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Oregon Natural Desert Association, et al. v. Michael P. Dombeck, et al.

United States Court of Appeals, Ninth Circuit
172 F.3d 1092 (1998)
ELI5:

Rule of Law:

The state certification requirement under Section 401 of the Clean Water Act, which mandates state approval for any federal license or permit that may result in a discharge into navigable waters, applies only to discharges from point sources, not to pollution from nonpoint sources.


Facts:

  • The United States Forest Service issued a permit to Robert and Diana Burril.
  • The permit authorized the Burrils to graze 50 head of cattle in Oregon's Malheur National Forest.
  • The cattle grazed for several months a year in and around Camp Creek and the Middle Fork of the John Day River.
  • The grazing activity polluted the waterways with animal waste, increased sedimentation, and increased water temperature.
  • This type of pollution from cattle grazing is considered a nonpoint source of pollution.

Procedural Posture:

  • Oregon Natural Desert Association (ONDA) filed an action against the United States Forest Service in the U.S. District Court for the District of Oregon.
  • The Confederated Tribes of the Warm Springs Reservation intervened as plaintiffs.
  • Robert Burril, Grant County, and the Eastern Oregon Public Land Coalition intervened as defendants.
  • The district court granted summary judgment in favor of the plaintiffs (ONDA and the Tribes).
  • The district court concluded that the Forest Service must obtain state certification under Section 401 for activities that will potentially cause nonpoint source pollution.
  • The Forest Service and the defendant-intervenors appealed the district court's judgment to the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does the state certification requirement under Section 401 of the Clean Water Act, triggered by a potential 'discharge into the navigable waters,' apply to nonpoint source pollution, such as that caused by cattle grazing?


Opinions:

Majority - Judge Schroeder

No. The state certification requirement under Section 401 of the Clean Water Act applies only to discharges from point sources, not nonpoint sources. The court reasoned that the entire structure of the Clean Water Act establishes two separate regulatory schemes: one for point sources and another for nonpoint sources. Point source pollution is directly regulated through the National Pollutant Discharge Elimination System (NPDES) permit program, and Section 401's certification is an integral part of that direct regulatory scheme. In contrast, nonpoint source pollution is managed indirectly through federal grants that encourage states to develop their own management programs. The court also found that all of the statutory sections cross-referenced in Section 401 relate to point sources. Finally, the court noted that the Act consistently uses the term 'discharge' to refer to point source releases and 'runoff' to describe nonpoint source pollution, and Section 401 only uses the term 'discharge.' The court concluded that something as inherently mobile as a cow cannot be considered a 'point source' under the Act's definition.



Analysis:

This decision significantly clarifies and narrows the scope of the Clean Water Act's Section 401 state certification requirement. By holding that Section 401 applies only to point sources, the court reinforced the Act's bifurcated regulatory structure, preventing the use of state certification to directly regulate nonpoint source pollution from activities like grazing, agriculture, and silviculture. This ruling limits the ability of states and environmental groups to use the Section 401 process as a tool to impose water quality conditions on federally licensed activities that only produce nonpoint source pollution. Consequently, the regulation of such pollution remains primarily within the purview of state-level management plans encouraged by federal funding, rather than direct federal permitting requirements.

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