Oregon Natural Desert Association v. United States Forest Service
Opinion
Opinion
BACKGROUND
A. Statutory Background
The CWA was enacted in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101; 33 U.S.C. § 1251(a). The CWA requires, among other things, that
[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.
Id. § 401(a)(1). Any such discharge must also comply with other provisions in the CWA that establish effluent limitations and national performance standards. Id. (citing CWA §§ 301- 303, 306, 307; 33 U.S.C. §§ 1311-1313, 1316, 1317).
The parties in this case dispute the meaning of the word “discharge,” as used in § 401. ONDA claims that “discharge” includes “pollutants” emitted by grazing livestock in the form of sediment, fecal coliform, and fecal streptococci. The Forest Service responds that because cattle do not fall under the defi- nition of “point sources,” they are not covered under § 401.