Petition for Writ of Certiorari — Oregon Natural Desert Ass'n v. Dombeck

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82 153 UL 21199

—“GFFRE-OF THE CLERK

In The

Supreme Court of the United States

OREGON NATURAL DESERT ASSOCIATION,

OREGON NATURAL RESOURCES COUNCIL,

OREGON WILDLIFE FEDERATION, PACIFIC RIVERS

COUNCIL, PORTLAND AUDUBON SOCIETY,

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

NATIONAL TROUT UNLIMITED,

and THE CONFEDERATED TRIBES OF THE

WARM SPRINGS RESERVATION OF OREGON,

Petitioners,

MICHAEL P. DOMBECK, in his official capacity as

Chief of the United States Forest Service,

GRANT COUNTY, ROBERT BURRIL, and

EASTERN OREGON PUBLIC LANDS COALITION,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL AXLINE Howarp G. ARNETT

Counsel of Record Paut D. Dewey

CARRIE STILWELL KARNopP, PETERSEN,

Western Environmental Notesoom, HANSEN,

Law Center ARNETT & SAYEG

1216 Lincoln Street 1201 N.W. Wall Street, #300

Eugene, Oregon 97401 Bend, Oregon 97701-1936

(541) 485-2471 (541) 382-3011

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Section 401(a) of the Clean Water Act (“CWA”) pro-

hibits the federal government from issuing a permit for

“any activity ... which may result in any discharge into

navigable waters . ” without certification from the

state that the permitted activity will not violate water

quality standards. 33 U.S.C. § 1341(a). The question pre-

sented for review is whether § 401 applies to non-point

source pollution generated by federally permitted activ-

ities.

PARTIES TO THE PROCEEDING

The plaintiffs/petitioners are the Oregon Natural

Desert Association, Oregon Natural Resources Council,

Oregon Wildlife Federation, Pacific Rivers Council, Port-

land Audubon Society, Northwest Environmental

Defense Center, and National Trout Unlimited. The plain-

tiff/intervenor/petitioner is the Confederated Tribes of

the Warm Springs Reservation of Oregon. The defen-

dant/respondent is Michael P. Dombeck, in his official

capacity as Chief of the United States Forest Service. The

defendant-intervenors/respondents are Grant County,

Robert Burril, and Eastern Oregon Public Lands Coali-

tion.

ili

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, petitioners

Oregon Natural Desert Association, Oregon Natural

Resources Council, Oregon Wildlife Federation, The

Pacific Rivers Council, Portland Audubon Society, North-

west Environmental Defense Center, and National Trout

Unlimited, and intervenor/petitioner the Confederated

Tribes of the Warm Springs Reservation of Oregon, state

that they have no parent companies, subsidiaries, or affil-

iates that have issued shares to the public.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

PARTIES TO THE PROCEEDING .................. ii

CORPORATE DISCLOSURE STATEMENT .......... iii

PETITION FOR A WRIT OF CERTIORARI......... 1

CPR IIMs ik vo ickdcenddncecbdececvarieik 1

PIN 5.49 9066s Ukee a ieee acco oe 1

STATUTES ENVOLVEDB ...... 0... cc ccccccccccccuce. 1

STATEMENT OF THE CASE....................... 2

BASIS OF JURISDICTION IN THE COURT OF FIRST

SNE oi os 60 6s one cud hedeidanteactial.. 6

is cg | EEE TE Oe aT ERD STEN CAT 6

I. THE PLAIN LANGUAGE OF § 401 SUPPORTS

THE DISTRICT COURT’S CONCLUSION

THAT ALL WATER POLLUTION CAUSED BY

FEDERALLY PERMITTED ACTIVITIES IS

SUBJECT TO STATE CERTIFICATION ....... 7

A. The Ninth Circuit Erred When it Held that

the Term “Discharge” is Limited to

Releases from Point Sources............. 10

B. The Fact that the Term “Discharge” is

Expansively Qualified by the Word “Any”

Removes Any Doubt that § 401 Applies to

All Sources of Pollution................. 12

Il. THE EVOLUTION OF § 401 DEMONSTRATES

THAT THE DRAFTERS INTENDED § 401 TO

APPLY TO ALL SOURCES OF POLLUTION ... 12

A. As Originally Adopted, § 401 Applied to

All Sources of Pollution................. 13

TABLE OF CONTENTS — Continued

Page

B. The 1972 Amendments to the CWA Did

Not Restrict the Scope of § 401 to Point

sources Of Pollution ..................... 15

Ill. WATER QUALITY STANDARDS REMAIN

SEPARATELY ENFORCEABLE AGAINST

NONPOINT SOURCES OF WATER POLLU-

Wea ks ¥ hbk peakesaieancuseecs ca 18

IV. THE NINTH CIRCUIT’S CONCLUSION THAT

§ 401 IS LIMITED TO DISCHARGES FROM

POINT SOURCES IS CONTRARY TO THIS

COURT’S REASONING AND CONCLUSION IN

PUD NO. 1 OF JEFFERSON COUNTY V. WASH-

INGTON DEPARTMENT OF ECOLOGY ........ 22

CAE iss UN Seas See R A ee ae 23

TABLE OF AUTHORITIES

Page

Cases

Alaska Center for the Environment v. Reilly, 762

F. Supp. 1422 (W.D. Wa. I90E). .sccccvvessevcuvess 20

Arkansas v. Oklahoma, 503 U.S. 91, 112 S. Ct. 1046

i) ne eer e re rT 17, 18, 19, 20

Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517

t. a" Bi, PET re ee 20

EPA v. California ex rel. State Water Resources Con-

role Bd., G6 UD. 2Ob Coe e lec es cacavevcciensacses 19

Federal Land Bank v. Bismarck Lumber Co., 314 U.S.

SD CUSED) . cnsincscccntvvacceesa ses beeuanoueeeevareces 9

Idaho Sportmen’s Coalition v. Browner, 951 F. Supp.

SER (WDD. Wi. BOGE so ses vnnsccandusevecsccnneesss 20

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991)....... 10

National Wildlife Federation v. Gorsuch, 693 F.2d 156

(D.G.. Cat. TORR cass Hea nek seeav ate 9, 10

Northwest Environmental Advocates v. City of Port-

land, 56 F.3d 979 (9th Cir. 1995)... 4, 5, 15, 17, 19, 20

Oregon Natural Resources Council v. United States

Forest Service, 834 F.2d 842 (9th Cir. 1987)......... 21

Power Authority v. Williams, 101 A.2d 659, 475

N.Y.S.2d 901 (N.Y. App. Div. 1984)................. 8

PUD No. 1 of Jefferson County v. Washington Depart-

ment of Ecology, 511 U.S. 700, 114 S. Ct. 1900

| rene ee Tae 5, 6, 18, 20, 22, 23

Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D.

Ras Dees Wi wk se ke ob ee ee eels ee eee 20

Tennessee Valley Authority v. Tennessee Water Qual-

ity Control Board, 717 F.2d 992 (6th Cir. 1983) ..... 10

Vii

TABLE OF AUTHORITIES - Continued

STATUTES

28 U.S.C.

33 U.S.C.

ao USA.

33 U.S.C.

33 USC.

33 U.S.C.

33 US.C.

Page

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DE aeOE ke dkveartceaerevecesaeaveyeubweses 8, 15

Bs ere roe rer erry rer 4, 21

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Pub. L. No. 91-224, § 21(b), 84 Stat. 91 (1970)... passim

REGULATIONS

ee ae ae I ois tite een barte wis bw Ri een Kaos 10

63 Fed. Reg. 45504 (August 26, 1998) ................ 6

Vili

TABLE OF AUTHORITIES - Continued .

Page

LEGISLATIVE MATERIALS

H.R. Conf. Rep. No. 940, 91st Cong., 2d Sess. 51 |

DR Sanus ced one an ee dana ieue eek reenen eek eee 15

H.R. Rep. No. 127, 91st Cong., Ist Sess. 6, 20

PR rn yrs aie ee nee 13

S. Rep. No. 351, 91st Cong., Ist Sess. 28 (1969)...... 14

B. Bape. Fem GEG, Gb OD CEI) vc nk cesccksdscswvcuss 17, 19

MISCELLANEOUS

Donahue, D.L., The Untapped Power of Clean Water

Act Section 401, 23 Ecology L.Q. 201 (1996) ........ 7

Oliver A. Houck, TMDLs III: A New Framework for

the Clean Water Act’s Ambient Standards Program,

, PS Bg rer Terre rrr err rer 6

Ransel, K.P., The Sleeping Giant Awakens: PUD No.

1 of Jefferson County v. Washington Department of

Ecotegy, 23 GavG. b. 250 (ISFS) «nce ccc enc ccevesenes 7

PETITION FOR A WRIT OF CERTIORARI

Plaintiffs and plaintiff-intervenor petition for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals was published at

151 F.3d 945 (9th Cir. 1998), subsequently withdrawn

from bound volume and republished at 172 F.3d 1092 (9th

Cir. 1998). The opinion of the Ninth Circuit is reprinted in

the Appendix (“App.”) at App. 1. The decision of the

district court, which the Ninth Circuit reversed and

remanded, was published at 940 F. Supp. 1354 (D.Or.

1996), and is reprinted in the Appendix at App. 20.

JURISDICTION

The court of appeals denied plaintiffs’ petition for

rehearing and rehearing en banc on April 22, 1999. App.

36. The judgment of the court of appeals was entered on

May 3, 1999. App. 17. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Section 401(a)(i) of the CWA states:

Any applicant for a Federal license or permit to

conduct any activity including, but not limited

to, the construction or operation of facilities,

which may result in any discharge into naviga-

ble waters, shall provide the licensing or permit-

ting agency a certification from the State in

which the discharge originates or will origi-

nate .. . that any such discharge will comply

with the applicable provisions of sections 1311,

1312, 1313, 1316, and 1317 of this title. . . . No

license or permit shall be granted until the certi-

fication required by this section has been

obtained or has been waived as provided in the

preceding sentence.

33 U.S.C. § 1341(a); App. 39.

Section 502(16) of the CWA states:

The term “discharge” when used without quali-

fication in the CWA, includes a discharge of a

pollutant, and a discharge of pollutants.

33 U.S.C. § 1362(16); App. 39.

Section 502(12) of the CWA states:

The term “discharge of pollutant” and the term

“discharge of pollutants” each means (A) any

addition of any pollutant to navigable waters

from any point source...

33 U.S.C. § 1362(12); App. 39.

STATEMENT OF THE CASE

Section 401 of the CWA prohibits the federal govern-

ment from issuing a permit for “any activity . . . which

may result in any discharge into navigable waters” unless

the applicant for the permit first provides certification

from the state that the discharge from the permitted

activity will not violate state water quality standards. 33

U.S.C. § 1341(a). Most water pollution from federal lands

is “nonpoint” pollution caused by federally permitted

activities such as cattle grazing, timber cutting, and road

building.

In July of 1993, the Malheur National Forest issued a

federal grazing permit (Permit) to Robert and Diana Bur-

ril, authorizing them to graze cattle on the Camp Creek

grazing allotment. App. 4. There is no dispute that cattle

grazing is an activity that “may” cause water pollution,

and that cattle grazing on the Camp Creek grazing allot-

ment “has resulted in pollution of both Camp Creek and

the Middle Fork of the John Day River.” App. 34-35.

Despite the fact that the Permit would result in a dis-

charge into navigable waters on the Camp Creek allot-

ment, the Forest Service issued the Permit to the Burrils

without § 401 certification from the State of Oregon that

the permitted activity would not violate water quality

standards.

On March 3, 1994, plaintiffs Oregon Natural Desert

Association, et al., submitted a notice of intent to file a

citizen suit under the CWA against the Forest Service for

failing to require the Burrils to obtain § 401 certification

from the state of Oregon before issuing the permit. The

Forest Service responded that, in its opinion, § 401 did

not apply to “nonpoint” sources of pollution caused by

cattle grazing. Plaintiffs filed suit in the Federal District

Court for the District of Oregon.

The district court ruled in favor of plaintiffs, holding

that “ § 401 applies to all federally permitted activities

that may result in a discharge, including discharges from

nonpoint sources.” App. 34. State certification under

§ 401, therefore, was required before the Forest Service

issued the permit. App. 35. Defendant and defendant-

intervenors appealed. The Ninth Circuit reversed, hold-

ing that “[§ 401] is limited to discharges from point

sources.” App. 12. Plaintiffs requested a rehearing, and

the Ninth Circuit withdrew its opinion from publication

and asked defendants to submit briefs in response. Ulti-

mately, however, the Ninth Circuit denied plaintiffs’

request for a rehearing and allowed its initial opinion to

stand. App. 36-38.

Section 401 originated in 1970 as § 21(b) of the Water

Quality Improvement Act. See Pub. L. No. 91-224, § 21(b),

84 Stat. 91, 108 (1970). As the district court found, the

CWA made no distinction between point and nonpoint

sources of pollution in the 1970 Act, or in § 21(b). App.

33. The district court found, and the Ninth Circuit agreed,

that § 21(b) applied to all federally permitted activities

that may result in water pollution. See App. 33 (In 1970,

“Congress intended to regulate all polluting activities”);

App. 12 (Section 21(b) “required the state to certify that a

licensed activity would ‘not violate applicable water

quality standards.’ ”).

In 1972, Congress adopted the National Pollutant

Discharge Elimination System (NPDES) permit program

to improve enforcement of water quality standards. The

NPDES program prohibits the discharge of any pollutant

from a point source except in compliance with an NPDES

permit. See 33 U.S.C. §§ 1311(a); 1342(a). As the Ninth

Circuit held in Northwest Environmental Advocates v. City

of Portland, the 1972 amendments were intended to

improve enforcement of the CWA by more closely regu-

lating point sources of pollution, but the amendments did

not “preclude the enforcement of water quality standards

that have not been translated into effluent limitations.” 56

F.3d 979, 986 (9th Cir. 1995); see also App. 34 (district court

noting that “Congress’s 1972 amendments to the CWA

were intended to improve enforcement of pollution from

point sources, not supplant the old system.”) (Citing

Northwest Environmental Advocates, 56 F.3d at 986).

The district court found that the 1972 amendments

did not alter the scope and intent of § 401 as originally

adopted in § 21(b):

The 1970 legislative history reveals that Con-

gress intended to regulate all polluting activities

through water quality standards. There was no

distinction between point and nonpoint sources

in the original Act . . . The 1970 amendments

illustrate the broadness of § 401; the 1972

amendments support this.

App. 33. The Ninth Circuit, however, held that the 1972

amendments narrowed the scope of § 401 to point sources

of pollution. App. 12.

The question presented for review is whether § 401

applies to nonpoint source pollution generated by feder-

ally permitted activities. Petitioners seek review in this

Court because whether § 401 applies to nonpoint pollu-

tion is an important question of federal law that should

be settled by the Supreme Court. The Supreme Court

should also accept review because the Ninth Circuit's

conclusion that § 401 does not apply to nonpoint pollu-

tion conflicts with this Court’s opinion in PUD No. 1 of

Jefferson County v. Washington Department of Ecology, 511

U.S. 700, 114 S. Ct. 1900 (1994) (PUD No. 1).

BASIS OF JURISDICTION IN THE

COURT OF FIRST INSTANCE

The United States District Court for the District of

Oregon had jurisdiction to hear this case under § 505(a)

of the Clean Water Act, 33 U.S.C. § 1365(a) (citizen suit

provision) and under 28 U.S.C. § 1331 (federal question).

ARGUMENT

The Court should grant certiorari because this peti-

tion presents “an important question of federal law which

has not been, but should be, settled by the Supreme

Court,” and because the Ninth Circuit’s opinion conflicts

with this Court’s opinion in PUD No. 1. See Rules of The

Supreme Court of the United States, 10(c). Section 401 is

the key provision in the CWA giving states authority to

regulate pollution stemming from federal lands and

activities. “Across the United States, States have reported

that nonpoint source pollution is the most pervasive

cause of water quality problems.” 63 Fed. Reg. 45504

(August 26, 1998) (citing National Water Quality Inven-

tory: 1996 Report to Congress, Environmental Protection

Agency). Federal lands are no exception.! Section 401 is

1 See Oliver A. Houck, TMDLs III: A New Framework for the

Clean Water Act’s Ambient Standards Program, 28 ELR 10415,

10419 (1998) (identifying nonpoint source pollution as the “root

the key provision of the CWA giving states the authority

to protect themselves from pollution originating on fed-

eral lands, and the Ninth Circuit’s decision that § 401

does not apply to the single greatest source of pollution

on federal lands seriously undermines both the states’

ability to protect their waters, and the CWA’s goal of

eliminating water pollution. See 33 U.S.C. § 1251(a).

I. THE PLAIN LANGUAGE OF § 401 SUPPORTS THE

DISTRICT COURT’S CONCLUSION THAT ALL

WATER POLLUTION CAUSED BY FEDERALLY

PERMITTED ACTIVITIES IS SUBJECT TO STATE

CERTIFICATION

Section 401(a)(1) requires in pertinent part that:

Any applicant for a Federal license or permit to

conduct any activity ... which may result in any

discharge into . . . navigable waters, shall pro-

vide the licensing or permitting agency a certi-

fication from the State .. . that any such

cause of water quality impairment in the United States”); U.S.

Environmental Protection Agency, Fact sheet, EPA841-f-95-011,

National Water Quality Inventory: 1994 Report to Congress 1

(1995) (nonpoint pollution is most prevalent source of pollution

in U.S. rivers and streams); Donahue, D.L., The Untapped Power

of Clean Water Act Section 401, 23 Ecology L.Q. 201, 204-205

(1996) (noting the “grave threat” to water quality in the West

posed by nonpoint source activities on federal lands); Ransel,

K.P., The Sleeping Giant Awakens: PUD No. 1 of Jefferson County v.

Washington Department of Ecology, 25 Envtl. L. 255, 277 (1995)

(“nonpoint sources accounted for approximately 65% of the

stream miles for which States reported impairments of water

quality; 76% of impaired lake acres were attributed by the States

to nonpoint sources”).

discharge will comply with the applicable provi-

sions of sections 1311, 1312, 1313, 1316, 1317.

No license or permit shall be granted until the

certification required by this section has been

obtained... .

33 U.S.C. § 1341(a)(1), App. 39-40. By its plain terms,

§ 401 applies to “any activity” which “may” result in

“any discharge” to navigable waters. Cattle grazing is a

federally permitted activity that “may” result in a dis-

charge into navigable waters, and therefore applicants for

federal grazing permits must obtain certification from the

affected state that the permitted activity will comply with

state water quality standards.

The CWA states:

The term “discharge” when used without quali-

fication includes a discharge of a pollutant, and a

discharge of pollutants.

33 U.S.C. § 1362(16) (emphasis added); App. 39. “Dis-

charge of a pollutant” and “discharge of pollutants” are

defined as “any addition of any pollutant to navigable

waters from any point source...” 33 U.S.C.

§ 1362(12)(A); App. 39. The use of the word “includes” in

the definition of “discharge” indicates that Congress did

not intend to limit the general definition of “discharge” to

“discharge of a pollutant,” but instead meant the term to

include, but not be limited to, point source activities. See

Power Authority v. Williams, 101 A.2d 659, 660, 475

N.Y.S.2d 901, 904 (N.Y. App. Div. 1984) (Congress did not

intend the term “discharge” to be restricted to a dis-

charge of pollutants only, because the definition of “dis-

charge” in the CWA uses the word “includes”); see also

National Wildlife Federation v. Gorsuch, 693 F.2d 156, 172

(D.C. Cir. 1982) (finding that the term “includes” allows

for additional, unstated meanings); Federal Land Bank v.

Bismarck Lumber Co., 314 U.S. 95, 99-100 (1941) (same).

Noting that the word “includes” is a term of enlarge-

ment and not of limitation, the district court correctly

concluded that “the plain meaning of ‘discharge’ does not

restrict the definition to point sources ...” App. 31. The

Ninth Circuit agreed that the word “discharge” is a

broader term than “discharge of a pollutant.” See App. 15.

The Ninth Circuit held, however, that “discharge” is

broader not because it also includes nonpoint pollution,

but because it includes nonpolluting discharges from point

sources. App. 15 (” ‘Discharge’ is the broader term

because it includes all releases from point sources,

whether polluting or nonpolluting.”). There is no support

in the language of the CWA, the legislative history of the

Act, caselaw, or common sense, for the Ninth Circuit’s

conclusion that the broader term “discharge” covers non-

polluting releases from point sources, rather than pollut-

ing nonpoint sources. In fact, nothing in the CWA or its

legislative history expressed any concern with “non-

polluting” point sources. The CWA does, however,

express serious concerns with nonpoint sources of pollu-

tion — the type of “discharge” that § 401 was originally

intended to address.

A. The Ninth Circuit Erred When it Held that the

Term “Discharge” is Limited to Releases from

Point Sources

The sole authority cited by the Ninth Circuit for its

conclusion that the term “discharge” includes “non-

polluting discharges” from point sources, rather than

nonpoint pollution, is National Wildlife Federation v. Gor-

such, 693 F.2d 156 (D.C. Cir. 1982) (NWF). App. 15. That

opinion, however, does not support the Ninth Circuit’s

conclusion. NWF did not address the definition of “dis-

charge,” or whether the term “discharge,” as used in

§ 401, applies to nonpoint sources. The issue in NWF was

whether discharges from dams are “discharges of a pollu-

tant” that require an NPDES permit. The court held that

releases from dams constitute “point sources,” and

require an NPDES permit, if the dam “itself physically

introduces a pollutant into water from the outside

world.” 693 F.2d at 175.

If anything, NWF supports the district court’s conclu-

sion that § 401 applies to nonpoint sources of pollution.

NWF upheld EPA's characterization of dams as nonpoint

sources of pollution that are subject to § 401 certification.

693 F.2d at 162. In fact, it is well-established that § 401 of

the CWA applies to dams, and that dams are nonpoint

sources of pollution. See 18 C.F.R. § 4.38(e)(2) (FERC

regulations requiring § 401 certification of hydroelectric

dams); Keating v. FERC, 927 F.2d 616, 619 (D.C. Cir. 1991)

(§ 401 requires state environmental approval of proposed

water projects including FERC license); Tennessee Valley

Authority v. Tennessee Water Quality Control Board, 717 F.2d

992, 999 (6th Cir. 1983) (specifically referring to dam as

nonpoint source). Even the Forest Service has acknowl-

edged that § 401 applies to nonpoint sources of pollution,

at least those that involve a “conveyance.” See App. 31.7

Nothing in the CWA, however, restricts § 401 to those

nonpoint sources that involve a “conveyance.”

Finally, the Ninth Circuit’s conclusion means that

§ 401 will apply only to discharges of pollutants from

point sources which are already regulated under the

NPDES program, and the exceptional circumstance of

discharges of “nonpollutants” from point sources. Thus,

the Ninth Circuit's decision finds that § 401 applies where

it is not needed, and does not apply where it is needed

the most. In addition, the Ninth Circuit’s decision is

plainly inconsistent with the language of § 401 itself,

which Congress could not have written more broadly. See

33 U.S.C. § 1341(a) (Section 401 applies to “[a]ny appli-

cant for a Federal license or permit to conduct any

activity . . . which may result in any discharge into

. navigable waters, shall provide the licensing or per-

mitting agency a certification from the State) (emphasis

added); App. 39.

2 Throughout this litigation, the Forest Service has argued

that § 401 applies to nonpoint sources of pollution that involve a

conveyance, including dams, agricultural storm water

discharges, and irrigated agriculture return flows. See, ¢.g.,

Defendant’s Memorandum in Support of Motion for Summary

Judgment, December 15, 1994, at 22 n.16.

B. The Fact that the Term “Discharge” is Expan-

sively Qualified by the Word “Any” Removes

Any Doubt that § 401 Applies to All Sources of

Pollution

The definition of “discharge” states:

The term “discharge” when used without quali-

fication in the CWA, includes a discharge of a

pollutant, and a discharge of pollutants.

33 U.S.C. § 1362(16) (emphasis added); App. 39. In § 401,

the term “discharge” is expansively qualified by the word

“ ”

any”:

Any applicant for a Federal license or permit to

conduct any activity ... which may result in any

discharge into . . . navigable waters .. .

33 U.S.C. § 1341(a)(1) (emphasis added); App. 39. Thus,

even if the term “discharge” were limited to point sources

of pollution, which it is not, it would only be so limited

when used without qualification. Congress expansively

qualified the term “discharge” with the word “any” to

make clear that § 401 applies to all sources of water

pollution.

Il. THE EVOLUTION OF § 401 DEMONSTRATES

THAT THE DRAFTERS INTENDED § 401 TO

APPLY TO ALL SOURCES OF POLLUTION

The district court and the Ninth Circuit agreed that,

as originally adopted, § 401 applied to all sources of

pollution, including nonpoint sources. The Ninth Circuit,

however, concluded that the 1972 amendments to the Act

impliedly narrowed the scope of § 401 to point sources of

iB Whine

pollution. The Ninth Circuit’s conclusion is inconsistent

with the legislative history and the purposes of the 1972

amendments to the CWA.

A. As Originally Adopted, § 401 Applied to All

Sources of Pollution

Section 401 originated as § 21(b) of the Water Quality

Improvement Act of 1970. See Pub. L. No. 91-224, § 21(b),

84 Stat. 91, 108 (1970). At the time § 21(b) was adopted,

the CWA made no distinction between “point” and “non-

point” sources of water pollution. Rather, the Act

restricted all sources of pollution from violating water

quality standards that applied to waters in situ. The legis-

lative history of § 21(b) makes clear that, as the district

court correctly held, § 21(b) was “intended to regulate all

polluting activities through water quality standards.”

App. 33. The Ninth Circuit agreed that “prior to 1972

[§ 21(b)] required the state to certify that a licensed

activity would ‘not violate applicable water quality stan-

dards.’ ” App. 12 (citing Pub. L. 91-224, § 21(b)(1), 84 Stat.

91 (1970)).

The House Report on § 21(b) stated that it was

intended to apply to “activities or operations” that affect

water quality, including “discharges which might cause

or contribute to the pollution of any waters from Federal

property.” H.R. Rep. No. 127, 91st Cong., 1st Sess. 6, 20

(1969) reprinted in 1970 U.S. Code Cong. & Admin. News

2697. Referring to the wide variety of permits and

licenses issued by the federal government, the Report

stated:

Many of them involve activities or operations

potentially affecting water quality. The purpose of

[this subsection] is to provide reasonable assur-

ance ... that no license or permit will be issued

by a Federal agency for an activity that... could

in fact become a source of pollution.

Id. at 7 (emphasis added). The House Report went on to

emphasize:

[This subsection] would require that appli-

cants . . . seeking a Federal license or permit to

conduct any activity of any kind or nature which

may result in discharges into the navigable

waters of the United States must provide... a

certification from the affected State . . . that such

activity . . . will not reduce the quality of such

waters below applicable . . . water quality stan-

dards.

Id. at 20 (emphasis added).

The Senate Report on the bill also emphasized that

§ 21(b) was intended to encompass all potentially pollut-

ing activities authorized by federal agencies:

The intent of the bill is to provide that all activ-

ities .. . which may result in any discharge into

the navigable waters of the United States .. .

pursuant to a Federal license or permit . . . shall

comply with applicable water quality standards.

S. Rep. No. 351, 91st Cong., Ist Sess. 28 (1969) (emphasis

added). The Conference Committee stated unequivocally

that § 21(b): -

would require that applicants . . . seeking a

Federal license or permit to conduct any activity

of any kind or nature which may result in dis-

charges into the navigable waters of the United

States must provide . . . certification from the

affected State . . . that such activity will be

conducted in a manner that will not reduce the

quality of such waters below applicable Federal

or State or local water quality standards.

H.R. Conf. Rep. No. 940, 91st Cong., 2d Sess. 51 (1970)

(emphasis added). Thus, Congress plainly intended

§ 21(b) to address all federally permitted activities that

could result in pollution of the nation’s waters.

B. The 1972 Amendments to the CWA Did Not

Restrict the Scope of § 401 to Point Sources of

Pollution

The 1972 amendments to the CWA were adopted to

improve enforcement of water quality standards by

imposing effluent limitations at the “end of the pipe” on

point sources of pollution through the NPDES permit

program. See Northwest Environmental Advocates, 56 F.3d

at 986 (the 1972 amendments were intended to improve

enforcement of water quality standards, “not to supplant

the old system.”). When the 1972 amendments were

adopted, § 21(b) became § 401. The language of § 401,

however, remained identical in all relevant respects to the

language of § 21(b). See App. 33 (the language under

§ 21(b) is “identical to the current act”). The only differ-

ence is that, under § 401, the state must certify that any

discharge will comply with §§ 1311, 1312, 1313, 1316, and

1317 of the CWA. 33 U.S.C. § 1341(a)(1); App. 39-40. In

comparison, § 21(b) required the state to certify that any

discharge “will not violate applicable water quality stan-

dards.” Public Law 91-224, 84 Stat. 91, reprinted in 1970

U.S.C.C.A.N. 97, 118-19.%

In construing the effects of the 1972 amendments on

§ 401, the district court stated “[e]ven though nonpoint

sources are not mentioned in the 1972 amendments, the

court cannot construe that Congress intended to preclude

their application to § 401. . . . The legislative history of

the CWA supports the conclusion that § 401 applies to all

federally permitted activities that might result in water

pollution.” App. 34.4 Section 401, therefore, applies to “all

federally permitted activities that may result in a dis-

charge, including discharges from nonpoint sources.”

App. 34.

The Ninth Circuit reversed, holding that the 1972

amendments impliedly restricted the scope of § 401 to

point sources of pollution. App. 12. There is nothing in

3 Section 21(b)(1) provided:

Any applicant for a Federal license or permit to

conduct any activity including, but not limited to, the

construction or operation of facilities, which may

result in any discharge into the navigable waters of

the United States, shall provide the licensing or

permitting agency a certification from the State in

which the discharge originates or will originate

_.. that there is reasonable assurance, as determined

by the State or interstate agency that such activity will

be conducted in a manner which will not violate

applicable water quality standards .. .

Public Law 91-224, 84 Stat. 91.

4 Nonpoint pollution was not separately identified in the

1970 Act, or § 21(b), either. Yet, there is no dispute that § 21(b)

applied to all sources of pollution, including nonpoint sources.

the legislative history or the language of the 1972 amend-

ments, however, indicating that in 1972 Congress

intended to narrow the original scope and breadth of

§ 21(b).° The only legislative history cited by the Ninth

Circuit for its conclusion that § 21(b) was narrowed in

1972 to apply only to point sources is S. Rep. No. 414, at

69 (1971). See App. 12. The Senate Report, however, does

not reach this conclusion. It states:

[section 401] is substantially section 21(b) of exis-

ting law (enacted as a part of the Water Quality

Improvement Act of 1970) amended to assure

consistency with the bill’s changed emphasis

from water quality standards to effluent limita-

tions based on the elimination of any discharge

of pollutants.

S. Rep. No. 414, at 69 (1971), reprinted in 1972

U.S.C.C.A.N. at 3764 (emphasis added). This language

only shows that § 401 was broadened to include the newly

adopted NPDES program, as well as all the other activ-

ities originally encompassed in § 21(b). This reading of

the legislative history is also consistent with this Court’s

opinion in Arkansas v. Oklahoma, which recognized that

water quality standards must be satisfied even after the

1972 amendments to the CWA:

[T]he EPA has construed the [CWA] as requiring

that EPA-issued NPDES permits also comply

> The Ninth Circuit’s conclusion that § 401 was amended in

1972 to apply only to point sources of pollution seems directly

contrary to its holding in Northwest Environmental Advocates v.

City of Portland, supra, finding that the 1972 amendments to the

CWA did not supplant pre-existing water quality standards. 56

F.3d at 986.

with § 401(a). That section, which predates § 402

and the NPDES, applies to a broad category of

federal licenses, and sets forth requirements for

“lalny applicant for a Federal license or permit

to conduct any activity including, but not lim-

ited to, the construction or operation of facili-

ties, which may result in any discharge into the

navigable waters.” 33 U.S.C. § 1341(a). Section

401(a)(2) appears to prohibit the issuance of any

federal license or permit over the objection of an

affected State unless compliance with the

affected State’s water quality requirements can be

insured.

503 U.S. 91, 103, 112 S. Ct. 1046, 1055 (1992) (Arkansas)

(emphasis added). As we note in part IV, infra, the Ninth

Circuit’s opinion also appears to conflict with this Court's

opinion in PUD No. 1, supra, holding that when a feder-

ally permitted activity is subject to § 401, the state’s

regulatory powers are not limited to “point source” dis-

charges. 511 U.S. at 712.

Ill. WATER QUALITY STANDARDS REMAIN SEP-

ARATELY ENFORCEABLE AGAINST NONPOINT

SOURCES OF WATER POLLUTION

Section 401 requires that the state certify, inter alia,

that any discharge will comply § 1313 of the CWA. Sec-

tion 1313 of the CWA requires states to adopt water

quality standards, which consist of numerical criteria and

the designation and protection of “beneficial uses” of the

water body. See 33 U.S.C. § 1313(c). The inclusion of

§ 1313 in § 401 serves the same purpose as the reference

to “water quality standards” did in § 21(b). Both the

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Ninth Circuit and the district court agree that the refer-

ence to “water quality standards in § 21(b) included all

sources of pollution. See App. 33 (In 1970, “Congress

intended to regulate all polluting activities”); App. 12

(Section 21(b) “required the state to certify that a licensed

activity would ‘not violate applicable water quality stan-

dards.’ ”). The inclusion of § 1313 in § 401 also confirms

that, as the Senate Report stated, “[Section 401] is substan-

tially section 21(b) of existing law.” S. Rep. No. 414, at 69

(1971), reprinted in 1972 U.S.C.C.A.N. at 3764. Like § 21(b)

therefore, § 401 includes all sources of pollution.

The Ninth Circuit reasoned that, because § 1313 does

not itself regulate nonpoint source pollution, § 401’s ref-

erence to § 1313 does not sweep nonpoint pollution into

§ 401:

[§ 1313] does not itself regulate nonpoint source

pollution. Water quality standards are estab-

lished in part to regulate point source pollution.

They provide “a supplementary basis . . . so that

numerous point sources, despite individual

compliance with effluent limitations, may be

further regulated to prevent water quality from

falling below acceptable levels.

App. 12-13 (citing EPA v. California ex rel. State Water

Resources Controls Bd., 426 U.S. 200, 205 n. 12 (1976))

(emphasis added). But the fact that water quality stan-

dards were established “in part” to regulate point sources

of pollution does not mean, as the Ninth Circuit appar-

ently concluded, that they were established solely to regu-

late point source pollution. To the contrary, as the Ninth

Circuit held in Northwest Environmental Advocates v. City

of Portland, supra, water quality standards remain sep-

arately enforceable even after the 1972 amendments. 56

F.3d at 986. And as this Court held in PUD No. 1,511 US.

at 714, § 401 allows states to protect water quality stan-

dards by conditioning § 401 certification on measures in

addition to and apart from point source effluent limita-

tions. In fact, § 1313 creates water quality standards that

apply regardless of the source of pollution,® and its inclu-

sion in § 401 confirms that Congress intended to continue

§ 21(b)’s applicability to all sources of pollution, includ-

ing nonpoint. Cross-referencing § 1313 is in any event not

an indication of congressional intent to narrow § 21(b) to

apply only to point sources.

waters that do not meet water quality standards and develop

total maximum daily loads (TMDLs) of pollutants for those

waters. 33 U.S.C. § 1313(d)(1)(A),(C). TMDLs must take into

account nonpoint sources of pollution. Sierra Club v. Hankinson,

939 F. Supp. 865, 871 (N.D. Ga. 1996) (Georgia’s TMDLs

inadequate for, inter alia, failing to consider nonpoint source

pollution); Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517,

1520 (9th Cir. 1994) (“a TMDL represents the cumulative total of

all ‘load allocations’ which are in turn best estimates of the

discrete loading attributed to nonpoint sources, natural

background sources, and individual wasteload allocations”);

Idaho Sportmen’s Coalition v. Browner, 951 F. Supp. 962, 965 (W.D.

Wa. 1996) (after a TMDL is established, “[s]tates are then

required to take whatever additional cleanup actions are

necessary, which can include further controls on both point and

nonpoint pollution sources”) (emphasis added); Alaska Center for

the Environment v. Reilly, 762 F. Supp. 1422, 1424 (W.D. Wa. 1991)

(the TMDL process “ ‘provides a comprehensive approach to

identifying and resolving water pollution problems regardless

of the sources of pollution’ ”).

The Ninth Circuit relied on Oregon Natural Resources

Council v. United States Forest Service, 834 F.2d 842, 849 n. 9

(9th Cir. 1987) (ONRC), for its finding that the inclusion

of § 1313 does not bring nonpoint pollution into the

purview of § 401. App. 13. ONRC, however, does not

support the Ninth Circuit’s conclusion. ONRC addressed

the scope of § 301 of the CWA, not the scope of § 401.

Section 301 of the CWA makes the “discharge of any

pollutant” unlawful except in compliance with an NPDES

permit. 33 U.S.C. § 1311(a). Plaintiffs in ONRC argued

that § 301’s reference to water quality standards brought

nonpoint pollution into the purview of § 301. The court

rejected plaintiffs’ argument because § 301 specifically

prohibits the “discharge of a pollutant,” which in turn is

clearly defined as a “discharge from a point source.” 33

U.S.C. §§ 1311(a); 1362(12). Section 401, however, applies

to “discharges,” not “discharges of a pollutant.” ONRC,

therefore, is not analogous.

Finally, the Ninth Circuit reasoned that, because non-

point pollution is not directly regulated by the federal

government through the CWA, it is not included in § 401.

App. 10-11. As the Ninth Circuit notes, however, the

CWA places primary control of nonpoint pollution with

the states. App. 10-11. See also 33 U.S.C. § 1288 (CWA

charges states with controlling nonpoint sources of pollu-

tion); 33 U.S.C. § 1315(b)(1)(E) (CWA requires states to

report to EPA every two years on, inter alia, “the nature

and extent of nonpoint sources of pollutants, and recom-

mendations as to the programs which must be under-

taken to control each category of such sources”). Without

the authority to address nonpoint pollution generated by

federally permitted activities, the states cannot fulfill

their responsibility under the CWA to control nonpoint

pollution. It is only logical, therefore, that § 401 - the

states’ primary mechanism for regulating federally per-

mitted activities that generate pollution — include non-

point sources.

IV. THE NINTH CIRCUIT'S CONCLUSION THAT

§ 401 IS LIMITED TO DISCHARGES FROM

POINT SOURCES IS CONTRARY TO THIS

COURT’S REASONING AND CONCLUSION IN

PUD NO. 1 OF JEFFERSON COUNTY V. WASH-

INGTON DEPARTMENT OF ECOLOGY

In PUD No. 1 of Jefferson County v. Washington Depart-

ment of Ecology, the state of Washington sought to impose

minimum streams low requirements as a condition of its

§ 401 certification of a dam on the Dosewallips River. 511

U.S. 700, 114 S. Ct. 1900 (1994). The Court held that states

may require, as a condition of § 401 certification, limita-

tions on any activity, not merely point source discharges,

that threaten to violate state water quality standards. 511

U.S. at 712 (“EPA’s conclusion that activities - not merely

discharges — must comply with state water quality stan-

dards is a reasonable interpretation of § 401.”) (Emphasis

in original). This Court’s conclusion that § 401 certifica-

tion may address all sources of federally permitted pollu-

tion is consistent with the broad powers granted to the

states under § 401. The Ninth Circuit asserts that peti-

tioners’ reliance on PUD No. 1 is misplaced, because in

PUD No. 1 the Court determined that, for § 401 to apply,

the threshold condition of a “discharge” must be satis-

fied. App. 13 (citing PUD No. 1,511 U.S. at 712). Nowhere

in PUD No. 1, however, did this Court hold that the

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“discharge” triggering § 401 certification must emanate

from a point source. In fact, as discussed supra, § 401 has

long been applied to dams, which are considered a “non-

point” source of pollution. This Court’s ruling in PUD No.

1, that states may protect themselves from nonpoint

sources of pollution when issuing § 401 certifications, has

little meaning if states do not have to issue certifications

for nonpoint sources in the first instance.

CONCLUSION

There is no question that, when § 401 was adopted in

1970, it applied to all federally permitted activities,

including nonpoint source activity, that may result in

water pollution. There is no support, in the caselaw or

legislative history, for the Ninth Circuit’s conclusion that

§ 401 was impliedly restricted in 1972 to polluting and

“nonpolluting” discharges from point sources. In addi-

tion, the Ninth Circuit’s opinion defeats the purpose of

§ 401 by stripping the states of their ability to protect

their waters from the most prevalent source of pollution

stemming from federal lands and federally permitted

activities. For these reasons, petitioners respectfully urge

the Court to grant certiorari.

Respectfully submitted,

MicHAeL AXLINE

CARRIE STILWELI

Counsel for Petitioners

July 21, 1999

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OrEGON Natura. Desert

ASSOCIATION; Rest THE West;

PoRTLAND AUDUBON Society; TROUT

UNLIMITED; OREGON WILDLIFE

FEDERATION; NorTHWEST

ENVIRONMENTAL DereNse CENTER;

OREGON NaturaAL Resources

Councit; Paciric Rivers Counc;

OREGON Natura Resources

COALITION,

Plaintiffs-Appellees,

and

THE CONFEDERATED TRIBES OF THE

WARM SPRINGS RESERVATION OF

OREGON,

Plaintiff-Intervenor-Appellee,

MicuHaet P. Domseck, in his

official capacity as CHIEF OF THE

Unitep States Forest SERVICE,

Defendant-Third Party

Defendant-Appellant,

ee Net et Nee Seat Nee Nee Nae See eee Nee See Nee? See? Se? Nee? See? Neu? ee? See ee Net See? Nei Se Ne

No. 97-35065

D.C. No.

CV-94-00522-ALH

OPINION

App. 2

OreGON NaturAL Desert

ASSOCIATION; Rest THE West;

PORTLAND AUDUBON Soctety; TROUT

UNuMITED; OREGON WILDLIFE

FEDERATION; NORTHWEST No. 97-35112

ENVIRONMENTAL Derense CENTER; 97-35115

OreEGON NaTuRAL Resources D.C. No.

Councit; Paciric Rivers Councit;

OREGON NATURAL ResourRCES

COALITION,

CV-94-00522-ALH

Plaintiffs-Appellees,

and

THe CONFEDERATED TRIBES OF THI

WARM SPRINGS RESERVATION OF

OREGON,

Plaintiff-Intervenor-Appellee,

Jack Warp THomas, in his official

capacity as Chief of the United

States Forest Service,

Defendant,

and

EASTERN OREGON Pustic LAND

Coatition; Rosert Burrit, GRANT

County, a Political subdivision of

the State of Oregon,

Defendants-Intervenors/Third

Party Plaintiffs-Appellants.

haar! Seat hide Wile Seale Sea east ie eet Seat Sia halle igh ee “Sia a Sak eee Me ae i i ee es Sl es a cd et et ed ee

2 See Gee

App. 3

Appeals from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

February 10, 1998 ~ San Francisco, California

Filed July 22, 1998

Before: Mary M. Schroeder, Jerome Farris, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Schroeder

COUNSEL

Nancy B. Firestone, Assistant United States Attorney,

Washington, D.C.; Daniel E. O’Leary, Davis Wright Trem-

aine, Portland, Oregon; Ronald S. Yockim, Roseburg, Ore-

gon, for the appellants.

Michael Axline, Western Environmental Law Center,

Eugene, Oregon; Howard G. Arnett, Karnopp, Petersen,

Noteboom, Hubel, Hansen & Arnett, Bend, Oregon, for

the appellees.

OPINION

SCHROEDER, Circuit Judge:

The United States Forest Service appeals the district

court’s ruling that pollution from cattle grazing is subject

to the certification requirement of § 401 of the Clean

Water Act, 33 U.S.C. § 1341. This appeal requires us to

consider whether the term “discharge” in § 1341 includes

releases from nonpoint sources as well as releases from

point sources. We conclude from the language and struc-

ture of the Act that the certification requirement of § 1341

App. 4

was meant to apply only to point source releases. Accord-

ingly, we reverse.

The background of this case can be briefly described.

In 1993 the Forest Service issued a permit allowing

Robert and Diana Burril to graze 50 head of cattle in

Oregon’s Malheur National Forest. The cattle graze sev-

eral months a year in and around Camp Creek and the

Middle Fork of the John Day River, polluting these water-

ways with their waste, increased sedimentation, and

increased temperature. In 1994 Oregon Natural Desert

Association (ONDA) filed an action under the citizen suit

provision of the Clean Water Act, 33 U.S.C. § 1365, as well

as the Administrative Procedures Act, 5 U.S.C. § 702.

ONDA alleged that the Forest Service had violated 33

U.S.C. § 1341 by issuing the grazing permit without first

obtaining the State of Oregon’s certification that the graz-

ing would not violate the state’s water quality standards.

The Burrils, Grant County, and the Eastern Oregon Public

Lands Coalition intervened as defendants and the Con-

federated Tribes of the Warm Springs Reservation inter-

vened as plaintiffs. The district court granted the

plaintiffs’ summary judgment motion, concluding that

the Forest Service must obtain certification for activities

that will potentially cause nonpoint source pollution.

Standing

We first address the Intervenor/Appellants’ conten-

tion that ONDA lacks standing to bring this suit. To

establish standing a plaintiff must demonstrate: (1) the

invasion of a legally-protected interest; (2) a causal con-

nection between the injury and the defendant’s conduct;

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App. 5

and (3) a likelihood that the court can redress the injury

by a favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992). ONDA is an environmental group

whose members live adjacent to the John Day River and

use it for recreation. There is no question that the river’s

pollution has injured them. See Sierra Club v. Morton, 405

U.S. 727, 734 (1972) (Harm to a plaintiff's aesthetic and

environmental well-being is a cognizable injury.); Fund for

Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir. 1992)

(An organization has standing by alleging injury to indi-

vidual members.).

The Intervenor/ Appellants argue that by challenging

the lack of certification, ONDA has alleged “only a pro-

cedural injury,” and thus has not demonstrated a concrete

injury or the likelihood of redressability. The legal

requirement ONDA seeks to impose is one that would

affect the reality of the environment. This is a case, there-

fore, where plaintiffs seek “to enforce a procedural

requirement the disregard of which could impair a sepa-

rate concrete interest of theirs.” Lujan, 504 U.S. at 572. We

have held threatened harm to “health, recreational use,

and enjoyment” from the use of herbicides constitutes ar

impairment of a concrete interest. Salmon River Concerned

Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994).

Certainly, ONDA has demonstrated a concrete interest

where its members reside and engage in recreational

activities along polluted waterways.

For similar reasons, the appellants’ argument that

there is no redressable injury must fail. Appellants sug-

gest that ONDA must prove either that the state would

deny certification or that certification would necessitate a

change in the grazing operation. To establish

App. 6

redressability, however, the plaintiffs need not demon-

strate that the ultimate outcome following proper pro-

cedures will benefit them. See Idaho Conservation League v.

Mumma, 956 F.2d 1508, 1518 (9th Cir. 1992). The Supreme

Court has recognized that the assertion of a procedural

right is “special” and reduces the plaintiff’s burden of

proving immediacy and redressability. Lujan, 504 U.S. at

572 n.7. ONDA stands in a similar position to the hypo-

thetical plaintiff, discussed in Lujan, who lives adjacent to

the construction site for a federally-licensed dam. The

Court noted that such a plaintiff could challenge a federal

agency's failure to prepare an Environmental Impact

Statement, even though the plaintiff could not establish

that the EIS would alter the construction plan for the dam

or even that the dam would be completed in the near

future. See id. Here, ONDA asserts a similar procedural

right of certification under § 1341.

Citizen Suit Provision

Appellants argue that even if ONDA has standing to

sue under Article III, its suit is not authorized under the

Clean Water Act’s citizen suit provision. That statute

provides that any citizen may bring a civil action against

an agency alleged to be in violation of an effluent stan-

dard or limitation. 33 U.S.C. § 1365(a). “Effluent standard

or limitation” is defined to include “certification under

section 1341 of this title.” 33 U.S.C. § 1365(f)(5).

Appellants contend that the statute authorizes suits

to enforce only the discharge limitations already con-

tained within state certifications. The statute on its face is

not so limited. Section 1365(f) cross-references the

———————

App. 7

entirety of section 1341, which provides in relevant part

that “No license or permit shall be granted until the

certification required by this section has been

obtained... . ” 33 U.S.C. § 1341(a). An agency that has

issued a permit without the appropriate certification is in

violation of the certification requirement under § 1341

and therefore in violation of an “effluent standard or

limitation” under § 1365. The statute authorizes any citi-

zen to bring a suit against such an agency, in this case the

Forest Service.

Appellants’ reliance on Bennett v. Spear, 117 S. Ct.

1154 (1997), is misplaced. The Court there held that a

citizen could not invoke the Endangered Species Act’s

general civil suit provision to sue the Secretary of the

Interior for a discretionary act, when a separate, specific

provision authorized suits against the Secretary only for

nondiscretionary acts. See id. at 1166. There is no similar

limitation in the Clean Water Act that would restrict

citizen suits to challenges of certifications already

granted. It authorizes suits for violation of certification

requirements.

The Merits

The crux of this case is whether the Burrils’ Forest

Service grazing permit requires certification from the

State of Oregon. The resolution of this question hinges on

the interpretation of the term “discharge” as used in

§ 1341. That section provides:

Any applicant for a Federal license or permit to

conduct any activity . .. which may result in any

App. 8

discharge into the navigable waters, shall pro-

vide the licensing or permitting agency a certi-

fication from the State in which the discharge

originates ... that any such discharge will com-

ply with the applicable provisions of sections

1311, 1312, 1313, 1316, and 1317 of this title. ...

No license or permit shall be granted until the

certification required by this section has been

obtained or has been waived. . .

The Clean Water Act defines point sources as “discer-

nible, confined and discrete conveyances” such as a pipe,

ditch, or machine. 33 U.S.C. § 1362. Other pollution

sources, such as runoff from agriculture or in this case,

animal grazing, are nonpoint sources, See td.; Oregon Nat-

ural Resources Council v. United States Forest Serv., 834 F.2d

842, 849 n.9 (9th Cir. 1987).

The appellees argued before us and the district court

that “discharge” in § 1341 refers to pollution from both

point sources and nonpoint sources. In accepting this

argument below, the district court relied exclusively on

§ 502 of the Act, which provides:

(12) The term “discharge of a pollutant”

[means] any addition of any pollutant to

navigable waters from any point

source... .

(16) The term “discharge” when used without

qualification includes a discharge of a pol-

lutant....

33 U.S.C. § 1362. The district court reasoned that because

the unqualified term “discharge” is defined as including,

but not limited to, point source releases, it must include

ini ans

Ce ee eS ee

App. 9

releases from nonpoint sources as well. The court there-

fore concluded that the term “discharge” encompassed

nonpoint source pollution like runoff from grazing. It

rejected the government's position that the unqualified

term “discharge” is limited to point sources but includes

both polluting and nonpolluting releases.

We review this question of law de novo. See Torres

Lopez v. May, 111 F.3d 633, 638 (9th Cir. 1997). We examine

“the language of the governing statute, guided not by a

single sentence or member of a sentence, but look[{ing] to

the provisions of the whole law, and to its object and

policy.” John Hancock Mut. Life Ins. Co. v. Harris Trust and

Sav. Bank, 510 U.S. 86, 94-95 (1993) (quoting Pilot Life Ins

Co. v. Dedeaux, 481 U.S. 41, 51 (1987)). The Clean Water

Act, when examined as a whole, cannot support the con-

clusion that § 1341 applies to nonpoint sources.

We have discussed at length the impact of the 1972

enactment of the Clean Water Act, which largely sup-

planted the 1970 Water and Environmental Quality

Improvement Act by replacing water quality standards

with point source effluent limitations.

Prior to 1972, Congress attempted to control

water pollution by focusing regulatory efforts

on achieving “water quality standards,” stan-

dards set by the states specifying the tolerable

degree of pollution for particular waters. See

EPA v. State Water Resources Control Board, 426

U.S. 200, 202-03 (1976). This scheme had two

important flaws. First, the mechanism of

enforcement was cumbersome. Regulators had

to work backward from an overpolluted body of

water and determine which entities were

responsible; proving cause and effect was not

App. 10

always easy. Second, the scheme failed to pro-

vide adequate incentives to individual entities

to pollute less; an entity’s dumping pollutants

into a stream was ignored if the stream met the

standards. Id. The scheme focused on “the toler-

able effects rather than the preventable causes”

of pollution. Id.

In 1972, Congress passed the Clean Water

Act, which made important amendments to the

water pollution laws. The amendments placed

certain limits on what an individual firm could

discharge, regardless of whether the stream into

which it was dumping was overpolluted at the

time... . The Act thus banned only discharges

from point sources. The discharge of pollutants

from nonpoint sources — for example, the runoff

of pesticides from farmlands — was not directly

prohibited. The Act focused on point source pol-

luters presumably because they could be identi-

fied and regulated more easily that nonpoint

source polluters.

Natural Resources Defense Council v. EPA, 915 F.2d 1314,

1316 (9th Cir. 1990) (footnote omitted).

The Clean Water Act thus overhauled the regulation

of water quality. Direct federal regulation now focuses on

reducing the level of effluent that flows from point

sources. This is accomplished through the issuance of

permits under the National Pollutant Discharge Elimina-

tion System (NPDES). See 33 U.S.C. § 1342. The Act

prohibits the release of pollutants from point sources

except in compliance with an NPDES permit. 33 U.S.C.

§ 1311.

Nonpoint source pollution is not regulated directly

by the Act, but rather through federal grants for state

sania

a eee ery

App. 11

wastewater treatment plans. Section 208 ei the Act

requires each such plan to contain procedures for the

identification and control of nonpoint source pollution.

33 U.S.C. § 1288(b)(2). If the EPA approves a state’s plan,

it may make grants to the state to defray the costs of

administering the plan, see 33 U.S.C. § 1288(f), or to

construct facilities, see 33 U.S.C. § 1288(g). Thus, the Act

provides no direct mechanism to control nonpoint source

pollution but rather uses the “threat and promise” of

federal grants to the states to accomplish this task. Shanty

Town Assocs. Ltd. Partnership v. EPA, 843 F.2d 782, 791 (4th

Cir. 1988); see also Natural Resources Defense Council v. EPA,

915 F.2d at 1316 n.3 (CWA does not penalize nonpoint

source polluters). Section 1329, added to the Act in 1987,

requires states to adopt nonpoint source management

programs and similarly provides for grants to encourage

a reduction in nonpoint source pollution. See Natural

Resources Defense Council v. EPA, 915 F.2d at 1318.

We recognized the Act’s separate treatment of point

and nonpoint source pollution in Oregon Natural Resources

Council v. United States Forest Service, 834 F.2d at 842.

There, an environmental group attempted to use the Act’s

citizen suit provision to enjoin a logging operation that

caused nonpoint source pollution. The Act allows a citi-

zen to sue for the violation of an effluent limitation under

33 U.S.C. § 1311. See 33 U.S.C. § 1365(f)(2). The plaintiffs

argued that the effluent limitations of § 1311 applied to

nonpoint sources by virtue of § 1311(b)(1)(C), which ref-

erenced state water quality standards. We rejected this

argument as contrary to the structure and plain language -

of the Act. “The title and construction of section

App. 12

1311(b)(1) lead us to the logical conclusion that the limita-

tions set forth in section 1311(b)(1)(C) are ‘effluent limita-

tions’ and, therefore, by definition, applicable only to

point sources.” Id. at 850.

We must reach the same conclusion with regard to

the scope of the term “discharge” in § 1341. Prior to 1972,

the provision required the state to certify that a licensed

activity would “not violate applicable water quality stan-

dards.” Pub.L. 91-224, § 21(b)(1), 84 Stat. 91 (1970). Now,

the statute requires certification that any discharge from

the licensed activity “will comply with the applicable

provisions of sections 1311, 1312, 1313, 1316, and 1317” of

Title 33. 33 U.S.C. § 1341(a)(1). The statute was thus

amended “to assure consistency with the bill's changed

emphasis from water quality standards to effluent limita-

tions based on the elimination of any discharge of pollu-

tants.” S.Rep. No. 414, at 69 (1971), reprinted in 1972

U.S.C.C.A.N. at 3764, 3735. The term “discharge” in

§ 1341 is limited to discharges from point sources.

All of the sections cross-referenced in § 1341 relate to

the regulation of point sources. Appellees contend section

1313, requiring states to establish water quality stan-

dards, relates to nonpoint source pollution because it

addresses water quality standards and implementation

plans. The section does not itself regulate nonpoint

source pollution. Water quality standards are established

in part to regulate point source pollution. They provide

“a supplementary basis . . . so that numerous point

sources, despite individual compliance with effluent lim-

itations, may be further regulated to prevent water qual-

ity from falling below acceptable levels.” EPA v. California

ex. rel. State Water Resources Control Bd., 426 U.S. 200, 205

App. 13

n.12 (1976). In Oregon Natural Resources Council, 834 F.2d

at 850, we held that the reference to water quality stan-

dards in § 1311(b)(1)(C) did not sweep nonpoint sources

into the scope of § 1311. For similar reasons, § 1313 does

not sweep nonpoint sources into the scope of § 1341.

Appellees’ reliance on the Supreme Court's decision

in PUD No. 1 v. Washington Dep't of Ecology, 511 U.S. 700

(1994), is similarly misplaced. In that case, the State of

Washington issued a § 1341 certification for a dam, condi-

tioned on minimum stream flows in order to protect

fisheries. The Court held that such a condition was per-

missible under § 1341 even though it did not relate to an

effluent discharge from the dam. Thus, a state is free to

impose such water-quality limitations “once the thresh-

old condition, the existence of a discharge, is satisfied.”

Id. at 712. The Supreme Court in PUD No. 1 did not

broaden the meaning of the term “discharge” under

§ 1341. All parties conceded that the construction of the

dam would result in discharges from both the release of

dredge and fill material and the release of water through

the dam’s tailrace. See id. at 711. Both of these releases,

however, would involve point sources; the tailrace is a

conveyance and the dredge and fill operation presumably

would involve a conveyance or rolling stock. See 33

U.S.C. 1362(14).

The terminology employed throughout the Clean

Water Act cuts against ONDA’s argument that the term

“discharge” includes nonpoint source pollution like run-

off from grazing. Neither the phrase “nonpoint source

discharge” nor the phrase “discharge from a nonpoint

source” appears in the Act. Rather, the word “discharge”

is used consistently to refer to the release of effluent from

App. 14

a point source. By contrast, the term “runoff” describes

pollution flowing from nonpoint sources. The term runoff

is used throughout 33 U.S.C. § 1288, describing urban

wastewater plans, and 33 U.S.C. § 1314(f), providing

guidelines for identification of nonpoint sources of pollu-

tion. Section 1341 contains no reference to runoff.

Had Congress intended to require certification for

runoff as well as discharges, it could easily have written

§ 1341 to mirror the language of § 1323, which directs

federal agencies “engaged in any activity which may

result in the discharge or runoff of pollutants” to comply

with applicable water quality standards. 33 U.S.C.

§ 1323(a). Section 1323 plainly applies to nonpoint

sources of pollution on federal land. ONDA does not seek

relief under this provision, however, because absent the

issuance of an NPDES permit under § 1342, a citizen suit

under the Clean Water Act may not be based on a viola-

tion of 33 U.S.C. § 1323. See 33 USC. § 1365(f).

We have recognized the distinction between the

terms “discharge” and “runoff”:

Nonpoint source pollution is not specifically

defined in the Act, but is pollution that does not

result from the “discharge” or “addition” of pol-

lutants from a point source. Examples of non-

point source pollution include runoff from

irrigated agriculture and silvicultural activities.

Oregon Natural Resources Council, 834 F.2d at 849 n.9. We

have further noted that “Congress had classified non-

point source pollution as runoff caused primarily by rain-

fall around activities that employ or create pollutants.

Such runoff could not be traced to any identifiable point

RON pS ate

App. 15

of discharge.” Trustees for Alaska v. EPA, 749 F.2d 549, 558

(9th Cir. 1984).

Appellees contend that we must adopt the district

court’s interpretation of “discharge” because that term is

defined more broadly than “discharge of pollu-

tants .. . from any point source.” They argue that “dis-

charge” may only be the broader term if it includes

releases from nonpoint sources. This is incorrect. “Dis-

charge” is the broader term because it includes all

releases from point sources, whether polluting or non-

polluting. The D.C. Circuit reached this conclusion in

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir.

1982). There, the court interpreted “discharge” in

§ 1362(16) of the Act to include the release from a point

source of turbid water that did not contain any pollutant.

This is the logical interpretation of § 1362(16) that com-

ports with the structure and lexicon of the Clean Water

Act.

Intervenor/Appellee Confederated Tribes suggests

that the grazing of cattle is “sufficiently similar” to point

source pollution to require its inclusion in the definition

of the term “discharge.” The cattle in question wade in

the John Day River and thus introduce their waste

directly into the stream. The Tribes argue that we should

not distinguish between the manmade conveyances that

define a point source and cattle, whose range is normally

controlled by manmade structures such as fences. The

Clean Water Act, however, does not include animals in its

definition of point sources. See 33 U.S.C. § 1362(14). It

would be strange indeed to classify as a point source

something as inherently mobile as a cow. We agree with

the Second Circuit that the term “point source” does not

App. 16

include a human being, or any other animal. See United

States v. Plaza Health Labs., Inc., 3 F.3d 643, 649 (2d Cir.

1993).

The Tribes also suggest that these cattle may consti-

tute a “concentrated animal feeding operation” under

§ 1362(14). This position is not tenable. Even assuming

that open range grazing could be classified as a concen-

trated animal feeding operation, a question we do not

reach, the controlling regulations make the determination

as to whether feeding operations of this size must be

certified a discretionary decision of the state NPDES pro-

gram Director. See 40 C.F.R. 122.23(c). Neither the Direc-

tor nor the record of any state administrative proceeding

is before us.

CONCLUSION

For these reasons we hold that certification under

§ 1341 is not required for grazing permits or other federal

licenses that may cause pollution solely from nonpoint

sources.

The judgment of the district court is REVERSED and

the matter REMANDED for entry of judgment in favor of

the defendant.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 97-35065

CT/AG#: CV-94-00522-ALH

(Filed May 3, 1999)

OREGON NATURAL DESERT ASSOCIATION: REST

THE WEST; PORTLAND AUDUBON SOCIETY; TROUT

UNLIMITED; OREGON WILDLIFE FEDERATION:

NORTHWEST ENVIRONMENTAL DEFENSE CENTER:

OREGON NATURAL RESOURCES COUNCIL: PACIFIC

RIVERS COUNCIL; NORTHWEST ENVIRONMENTAL

DEFENSE CENTER; OREGON NATURAL RESOURCES

COALITION

Plaintiffs - Appellees

and

THE CONFEDERATED TRIBES OF THE WARM

SPRINGS RESERVATION OF OREGON

Plaintiff - Intervenors - Appellee

MICHAEL P. DOMBECK, in his official capacity as

CHIEF OF THE UNITED STATES FOREST SERVICE

Defendant - Third Party Defendant/Appellant

App. 18

NO. 97-35112

CT/AG#: CV-94-00522-ALH

OREGON NATURAL DESERT ASSOCIATION; REST

THE WEST; PORTLAND AUDUBON SOCIETY; TROUT

UNLIMITED; OREGON WILDLIFE FEDERATION;

NORTHWEST ENVIRONMENTAL DEFENSE CENTER;

PACIFIC RIVERS COUNCIL; NORTHWEST

ENVIRONMENTAL DEFENSE CENTER; OREGON

NATURAL RESOURCES COUNCIL

Plaintiffs - Appellees

CONFEDERATED TRIBES OF THE WARM SPRINGS

RESERVATION

Plaintiff-intervenor - Appellee

JACK WARD THOMAS, in his official capacity as

Chief of the United States Forest Service

Defendant

and

EASTERN OREGON PUBLIC LAND COALITION;

ROBERT BURRIL

Defendant-Intervenors /

Third-Party Plaintiffs - Appellants

NO. 97-35115 |

CT/AG#: CV-94-00522-ALH

OREGON NATURAL DESERT ASSOCIATION; REST

THE WEST; PORTLAND AUDUBON SOCIETY; TROUT

UNLIMITED: OREGON WILDLIFE FEDERATION;

NORTHWEST ENVIRONMENTAL DEFENSE CENTER;

PACIFIC RIVERS COUNCIL; NORTHWEST

ENVIRONMENTAL DEFENSE CENTER; OREGON

NAURAL RESOURCES COUNCIL

Plaintiff - Appellees

tianlian

App. 19

CONFEDERATED TRIBES OF THE WARM SPRINGS

RESERVATION OF OREGON

Plaintiff-intervenor - Appellee

JACK WARD THOMAS, in his official capacity as

Chief of the United States Forest Service

Defendant

and

GRANT COUNTY, a Political subdivision of the State

of Oregon

Defendant-Intervenor/

Third-Party Plaintiff - Appellant

APPEAL FROM the United States District Court for

the District of Oregon (Portland).

THIS CAUSE came on to be head on the Transcript of

the Record from the United States District Court for the

District of Oregon (Portland) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this cause be, and hereby is

REVERSED AND REMANDED.

Filed and entered 7/22/98

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OREGON NATURAL DESERT

ASSOCIATION, REST THE

WEST, OREGON NATURAL

RESOURCES COUNCIL,

OREGON WILDLIFE

FEDERATION, THE PACIFIC

RIVERS COUNCIL, PORTLAND

AUDUBON SOCIETY,

NORTHWEST

ENVIRONMENTAL DEFENSE

CENTER, AND TROUT

UNLIMITED,

Plaintiffs,

and

THE CONFEDERATED TRIBES

OF THE WARM SPRINGS

RESERVATION OF OREGON,

Plaintift-Intervenor,

Vv.

JACK WARD THOMAS, in his

ofticial capacity as CHIEF OF

THE UNITED STATES FOREST

SERVICE,

Defendant,

and

EASTERN OREGON PUBLIC

LAND COALITION and

ROBERT BURRIL,

Defendants-Intervenors

and Third-Party

)

Civil No.

94-522-HA

OPINION AND

ORDER

App. 21

GRANT COUNTY, a political

subdivision of the State of

Oregon,

)

Defendant-Intervenor

and Third-Party

Plaintiff,

V. )

JACK WARD THOMAS, in his. ?

official capacity as CHIEF OF .

)

wal

THE UNITED STATES FOREST

SERVICE,

Third-P arty Defendant.

Michael Axline

Stuart Sugarman, of Counsel

Western Environmental Law Center

44 W. Broadway, Suite 200

Eugene, Oregon 97401

Attorneys for Plaintiffs

Howard G. Arnett

Paul Dewey, of Counsel

Karnopp, Petersen, Noteboom,

Hubel, Hansen & Arnett

1201 N.W. Wall Street, Suite 300

Bend, Oregon 97701

Attorneys for Plaintiff-Intervenor

Lois J. Schiffer

Assistant Attorney General, Environmental

and Natural Resources Division

Steven E. Rusak

Trial Attorney, Environmental Defense Section

United States Department of Justice

10th and Pennsylvania Avenue, N.W.

Washington, D.C. 20530

App. 22

Kristine Olson

United States Attorney

Jonathan Ray

Assistant United States Attorney

888 S.W. Fifth Avenue, Suite 1000

Portland, Oregon 97204-2024

Of Counsel:

Jocelyn B. Somers

Special Assistant United States Attorney

1734 Federal Building

1220 S.W. Third Avenue

Portland, Oregon 97204

Attorneys for Defendant

Daniel E. O'Leary

Michael J. Uda

Davis Wright Tremaine

2300 First Interstate Tower

1300 S.W. Fifth Avenue

Portland, Oregon 97201

Attorneys for Defendants-Intervenors Eastern Oregon

Public Land Coalition and Robert Burril

Ronald S. Yockim

Cegavske Johnston Yockim & Associates

548 S.E. Jackson Street

P.O. Box 2456

Roseburg, Oregon 97470

Attorney for Defendant-Intervenor Grant County

HAGGERTY, Judge:

Plaintiffs, are a collection of several environmental

groups, and plaintiff-intervenor, the Confederated Tribes

of the Warm Springs Reservation of Oregon, bring this

action against the United States Forest Service (“USFS”)

under the citizen suit provision of the Clean Water Act

nn ee Te

App. 23

(“CWA”), 33 U.S.C. § 1365, as well as under the Adminis-

trative Procedures Act (“APA”), 5 U.S.C. § 702. Plaintiffs

seek a declaratory judgment establishing that applicants

for federal grazing permits receive, as a necessary pre-

condition to the issuance of that permit, certification from

the state in which the grazing is to occur that the grazing

activity will not adversely impact state water quality

standards.

The matters before the court are the plaintiffs’ and

plaintiff-intervenor’s motions for declaratory and injunc-

tive relief and summary judgment; the USFS motions for

judgment on the pleadings or in the alternative for sum-

mary judgment; and the motion to dismiss or for sum-

mary judgment from the defendant-intervenors, Grant

County and Robert Burril.

BACKGROUND

Section 401 of the Clean Water Act requires state

certification for any applicant applying for a Federal

license or permit for any activity that may result in a

discharge. In July 1993, the USFS issued Term Grazing

Permit # 01607 for the Camp Creek allotment to Robert

Burril, enabling Burril to graze his cattle on federal lands

in the Malheur National Forest in Oregon. The grazing

permit allotment straddles the Middle Fork of the John

Day River and Camp Creek, a tributary of the John Day

River. The permit was issued without § 401 certification.

Plaintiffs and plaintiff-intervenor filed a civil action

against the USFS under the CWA citizen, suit provision,

33 U.S.C. § 1365, and § 702 of the Administrative Pro-

cedures Act. Plaintiffs seek a declaration that the USFS is

App. 24

violating § 401(a)of the CWA by issuing grazing permits

without requiring the permittee to first obtain certifica-

tion from the state of Oregon establishing that the graz-

ing will not violate state water quality standards.

Plaintiffs and plaintiff-intervenor also seek an order

directing the USFS to suspend the grazing permit pend-

ing certification.

On March 3, 1994, plaintiffs submitted notice of

intent to file a citizen suit under the CWA against the

USFS. On December 15, 1994, the USFS filed a motion for

judgment on the pleadings or in the alternative for sum-

mary judgment, raising the issue of whether the diffuse

runoff of pollutants from grazing constitutes a “dis-

charge” in § 401. The plaintiffs and plaintiff-intervenors

also seek summary judgment.

JURISDICTIONAL STANDARDS AND ARGUMENTS

“IW]here a jurisdictional issue is separable from the

merits of a case, the court may determine jurisdiction by

the standards of a Rule 12(b)(1) motion to dismiss for lack

of jurisdiction. In such a situation, the district court is:

‘free to hear evidence regarding jurisdiction and to rule

on that issue prior to trial, resolving factual disputes

where necessary.’ ” Roberts v. Corrothers, 812 F.2d 1173,

1177 (9th Cir. 1987) (quoting Augustine v. United States,

704 F.2d 1074, 1077 (9th Cir. 1983) (internal quotation

omitted).

“Because the court’s power to hear the case is at

stake, it is not limited to considering the allegations of

the complaint. It may consider extrinsic evidence; and if

the evidencé is disputed, it may weigh the evidence and

App. 25

determine the facts in order to satisfy itself as to its power

to hear the case... . ” Schwarzer, Tashima, Wagstaffe,

Federal Civil Procedure Before Trial, Rurrer Group PRAcTICI

Guipe § 9:85 (1992) (emphasis in original) (citing Roberts v.

Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); MCG, Inc. v.

Great Western Energy Corp., 896 F.2d 170, 176 (Sth Cir.

1990)). Where the question of jurisdiction is dependent on

the resolution of factual issues going to the merits of the

action, however, a court may not resolve genuinely dis-

puted facts. Augustine at 1077; See Schwarzer § 9:85.1.

As a preliminary matter, the court must address sev-

eral procedural challenges raised by defendants. Defen-

dants have moved to dismiss this action on the

alternative grounds that plaintiffs and plaintiff-inter-

venor lack standing, the right to judicial review, and/or

jurisdiction.

1. Standing

The standing requirements are described in Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992), in which the

Supreme Court provided a three-part test:

First, the plaintiff must have suffered an “injury

in fact” — an invasion of a legally-protected

interest which is (a) concrete and particularized

. and (b) “actual or imminent,” not “conjec-

tural or hypothetical;” Second, there must be a

causal connection between the injury and the

conduct complained of - the injury has to be

“fairly ... trace[able] to the challenged action of

the defendant, and not... thle] result [of] the

independent action of some third party not

before the court.” Third, it must be “likely,” as

EE ae a eee

App. 26

opposed to merely “speculative,” that the injury

will be “redressed by a favorable decision.”

Id. at 2136 (internal citations omitted).

The standing analysis is affected by whether the

plaintiff is the object of an government's action or inac-

tion. Id. at 2137. If the plaintiff is an object of govern-

mental action, then there is little question of an injury,

and that a judgment will redress it. Id. The government's

unlawful regulation, or lack of regulation, of another

entity requires more to establish standing. Id.

The defendant-intervenor argues that plaintiffs do

not satisfy the standing requirements. Defendant-inter-

venor claims (1) that there is no injury because there is no

evidence that any member of the plaintiff environmental

groups lives near Camp Creek, or that the harm allegedly

suffered by them is connected to grazing practices; (2)

that there is no traceability because there is no connection

between the issuance of the permit without state certifica-

tion and deleterious grazing practices; and (3) that there

is no redressability because ordering state certification

will not guarantee that water quality impacts will be

prevented,

The defendant-intervenor asserts similar arguments

with regard to the Warm Springs Tribe. They claim that

(1) the Tribe has not shown that the treaty rights apply to

Camp Creek, (2) there is no connection between issuance

of grazing, permit without state certification and harm to

the treaty rights, and (3) there is no evidence that the

harm will cease if the Forest Service orders state certitica-

tion.

App. 27

The defendant-intervenor’s argument fails. Plaintiffs

and plaintiff-intervenor satisty the Lujan standing test,

having established an injury in fact because plaintiffs live

and recreate in the area of the challenged action. Salmon

River Concerned Citizens v. Robertson, 32 F.3d 1346, 1345-55

(9th Cir. 1994) (holding that a procedural challenge does

not mean plaintiffs’ injury is procedural if plaintiff lives

or recreates in the area). Plaintiffs have also adequately

established traceability, in light of the Forest Service’s

admission that cattle grazing contributes to water pollu-

tion, and the showing that pollution in Camp Creek is

related to cattle grazing. The redressability requirement is

also satisfied, since plaintiffs need not establish that fol-

lowing the required procedures will lead to a different

result. Idaho Conservation League v. Mumma, 956 F.2d 1508

1518 (9th Cir. 1992) (explaining that the “ultimate out-

come following proper procedures is not in question”)

Rather, plaintiffs need only show that a procedural

requirement was not followed

Che Tribe also has standing. The Tribe has treaty

rights in the John Day River Basin. and these rights are

injured by the alleged violations

2. Judicial Review

The defendants next argue that plaintiffs can not sue

under the CWA citizen suit provision, CWA § 505, 33

U.S.C. 1365 (1994), to enforce water quality standards

Their argument is based on Oregon Natural Resources

Council v. U.S. Forest Service, 834 F.2d 842, 849 (9th Cir

1987), which held that citizens could sue under § 505 for

Violations of effluent limitations, but that such a right

App. 28

was applicable only to point sources and did not extend

to water quality standards.

In Northwest Environmental Advocates v. City of Port-

land, 56 F.3d 979 (9th Cir. 1995), however, the Ninth

Circuit held that citizens can enforce permit conditions

through § 505 for effluent and water quality violations. Id.

at 986-987. Accordingly, plaintiffs can seek enforcement

of § 401 certification violations under § 505 for water

quality standards.

The defendant-intervenors also assert that Burril, the

permit applicant, did not receive adequate notice from

plaintiff-intervenors, as is purportedly required under

§ 505. The defendants rely upon Hallstrom v. Tillamook

County, 493 U.S. 20, 23 (1989), in which the Supreme

Court held that the plaintiffs failed to comply with cer-

tain citizen suit notice requirements, necessitating dis-

missal of the suit.

Hallstrom involved one plaintiff who failed to give

notice to the defendants. In this case, plaintiffs gave

notice to Burril, while the plaintiff-intervenors did not. In

Lykins v. Westinghouse Elec. Corp., 27 E.R.C. 1590, 1599

(E.D. Ky. 1988), the court held that the an intervenor did

not have to provide separate notice under the CWA.

Similarly, in Environmental Defense Fund v. Tidwell, 837 F.

Supp. 1344, 1352-53 (E.D.N.C. 1992), the court held that

notice from two of five environmental organizations was

sufficient under the CWA. Accordingly, the court con-

cludes that plaintiffs provided adequate notice.

—

App. 29

3. Jurisdiction

The defendant-intervenors also argue that the Tribe

did not properly allege jurisdiction because it failed to

allege that the United States could have brought this suit

as a trustee. This assertion is meritless. Under 28 U.S.C.

§ 1362, the Tribe can bring all civil claims arising under

the Constitution, federal laws, or treaties into district

court.

SUMMARY JUDGMENT STANDARDS AND

ARGUMENTS

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The materiality of a fact is

determined by the substantive law on the issue. T.W. Elec.

Serv., Inc. v. Pacific Electrical Contractors Asso., 809 F.2d

626, 630 (9th Cir. 1987). The authenticity of a dispute is

determined by whether the evidence is such that a rea-

sonable jury could return a verdict for the non-moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

The moving party has the burden of establishing the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the moving party

shows the absence of a genuine issue of material fact, the

non-moving party must go beyond the pleadings and

identify facts which show a genuine issue for trial. Id. at

324.

App. 30

Special rules of construction apply to evaluating

summary judgment motions: (1) all reasonable doubts as

to the existence of genuine issues of material fact should

be resolved against the moving party; and (2) all infer-

ences to be drawn from the underlying facts must be

viewed in the light most favorable to the non-moving

party. T.W. Electrical, 809 F.2d at 630.

ANALYSIS

The question presented is whether § 401 of the Clean-

Water Act, 33 U.S.C. § 1341(a)(1) applies to impacts

resulting from cattle grazing under permit by the USFS.

Section 401(a)(1) requires that before a federal permit

may be issued for “any activity .. . which may result in

any discharge into navigable waters,” a state certificate

must be obtained. 33 U.S.C. § 1341(a)(1). The primary

issue is whether the reference to “any discharge into

navigable waters” under § 401 is limited to point sources.

“Point source” 1s defined under the CWA as

any discernible, confined and discrete convey-

ance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock concentrated ani-

mal feeding operation, or vessel or other float-

ing craft, from which pollutants are or may be

discharged. This term does not include return

flows from irrigated agriculture.

33 U.S.C. § 1362 (14). The term “discharge,” when used

without qualification in the CWA, includes a discharge of

a pollutant, and a discharge of pollutants. Id. at § 1362

(16). “Discharge” of a pollutant or pollutants means “any

App. 31

addition of any pollutant to navigable waters from a

point source.” Id. at § 1362 (12).

The USFS asserts that the plain meaning of “dis-

charge” is limited to a point source or a nonpoint source

with a conveyance. Defendant-intervenors claim that

“discharge” is limited to point sources only, interpreting

the phrase “without qualification” in the discharge defi-

nition as allowing some types of nonpoint source activity

to fall within the statutory definition of point source.

These arguments contradict the plain meaning of the

term “discharge.” The term “including” in the discharge

deinition permits additional, unstated meanings. National

Wildlife Federation v. Gorsuch, 693 F.2d 156, 172 (D.C. Cir.

1982) (holding that the term “includes” in the CWA

allows for additional, unstated meanings); Exxon Corp. v.

Lujan, 730 F. Supp. 1535, 1545 (D. Wyo. 1990) (holding

that the word “includes” instead of “means” indicates

that what follows is a non-exclusive list that can be

enlarged) Chemehuevi Indian Tribe v. California St. Bd. of

Equalization, 757 F.2d 1047, 1054 (9th Cir. 1985),

(“includes” is a term of enlargement, not of limitation)

rev'd on different grounds 474 U.S. 9 (1985).

Accordingly, this court concludes that the plain

meaning of “discharge” does not restrict the definition to

point sources or nonpoint sources with conveyances.

Defendants next argue that their interpretation of

§ 401(a) should receive deference from this court. Defen-

dants assert that the court should defer to the Forest

Service’s long-standing practice of not requiring state

certification for cattle grazing.

App. 32

The Supreme Court addressed the standards for

determining the amount of deference an agency should

receive for its interpretation of a statute in Chevron

U.S.A., Inc. v. Natural Resources Defense Council Inc., 467

U.S. 837 (1984). If the “intent of the Congress is clear, that

is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed

intent of Congress.” Id. at 842-43. When the statute is

silent or ambiguous, the court must determine whether

the agency’s interpretation is grounded in a permissible

construction of the statute. Id. at 843.

In interpreting § 401, the Forest Service is not entitled

to any agency deference because the EPA, not the Forest

Service, administers the CWA. Baptist Hosp. East. v. Sul-

livan, 823 F. Supp. 424, 427 (W.D. Ky. 1993) (holding that a

precondition to Chevron deference is congressional dele-

gation of administrative authority). An agency that inter-

prets a statute other than the one it is entrusted to

administer is entitled to no deference. Hughes Aircraft Co.

v. U. S., 29 Fed. Cl. 197, 223 (1993); Wachtel v. Office of

Thrift Supervision, 982 F.2d 581, 585 (D.C. Cir. 1993) (hold-

ing that deference to an agency interpretation is not

appropriate where a statute is administered by more than

one agency).

Additionally, a post hoc rationalization by an agency-

counsel, when the agency itself has not taken a position

prior to litigation, is not entitled to deference. Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988). The

Forest Service’s failure to require § 401 certification for

cattle grazing is not entitled to deference by this court.

App. 33

Legislative history is used to ascertain Congress's

meaning behind statutory language; where legislative

history conflicts, the court must defer to the plain mean-

ing. United States v. Locke, 471 U.S. 84, 95 (1985). Defen-

dants contend that the 1970 and 1972 amendments

support their argument that the “discharge” definition

has a limited meaning. Defendants assert that the 1972

amendments illustrate Congress’s redirected emphasis

from water quality standards to effluent standards.

S. Rep. No. 414, 92nd Cong., 1st Sess. 7-8 69 (1971). This is

shown by the lack of references to nonpoint sources in

the amendments. Id. The amendments focus on Con-

gress’s changing emphasis from water quality standards

to effluent limitations to control the discharge of pollu-

tants from point sources. Id.

Section 401(a) Originated as 21(b) under the Water

Quality Improvement Act of 1970. The language under

this section is identical to the current Act. The 1970

legislative history reveals that Congress intended to regu-

late all polluting activities through water quality stan-

dards. There was no distinction between point and

nonpoint sources in the original Act. Senator Cooper

stated that the 1970 amendments “require, without excep-

tion, that all Federal activities that have any effect on

water quality be conducted so that water quality stan-

dards be maintained.” 115 Conc. Rec. 28970 (1969) The

1970 amendments illustrate the broadness of § 401; the

1972 amendments support this.

Even though nonpoint sources are not mentioned in

the 1972 amendments, the court cannot construe that

Congress intended to preclude their application to § 401.

In Northwest Environmental Advocates v. City of Portland, 56

App. 34

F.3d 979, 986 (9th Cir. 1995), the court looked at the 1972

amendments to the CWA and held that “nowhere does

Congress evidence an intent to preclude the enforcement

of water quality standards that have not been translated

into effluent discharge limitations.”

Congress’s 1972 amendments to the CWA were

intended to improve enforcement of pollution from point

sources, not supplant the old system. Id. The legislative

history to the CWA supports the conclusion that § 401

applies to all federally permitted activities that might

result in water pollution.

The proposed narrower reading of § 401 is rejected

by this court, based on the plain meaning of the word

“discharge” as used in § 401, the statutory definition of

“discharge,” and the legislative history of the CWA. This

court holds that § 401 applies to all federally permitted

activities that may result in a discharge, including dis-

charges from nonpoint sources.

The parties do not dispute that cattle grazing may

cause water pollution. Plaintiffs’ Statement of Material

Facts Not in Dispute at { 7. Plaintiffs are not required to

prove that cattle grazing on the Camp Creek allotment

“will” result in water pollution, only that cattle grazing

“may” cause water pollution. See Public Interest Research

Group of New Jersey v. Powell Duffryn Terminals, Inc., 913

F.2d 64 (3rd Cir. 1990) (in Clean Water Act enforcement

action, plaintiffs need only show that offending discharge

“may” cause the alleged adverse effects). Plaintiffs

offered undisputed evidence that cattle grazing on the

Camp Creek allotment, as authorized by permit # 01607,

not only “may” result in pollution, but has resulted in

App. 35

pollution of both Camp Creek and the Middle Fork of the

John Day River. This court finds that pollution caused by

cattle grazing constitutes a “discharge . . . into navigable

waters” within the meaning of § 401 of the CWA. There-

fore, state certification under § 401 was required before

the USFS issued a cattle grazing permit on the Camp

Creek allotment.

CONCLUSION

For the reasons provided above, plaintiffs’ motion

(doc. # 99) and plaintiff-intervenor’s motion (doc. # 94)

for summary judgment are granted. Plaintiffs’ request for

declaratory judgment that state certification under § 401

of the CWA is required before a cattle grazing permit may

be issued is granted. Plaintiffs’ request for an injunction

prohibiting the USFS from issuing federal cattle grazing

permits before the applicant for the permit obtains state

certification under § 401 is also granted. All other

motions are denied as moot.

IT IS SO ORDERED.

Dated this 26 day of September, 1996.

/s/ Ancer L. Haggert

Ancer L. Haggerty

United States District Judge

iain —

App. 36

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON NATURAL DESERT

ASSOCIATION; REST THE

WEST; PORTLAND AUDUBON

No. 97-35065

aonapenined. ' . DC No.

SOCIETY; TROUT UNLIMITED; CV-94-00522-ALH

OREGON WILDLIFE

FEDERATION; NORTHWEST (Filed

ENVIRONMENTAL DEFENSE Apr. 22, 1999)

CENTER; OREGON NATURAL

RESOURCES COUNCIL; PACIFIC

RIVERS COUNCIL; OREGON

NATURAL RESOURCES

COALITION,

Plaintiffs-Appellees,

and

)

THE CONFEDERATED TRIBES

)

OF THE WARM SPRINGS

RESERVATION OF OREGON,

Plaintiff-Intervenor

-Appellee,

MICHAEL P. DOMBECK, in his

official capacity as CHIEF OF

THE UNITED STATES FOREST

SERVICE,

Defendant-Third Party

Defendant Appellant.

App. 37

OREGON NATURAL DESERT _ )

ASSOCIATION; REST THE ) No.

WEST; PORTLAND AUDUBON _ )_97-35112/

SOCIETY; TROUT UNLIMITED; ) 97-35115

OREGON WILDLIFE ) pe KN

FEDERATION; NORTHWEST ) CVv-04-00820. ALI

ENVIRONMENTAL DEFENSE _ ) iiceies of

CENTER; OREGON NATURAL _ ) + ected fl

RESOURCES COUNCIL; PACIFIC ) Oregon)

RIVERS COUNCIL; OREGON ORDER

NATURAL RESOURCES

COALITION,

Plaintiffs-Appellees,

and

THE CONFEDERATED TRIBES

OF THE WARM SPRINGS

RESERVATION OF OREGON,

Plaintiff-Intervenor-

Appellee,

)

v. ‘

JACK WARD THOMAS, in his )

official capacity as Chief of )

the United States Forest Service, )

Defendant, ‘

and )

)

EASTERN OREGON PUBLIC

LAND COALITION; ROBERT

BURRIL, GRANT COUNTY, a

Political subdivision of the State

of Oregon,

Defendant-Intervenors /

Third Party

Plaintiffs- | Appellants.

App. 38

Before: SCHROEDER, FARRIS, and TASHIMA, Circuit

Judges.

The panel has voted to deny the petition for rehear-

ing and to deny the petition for rehearing en banc.

The full court was advised of the petition for rehear-

ing en banc. An active judge requested a vote on whether

to rehear the matter en banc. The matter failed to receive

a majority of the votes of the active judges in favor of en

banc consideration. Fed. R. App. P. 35.

The petition for rehearing and petition for rehearing

en banc are DENIED.

App. 39

§ 1362. Definitions

[FWPCA § 502]

* + *

(12) The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any addition of

any pollutant to navigable waters from any point source,

(B) any addition of any pollutant to the waters of the

contiguous zone or the ocean from any point source other

than a vessel or other floating craft.

* * *

(16) The term “discharge” when used without qualifica-

tion includes a discharge of a pollutant, and a discharge

of pollutants.

* * ‘

§ 1341. Certification

[FWPCA § 401]

(a) Compliance with applicable requirements;

application; procedures; license suspension

(1) Any applicant for a Federal license or permit to

conduct any activity including, but not limited to, the

construction or operation of facilities, which may result

in any discharge into the navigable waters, shall provide

the licensing or permitting agency a certification from the

State in which the discharge originates or will originate,

or, if appropriate, from the interstate water pollution

control agency ‘having jurisdiction over the navigable

waters at the point where the discharge originates or will

originate, that any such discharge will comply with the

App. 40

applicable provisions of sections 1311, 1312, 1313, 1316,

and 1317 of this title. In the case of any such activity for

which there is not an applicable effluent limitation or

other limitation under sections 1311(b) and 1312 of this

title, and there is not an applicable standard under sec-

tions 1316 and 1317 of this title, the state shall so certify,

except that any such certification shall not be deemed to

satisfy section 1371(c) of this title. Such State or interstate

agency shall establish procedures for public notice in the

case of all applications for certification by it and, to the

extent it deems appropriate, procedures for public hear-

ings in connection with specific applications. In any case

where a State or interstate agency has no authority to

give such a certification, such certification shall be from

the Administrator. If the State, interstate agency, or

Administrator, as the case may be, fails or refuses to act

on a request for certification, within a reasonable period

of time (which shall not exceed one year) after receipt of

such request, the certification requirements of this sub-

section shall be waived with respect to such Federal

application. No license or permit shall be granted until

the certification required by this section has been

obtained or has been waived as provided in the preced-

ing sentence. No license or permit shall be granted if

certification has been denied by the State, interstate

agency, or the Administrator, as the case may be.

* * *

App. 41

(d) Limitations and monitoring requirements of certi-

fication

Any certification provided under this section shall

set forth any effluent limitations and other limitations,

and monitoring requirements necessary to assure that

any applicant for a Federal license or permit will comply

with any applicable effluent limitations and other limita-

tions, under section 1311 or 1312 of this title, standard of

performance under section 1316 of this title, or prohibi-

tion, effluent standard, or pretreatment standard under

section 1317 of this title, and with any other appropriate

requirement of State law set forth in such certification,

and shall become a condition on any Federal license or

permit subject to the provisions of this section.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.