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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 964

## Text

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PILED.

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.

ii
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

eR

Vv

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

vi

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.
28 U.S.C.
33 U.S.C.
ao USA.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 USC.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 US.C.

Page
PUNE as cesdccocasentadeieseneunenenas 1
Se PeECs chev eed evcVi nar eunat 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.

18

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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19

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

20

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.

© For example, § 1313 requires states to list and prioritize
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’ ”).

a

21

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

22

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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23

“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,
v.

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,

V.
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.

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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;

ee ee

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

:
i
.

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
v.

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
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

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
v.
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

)
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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

a

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,
v.
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0628%3A1. Public record. Not legal advice.