Addressing Water Pollution from Livestock Grazing after O.N.D.A. V. Dombeck: Legal Strategies under the Clean Water Act

Lacy, Peter M., Environmental Law

I. 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.

II. TOTAL MAXIMUM DAILY LOADS

A. 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 environmental harms to clean water as a result of livestock grazing are additions of heat from decreased riparian vegetation and additions of sediment and biological pollutants from surface runoff.(47) Section 303 of the Clean Water Act addresses water quality through the mechanism of water quality standards,(48) which each state must develop and revise for every water body in the state. A water quality standard "defines the water quality goals of a water body" by specifying the appropriate uses of that water and then setting standards to protect those uses.(49) Section 303 and the regulations adopted by EPA(50) indicate that water quality standards consist of 1) a designated use for the water body,(51) 2) criteria that list the maximum allowable concentrations of pollutants that a water body can sustain while still preserving its designated use,(52) and 3) an antidegradation provision.(53)

Designated uses include public water supplies, propagation of fish and wildlife, recreation, agriculture, and industrial purposes.(54) A water body may--and often does--have more than one designated use for which water quality is protected.(55) The criteria that protect the designated uses may be expressed in a number of ways, including numeric (e.g., no more than five micrograms of a certain pollutant in the water), biological monitoring and assessment (a test of the effect of a discharge on aquatic organisms), and narrative requirements (a general statement prohibiting "the discharge of toxic pollutants in toxic amounts").(56) Finally, the antidegradation policy mandates that a state will not permit actions that will impair existing uses, regardless of whether a given existing use is also a designated use.(57) If the water is cleaner than necessary to support the designated uses, then the state must maintain that level of water quality.(58) Also, the Clean Water Act contains a nondegradation standard for high quality "outstanding National resource" waters.(59) For example, Oregon's antidegradation policy is intended only to meet the minimum federal requirements.(60) It provides that the policy of the state is to "protect, maintain and improve the quality of the waters of the state for public water supplies, for the propagation of wildlife, fish and aquatic life and for domestic, agricultural, industrial, municipal, recreational and other legitimate beneficial uses."(61)

2. The Total Maximum Daily Load Process: Listing Waters and Establishing TMDLs

Implementation of water quality standards requires states to place those waters not meeting water quality standards--water quality limited segments"(62)--on the "303(d) list."(63) States must then calculate total maximum daily loads (TMDLs) for those waters not meeting water quality standards.(64) Development of a TMDL assessment consists of two steps. First, the state must determine the total daily input of pollutants, on a pollutant-specific basis, that a water body can sustain and still meet the applicable water quality standards.(65) This total maximum daily load consists of the total of individual wasteload allocations for point sources and load allocations for nonpoint sources, along with the natural background level of pollutants.(66) Second, the state must apportion the total maximum daily load to particular polluting sources within the TMDL area. In doing so, the state must allocate loadings to various point and nonpoint sources.(67) In a watershed or TMDL area that consists of both point and nonpoint source pollution, the state must determine how much of the TMDL is coming from nonpoint sources in order to determine how much of the total loadings remain to be allocated to point source polluters.(68) In addition, a TMDL assessment must take into account seasonal variance and include a margin of safety for any lack of knowledge regarding effluent limitations and water quality.(69)

3. Implementation and Enforcement: A Brief History of TMDL Enforcement

In general, the TMDL program is to be implemented by the states with EPA oversight.(70) States are required to set water quality standards, identify water quality limited segments, develop TMDL assessments, and submit their data and proposals to EPA for approval at each step along the way.(71) However, if a state does not act, or fails to adequately address any EPA concerns upon agency disapproval, EPA must step in and perform the task(s).(72) The program has not unfolded quite so smoothly, and as a result many water bodies throughout the country--especially in rural areas dominated by agricultural nonpoint source pollution and livestock grazing--still lack TMDL assessments.(73)

For its first two decades, a lack of state action and citizen suits prevented the TMDL process from making appreciable headway.(74) For example, it was only in the early 1990s that a federal court finally ordered EPA and the State of Alaska to issue the first TMDL limits for that state.(75) The district court noted that although Alaska's 1988 section 305(b)(76) report identified several hundred water bodies as impaired or threatened by water pollution, the state had only identified a single water quality limited segment prior to the litigation, and the state had not completed "even the first stage of the TMDL process."(77) Similarly, a district court noted in 1999 that, at best, the State of Virginia had completed a single, disputed TMDL on a half-mile long, unnamed tributary to a creek in the nearly twenty years since the original statutory deadline.(78)

From the inception of the Clean Water Act, the TMDL program has been characterized by inaction on the part of the states, and it was largely neglected by EPA as the agency dealt with seemingly more pressing matters in promulgating technology standards for point sources.(79) A 1978 lawsuit required EPA to publish the list of pollutants that would activate TMDL planning.(80) After most states failed to submit lists, EPA argued that section 303(d) required the agency to do nothing more than approve or disapprove state submissions.(81) If states submitted nothing, EPA argued, then the agency was not required to do anything.(82)

In 1984, however, the Seventh Circuit rejected that line of reasoning.(83) Scott v. City of Hammond(84) introduced the concept of a "constructive submission," finding that the "prolonged failure" of a state (Illinois in that case) to submit any TMDL assessments to EPA might result in a constructive submission to EPA of no TMDLs, thus triggering EPA's duty to act.(85) Shortly thereafter, the Northwest Environmental Defense Center filed the first lawsuit in the country seeking to force EPA to develop a TMDL in Oregon--where the state had "constructively submitted" no TMDL to EPA--thus compelling the federal agency to perform the task.(86)

Despite the slow start of the TMDL program, environmental plaintiffs have "launched a tidal wave of lawsuits"(87) in recent years, particularly seeking implementation of TMDLs.(88) The Alaska TMDL cases "took the next step" by requiring EPA to establish TMDLs where Alaska had submitted absolutely nothing to EPA.(89) In March 2000 EPA listed seventeen consent decrees or court orders in fifteen states that require EPA to establish TMDL limits if the states do not establish them--fifteen of those decrees occurred in 1997 or after.(90) Ultimately, this surge of lawsuits, which began in the early 1990s, has resulted in several developments over the past few years,(91) including new section 303(d) guidance from EPA,(92) the creation of a Federal Advisory Committee Act (FACA)(93) committee that convened to address the TMDL program,(94) new state lists of impaired waters,(95) the Clinton administration's Clean Water Action Plan.(96) and recently proposed rules revising the requirements for listing and TMDL development.(97)

B. Legal Strategies

While the TMDL program is often thought to have little teeth with respect to challenging nonpoint source pollution, environmental plaintiffs may nevertheless invoke a few important strategies to make TMDLs effective in this arena. Many commentators suggest that TMDLs offer the next logical point from which to address nonpoint source pollution under the Clean Water Act.(98) even though TMDLs historically have often lacked the power necessary for effective enforcement.(99) Until now, most challenges to TMDLs have been procedural in nature;(100) however, litigation will increasingly mm to substantive issues and challenges to implementation.(101) In general, citizens should address the listing of water quality-limited waters and the adequacy of the states' lists, state implementation and the schedules for preparation, and the substance of the individual TMDLs.(102)

1. Forcing States to List Waters and Challenging the Adequacy of the Lists

Following the basic scheme established in the statute, the fundamental step in TMDL litigation is to verify that a state has listed its waters pursuant to section 303(d) and then to ensure that the list is complete. Each state had 180 days following EPA's 1979 publication of the first set of pollutants to provide EPA with its first 303(d) list.(103) Because EPA has the nondiscretionary duty to review the adequacy of the list and the priority ranking,(104) citizens may enforce this duty under the citizen suit provision of the Act.(105) Of course, if EPA does not act or acts arbitrarily and capriciously--for example, by accepting an allegedly incomplete list-citizens may bring suit under the APA. As of January 2000 EPA has listed forty-one states and Puerto Rico as having their most recent (1998) final list approved by their respective EPA Regions, eight states with final lists "Partially Approved/Partially Disapproved," and one state with its final list submitted and under review.(106)

2. Enforcing Implementation

Aside from continually reviewing the adequacy and accuracy of the lists, step one is largely moot because all states have submitted their most recent 303(d) lists, and EPA has accepted nearly all of those lists.(107) At this point, the crucial push for implementation takes over. Section 303(d) not only requires states to identify waters that are not meeting water quality standards, but it also mandates that "[e]ach State shall establish for the waters identified ... and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies ... as suitable for such calculation."(108)

a. Failure to Submit TMDLs to EPA as a "Constructive Submission" of No TMDLs

Scott v. City of Hammond(109) introduced the "constructive submission" concept to early TMDL litigation. Since that case, courts have held that a failure by a state to submit a TMDL assessment to EPA by the statutory deadline amounts to a constructive submission of no TMDL.(110) EPA has the nondiscretionary duty to approve or disapprove the constructively submitted (non-) TMDL.(111) A recent example of such a claim occurred in a lawsuit against EPA in New York.(112) The Natural Resources Defense Council (NRDC) claimed that EPA's failure to establish TMDLs for the State of New York constituted a failure to perform a nondiscretionary duty under the Clean Water Act, because the state was over fifteen years late in submitting anything to EPA.(113) NRDC asked that EPA establish TMDLs and disapprove the state's antidegradation policy.(114) The district court found the constructive submission concept to be apt in these circumstances, but the court also found--grudgingly--that the question of whether New York had created and submitted TMDLs was a triable issue of fact.(115)

In reaching that conclusion, the court addressed the appropriate standard for determining whether a constructive submission had occurred. While EPA argued that a court must find a subjective decision on the part of a state not to submit anything, the court was persuaded instead by the intention of the statutory scheme. Specifically, the statutory intention is to promote "prompt establishment of TMDLs, which ... would be thwarted by a subjective test of constructive submission."(116) The court concluded by stating that "[m]ere objective failure to submit TMDLs for water-quality-limited segments is enough to trigger the non-discretionary [sic] duties of the EPA."(117)

Despite an apparent about-face by the New York court in a continuation of the same case a few years later (i.e., Fox II),(118) this remains the accepted interpretation of the constructive submission doctrine. Referring to Fox II as "[t]he one divergent decision," a district court in Virginia recently stated that "[w]ith one exception, every court that has considered the issue has followed [Scott v. Hammond]."(119) The Virginia court cited several recent decisions in support of its proposition that the constructive submission doctrine introduced in Scott v. Hammond (and interpreted in NRDC v. Fox) is still viable and the correct interpretation of that concept.(120) Rejecting the assertion in Fox H that "a statute creates a nondiscretionary, judicially-enforceable duty only when it provides a date-certain deadline for agency action," the Virginia court pointed out that the numerous original deadlines contained in the Clean Water Act serve as "readily ascertainable" bases for determining statutorily imposed deadlines.(121)

b. What Suffices as Sufficient Implementation of the TMDL Program?

Fox II(122) also raises the important issue of what exactly will suffice as sufficient implementation of a state TMDL program. Though the court found EPA's claim that New York had actually submitted some TMDL assessments dubious at best, it nevertheless conceded that there was a triable issue of fact.(123) EPA provided at least two declarations indicating that New York had submitted, and EPA had approved, at least a few TMDL assessments.(124) The court did note, however, that only a single document produced by the government actually included volume per day limits, and this document appeared highly inconsistent with the statute and was vague in its terms.(125)

At least a few cases have attempted to answer the question of what constitutes sufficient implementation of an acceptable TMDL program.(126) In Idaho Sportsman's Coalition v. Browner, a district court found EPA's approval of only thirty-six TMDLs by 1992 to be arbitrary and contrary to law.(127) Under court order, EPA two years later approved a list identifying 962 water quality-limited segments, and subsequent stages of the litigation focused on development of an acceptable schedule for implementation.(128) EPA and Idaho submitted a schedule that contemplated at least another twenty-five years until the TMDLs would be completed--and even this time frame was couched in terms of "expected times and targets."(129) Finding this unacceptable and contrary to the statute's clear mandate for expediency in the TMDL program,(130) the court remanded to EPA with instructions to establish a reasonable schedule, "suggesting" that "a completion time of approximately five years would be reasonable."(131)

A district court in Georgia reached a similar decision shortly thereafter.(132) In Sierra Club v. Hankinson, the Sierra Club challenged all aspects of Georgia's program, including the identification of water quality-limited segments; water quality monitoring; prioritization; and the number, adequacy, and pace of the development of TMDLs.(133) Georgia had submitted its first list of 123 waters in 1992 and by the time of trial had increased the list to 340 waters.(134) However, the state had only submitted two TMDLs (one in 1994 and one in 1995), claimed to be working on another two, and anticipated completion of an additional twenty-eight by the year 2005.(135) Though the court did not determine whether the list was adequate, it found the TMDL schedule insufficient, noting that it would take over 100 years at the state's current pace to prepare TMDLs for the currently listed waters.(136)

c. Imposing a Schedule for Preparation

Enforcing implementation of the program leads to the related goal of imposing a court-approved schedule for TMDL preparation in states that insist on dragging their feet with respect to implementation. The Idaho and Georgia cases provide good examples of this phase of TMDL litigation. While the district court in Idaho Sportsmen's Coalition remanded the scheduling decision to the agency with a suggestion that five years would be a "reasonable" amount of time,(137) the Sierra Club v. Hankinson court went further by ordering the completion of the TMDLs within five years on a basin-by-basin schedule.(138) Conditions of that order included the revision or termination of NPDES permits within one year following each new TMDL, permits for new dischargers into water quality-limited segments, and EPA revision of the NPDES program or revocation of state certification for state failure to comply.(139) The court also retained jurisdiction over the case and ordered EPA to submit detailed annual progress reports to it and the plaintiff.(140)

Implementation schedules are often set in settlement, rather than by court order. In the Virginia case where the district court noted that the state and EPA had submitted either one or no TMDLs in the twenty years following the 1979 statutory deadline, the parties reached an agreement and the court approved the consent decree in 1999.(141) The consent decree included the following: 1) an eleven to twelve year schedule for Virginia to establish TMDLs for all waters on its 1998 section 303(d) list, 2) requirements that EPA establish the TMDLs if Virginia fails to do so, and 3) provisions addressing a number of other Clean Water Act and endangered species issues.(142)

3. Challenging the Substance of a TMDL

Increasingly, litigation will focus on challenging the substance of individual TMDLs that states have submitted or EPA has approved. Such disputes will focus on whether the TMDLs are adequate under the requirements of section 303 and the EPA regulations. Substantive challenges to individual TMDLs will focus on: 1) whether the TMDL is scientifically defensible, 2) whether and when the established time frame will achieve compliance with water quality standards, and 3) whether the TMDL is sufficiently certain to be effective and actually achieve compliance.

In perhaps the only true example so far of this stage of TMDL litigation, both environmental and industry plaintiffs challenged the adequacy of a TMDL established by EPA for dioxin in the Columbia River.(143) EPA estimated in that case that Washington, Oregon, and Idaho pulp and paper mills along the Columbia River would have to reduce their dioxin discharges by 95% in order to achieve the permissible 0.013 parts per quadrillion ("ppq") ambient concentration of dioxin.(144) Affirming the district court's decision to uphold the TMDL, the Ninth Circuit rejected several arguments, including a claim that the TMDL failed to consider the cumulative effect of dioxin with other chemicals present in the water.(145) The court pointed out that not only does the Clean Water Act not require TMDLs to be issued for all pollutants at once, but …

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Publication information: Article title: Addressing Water Pollution from Livestock Grazing after O.N.D.A. V. Dombeck: Legal Strategies under the Clean Water Act. Contributors: Lacy, Peter M. - Author. Journal title: Environmental Law. Volume: 30. Issue: 3 Publication date: Summer 2000. Page number: 617. © 1999 Lewis & Clark Northwestern School of Law. COPYRIGHT 2000 Gale Group.

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