Grazing Isn’t Subject to Clean Water Act Permits

     (CN) – The 9th Circuit held that a Supreme Court ruling doesn’t allow environmental groups to pursue Clean Water Act claims for livestock grazing in national forests.




     The Oregon Natural Desert Association and six other environmental groups filed suit in 2007, alleging that cattle grazing in the Malheur National Forest should be subject to Clean Water Act permitting. The groups pointed to pollution of rivers and streams by fecal bacteria, and sediment caused by erosion from grazing.
     The Forest Service argued that under the Act, cattle could not be considered a “point source,” or single identifiable pollution source, and that national forest grazing doesn’t require the federal permits.
     The group, along with other conservationists, brought an identical challenge in 1994. The federal appeals court in San Francisco sided with the Forest Service, while the Supreme Court declined to hear the environmentalists’ appeal.
     In the 2007 lawsuit, environmental groups said that the 9th Circuit’s earlier decision was based on case law that contradicted the Supreme Court’s 2006 ruling in S.D. Warren Co. v. Maine Board of Environmental Protection. In that case, the groups argued, the Supreme Court had broadened the definition of “discharge” under the Clean Water Act to include nonpoint sources.
     Judge Milan Smith explained that factors of climate and geography make nationwide regulation of nonpoint water pollution sources impossible. The court stated that its prior decision was “easily reconcilable” with the Supreme Court case, because legislative history of the Clean Water Act shows that regulation of nonpoint sources has been largely left to states.
     The 9th Circuit upheld the district court’s judgment barring the claims as repeat litigation.

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