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

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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. …