it
19
denies equal protection of the laws. The Constitution presumes that, absent some
reason to infer antipathy, even improvident decisions will eventually be rectified by
the democratic process and that judicial intervention is generally unwarranted no
matter how unwisely we may think a political branch has acted. Thus, we will not
overturn such a statute unless the varying treatment of different groups or persons is
so unrelated to the achievement of any combination of legitimate purposes that we
can only conclude that the legislature's actions were irrational.
20
21
When reviewing a classification under the rationality test, then, a court must
conduct a two-step analysis. First, it should identify the purposes of the statute
and assure itself that these purposes are legitimate; ordinarily, this inquiry will
involve examination of statements of purpose and other evidence in the
legislative history.9 Second, having identified the governmental purposes, the
court must determine whether the classification is rationally related to the
achievement of these goals.10
22
Applying these principles to the case at hand, 11 we first look for the purposes
underpinning the "grandfather" provision whose implementation, through
Resolution 74-6, the Authority challenges. As noted above, Congress added
Section 15.1(b) to the Compact as a precondition to federal participation.
Unfortunately, the legislative history of Congressional ratification of the
Compact does not disclose the purposes behind Section 15.1(b). The Report of
the Senate Committee on Public Works notes generally that Congress added
amendments to the Compact "in order to provide minimum protection of
federal interests." S.Rep.No.87-985, 87th Cong., 1st Sess. 6 (1961). But as
Judge Newcomer observed in Borough of Morrisville, "It is unclear from the
legislative history ... what the federal interest is in insuring that pre-1961 users
be exempt from Commission charges." 399 F.Supp. at 474.12
23
28
The "pooled water" concept underlying the Commission's system of water use
charges does not explain the exemption for pre-1961 users. If anything, the
Commission's statement suggests that such exemptions are inconsistent with the
"pooled water" theory. Since all users benefit from a regulated pool of water, it
is difficult to perceive what legitimate purpose is served by charging only some
users for the use of that regulated pool.
29
In short, neither the Congress, when it added Section 15.1(b), nor the
Commission, when it adopted Resolution 74-6, identified a legitimate goal that
is furthered by exempting certain users of Basin waters from the charges
31
32
During the twenty years since Flemming, however, the Supreme Court has
sometimes indicated that rationality analysis must consider the actual purposes
of the legislature, rather than post hoc justifications offered by government
attorneys or hypothesized by the court itself. For instance, in Weinberger v.
Wiesenfeld, 420 U.S. 636, 648 n.16, 95 S.Ct. 1225, 1233 n.16, 43 L.Ed.2d 514
(1975), the Court, through Justice Brennan said:
33 Court need not in equal protection cases accept at face value assertions of
This
legislative purposes, when an examination of the legislative scheme and its history
demonstrated that the asserted purpose could not have been a goal of the
legislation.13
34
And in McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059-1060, 35
L.Ed.2d 282 (1973), the Supreme Court indicated that a challenged
classification will survive rationality analysis when it "rationally furthers some
legitimate, articulated state purpose." See also id. at 276, 93 S.Ct. at 1062
(purpose upholding a statutory class must be "legitimate and nonillusory"); San
Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36
L.Ed.2d 16 (1973) (classification must further a "legitimate, articulated
purpose").
35
36
37
V
38
region as of 1961, and that most Commission projects aimed at enlarged and more
equitable water allocation would be geared to meeting needs developing after the
effective date of the Compact.
40
474 F.Supp. at 1255. The district court, then, postulated that the "grandfather"
provisions sought to shield established users from costs incurred by the
Commission in meeting the needs of post-1961 users.
41
42
Even assuming, however, that the water use charges are designed, at least
primarily, to distribute the costs of Commission projects among those users
whose demands for Basin water arose after 1961, we fail to perceive how
Resolution 74-6 bears a rational relation to that goal. For the Resolution does
not make the measure of exemption the actual usage as of the effective date of
the Compact, but relies on other criteria, such as state-issued permits, pumping
capacity, and allocable flow. A user who withdrew Basin water before 1961
might thereafter have increased the amount of water drawn from the Basin's
resources, thereby contributing to the increasing demands for Basin water, yet
have remained exempt from water use charges so long as the increased
diversions did not exceed the user's "legal entitlement" as defined in Resolution
74-6. The City of Philadelphia, an original party to the present suit, provides a
case in point. Although Philadelphia has a "legal entitlement" to 423,000,000
gallons of Basin water per day,22 the City's actual usage has never approached
this amount. Nonetheless, under the rate scheme of Resolution 74-6,
Philadelphia could increase its usage well beyond its current level and remain
within its exemption even though its increased withdrawal would be among the
uses which have come into existence after 1961 and which have required the
Commission to undertake conservation projects. If Section 15.1(b) reflects a
policy that users of Basin water who place demands on Basin resources
exceeding those made in 1961 should pay for Commission projects undertaken
to satisfy those demands, then Resolution 74-6, by forcing some users to pay
those costs while exempting others, appears to be an arbitrary, rather than a
rational, implementation of that policy.23
43
44
Judicial toleration of step-by-step legislative action, however, does not save the
provisions challenged in the present case. The Supreme Court in Dukes could
sanction a gradual approach since the challenged exemption would eventually
expire; in time, all of the vendors allowed to continue work in the French
Quarter would retire, and the ban on vendors would become absolute. In our
case, however, Resolution 74-6 grants a permanent exemption for pre-1961
users to the extent of their "legal entitlement." Nothing in the record suggests
that the Commission some day will alter this exemption. It would involve sheer
speculation on our part to regard the Resolution as the first step toward eventual
requirement of contributions from all users who exceed their 1961 demand for
Basin water, rather than as a grant of permanent immunity for some.
45
Moreover, the "reliance interests" cited in Dukes do not apply to the exemption
from water use charges as codified in Resolution 74-6. While a user arguably
has a reliance interest in continuing to withdraw, free of charge, the amount of
Basin water diverted before the Compact became effective, we perceive no
reliance interest in free enjoyment of an amount exceeding actual usage.
46
For these reasons we disagree with the district court's conclusion that
Resolution 74-6 can be rationalized as an attempt to distribute the costs of
regulation among users whose recent demands have made regulation necessary.
The apparently permanent exemption granted those users who withdraw more
water than they did in 1961, but less than their 1961 "legal entitlement,"
persuades us, at least at this time, that Resolution 74-6 is not a rational means to
this end.
VI
47
48
We find this suggestion unsatisfactory. The terms of the Compact make clear
that the broad regulatory powers granted the Commission include the authority
to override whatever allocation systems had earlier been devised by signatory
states. Section 10.1 of the Compact states: "The Commission may regulate and
control withdrawals and diversions from surface waters ... of the Basin." And
Section 10.8 provides: "Whenever the Commission finds it necessary or
desirable to exercise the powers conferred on it by this article, any diversion or
withdrawal permits authorized or issued under the laws of any of the signatory
states shall be superseded to the extent of any conflict with the control and
regulation issued by the Commission." Read together, these Sections reveal
that, notwithstanding recognition at state law, a user's pre-1961 rights to the
enjoyment of Basin water may have to yield to the regulatory enactments of the
Commission. These Sections belie any suggestion that solicitude for the state
law allocation systems superseded by the Compact was an unarticulated motive
of the Congressional amendments.
49
VII
51
Thus far, we have been unable to conceive of any rationale for the exemption
of Resolution 74-6, other than those already considered. Inasmuch as it has not
been demonstrated that the exemption from water use charges conferred on
certain users of Basin water by Resolution 74-6 is rationally related to the
attainment of a legitimate state purpose, we cannot sustain at least at this time
the Resolution against the constitutional challenge mounted by the Authority.
The only remaining question is whether remand to the district court would
serve a useful function. At oral argument, counsel for the Commission argued
against remand, maintaining that no further evidence of the purposes
underlying Section 15.1(b) could now, almost twenty years after adoption of
the Compact, be advanced. Notwithstanding the Commission's candid
acknowledgement of these difficulties, we believe it more prudent to remand
the present controversy than to grant final disposition by this Court. The
difficulties attending any effort to divine legislative intent no doubt are greatly
magnified when the legislature acted two decades past and left no clear trace of
its designs. But as we earlier concluded, it is doubtful whether the actual
purpose of the Congress need be established. So long as the Commission can
proffer some purpose that the court may reasonably presume to have motivated
the Congress that added Section 15.1(b) to the Compact, there will be available
a standard against which to test the rationality of Resolution 74-6. We believe
the Commission should have an opportunity to attempt this type of explanation.
52
53
Accordingly, the judgment of the district court will be vacated and the case
remanded.
BROTMAN, District Judge, dissenting:
54
55
56
existing legal rights of various local entities to withdraw water free of charge.
The grandfather clause at issue here was enacted to prevent the Commission
from charging municipalities such as Philadelphia and New York for
continuing to withdraw water in the quantities they were legally sanctioned to
withdraw before the Commission was established. The rationale for this
provision is amply explicated in the opinion below:
57
58
Delaware Riv. Basin Comm'n v. Bucks Cty. Water & Sewer Auth., 474 F.Supp.
1249, 1255 (E.D.Pa.1979) (footnote deleted). In brief, at the time the
Commission was established, the natural flow of the river was evidently
sufficient to meet the needs of the existing users in the amounts they were
legally sanctioned to withdraw. Because whatever improvements were later
made by the Commission did not benefit these established users, the
grandfather clause exempting these users from charges for withdrawals not in
excess of their legal entitlement as of 1961 was perfectly rational.3 Minnesota
v. Clover Leaf Creamery Co., --- U.S. ----, ----, 101 S.Ct. 715, 725-726, 66
L.Ed.2d 659 (1981).
59
I do not mean to argue that the system adopted is the best or most equitable of
all conceivable ways to finance the improvements for the Delaware. Indeed, in
my opinion, it would be proper for Philadelphia, a major user of the river's
water, to share the cost of any necessary improvements. However, these are
concerns properly addressed to the legislature, not to this Court in its role as
guardian of the Constitution. I had thought that equal protection scrutiny of
purely economic regulations was finally put to rest some years ago in Ferguson
v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). See also
Minnesota v. Clover Leaf Creamery Co., --- U.S. ----, ----, 101 S.Ct. 715, 725726, 66 L.Ed.2d 659 (1981); New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct.
2513, 49 L.Ed.2d 511 (1976) (per curiam). We must be careful not to open the
door towards a return to the era in which courts were all too willing to allow
their economic opinions to color their judgments about matters of constitutional
law. See, e. g., Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed.
1101 (1918), overruled, United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85
L.Ed. 609 (1941).
60
Honorable Stanley S. Brotman, United States District Court for the District of
New Jersey, sitting by designation
The need for regional action was evidenced by the legal controversies over use
of the River's waters, two of which were resolved by the Supreme Court. See
New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 842, 98 L.Ed. 1127 (1954);
New Jersey v. New York, 283 U.S. 336, 51 S.Ct. 478, 75 L.Ed. 1104 (1931)
Act of Sept. 27, 1961, Pub.L.No.87-328, 75 Stat. 688. The Compact has been
codified by each of the signatory state governments. See Del.Code Ann. tit. 7,
6501-6511 (Supp.1970); N.J.Stat.Ann. 32:11D-1 to -115 (1963
F.Supp.1980); N.Y.Conserv.Law 801-812 (McKinney 1967); Pa.Stat.Ann.
tit. 32, 815.101 to .106 (Purdon 1967)
The Resolution also provides that, in the absence of proof of a user's "legal
entitlement" as of the Compact's effective date, the quantity of water exempt
from charge is that user's "legal entitlement" determined as of March 31, 1971
The opinion of the district court is reported at 474 F.Supp. 1249 (E.D.Pa.1979).
The district court entered summary judgment against both the Authority and the
City; it also granted the City's request for indemnification
The Court in Bradley upheld Section 632 of the Foreign Service Act of 1946,
22 U.S.C. 1002 (1976), which requires mandatory retirement at age 60 of
federal employees covered by the Foreign Service retirement and disability
system. The Court found this provision supported by a rational basis, even
though no mandatory retirement age is established for Civil Service employees,
including those who serve abroad
The Supreme Court will review certain equal protection challenges under more
stringent standards: strict and intermediate scrutiny. The former test whether
the challenged classification is necessary to the accomplishment of a
compelling state interest thus far has been reserved for discriminations based on
race, national origin, alienage, and for classifications made on account of the
exercise of a constitutional right. The latter standard whether the discrimination
substantially furthers the achievement of an important governmental objective
thus far has been applied only to classifications based on gender or illegitimacy.
For a collection of cases, see generally G. Gunther, Constitutional Law ch. 10
(10th ed. 1980).
659 (1976)
9
See Malmed v. Thornburgh, 621 F.2d 565, 572-73 (3d Cir. 1980) (legislative
history of statute setting mandatory age for state judges disclosed four
legitimate purposes for the provision). In addition, the court might consider
general public knowledge about the evil sought to be remedied, prior law,
accompanying legislation, and formal public pronouncements. See
Developments in the Law Equal Protection, 82 Harv.L.Rev. 1065, 1077 (1969);
H. Hart & A. Sacks, The Legal Process 1413-16 (Tent. ed. 1958)
10
11
Neither party to this appeal suggests that, because the challenged classification
was devised by an administrative rather than legislative body, principles other
than those of conventional "bottom tier" equal protection scrutiny should
apply. Moreover, in applying rationality analysis, courts generally do not
subject administrative action to more exacting scrutiny than that accorded
legislative decisions. See, e. g., New York City Transit Auth. v. Beazer, 440
U.S. 568, 99 S.Ct. 1365, 59 L.Ed. 587 (1979). But cf. Hampton v. Mow Sun
Wong, 426 U.S. 88, 114-16, 96 S.Ct. 1895, 1910-1911, 48 L.Ed.2d 495 (1976)
(Civil Service Commission cannot assert objective that is proper responsibility
of President or Congress). The equivalent treatment of legislative and
administrative choice has on occasion been questioned, however. See
Sandalow, Judicial Protection of Minorities, 75 Mich.L.Rev. 1162, 1187
(1977); Bennett, "Mere" Rationality in Constitutional law: Judicial Review and
Democratic Theory, 67 Calif.L.Rev. 1049, 1049 n.1 (1979). Generally absent
from administrative decisionmaking is the safeguard of correction of unwise
policy choices by the democratic process the safeguard cited by the Supreme
Court in Vance v. Bradley, 440 U.S. at 97, 99 S.Ct. at 943, as underpinning
rational basis analysis. In addition, while a legislature must be assumed to
understand its own objectives and to allocate burdens and benefits in
furtherance of them, this assumption becomes more attenuated when the
classification in question is drawn by an administrative agency
12
See also Delaware River Basin Comm'n v. Bucks County Water & Sewer
Auth., 474 F.Supp. 1249, 1255 (E.D.Pa.1979) (Pollak, J.) ("The legislative
history does not make clear why Congress chose to add Section 15.1(b) to the
Compact.")
13
14
15
16
17
18
We note that, in the present case, it might be argued that the interests of
politically powerful users have overborne those of more modest users. The
exemptions of Resolution 74-6 would appear to work to the advantage of some
of the largest consumers of Basin water for example, the City of Philadelphia
20
--- U.S. at ----, n. 10, 101 S.Ct. at 470, n. 10. The other case cited was
Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)
21
22
River Basin Comm'n v. Bucks County Water & Sewer Auth., 474 F.Supp.
1249, 1253 n.8 (E.D.Pa.1979). This administrative proceeding has no bearing
on the present appeal
23
24
See, e. g., Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16
L.Ed.2d 828 (1966); Williamson v. Lee Optical Co., 348 U.S. 483, 488-89, 75
S.Ct. 461, 464-469, 99 L.Ed. 563 (1955)
25
See Gunther, supra note 19, at 47 (a judicially cognizable purpose need not be
set forth in statutory preamble or legislative history; description of purpose
from official charged with enforcement should suffice)
26
See Bennett, supra note 11, at 1059; Fiss, Groups and the Equal Protection
Clause, in Equality and Preferential Treatment 84, 107 (M. Cohen, T. Nagel &
T. Scanlon eds. 1977); Note, Legislative Purpose, Rationality and Equal
Protection, 82 Yale L.J. 123, 128 (1972). Professor Fiss offers the following
illustration: "(L)et us assume that the policy at issue is one preferring blacks for
admission to law school. The first impulse is to identify the purpose as one of
increasing the number of black lawyers.... But what appears at first to be a
purpose seems to be nothing more than a restatement of the practice. Why does
the state want to increase the number of black lawyers? The answer to this
question yields what may more properly be deemed a purpose." Fiss, supra, at
107
27
The posture of the Authority also counsels in favor of remand rather than
reversal. Although the Authority moved for summary judgment before the
district court and appealed from the court's denial of its motion, in both the
Authority's brief and oral argument before this Court it has requested no more
drastic remedy than remand
Of course, even if the important issue of access to water were involved here,
which it is not, we would nonetheless employ minimal scrutiny. Access to
water is not the kind of fundamental constitutional right that merits equal
protection strict scrutiny. See generally San Antonio Ind. School Dist. v.
I agree with the majority that it would have been preferable had Congress
expressly articulated the purpose(s) of the grandfather clause. However,
legislators are very busy people. Thus, it is impractical to insist that Congress
provide a justification for every subsection of every statute it passes
The assertion that Philadelphia and other pre-1961 users have no "reliance
interest" in amounts in excess of their actual usage in 1961 is subject to dispute.
The Commission's regulation would only allow free withdrawals to the extent
of the user's pumping capacity in 1961. Obviously, in building their pumping
facilities, pre-1961 users legitimately relied on their free access to the
Delaware's water to the extent authorized by existing law