ELR Citation: ELR 21471
No(s). s. 97-35065 et al (9th Cir. Jul 22, 1998)

The court holds that the U.S. Forest Service did not violate the Federal Water Pollution Control Act (FWPCA) by issuing a cattle grazing permit for the Malheur National Forest in Oregon without obtaining FWPCA §401 state certification that the grazing and subsequent nonpoint source releases to a river would not violate state water standards. The court first holds that the plaintiffs-environmental groups have standing to sue under the FWPCA. There is no question that the river's pollution has injured the plaintiffs, and the plaintiffs have demonstrated a concrete interest where its members reside and engage in recreational activities along polluted waterways. And the plaintiffs' assertion of a procedural right of certification under FWPCA §401 is a redressable injury. The court also holds that FWPCA §505(a)'s citizen suit provision authorizes any citizen to bring a suit against an agency that has issued a permit without appropriate FWPCA §401 state certification.

The court next holds that the FWPCA §401 state certification requirement does not apply to nonpoint source releases. Nonpoint source pollution is not regulated directly by the FWPCA, but rather through federal grants for state wastewater treatment plans. Moreover, the term "discharge" in §401 is limited to discharges from point sources, and all of the sections cross-referenced in §401 relate to the regulation of point sources. By contrast, the term, "runoff" as it is used in the FWPCA describes pollution flowing from nonpoint sources, and §401 contains no reference to runoff. The court then rejects the argument that the grazing of cattle is not sufficiently similar to point source pollution to require its inclusion in the definition of the term "discharge." The term "point source" does not include a human being, or any other animal.

[The district court's decision in this litigation is published at 27 ELR 20221. Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66574.]

Counsel for Plaintiffs
Michael Axline
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(503) 485-2471

Counsel for Defendant
Nancy B. Firestone, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Fartis and Tashima, JJ.