Oregon Natural Desert Ass'n v. Dombeck

Citations: 172 F.3d 1092; 1998 WL 1046262Docket: Nos. 97-35065, 97-35112

Court: Court of Appeals for the Ninth Circuit; July 22, 1998; Federal Appellate Court

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The United States Forest Service challenges a district court ruling that pollution from cattle grazing requires certification under § 401 of the Clean Water Act (CWA). The court must determine if 'discharge' in § 1341 applies to nonpoint sources, concluding it only applies to point sources, leading to a reversal of the lower court's decision. The case originated in 1993 when the Forest Service permitted Robert and Diana Burril to graze cattle in Oregon’s Malheur National Forest, resulting in pollution of Camp Creek and the Middle Fork of the John Day River. In 1994, the Oregon Natural Desert Association (ONDA) sued, asserting the Forest Service violated the CWA by issuing the permit without state certification regarding water quality standards. Intervenors included the Burrils, Grant County, and the Confederated Tribes of the Warm Springs Reservation.

The court also addressed the standing of ONDA, which must show a legally protected interest, a causal link to the defendant’s actions, and the likelihood of redress. The court found ONDA's members, who live near and use the polluted river, have suffered injury, qualifying as a cognizable harm. The appellants claimed ONDA only faced a procedural injury, but the court ruled that ONDA's efforts to enforce environmental standards directly relate to the members’ concrete interests. The court rejected the argument that ONDA must prove the state's denial of certification or a necessary change in grazing practices, affirming that the connection to potential harm is sufficient for standing.

The Supreme Court has established that asserting a procedural right can lessen a plaintiff's burden regarding immediacy and redressability, as seen in Lujan v. Defenders of Wildlife. ONDA parallels the hypothetical plaintiff in Lujan, who could challenge a federal agency's failure to prepare an Environmental Impact Statement (EIS) without needing to prove that the EIS would alter the dam's construction. ONDA claims a similar procedural right under § 1341 of the Clean Water Act. 

Appellants argue that even if ONDA has standing under Article III, its suit is not permitted under the Act's citizen suit provision, which allows any citizen to sue an agency for violating effluent standards, including certifications under § 1341. The appellants assert that the statute only permits suits enforcing existing discharge limitations. However, the statute does not explicitly limit citizen suits; it references the entirety of § 1341, which mandates that no permit can be granted without required certifications. If a permit is issued without such certification, the agency is in violation of the Clean Water Act.

Appellants incorrectly rely on Bennett v. Spear, where the Court restricted citizen suits under the Endangered Species Act to nondiscretionary acts. The Clean Water Act lacks such limitations, allowing citizen suits for violations of certification requirements.

The case centers on whether the Burrils’ Forest Service grazing permit necessitates state certification. This hinges on interpreting "discharge" in § 1341, which states that applicants for federal licenses or permits that may discharge into navigable waters must provide state certification ensuring compliance with various sections of the Clean Water Act. The Act defines point sources as specific conveyances, while agricultural runoff and animal grazing are categorized as nonpoint sources. The appellees argue that "discharge" encompasses both types of sources in § 1341.

The district court's decision hinged on the interpretation of § 502 of the Clean Water Act, which defines 'discharge of a pollutant' as any addition of a pollutant to navigable waters from any point source. The court concluded that the unqualified term 'discharge' includes nonpoint source pollution, such as runoff from grazing, rejecting the government's assertion that 'discharge' pertains exclusively to point sources. The ruling is subject to de novo review, focusing on the entire statute's language and intent.

Historically, before the 1972 Clean Water Act, regulatory efforts aimed at water quality standards were ineffective due to enforcement challenges and insufficient incentives for pollution reduction. The 1972 amendments shifted the focus to limiting discharges from point sources, making it easier to identify and regulate these pollutants. As a result, while the Clean Water Act prohibits discharges from point sources unless permitted under the National Pollutant Discharge Elimination System (NPDES), it does not directly regulate nonpoint source pollution, which is managed through federal grants for state programs as outlined in Section 208, requiring states to develop plans that address nonpoint source pollution.

The EPA can provide grants to states for administering approved plans and constructing facilities to manage water quality, as outlined in 33 U.S.C. § 1288(f) and § 1288(g). However, the Clean Water Act (CWA) lacks a direct mechanism to control nonpoint source pollution, relying instead on federal grant incentives. Notably, nonpoint source pollution is not penalized under the CWA, as established in Shanty Town Assocs. Ltd. Partnership v. EPA and Natural Resources Defense Council v. EPA, which clarify that states must develop nonpoint source management programs, also incentivized by grants under Section 1329.

The Act distinctly differentiates between point and nonpoint source pollution. In Oregon Natural Resources Council v. United States Forest Service, an attempt to use the citizen suit provision to address nonpoint source pollution was rejected, emphasizing that effluent limitations in § 1311 only apply to point sources. The term "discharge" in § 1341 is likewise restricted to point sources, as all related regulatory sections govern point source discharges. While § 1313 pertains to establishing water quality standards, it does not directly regulate nonpoint source pollution; these standards primarily serve to further regulate point sources.

The reference in § 1311(b)(1)(C) to water quality standards does not extend to nonpoint sources, reinforcing the conclusion that Section 1341's scope is similarly limited. Additionally, reliance on PUD No. 1 v. Washington Dep’t of Ecology is misplaced, as that case upheld state-imposed water quality conditions related to discharges, which must first be established under § 1341.

The Supreme Court's decision in PUD No. 1 affirmed that the term 'discharge' under § 1341 of the Clean Water Act does not extend to nonpoint source pollution, such as runoff from grazing. The construction of the dam was acknowledged to produce discharges from both dredge/fill material and water through the tailrace, both of which constitute point sources as defined under 33 U.S.C. § 1362(14). The Clean Water Act consistently uses 'discharge' to refer to effluent released from point sources, while 'runoff' pertains to nonpoint source pollution, as evidenced by its use in 33 U.S.C. §§ 1288 and 1314(f). Section 1341 does not mention runoff, indicating Congress's intent not to require certification for it. Had Congress intended for runoff to be included, it could have aligned § 1341 with § 1323, which pertains to runoff from federal activities. The court recognized that nonpoint source pollution, which lacks a direct point of discharge, includes runoff from agricultural and silvicultural sources. Moreover, it clarified that 'discharge' encompasses all releases from point sources, regardless of whether they contain pollutants, a view supported by the D.C. Circuit's interpretation in National Wildlife Fed’n v. Gorsuch. The Confederated Tribes argued that cattle grazing should be included as equivalent to point source pollution due to their waste entering the stream directly. However, the distinction between point sources and nonpoint sources remains significant, as the former involves identifiable discharge points, while the latter does not.

The Clean Water Act does not classify animals, including cattle, as point sources of pollution, as outlined in 33 U.S.C. § 1362(14). The Second Circuit's interpretation confirms that the term 'point source' excludes humans and animals. The argument that cattle might be considered a 'concentrated animal feeding operation' under the same section is rejected. Even if open range grazing were to qualify, the decision on whether such operations need certification is left to the state NPDES program Director's discretion, as per 40 C.F.R. § 122.23(c). No evidence from the Director or state administrative proceedings is presented. Therefore, it is concluded that certification under § 1341 is unnecessary for grazing permits or federal licenses resulting in pollution solely from nonpoint sources. The district court's judgment is reversed, and the case is remanded for judgment in favor of the defendant.