ELR Citation: ELR 20221
No(s). 94-522-HA (D. Or. Sep 26, 1996)

The court holds that before the U.S. Forest Service issued a permit to graze cattle on federal lands in the Malheur National Forest in Oregon, it should have required the permittee to obtain certification from the state under §401 of the Federal Water Pollution Control Act (FWPCA) that the grazing would not violate state water quality standards. The court first holds that plaintiffs and a Native American tribe that intervened in the case have standing. The plaintiffs have established an injury-in-fact because they live and recreate in the area of the challenged action. Plaintiffs have also adequately established traceability, in light of the Forest Service's admission that cattle grazing contributes to water pollution, and the showing that pollution in one of the creeks near the grazing permit allotment is related to cattle grazing. The redressability requirement is also satisfied because plaintiffs need only show that a procedural requirement was not followed, rather than establishing that following the required procedures will lead to a different result. The Tribe has standing because it has treaty rights in the permit area's river basin and these rights are injured by the alleged violations. The court then holds that because citizens can enforce permit conditions through §505 for water quality violations, plaintiffs can seek enforcement of §401 certification violations under §505 for water quality standards. The court next holds that §401 applies to all federally permitted activities that may result in a discharge, including discharges from nonpoint sources. Thus, pollution caused by cattle grazing is a "discharge" into navigable waters within the meaning of §401. The plain meaning of "discharge" in §401 does not restrict the definition to point sources or nonpoint sources with conveyances, and the term "including" in §502's definition of discharge permits additional, unstated meanings. Further, the FWPCA's legislative history supports the conclusion that §401 applies to all federally permitted activities that might result in water pollution. The legislative history of the FWPCA's 1970 amendments reveals that Congress intended to regulate all polluting activity through water-quality standards, and even though nonpoint sources are not mentioned in the 1972 amendments, the court could not find that Congress intended to preclude their application to §401. In addition, the court refuses to defer to the Forest Service's long-standing practice of not requiring state certification for cattle grazing because the U.S. Environmental Protection Agency, not the Forest Service, administers the FWPCA.

Counsel for Plaintiffs
Michael Axline
Western Environmental Law Center
44 W. Broadway, Ste. 200, Eugene OR 97401
(503) 485-2471

Counsel for Defendant
Howard G. Arnett
Karnopp, Petersen, Noteboom, Hubel, Hansen & Arnett
1201 NW Wall St., Ste. 300, Bend OR 97701
(541) 382-3011