Addressing water pollution from livestock grazing after O.N.D.A. v. Dombeck: legal strategies under the Clean Water Act.

• Author: Lacy, Peter M.
• Position: Oregon Natural Desert Ass'n

1. INTRODUCTION

   In 1998 the Ninth Circuit ruled in Oregon Natural Desert Association v. Dombeck (ONDA v. Dombeck)(1) that issuing livestock grazing permits does not trigger the section 401 certification requirement of the Clean Water Act.(2) The Oregon Natural Desert Association (ONDA) alleged that the United States Forest Service had violated section 401 by issuing a grazing permit without first obtaining certification from the State of Oregon that the grazing would not violate the state's water quality standards.(3) Finding that the case turned on interpretation of the term "discharge" in the Clean Water Act,(4) the court determined that a "discharge" is limited to releases from point sources.(5) Thus, because the court rejected the suggestion that livestock constituted a point source under the Act, and because pollution from livestock grazing generally consists of surface runoff--a nonpoint source(6) of pollution--section 401 of the Clean Water Act does not regulate water pollution from livestock grazing.

   Almost two years later, environmental organizations continue in the struggle to develop alternative legal strategies to address grazing-related water pollution. As one of the most environmentally devastating uses of western public lands, livestock grazing causes a litany of environmental harms to fragile arid-land ecosystems. These harms include: decreased water quality (from increased sediment in streams due to soft and bank erosion, increased water temperature as a result of reduced vegetation shade cover, and fecal deposition in streams), the reduction of water resources (by watershed degradation and physical damage to waterways and riparian areas), soil erosion and compaction (including stream bank erosion and the trampling of fragile microbiotic crusts--valuable soil stabilizers and rare desert nitrogen-fixers), the introduction and spread of invasive weed species, the elimination of native plant species, a decrease in the frequency of natural fire regimes, and the overall destruction of critical riparian fish and wildlife habitat.(7) All of this environmental harm begins simply with livestock trampling vegetation and soil, grazing on native plants, and depositing waste onto the land and into the water.

   Although the western range contributes only a small portion of the nation's livestock production,(8) livestock graze vast acreages of the western states. The Bureau of Land Management (BLM) and the Forest Service administer grazing permits for over 240 million acres of public lands.(9) The modern incarnation of western ranching has its origins in the nation's early policy of western land disposition, when the federal government encouraged settlers to tame and utilize the western frontier.(10) Statutes such as the Homestead Act of 1862(11) and the Desert Lands Act of 1877(12) necessarily led to a western philosophy that a settler had an absolute right to use the public lands in any manner desired. As early as 1890, the Supreme Court ruled that Congress, by its silence, acquiesced to western settlers' use of the public lands for grazing.(13) The result of this early history was the classic "commons" situation,(14) in which ranchers grazed as many livestock as they could on the public lands.

   When the Great Depression and the Dust Bowl occurred, Congress finally recognized that the pervasive policy of unrestricted use of the public lands had left arid western rangelands in a perilous condition and decided to take action.(15) In 1934 Congress enacted the Taylor Grazing Act (TGA),(16) stating in the preamble that the purpose of the Act was "[t]o stop injury to the public grazing lands by preventing overgrazing and soil deterioration, [and] to provide for their orderly use, improvement, and development."(17) The TGA introduced a preference permit system for grazers and within a few years led to a withdrawal of all public lands into grazing districts.(18) Ranchers with lands adjacent to the publicly grazed lands dominated implementation of the new permit system.(19) In 1976 Congress enacted the Federal Land Policy and Management Act (FLPMA),(20) supplying the BLM with its first specific and centralized authority to manage the public lands under its administration.(21)

   The last thirty-five years have seen an explosion of significant environmental laws that address a wide range of issues,(22) not the least of which is the degradation in the quality of the nation's water resources. The most significant environmental law addressing water quality problems--with respect to grazing or any other source of pollution--is the Clean Water Act. It is the nation's comprehensive federal law for the control and abatement of water pollution. The section 401 certification theory espoused by the plaintiffs in ONDA v. Dombeck is the most direct strategy to attempt to legally harness the environmental degradation caused by grazing and, afar ONDA's success with the theory at the district court level,(23) it looked like environmental groups had found an answer. Now-at least in the Ninth Circuit--that route is foreclosed. Unless and until the Ninth Circuit or the Supreme Court reverses the holding in ONDA v. Dombeck,(24) environmental plaintiffs must focus their energies on several new or revitalized theories in order to address grazing-related water pollution.(25)

   By foreclosing regulation of grazing-related water pollution in limited contexts, ONDA v. Dombeck is a significant environmental defeat because the sections of the Clean Water Act that address nonpoint source pollution have been, by nearly all accounts, an utter failure.(26) Instead of directly regulating nonpoint source pollution, the Clean Water Act only provides grants to states that wish to opt into programs established by the Act.(27) For example, section 208 ostensibly requires states to develop "areawide waste treatment management" plans.(28) However, if a state chooses not to develop a plan, then it simply does not receive the grant money available for development and operation.(29) In 1987 Congress added section 319, rifled "Nonpoint source management programs."(30) Like section 208, this program requires states to develop state assessment reports and management programs, and it is also driven largely by federal grants.(31) Although more states are trying to develop section 319 programs, these programs would only be enforceable at the state level, if at all.(32) The Environmental Protection Agency (EPA) has no authority under section 319 to prepare or implement a management program or to require the use of specific best management practices (BMPs).(33)

   Though other statutes--for example, the National Wild and Scenic Rivers Act(34)--have enjoyed some significant successes in addressing grazing-related water pollution in limited contexts,(35) the Clean Water Act nevertheless still holds the most promising and widely applicable strategies to address the problem. This Chapter focuses on two major strategies under the Clean Water Act: total maximum daily loads (TMDLs) and section 313's federal facilities pollution control. Part II discusses the basic TMDL strategy with respect to the TMDL process. This process includes: 1) forcing states to list waters under section 303(d),(36) 2) challenging the adequacy of the lists, 3) imposing a schedule for preparation of TMDLs where they have not yet been prepared as required under the Act, and 4) challenging the substance of TMDLs as they are completed. Part I also analyzes the South Steens TMDL in Oregon--which EPA developed for an area that consists entirely of nonpoint source pollution--as a case study under this legal strategy at the conclusion of the TMDL discussion. Finally, Part II concludes with a short discussion of EPA's 1999 proposed revisions to the TMDL program.

   Because TMDLs are a long-term solution and potentially lack sufficient enforcement mechanisms for effective and immediate legal control of grazing-related water pollution, Part III of this Chapter focuses on what is perhaps a stronger strategy: section 313 of the Clean Water Act.(37) Part II develops a two-part argument regarding section 313: 1) the provision imposes a duty that federal agencies must adhere to state water quality regulation of both point and nonpoint source pollution, including livestock grazing permitted on federal lands; and 2) that duty is enforceable for nonpoint sources under the APA.

   Finally, Part IV briefly discusses three more limited strategies. These are the Wild and Scenic Rivers Act,(38) the Coastal Zone Management Act.(39) and a theory suggesting that livestock congregation areas on public lands--such as watering troughs or stream access points--might be treated as point sources under the "concentrated animal feeding operation"(40) component of the Clean Water Act's definition of "point source." Part V concludes that the long-term, broad-scale effectiveness of the TMDL program should combine well with the more immediate, site-specific potential of section 313's requirements on federal agencies that administer the public lands.

2. TOTAL MAXIMUM DAILY LOADS

   1. Statutory and Regulatory Requirements

      The goal of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(41) The Act implements several programs to achieve this goal. For example, section 301 initiates the National Pollutant Discharge Elimination System (NPDES) program, which prohibits the discharge of a pollutant unless authorized by a permit.(42) This program deals with point source pollution from direct dischargers.(43) NPDES permit issuance is governed by section 402,(44) which allows states to take over permit issuance from EPA if their programs are at least equivalent to federal standards. Other Clean Water Act programs address nonpoint source pollution,(45) as well as the implementation of water quality standards for the nation's waters.(46)

      1. Water Quality Standards

         The primary...