Searching for the definition of "discharge": Section 401 of the Clean Water Act.

I. INTRODUCTION

On September 27, 1996, Judge Ancer Haggerty of the U.S. District Court for the District of Oregon handed down an opinion that has since caused controversy and debate among the environmentalists, ranchers, loggers, government agencies, and citizens who are affected by its far-reaching holding. In Oregon Natural Desert Association (ONDA) v. Thomas,(1) the court held that the United States Forest Service had violated section 401 of the Federal Water Pollution Control Act (Clean Water Act (CWA))(2) by issuing a permit for grazing in the Malheur National Forest without first obtaining certification from the State of Oregon that the grazing activity would not violate Oregon's water quality standards,(3) Section 401 requires states to certify that any federally permitted activity "which may result in any discharge" will not violate the water quality standards of the state in which the discharge will occur.(4) In ONDA, the court reasoned that the term "discharge," as it is used in section 401, is not limited to discharges from point sources,(5) Support for this reasoning was found in the plain meaning of "discharge," the statutory definition of "discharge," and the legislative history of the CWA.(6) The ONDA decision is the first in the nation to hold that section 401 of the CWA applies to "all federally permitted activities that may result in a discharge, including discharges from nonpoint sources," and that pollution caused by cattle grazing constitutes a discharge within the meaning of section 401 of the CWA.(7) If this broad interpretation of the term "discharge" is upheld, the implications will be far-reaching. Not only would every grazing permit issued by the Forest Service or the Bureau of Land Management (BLM) be subject to section 401 of the CWA, but so might permits for logging roads, mining activities, and any other nonpoint source activity potentially resulting in a discharge.

From a water quality standpoint, this strengthened state control over federal land use could provide our tired public rangeland, rivers, and forests with a much needed respite from the exhausting multitude of uses that currently degrade water quality. The United States Environmental Protection Agency (EPA) consistently reports that nonpoint source pollution, such as livestock grazing, is the leading source of degradation of water quality in the United States.(8) By giving states the opportunity to regulate federally permitted activities within their borders to ensure compliance with water quality standards, section 401 may offer a partial solution to the complex nonpoint source pollution problem. There can be little doubt that requiring federally permitted activities to meet state water quality standards would do wonders for water quality, the ecological integrity of riparian zones and freshwater ecosystems, and the fish and wildlife species that depend upon those systems.

However, the ONDA decision has done more to open up debate on the proper scope and application of section 401 of the CWA than it has to resolve the issue. The intervening industry defendants were quick to appeal the decision to the Ninth Circuit Court of Appeals, with their position strengthened by an Idaho district court opinion holding that section 401 of the CWA did not apply to a permit for construction of a logging road, a nonpoint source, on national forest land. In Idaho Conservation League v. Caswell,(9) the court reasoned that statutory definitions and the regulatory scheme of the Act clearly limit the term discharge in section 401 to mean point source discharges only.(10)

The federal government's reaction to the ONDA holding can be fairly characterized as scattered and divided. In January of 1996, the Department of Justice (DO J) filed a "protective notice of appeal," buying time to formally decide whether or not to appeal the case on behalf of the Forest Service.(11) In February of 1996, EPA made the surprising move of drafting revised section 401 implementation regulations which made clear that according to EPA, "[d]ischarge includes nonpoint sources."(12) EPA apparently was criticized by other agencies for moving forward with a regulation before the administration had decided whether or not to appeal, and was forced to table the rulemaking pending conclusion of the litigation.(13) Finally, on June 16, 1997, the Clinton Administration decided to appeal the ONDA decision despite opposition from EPA, the regulatory agency charged with implementing and enforcing the CWA.(14) The government's appeal marked the end of months of debate between EPA, the Forest Service, and BLM, and the end of a debate which EPA clearly lost.(15)

Thus, the Ninth Circuit Court of Appeals faces the task of determining how Congress intended section 401 of the CWA to be interpreted and applied.(16) This Comment addresses the question of whether the term "discharge," as it is used in section 401 of the CWA, includes nonpoint sources of pollution.(17) Part II offers a background sketch of the provisions of the CWA relevant to a discussion of section 401; this section is intended for readers who are unfamiliar with the CWA. Part III identifies the complex ecological impacts that federally permitted nonpoint source activities have on water quality. Part IV explains how section 401 of the CWA functions, and how it was used by states prior to the ONDA decision. Part V uses traditional tools of statutory construction to discern the intent of Congress in drafting section 401. By analyzing the plain meaning of discharge and its use in the CWA, the context of section 401 in the CWA regulatory scheme, and the legislative history of section 401, this section sets out the arguments in support of both broad and narrow readings of the term discharge in section 401. Part V concludes that while the CWA is ambiguous and contradictory in many respects, the plain meaning and legislative history of section 401 generally support a broad reading of the term discharge that includes discharges from nonpoint sources. Part VI attempts to evaluate the effectiveness of section 401 state certification of nonpoint source activities as a water pollution control mechanism, in part by using Oregon's response to the ONDA decision as a case study.

II. BACKGROUND

A. Water Pollution Control: A Historical Perspective

To best understand the current regulatory scheme used to address the problem of water pollution in the United States, it is helpful to first review the historical context in which it evolved. The earliest federal legislation drafted in direct response to public concern about water quality was the Water Quality Act of 1948,(18) which provided funding for the research and implementation of state water pollution control programs.(19) As industrial development caused increasingly more serious water pollution problems, Congress provided additional funding to the states pursuant to the Federal Water Pollution Control Act of 1956.(20) Again in 1965, Congress was compelled to strengthen its directive to the states, this time requiring states to adopt water quality standards and implementation plans.(21) However, this Act still did not provide for effective federal enforcement mechanisms, and by 1972 only half the states had set water quality standards.(22) Further more, even when a state had adopted water quality standards, the standards were not effectively translated into requirements for individual dischargers.(23)

In 1971, the Committee on Public Works (chaired by Senator Edmund Muskie) concluded that "the national effort to abate and control water pollution is inadequate in every vital aspect."(24) The Committee perceived the core of the problem to be the inherent difficulty of linking the violation of a water quality standard to a particular pollutant, polluter, or water use.(25) It was time for a dramatically different approach to water pollution control, and the solution to the problem was simple. Water pollution needed to be regulated at its source, in addition to being measured against water quality standards.(26) It was in the context of this realization that the regulatory universe of the Clean Water Act (CWA)(27) was conceived.

B. Brief Overview of the Clean Water Act

The overriding purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(28) The Act seeks to achieve these goals by combining state water quality standards with the technology-based approach of setting effluent limitations on what a point source can discharge into the waters.

1. Definitions of "Point" & "Nonpoint" Source in the CWA

For regulatory purposes, the Act classifies water pollution into one of two categories, based on the source of the pollution. A "point source" is defined in the CWA as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel or other floating craft, from which pollutants are or may be discharged."(29) Under this definition of point source, even a discrete conveyance is not a point source if it does not discharge, or potentially discharge, one of the "pollutants" specified by the CWA.(30) Discharge of a pollutant from a point source is prohibited by the CWA, unless the discharger has a National Pollutant Discharge Elimination System (NPDES) permit. The end-of-the-pipe effluent limitations required by these permits contain both technology-based and water quality-based limits, and are at the heart of the CWA regulation of point sources.(31)

The term "nonpoint source" is not expressly defined in the CWA, although it appears in several provisions,(32) EPA defines nonpoint source pollution as pollution "caused by diffuse sources that are not regulated as point sources and normally... associated with agricultural, silvicultural and urban runoff, runoff from construction activities, etc."(33) A nonpoint source can be understood as any source of pollution that cannot be traced to a point source.(34) However, within this vast universe known as nonpoint source pollution, there is a wide variety of human-induced pollution-causing activities. The CWA drafters acknowledged the many causes of pollution by defining it broadly in the CWA as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water."(35) A sampling of sources of nonpoint source pollution can illustrate the spectrum these sources represent. For example, pipes that discharge irrigation return flows are nonpoint sources because they are specifically exempted from the point source provisions of the Act.(36) Courts have treated dams that discharge water with a low dissolved oxygen content as nonpoint sources because they do not discharge a "pollutant."(37) Runoff from silviculture, agriculture, mining, or construction is nonpoint source pollution, unless is has been channeled by human efforts, and thus transformed into a point source of pollution.(38) Nonpoint source pollution also includes erosion, addition of materials not formally considered "pollutants," and changes in water conditions.(39) Changes in water conditions such as pH, temperature, or oxygen content are usually caused by activities lumped into the nonpoint source category, although "heat" is specifically listed as a "pollutant" in the CWA definition.(40)

2. The Significance of State Water Quality Standards in the CWA Scheme

Regulation of point sources through the imposition of effluent limitations represented a new and necessary approach to water pollution control, but Congress recognized that water quality standards would remain a vital approach to regulation of both point and nonpoint sources of pollution.(41) The 1972 CWA required that each state set water quality standards to be used in conjunction with technology-based limitations to achieve the goals of the Act.(42) State water quality standards must be specific to particular bodies of water, and they consist of two basic elements. First, states must assign "designated uses" that establish the uses for which the waters must be protected.(43) Designated uses must include, among other uses, propagation of fish, shellfish, and wildlife, as well as recreation in and on the waters.(44) Second, the states must set water quality criteria that define levels of toxic pollution at which the designated uses will be compromised, and above which the body of water will violate water quality standards.(45) Criteria can be in the form of a numeric standard or a broad narrative phrase,(46) thereby providing a substantive structure for protecting designated uses.(47) Water quality standards are an enormously important regulatory tool, because they give states the power to achieve a degree of water quality that could not be achieved with economically based effluent limitations alone.(48)

3. Regulation of Nonpoint Sources under the CWA

Congress did not address regulation of nonpoint source pollution with a specific statutory provision until 1987, when it amended the CWA to include section 208 requirements for "[a]reawide waste treatment management."(49) Current regulation of nonpoint sources under the CWA is the subject of much discourse and research,(50) mostly because the CWA provisions attempting to regulate nonpoint source pollution have proven largely ineffective.(51) Sections 208 and 319 of the CWA are the two primary federal regulatory devices for controlling the problem of nonpoint source pollution.

Section 208 of the CWA was included in the original 1972 Act. It requires each state to 1) "identify... agriculturally and silviculturally related nonpoint sources of pollution... and their cumulative effects, runoff from manure disposal areas, and from land used for livestock and crop production" and 2) "set forth procedures and methods (including land use requirements) to control to the extent feasible such sources."(52) In response, agencies looked at ways to modify land uses causing nonpoint source pollution, and created "Best Management Practices" (BMPs) that would prevent the pollution from occurring.(53) BMPs range anywhere from treatment requirements, to the prohibition of certain practices, to maintenance procedures.(54) BMPs have been compared to effluent limitations because they attempt to control nonpoint source pollution at its source and with a technology-based approach.(55) In theory, BMPs could be an effective way to meet desired water quality standards, but in reality they have fallen far short of their goals. The failure of section 208 to reduce nonpoint source pollution has been attributed to a combination of lack of federal funding, inadequate water quality data, political conflict, and EPA's poor leadership.(56)

In 1987, Congress amended the CWA to address the persistent problem of nonpoint source pollution. Section 319 basically makes states more accountable to EPA for the success of their section 208 plans by requiring states to report to EPA their success in meeting implementation schedules and by threatening funding cutoffs if the states fail to make satisfactory progress.(57) While it is not clear whether these programs are faulty conceptually or just in their implementation, the fact remains that water quality reports reflect that nonpoint source pollution runs unabated into our nation's waters.(58)

III. NONPOINT SOURCE POLLUTION ON PUBLIC LANDS

A. Nonpoint Source Pollution Generally

Despite more than two decades of attempts to curb nonpoint source pollution,(59) this pollution continues to have an enormous impact on our nation's waters. According to the most recent Environmental Protection Agency study, states report that water quality standards are not met in roughly 36% of their waters, and polluted runoff is the major cause cited for that failure.(60) EPA reports that the leading pollutants impairing our nation's waters are bacteria, siltation, nutrients, oxygen-depleting substances, metals, habitat alterations, and suspended solids.(61) Each of these pollutants plays a complicated role in aquatic ecosystems, and often the result of those ecological dynamics is water quality that cannot support the uses we have designated for protection (recreation, fishing, wildlife, etc.)(62) For example, when riparian vegetation is damaged, a stream will often experience increased erosion and sediment load, reduced beneficial filtering of runoff pollutants, and higher temperatures due to less shade.(63) Whether these reactions are "pollutants" or "pollution," they are likely to violate state water quality standards. High stream temperatures decrease the dissolved oxygen present in the water, and the fish and other organisms that depend on the oxygen cannot survive in the stream.(64) At the heart of the connection between nonpoint source pollution and compromised water quality is a truth articulated by EPA: "[T]he health of rivers and streams is directly linked to habitat integrity on shore."(65) Many of the nonpoint sources that cause serious degradation of water quality actually do so by degrading the ecological integrity of the upland or riparian environment in a way that leads to siltation, increased nutrients, habitat modification, or thermal pollution.(66) How should these complex ecological reactions that result in water pollution be regulated? If section 401 does apply to nonpoint source pollution, does it apply to all federally permitted activities that cause water pollution, or just to activities that cause pollution as a result of a discharge? Consider these questions in the context of nonpoint source pollution on public lands.

B. Specific Nonpoint Sources of Pollution on Public Lands

The causes and effects of nonpoint source pollution are especially prevalent on public lands, where many activities that cause nonpoint source pollution are daily occurrences, such as livestock grazing, timber cuts and roads, and resource extraction.(67) Public lands comprise 29% of the nation's land, and nearly half of the land in the "eleven western states."(68) Furthermore, "almost two-thirds of the run-off in the eleven western states, and all the great western rivers, originate on the public lands."(69) For these reasons, the land use activities that take place on our public lands have far-reaching effects on water quality.

1. Water Quality Effects of Livestock Grazing on Public Lands

The story of private livestock grazing on our public lands is a true "tragedy of the commons," and the subject of much current research as well as political controversy.(70) Historical facts can help to illustrate the dramatic ecological transformation the western landscape has undergone as a result of livestock grazing: in 1870, Arizona Territory held about 5,000 cattle; twenty-one years later there were 1.5 million in the Arizona Territory and 26.5 million total in the western United States.(71) Clean Water Act scholar Oliver Houck recently observed that ecosystem management of the public range faces "two great challenges... that the ecosystem we see today has been so greatly altered... [and] that the major source of the alteration, large numbers of cattle, remains."(72) Domestic livestock grazing is a predominant use of much federal land, second only to recreation.(73) Not surprisingly, the ecological impacts of grazing are not limited to the land. EPA reports that agricultural runoff contaminates 60% of the impaired river miles in the United States, and that livestock grazing is the second major source of that pollution after crop production.(74)

Livestock grazing impacts on water quality result from the tendency of cattle to graze and remain in riparian zones; they consume all available vegetation and young woody plants, trample the banks, and defecate in the water.(75) One commentator estimates that "at least 1000 tons of bovine excrement are discharged into our public waters every day."(76) Livestock manure introduces bacteria into water,(77) as well as excess nutrients, which in turn lower the amounts of dissolved oxygen available for fish and other species.(78) Grazing in riparian zones loosens soil and eliminates riparian vegetation that would normally prevent erosion; studies have revealed that increases in water-borne fine sediments result in decreases of 37%-59% in biological productivity of a water body.(79) Habitat modification is perhaps the most obvious water quality impact from livestock grazing; the combination of siltation and high temperatures impairs the habitat of trout and other salmonids.(80) One commentator also speculates that the direct results of grazing (erosion and depleted riparian vegetation) cause other runoff pollutants to be more serious problems than they would be if they were filtered by a healthy riparian and aquatic ecosystem.(81) The negative impacts of livestock grazing on water quality are mainly a result of discharges of manure and increased sediment from trampling and removal of riparian vegetation.

2. Water Quality Impacts of Timber Harvest on Public Lands

Timber production has long been recognized as a nonpoint source of water pollution,(82) and much of our nation's timber production takes place on public lands.(83) The silviculture activities that produce pollutants are related either to road building, transportation access, or actual harvesting of the timber.(84) Increased sediment, or siltation, is the most common form of pollution resulting from silvicultural activities.(85) In the past decade, there is an increasing body of evidence showing that clearcutting dramatically increases natural rates of landslide erosion. For example, one district court examining the impacts of Forest Service actions on anadromous fish populations in the Siuslaw National Forest found that a vast majority of the landslides in the forest were a result of clearcutting and timber roads.(86) The court found evidence that those landslides caused debris torrents that "scour a stream channel to bedrock, damage streambank vegetation, and undercut adjacent slopes... removing not only [fish] spawning gravel, but also rearing grounds" and blocking fish passages.(87)

Excessive nutrients are introduced by fertilizer and direct runoff of slash and debris, and this added organic material consumes oxygen during decomposition.(88) Additionally, clear cuts and removal of canopy cover causes an increase in water temperature. This thermal pollution, like that caused by livestock grazing, can increase bacteria levels and destroy fish habitat.(89) Recognizing the impact of silviculture on fish habitat, timber harvests have been completely prohibited in the Riparian Habitat Conservation buffer zones established by the Forest Service and the Bureau of Land Management to ensure the conservation of threatened and endangered salmon species.(90) Water quality violations resulting from timber removal operations on public lands are caused by both clear discharge events and fuzzier non-discharge pollution like riparian vegetation removal; but in all cases, they are a serious problem for humans, fish, and wildlife.

3. Water Quality Impacts from Mining and Other Activities on Public Lands

A significant percentage of the resource extraction that takes place in the United States occurs on public lands.(91) While some mining processes are subject to regulation as point sources under the CWA (discharges from pipes, impoundments, sumps, ditches etc.), other mining activities affect water quality due to nonpoint source pollution.(92) EPA defines resource extraction as "mining, petroleum drilling, [and] runoff from mine tailing sites," and reports that resource extraction is responsible for the impairment of 11% of the nation's rivers.(93) Mining activities cause water pollution in the form of sediment, acid drainage, metals, heat, channel alteration, and habitat modification.(94)

While livestock grazing, timber production, and resource extraction are three major causes of water pollution originating on public lands, there are many less widespread nonpoint source activities that cause water pollution. Other pollutants reported by EPA include salts, oil, and grease.(95) Salt contamination can impair freshwater ecosystems, making them unfit for both aquatic life and some human uses.(96) For example, in Mount Hood National Forest, the Timberline ski area has a permit to use salt to keep its summer ski trails firm. In the summer of 1995, 1.2 million pounds of salt were applied to a 64 acre snowfield which is the headwaters for much of Mount Hood's drainage.(97) This is just one example of a federally permitted nonpoint source activity that is particular to a certain land use.

Regulation of nonpoint source activities on public lands would bring us a step closer to achieving water quality standards across the nation. Professor William Rodgers writes:

In the forefront of any analysis of nonpoint source pollution is the

role of the federal government as manager of approximately one-third of the

U.S. land area constituting the federal lands. The federal government

is intimately involved in a wide-range of activities that include

the development of energy sources on federal lands (oil shale, coal,

uranium and geothermal sources) as well as a number of other

practices (grazing, silvicultural, construction of roads, railroads,

airports, siting of landfills) that can lead to water pollution

problems.(98)

It seems that the expectation for our public lands and waters to accommodate high-impact industries such as livestock grazing, silviculture, and mining cannot be reconciled with the CWA goals of fishable and swimmable waters and "biological integrity."(99) If states plan to take seriously the CWA mandate to protect the existing uses of their waters from nonpoint source pollution, they must address the federal land use practices that jeopardize the fish, wildlife, and human needs that depend upon healthy aquatic ecosystems.

IV. THE SCOPE AND STRENGTH OF SECTION 401 OF THE CWA

The scope and strength of section 401 of the CWA presents an opportunity for states to regulate the broad range of federal activities that cause nonpoint source pollution, and require the federal government to comply with state water quality standards.

A. How Does Section 401 State Water Quality Certification Work?

Section 401 of the CWA gives states the authority to grant or deny "certification" for "any federally permitted activity which may result in a discharge into the navigable waters."(100) In deciding whether to grant or deny certification, the state considers whether the proposed activity will comply with state water quality standards (and several other CWA provisions).(101) For an activity to be subject to the required certification of section 401, it must meet the following two threshold conditions: the activity must require a federal permit,(102) and it must potentially result in a discharge.(103)

By granting water quality certification, a state is saying that the proposed activity will not violate state water quality standards. If a state denies certification because the proposed activity will not comply with water quality requirements, the federal permitting agency is prohibited from issuing the permit or license.(104) Section 401(d) gives states the option of placing conditions on the certification to assure compliance with water quality standards(105) and these conditions are then incorporated into the federal permit.(106) By failing to act on a certification request within one year, the state forfeits its authority and the certification requirement is waived.(107)

B. The Scope of Section 401 State Certification

The concept of state water quality certification first appeared in 1970,(108) but state implementation of water quality certification authority has been a slow evolutionary process. Initially, state certification was applied exclusively to only a few federal permits,(109) Major confusion arose when state and federal court decisions conflicted as to the nature and extent of the conditions that a state could include in its certification.(110) In 1994, however, the Supreme Court handed down PUD No.1 of Jefferson County v. Washington Department of Ecology.(111) This landmark case resoundingly confirmed the idea that state certification can include conditions limiting not just the "discharge," but any aspect of the activity that might affect water quality.(112)

1. State Application of Section 401

Historically, states exercised their certification authority almost exclusively in response to federal hydroelectric projects, point sources requiring National Pollutant Discharge Elimination System (NPDES) permits, and discharges of dredge and fill material under section 404 of the CWA.(113) However, the statute does not expressly state that section 401 applies to only these federal permits. On the contrary, the statute says that "[a]ny applicant for a Federal license or permit to conduct any activity" which may cause a discharge must receive state certification.(114) However, the statute does not specifically define these terms, nor does it provide a list of specific permits. After analyzing the discrepancy between the broad statutory language and the states' narrow application of it, several commentators have concluded that section 401 could potentially apply to a broad range of federal permits and licenses.(115) For example, state certification might be required for the issuance of timber contracts, deepwater port permits, Endangered Species Act incidental-take permits, and Clean Air Act permits.(116) In The Untapped Power of Clean Water Act [sections] 401, Debra Donahue argues that "the universe of 401-reviewable permits" is bounded only by "the statutory prerequisite of a `discharge into the navigable waters."(117) No court has yet overturned a state's decision to require certification of an activity on the grounds that the "Federal license or permit" applied for was outside of the state's section 401 jurisdiction, and recent judicial opinions have not focused on the license or permit language of the Act.(1l8)

2. Certification Conditions--Before and After PUD No. 1 of Jefferson County v. Washington Department of Ecology

Rather than denying certification of an activity, states have typically exercised their right to include conditions in the certification which are meant to ensure that the activity will not violate water quality standards or effluent limitations. Section 401(d) gives states the authority to place any conditions on a water quality certification that are necessary to guarantee compliance with water quality standards, effluent limitations, standards of performance, pretreatment standards, more stringent state law requirements, or "any other appropriate requirement of State law."(119) For example, in 1982, Maine imposed oil-spill prevention and water-quality standard requirements on a proposed oil refinery.(120) Similarly, in 1992, Vermont conditioned certification of a hydroelectric project on the permittee's protection of aesthetic and recreational values of the water body.(121) In 1986, an Oregon state court upheld Oregon's use of land use restrictions as certification conditions to the extent that the state could show a connection between the conditions and a project's compliance with water quality standards.(122) Nevertheless, conditions imposed on state certifications were often the subject of appeal.(123) Further, courts were undecided as to whether entire projects could be subject to conditions and as to the type of conditions which were authorized by section 401.(124)

In 1994, the Supreme Court answered the questions as to the proper scope of certification conditions in PUD No. 1.(125) Prior to 1994, the State of Washington imposed minimum stream flow requirements on its certification of a hydroelectric project. In response, the local utility board argued that section 401 conditions could be based only on specific chemical or numeric criteria, and that any certification conditions had to be directly associated with a point source discharge of pollutants.(126) Relying to a great extent on the language of section 401(d), the Supreme Court held that a state can require compliance with all of its water quality standards, including designated uses, water quality criteria, and antidegradation regulation.(127) Accordingly, the Court concluded that Washington's minimum stream flow requirement was a proper certification condition.(128)

In addition, the Court held that once it is shown that an activity may result in a discharge, a state can impose conditions on the activity as a whole, and not just the "discharge."(129) In PUD No. 1, both parties agreed that the dam would result in "two possible discharges," namely the release of dredged and fill material during construction, and the discharge of water at the end of the tailrace after its use to generate electricity.(130) The instream flow conditions included in the state certification were not directly connected to either of the possible discharges. Section 401(d) provides that by certifying a federally permitted activity, the state is assuring that the activity will comply with state water quality standards, effluent limitations, and other requirements.(131) Based on this language, the Court reasoned that a state could not be expected to confidently assure compliance with so many stringent requirements if it were not also given the authority to place conditions on all aspects of the activity.(132)

The combined holdings of PUD No. 1 clarify the role that section 401 plays in the CWA regulatory scheme. State authority to require compliance with all portions of its water quality standards combined with state authority to place conditions on the whole of an activity make section 401 a powerful tool for states.(133) However, PUD No. 1 did not directly address what has emerged as the fundamental unresolved question regarding the scope of section 401: do the requirements of section 401 state water quality certification apply to federally permitted nonpoint sources?

V. THE NINTH CIRCUIT SPLIT: DOES SECTION 401 APPLY TO FEDERALLY PERMITTED NONPOINT SOURCES?

Two district courts in the Ninth Circuit recently addressed the question of whether section 401 applies to federally permitted nonpoint sources, and the courts reached directly conflicting conclusions. In Oregon Natural Desert Ass'n v. Thomas (ONDA),(134) Judge Ancer Haggerty for the U.S. District Court of Oregon examined whether the term discharge in section 401 applied to the pollution resulting from cattle grazing under a permit issued by the United States Forest Service (USFS).(135) The permit at issue in ONDA was first granted in July of 1993, and enabled defendant-intervenor Robert Burril to graze his cattle in the Malheur National Forest on an allotment that straddles the Middle Fork of the John Day River and Camp Creek (a tributary of the John Day River).(136) The plaintiffs, a coalition of local environmental organizations, joined by the Confederated Tribes of the Warm Springs Reservation of Oregon as plaintiff-intervenors,(137) filed suit against the USFS for erroneously issuing a grazing permit without first getting state certification that the permit would not violate water quality standards on the John Day River and Camp Creek.(138) Plaintiffs requested a declaratory judgment that state certification under section 401 is required before a cattle grazing permit may be issued. They also sought an injunction prohibiting the USFS from issuing a federal cattle grazing permit unless and until the applicant obtains section 401 state certification.(139)

On a motion for summary judgment, Judge Haggerty found in favor oft he environmental plaintiffs and the Tribes, granting both declaratory and injunctive relief.(140) Based on the plain meaning of the word "discharge" as used in section 401, the statutory definition of "discharge" in the CWA, and the legislative history of the CWA, Judge Haggerty concluded "that [sections] 401 applies to all federally permitted activities that may result in a discharge, including discharges from nonpoint sources."(141) The opinion notes that a plaintiff need only show that the offending discharge might result in pollution, and the plaintiffs in ONDA offered undisputed proof that cattle grazing on the Camp Creek allotment resulted in and would continue to cause pollution of both Camp Creek and the Middle Fork of the John Day River.(142) The court held that the pollution caused by cattle grazing on the Camp Creek allotment was a "discharge... into navigable waters' within the meaning of [sections] 401 of the CWA" and therefore certification of the permit by the State of Oregon was required.(143) Judge Haggerty did not focus on a specific discharge caused by the grazing to find that it required section 401 certification; instead, he focused on the undisputed evidence before the court that cattle grazing on the Camp Creek allotment caused water pollution in both Camp Creek and the John Day River.(144)

In Idaho, Judge Mikel H. Williams for the U.S. District Court of Idaho considered whether the term discharge in section 401 includes pollution caused by a logging road that was approved by the United States Forest Service.(145) Plaintiff, the Idaho Conservation League (ICL), challenged the Goat Roost Roads Proposal Decision (Roads Proposal) which had been signed by the supervisor of Clearwater National Forest, defendant James Caswell. The Roads Proposal gave defendant-intervenor Plum Creek Timber Company permission to build two roads in Clearwater National Forest for the purpose of providing Plum Creek with access for logging on its private property.(146) The roads approved in the Roads Proposal run parallel to, and on either side of, Walton Creek, a water body which both parties concede provides habitat for steelhead trout, bullhead trout, cutthroat trout, salmonid spawning, and a spring chinook salmon hatchery.(147) ICL alleged that the Forest Service's failure to obtain state certification of the Roads Proposal violated section 401 of the CWA, because construction of the roads would cause discharge of sediment and other pollutants into Walton Creek. ICL offered evidence that past logging activities and road construction on Walton Creek has caused an accumulation of sediment in violation of water quality standards, and that construction of the two new roads would likely result in further erosion and excess sediment, which in turn would degrade fish habitat.(148)

On a motion for summary judgment, Judge Williams concluded that section 401 certification was not required for the Roads Proposal.(149) The court did not need to determine whether construction of the roads might result in the alleged discharge, because it found that the statutory definition and context of section 401 in the CWA made it clear that it was intended only to apply to activities which result in a point source discharge, and a logging road is not a point source.(150) Both Ninth Circuit district courts considered whether the term discharge as it is used in section 401 includes discharges from nonpoint sources, but the courts came to directly conflicting conclusions. The ONDA court interpreted the term discharge to include discharges from nonpoint sources, while the Caswell court's interpretation limited section 401 to discharges from point sources.

By looking at the plain meaning of discharge, the context of section 401 in the CWA regulatory scheme, legislative history, and federal water pollution control policies, the next section of the Comment attempts to discern the proper interpretation of discharge in section 401. For the sake of clarity, this section outlines the strongest arguments both for and against a broad interpretation of "discharge." An objective discussion of the plain meaning, statutory context, and legislative history of the term discharge as it is used in section 401 follows in the conclusion of this section.

A. Arguments In Support of a Broad Reading of the Term "Discharge"

1. The Definition of "Discharge" in the CWA

The plain meaning of discharge in section 401 is necessarily guided by the parameters of the CWA's statutory definitions. The 1972 House Report said of the CWA, "[i]n order to fully understand [the Act], it is necessary to recognize that certain terms... have very specific and technical meanings."(151) First, it is helpful to remember that the full phrase at issue in section 401 is that state certification is required for any federally permitted activity which "may result in any discharge into the navigable waters."(152) The CWA provides that "[t]he term discharge when used without qualification includes a discharge of a pollutant, and a discharge of pollutants."(153) The Act further provides thai: "the term discharge of a pollutant and the term discharge of pollutants each means... any addition of any pollutant... from any point source."(154) This definition is repeated in EPA regulations,(155) and the Act offers no further definition. The CWA definition can be read as stating that discharge, when used without qualification, includes discharge from point sources. Because the only word preceding the term discharge in section 401 is "any," section 401 uses the term discharge without qualification.

Much of the reasoning of the ONDA opinion relies on the use of the term "includes" in the CWA definition of discharge. The word "includes" is a "term of enlargement, not of limitation, and... the reference to certain entities or categories is not intended to exclude all others."(156) The use of the term "includes" in a statutory definition indicates that the definition that follows is a non-exclusive list that can be enlarged, and that items not clearly listed in the definition may nonetheless be covered by the term.(157) The significance of the congressional choice to use the term "includes" rather than "means" in the definition of discharge is highlighted by the fact that of the twenty terms defined in section 502 of the CWA, nineteen of the definitions employ the word "means," and only the definition of discharge uses "includes."(158) The argument goes that unless we presume that Congress's use of the term "includes" was the result of careless drafting, it seems that Congress intentionally left the definition of discharge open to nonpoint sources of discharge. One common sense reading of the definition of discharge in the CWA is that a discharge includes, but is not limited to, discharges from point sources.(159) Arguably, to give "includes" the same meaning as "means" not only confuses the English language, but also makes a mockery of careful legislative drafting.

The CWA definition of discharge makes it clear that the term, when used without qualification, is not limited to discharges from point sources. However, the definition of discharge in the Act does not affirmatively state what kinds of water pollution the term does apply to. To fill in this gap, it is proper to turn to a canon statutory construction: unless Congress gives a statutory definition, the ordinary usage of a term should control.(160) In the CWA, Congress provides a definition of the term discharge, but it gives only a partial definition. Therefore, it is appropriate to use the ordinary usage of the term discharge to complete the definition of discharge as it is used in section 401 of the CWA. A discharge is defined by Webster's Dictionary as "a flowing or issuing out; something that is emitted."(161) Arguably, the CWA definition of discharge indicates that Congress recognized this ordinary meaning of discharge, yet wanted to be sure that when the Act refers to discharge (without qualifying it as discharge of a pollutant), courts would interpret the term to include discharge from point sources. The CWA definition of discharge is phrased to clarify the inclusion of point source pollution in the term discharge, not to exclude any ordinary meaning that it has.(162)

The statutory definition of the term discharge in the CWA combined with the ordinary usage of the term provides support for the argument that section 401 of the CWA applies to nonpoint sources as well as point sources.

2. The Regulatory Scheme of the CWA

The U.S. Supreme Court has stated that each provision of a statute should be read in reference to the whole act.(163) The CWA is a complex statute made up of hundreds of provisions, each of which is essential to achieving Congress's water pollution control goals. At the heart of the CWA regulatory scheme is the concept of shared administration of water pollution control programs between the federal government and the states. Section 101 declares that "[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and fights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use... of land and water resources."(164) Recognition of the primary rights of states to address water pollution within their borders is central to the CWA. A careful look at several major provisions of the Act suggests that Congress intended for states to govern their own water quality, limited only by EPA's setting of water quality standard and program minimums.(165) Application of section 401 to nonpoint sources gives states the opportunity to insure that federally permitted activities not subject to the NPDES program will be in compliance with state water quality standards. This application of section 401 is consistent with the statutory scheme of the CWA, because the states should have the right to "prevent, reduce, and eliminate" water pollution caused by federally permitted activities.

Requiring federally permitted nonpoint source activities to be certified by the state for compliance with state water quality standards is in harmony with section 313(a) of the Act, which directs the federal government to comply with state water quality standards. Section 313 requires all agencies "engaged in any activity resulting, or which may result, in the discharge of runoff of pollutants . . . shall be subject to... all... State... requirements.., respecting the control and abatement of water pollution ...."(166) Significantly, the Ninth Circuit has consistently interpreted this statutory provision as requiring the federal government to ensure that nonpoint source activities on federal land comply with state water quality standards.(167) Sections 313 and 401 were originally drafted together to give states the authority to require both federal activities and federally permitted activities to comply with state water quality standards.(168) Application of section 401 to nonpoint sources gives states nothing more than a check on the federal government's obligation under section 313 to comply with water quality standards.

Under the CWA statutory scheme, states are to protect existing and beneficial uses by enforcing their water quality standards. For example, section 303 of the Act requires states to "identify stream segments which do not meet applicable water quality standards."(169) The state must prioritize these "water quality limited segments" (WQLS), and calculate a "total maximum daily load" for WQLS designed to bring the water quality back into compliance with the relevant standard.(170) The section 303(d) list requirement of the CWA is another illustration of the role that states are to play in regulating nonpoint source pollution for compliance with state water quality standards. Without the authority to certify federally permitted nonpoint source activities to comply with state water quality standards, states would be missing an essential tool that the statutory scheme of the CWA suggests they should have to achieve water quality standards.

Yet another aspect of the CWA regulatory scheme suggests that section 401 does not apply only to point sources. Under the CWA, all point sources are required to get either a NPDES permit or a section 404 dredge and fill permit.(171) If section 401 applies only to point sources, it would seem more appropriate to include the state certification requirement as a subsection to the point source provisions of the CWA. Instead, section 401 occupies its own unique niche in the CWA regulatory universe, and has authority over "[a]ny applicant for a Federal license or permit to conduct any activity ...."(172)

3. The Legislative History of the CWA

Section 401(a) originated as section 21(b) of the Water Quality Improvement Act of 1970, and the language of section 401 remained identical to section 21(b) through the 1972 enactment and all subsequent amendments of the CWA. It is important to remember that when section 21(b)) was first enacted, the federal water pollution control program regulated all polluting activities through water quality standards.(173) In the original Federal Water Pollution Control Act, there was no distinction between point and nonpoint sources, and no definition of the term discharge as it was used in section 21.

a. Section 21(b) of the Water Quality Improvement Act of 1970

At the time of passage of section 21(b), Congress was fully aware of the water quality impacts from nonpoint source pollution.(174) The House Report stated that section 21(b) would require certification of "any activity of any kind or nature which may result in discharges into the navigable waters."(175) This broad language suggests that the modern section 401 does apply to nonpoint sources, because "any activity of any kind" is language clearly inclusive of activities like grazing, clearcutting, and mining that cause nonpoint discharges. In fact, "any activity of any kind" leaves very little room for exceptions. Referring to the wide variety of permits and licenses issued by the federal government, the House Report on section 21(b) further stated that "[m]any [federally issued permits] involve activities or operations potentially affecting water quality. The purpose of [this subsection] is to provide reasonable assurance... that no license or permit will be issued by a Federal agency for an activity that... could in fact become a source of pollution."(176) The language of the report suggests that the drafters of section 21(b) were focused on giving states authority to regulate any kind of federally permitted activities that might cause water pollution.

The "any activity" language is present in the Senate Report and throughout the legislative history of section 21(b). The Senate Report reflects that the purpose of the bill was to ensure that the federal government would practice what it preached, by requiring "all Federal activities [to] comply with the philosophy and intent of the Nation's water quality program."(177) The Senate Report notes that "[i]n the past, these licenses and permits have been granted without any assurance that the standards will be met or even considered."(178)

Throughout the congressional hearings, commentary was focused on the general goal of the whole of section 21 to conform all federal activity with water quality standards, through the combined efforts of sections 21(a) and 21(b). Section 21(b) applied to all activities under direct federal control, while section 21(a) applied to activities licensed or permitted by the federal government.(179) Considering that the general legislative goal of section 21 of the Water Quality Improvement Act (WQIA) was to give states the authority to regulate discharges from activities involving the federal government, it seems that section 21(b) was intended to apply to all federally permitted activities that might affect water quality, regardless of whether the source would now be considered a point or nonpoint discharge.

The Conference Report states that "applicants... seeking a Federal license or permit to conduct any activity of any kind or nature which may result in discharges... [must obtain] certification."(180) Many members of Congress expressed an understanding that the focus of section 21 was to insure that federal activities, including federally permitted activities, do not contribute to water pollution. Senator John S. Cooper (R-Ky.) stated that the 1970 amendments "require, without exception, that all Federal activities that have any effect on water quality be conducted so that water quality standards be maintained."(181) Representative Edmond A. Edmondson (D-Okla.) spoke regarding section 21(b), and observed that "a wide variety of licenses and permits... are issued by various Federal agencies... [and] many... involve activities... potentially affecting water quality," and the purpose of section 21(b) is to remedy that situation,(182) In fact, the legislative history of the WQIA of 1970 suggests that at least some members of the legislature intended for section 21(b) to regulate federal activities resulting in water pollution, regardless of whether or not there is even a discharge.

The 1970 legislative history of section 21 does not provide evidence that its application was intended to be limited to discharges from discrete conveyances, later known as point sources. On the contrary, it strongly suggests that Congress intended for section 21 to require state certification of any and all federally permitted activities potentially causing water pollution.

b. The 1972 Amendments to the CWA

Even though the passage of the 1972 Amendments centered around regulation of point source pollution, the legislative history does not reveal any congressional intent to limit state certification of federally permitted activities to point sources. An argument can be made that Congress meant for section 401 to shift its focus to point sources along with the rest of the Act.(183) However, the Ninth Circuit Court of Appeals has determined that the introduction of point source regulation by effluent limitations was intended as an addition to the water quality standards program, not a replacement,(184) In Northwest Environmental Advocates (NWEA) v. City of Portland, the court observed that "nowhere does Congress evidence an intent to preclude the enforcement of water quality standards that have not been translated into effluent discharge limitations .... [Congress's 1972 Amendments to the CWA were] intended to improve enforcement [of pollution from point sources], not to supplant the old system."(185) Similarly, a letter from the then Environmental Protection Agency administrator regarding the 1972 amendments stated, "[w]e must build a system that includes the wise concepts of the past and build upon them .... The new law must build upon the existing foundation of water quality standards [and] employ effluent limitations as a tool for the achievement of those standards."(186) The technology based effluent limitations and water quality standards are equally important prongs of the CWA regulatory scheme.(187) The argument that the entire focus of the Act shifted to point sources in 1972, and took section 401 with it, is weakened by the recent case law interpretations reflecting the importance and coexistence of both prongs of the CWA. Rather, it seems that the purpose of section 21(b) was to regulate all water pollution which might result from federal activities to meet water quality standards, and this purpose was not altered by the 1972 addition of point sources and effluent limitations to the regulatory scheme.

As to the impact of the 1972 Amendments on section 401 more particularly, legislative history arguably confirms that Congress intended for the original purpose and application of section 401 to be preserved. For example, in the Senate debate Senator Muskie (D-Me.) stated, "[a]ll we ask is that activities that threaten to pollute the environment be subjected to the examination of the environmental improvement agency of the State for an evaluation."(188) The thrust of legislative interest in section 401 again seemed focused on regulation of federal activities that might result in pollution, not on distinctions between point and nonpoint sources.

4. Federal Water Pollution Control Policy

Courts generally turn to policy considerations to supplement their understanding of a statute,(189) For the purposes of this discussion, it is also helpful to take a step back to look at the underlying purpose of the CWA and federal water pollution policy. If states can use their section 401 authority to authorize and place conditions on federally permitted activities like livestock grazing, logging, and mining, most states will find themselves significantly closer to fulfilling the mandates of federal water pollution control policy.(190) By giving states the authority to regulate federally permitted land use activities, section 401 could help states to successfully incorporate important principles of watershed management into their water pollution control programs.

a. Following Federal Water Pollution Control Policy

Application of section 401 to all federally permitted activities that may cause nonpoint source pollution is arguably a natural and necessary step towards achieving the goals of the CWA. The overriding purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," with an eye towards protection of designated uses such as fish and wildlife habitat and recreation,(191) Research demonstrating the seriousness of nonpoint sources of water pollution coupled with an increased understanding of ecological principles has placed increased regulation of nonpoint sources high up on the national water pollution control priority list. State regulation of federally permitted nonpoint source pollution complements the authority given to states by sections 208 and 319 of the CWA.

Federal water pollution control policy focuses on attainment of state water quality standards; applying section 401 to nonpoint sources would give states an effective new tool for achieving that goal. If section 401 applies to all discharges causing pollution, states have the authority to take some markedly new directions in their management of activities that cause nonpoint source pollution. PUD No. 1 gives states the power to place any condition on certification of a permit that will assure that the activity will not cause a violation of water quality standards.(192) In the nonpoint context, the PUD No. 1 holding means that a state can go as far as it wants to protect water quality from nonpoint source pollution. If a state is serious about protecting or restoring water quality of a given water body that would be affected by a proposed activity, section 401 would give the state the authority to deny certification of the activity, and thereby bar issuance of the permit. Alternatively, states could simply adopt the best management practices (BMP) that are already recommended for certain land use activities. For example, states could condition certification of a timber sale on implementation of existing BMPs, such as establishment of streamside buffer zones, use of erosion prevention, and control measures and revegetation in the harvest area.(193) Federal land management agencies are already required to include BMPs in permits to satisfy section 313 of the CWA.(194) One advantage of state certification conditions would be increased flexibility, as they could vary from permit to permit, from month to month, and from watershed to watershed. Existing BMP requirements are relatively static and drafted to apply in a very generalized and discretionary way. State certification conditions, on the other hand, could potentially reflect scientific advances in management practices, local public opinion on resource and water management, and state concerns about particular water bodies.(195)

b. Watershed Management--an Ecological Rationale

Just as our understanding of water pollution has evolved, so has our understanding of aquatic ecosystems and how to best preserve their biological integrity. Most current research indicates that if we want to protect and restore water quality, we must maintain the health of the entire aquatic ecosystem,(196) Similarly, the aquatic ecosystem of a certain stream segment is only as healthy as the watershed to which it is connected. As pollution control practices integrate and adopt principles of watershed management, it will be important for one centralized entity to be responsible for tracking and regulating the multitude of land use activities taking place in each watershed. States are a natural nerve center for monitoring the health of the waters within their borders.(197) In addition to regulating and tracking the private and state activities having impacts on each watershed, states should be authorized to regulate any federally permitted activities that may result in discharges.(198)

Because nonpoint source pollution is the result of land use and development decisions, it is imperative that regulation of nonpoint sources be approached by states and based on watershed management principles.(199) Adoption of watershed management principles into water pollution control programs could be facilitated by application of section 401 to nonpoint sources of pollution because section 401 compels an intersection of land and water management. Successful watershed management will require that land managers and water quality managers work together to protect and maintain ecosystem integrity. By authorizing states to condition federally permitted activities on compliance with water quality standards, section 401 could be an instrument for implementing watershed management goals.

B. Arguments in Favor of a Narrow Reading of the Term "Discharge"

1. Use of the Terms "Discharge" and "Runoff" in the CWA

The definition of discharge in the Act makes it clear that the term is not limited to discharges of pollutants from a point source. However, one can argue that using the word "discharge" instead of the phrase "discharge of pollutants" indicates that the provision applies to discharge from a point source, but not of material listed as a pollutant in the CWA. Under this argument, the fact that Congress did not limit the term to point source discharges of pollutants does not mean that it intended for the term to be applied to diffuse surface runoff and other forms of nonpoint source pollution.

Examination of Congress's use of the terms discharge and runoff in the CWA suggests that Congress generally did not use discharge to refer to nonpoint source pollution. If Congress intended for section 401 to apply to diffuse nonpoint source pollution, it could have used the term runoff instead of discharge. In fact, Congress did use both words in a section of the CWA governing federal facilities: "[Each federal facility] engaged in any activity resulting ... in the discharge or runoff of pollutants ... shall be subject to [all water pollution laws]."(200) This provision was first drafted in 1970 as section 21(a) of the Water Quality Improvement Act of 1970, and it originally referred to "any discharges allegedly contributing to pollution from any such Federal property ... "in its mandate to conform all federal activities with water quality standards.(201) In 1972, section 21(a) was transformed into section 313 of the CWA (Federal Facilities Pollution Control),(202) and Congress amended "any discharge" to read discharge or runoff of pollutants.(203) This careful drafting by Congress to insure that section 313 applies to both point and nonpoint sources suggests that it could have amended section 401 similarly had it wanted to.

Another argument is that the term discharge, as it is used in section 401, must refer only to discharges from point sources because roughly nine out of every ten times that it appears in the CWA, discharge is used to refer to point source discharges.(204) Since Congress apparently uses the term runoff to describe pollution from nonpoint sources, nothing in the CWA suggests that discharge should be read broadly to include nonpoint sources of pollution. For example, section 208 refers to agricultural and mining pollution as runoff, and the word discharge is never used.(205) In section 319, nonpoint source pollution is referred to as pollutant loadings,(206) and section 304 of the Act refers to nonpoint source pollution as runoff.(207) Only in section 105 of the Act did Congress include runoff in the meaning of discharge.(208) Section 105 requires the Administrator to "develop, refine, and achieve practical application of... waste management methods applicable to point and nonpoint sources of pollutants to eliminate the discharge of pollutants, including, but not limited to, elimination of runoff of pollutants and the effects of pollutants from accumulated sources."(209) In this provision, Congress seems to have included runoff in the term "discharge of pollutants," a term expressly defined to mean discharge from a point source.

Use of the terms runoff and discharge in the Act suggests either 1) that Congress has generally used runoff when referring to nonpoint source pollution, and therefore discharge should not be read broadly to include runoff, or 2) Congress's use of the terms has not been consistent or logical enough to imply an intent that discharge not include runoff.

2. Congressional Acquiescence 

Although Congress has amended the CWA several times since 1970, focusing on nonpoint source pollution in 1987, it has never amended section 401 to correct or clarify how it was being applied by states, courts and federal agencies. Until the ONDA case, section 401 had only been applied to hydroelectric projects, section 404 dredge and fill permits, and point source NPDES permits.(210) If section 401 was actually intended to apply to federal permits for both point and nonpoint source activities, it seems likely that Congress would have amended the provision to insure proper implementation.

3. The CWA Statutory Scheme and Practical Concerns

Another argument against a broad reading of the term discharge is that since Congress has drafted specific provisions of the CWA for the exclusive purpose of regulating nonpoint source pollution, application of section 401 to the nonpoint source pollution problem would create a duplication of regulatory control.(211) While the existence of CWA provisions to regulate nonpoint source pollution is not very convincing evidence for the proposition that Congress did not intend for section 401 to apply to nonpoint source discharges, it does raise some difficult implementation issues.

If section 401 is applied to any nonpoint source activities which may result in a discharge, it is possible that the administrative burden on state agencies, private parties, and federal agencies might outweigh actual improvements in water quality. Would section 401 certification of federally permitted nonpoint source activities achieve any water pollution control that cannot be achieved through another CWA provision or existing means? Arguably not. Under section 319 of the CWA, states are already required to apply BMPs to nonpoint source activities affecting water quality.(212) Many federally permitted activities are already required to comply with water quality standards and BMPs, so that application of section 401 to nonpoint sources will only require additional time, money, and paperwork for all parties.(213)

While nonpoint source pollution from federally permitted activities is a serious problem that needs to be regulated for compliance with state water quality programs, there are arguably more efficient ways to approach the problem than state certification. For example, a key component of EPA's most recent draft strategy on nonpoint source management is to "strengthen federal partnerships."(214) "[T]o promote federal consistency with and support for State programs," EPA proposes Memorandums of Understanding (MOUs) between both EPA and federal agencies, and between states and federal agencies.(215) Like section 401, these MOUs could be used to bring federally permitted nonpoint source activities into compliance with state water quality standards. Where section 401 would require state certification for each and every federal permit or license, the MOUs might offer a more streamlined and efficient approach to achieving the same goal: federal compliance with state water quality standards.

Furthermore, if the term discharge as it is used in section 401 is interpreted to mean pollution more diffuse than a point source yet not inclusive of all nonpoint source pollution, application of section 401 to all federally permitted activities might have absurd and tedious results. If discharge means a flowing or issuing out, we are signing courts up for hour upon hour of line-drawing because the definition is extremely vague. Would the line ever be drawn the same way twice? How would a court deal with typical nonpoint source activities, such as road-building, which may cause pollution but not a discharge? Application of section 401 to nonpoint source discharges would require identification of the sub-category of nonpoint sources that can be considered "discharges" subject to section 401 certification. Would section 401 state certification be required before the Forest Service could issue a backcountry backpacking permit? Professor Rodgers has commented, "[f]or simplicity, the universe of the causes of water pollution should be considered as covered fully by the categories of point and nonpoint sources."(216) In the case of section 401 discharges, simplicity is a strong argument against a broad reading of the term "discharge." Arguably, application of section 401 to nonpoint sources will have such absurd results that courts should not give it this construction.(217)

C. Conclusion: Application of Section 401 to Nonpoint Sources is Generally Supported

The CWA is ambiguous and contradictory in many respects, but on balance, the plain meaning, legislative history, and federal policies behind section 401 generally support a reading of the term discharge that includes discharges from nonpoint sources.

An objective look at the plain meaning and statutory definition of the term discharge reveals arguments both for and against a broad reading of discharge that includes nonpoint source discharges. On balance, the logic of the arguments for a broad reading are more persuasive and true to the canons of statutory interpretation. It is true that limitation of the term discharge to point sources is supported by the fact that nine out of every ten times Congress uses the term discharge in the CWA, it is referring to a point source discharge. The statutory definition of the term discharge also focuses on point source discharges.(218) However, the fact that the definition of "discharge when used without qualification" is the only one of twenty definitions in the CWA that uses "includes" instead of "means" is strong support for a broad reading of the term.(219) Furthermore, when Congress first drafted section 21 in 1970, water pollution control terminology had not yet evolved to distinguish between point and nonpoint sources, much less between discharge and runoff. The phrase "any discharge" as it is used in section 401 should be interpreted to mean any discharge, whether from a point or nonpoint source. If a federally permitted nonpoint source activity may result in a discharge, plain meaning and the statutory definition support requiring section 401 certification that the activity will not violate state water quality standards.

Application of section 401 to nonpoint sources is also generally supported by the CWA statutory scheme, which recognizes that states have the primary rights and responsibilities to reduce and prevent water pollution within their borders.(220)

The Caswell court reasoned that application of section 401 to the nonpoint source pollution problem would create a duplication of regulatory control since Congress has drafted specific sections to exclusively govern nonpoint source pollution.(221) Sections 208 and 319 of the CWA give the states clear mandates and direction for regulation of nonpoint source pollution, and are the primary means through which the CWA regulates nonpoint sources of pollution.(222)

While the intent of the Caswell court was to interpret section 401 in a way consistent with the structure of the CWA, it seems to misunderstand the true nature of both the CWA and section 401. There can be no doubt that a logging road is considered a nonpoint source of pollution by the CWA, and is therefore subject to the nonpoint source provisions of the Act. However, nothing in the language or the structure of the CWA suggests that sections 208 and 319 are the only provisions through which nonpoint sources can be regulated. Nor is there any suggestion that section 401 can be applied only to point sources. The purpose of the Act is to "restore and maintain" the nation's waters, and the Act incorporates many provisions and approaches to achieve this goal. There are provisions specifically regulating oil,(223) sewage,(224) toxics,(225) and even pollution from federal facilities and properties,(226) Section 401 regulates pollution from federally permitted activities. Section 401 does not derive its jurisdictional authority from whether a source is point or nonpoint, but from whether there is a federally permitted activity that may result in a discharge. While it is true that the CWA regulates point and nonpoint sources distinctly in some provisions, the regulatory scheme of the Act does not preclude one provision from regulating both point and nonpoint sources in the same manner. Where a statute uses multiple regulatory provisions to address the same problem, the statute should be read to give effect to all of its provisions.(227) In fact, the clearest signal from Congress about regulation of nonpoint source pollution is that it should be left in the hands of the states. Application of section 401 to nonpoint source pollution is in harmony with that principle.

By giving states the opportunity to certify federally permitted nonpoint source activities for compliance with state water quality standards, section 401 can work in harmony with the other provisions of the Act requiring states to regulate nonpoint source pollution. The trade-off is that state certification of nonpoint source activities will place a new administrative burden on state and federal agencies as well as private permit applicants, who would argue that the state certification process is not the most efficient way for states to bring federally permitted activities into compliance with water quality standards. But the section 401 certification process is ultimately very flexible, and can be exercised by states as aggressively or passively as they choose. Interpretation of the term discharge in section 401 as applying to nonpoint sources is in harmony with the CWA statutory theme of state regulation of nonpoint source pollution, including nonpoint source pollution from federal activities.

The legislative history of the 1970 Act suggests that the intent of the legislature was for section 21(b) to require state certification for any federally permitted activity affecting water quality, without distinction between point and nonpoint sources.(228) The argument that the 1972 amendments to the CWA shifted the focus of the entire Act, including section 401, has some merit. Both legislative history and recent caselaw highlight the importance of the water quality standards prong of the CWA.(229) Would limiting section 401 to point sources really threaten the water quality prong of the CWA? Arguably not, because other provisions of the Act exclusively address regulation of nonpoint sources for compliance with state water quality standards.(230) However, although the thrust of the 1972 amendments to the CWA was regulation of point sources, the legislative history of the 1972 Amendments to the Act does not reflect any clear legislative intent to limit application of section 401 to point sources.

Tools of statutory construction exist to assist a court in determining the intent of the legislature. The current Supreme Court tends to favor a textualist approach to statutory interpretation, which looks to "dictionary definitions, rules of grammar, and canons of construction, in an effort to derive the putatively objective meaning of the statutory word or phrase."(231) Because neither the statutory definition nor the ordinary usage of the term discharge suggest that it applies only to point sources, it seems fairly clear that a textualist approach to determining the intended meaning of discharge would conclude that discharge includes nonpoint source discharges.(232) Another jurisprudential approach to statutory interpretation is "intentionalism," which "refers to the use of a variety of tools, including legislative purpose and legislative history, in an effort to determine the intent of the legislature when it included a particular word or phrase in a statute."(233) Under the intentionalist approach, the term discharge in section 401 should be applied to nonpoint source discharges because Congress intended for section 401 to apply to both point and nonpoint sources. Even in light of all the internal contradictions and ambiguities of the CWA regarding the proper definition of discharge, the holding of the ONDA court seems generally best supported. The plain meaning, statutory scheme of the CWA, and legislative history support Judge Haggerty's conclusion that the term discharge as it is used in section 401 includes discharges from nonpoint sources.

VI. SECTION 401 CERTIFICATION OF NONPOINT SOURCE ACTIVITIES: WILL STATES RISE TO THE OCCASION?

Of course, it remains to be seen whether the Ninth Circuit will affirm the ONDA decision holding that section 401 of the CWA applies to both point and nonpoint sources. As Joe Hobson of the Oregon Farm Bureau said, "It]he Forest Service has one judge telling it to go south and the other north... [t]his thing will go to the Supreme Court."(234) Yet even if the Supreme Court were to affirm the ONDA decision, there would be many new unanswered questions about state certification under section 401 of the CWA. Regulation of nonpoint source pollution is linked directly to land use management and many states may be uncomfortable taking an active role in modifying long-time land use activities to comply with water quality standards. Section 401 has the potential to partially move debates about timber and rangeland practices out of the national political realm and put the tough decisions into the hands of the states. Inevitably, state decisions favoring water quality will disturb customary land use practices of local industries; states may find themselves making prickly decisions in pursuit of the elusive public interest. This tension may provoke some new questions. How hard do states have to look at the proposed activity? Can state certification mean issuance of a general permit and general conditions for a certain category of activity? Or must the state examine the water quality status of each affected water body and evaluate impacts caused by the specific proposed discharge? The CWA does not give federal agencies the option of getting state 401 certification that federally permitted activities will not violate water quality standards;(235) section 401 is a mandatory provision.(236) The states, on the other hand, have the option of waiving the certification.(237) To understand how application of the section 401 state certification provision to nonpoint source activities might play out in the real world, it is helpful to examine section 401 from the states' perspective and the Oregon Department of Environmental Quality's (DEQ) response to the ONDA decision.

A. Section 401 Certification of Nonpoint Sources from the States' Perspectives

From the states' perspectives, there are clear advantages to using section 401 to implement nonpoint source management. First, as soon as a state certification condition attaches to a federal permit, enforcement of that condition becomes the responsibility of the federal agency that issued the permit.(238) While states might experience an increased workload and cost on the certification end of section 401, those costs would surely be outweighed by avoided enforcement expenses.(239) Because of the flexibility states will have in processing certifications and attaching conditions, it will be possible for states to create economically efficient procedures for certification reviews.(240) Second, placing conditions on a permit for a discharge activity will allow the states to proactively prevent ecosystem degradation. Rather than helplessly watching the Forest Service issue a livestock grazing permit that impairs the quality of a certain stream segment which will later require costly state rehabilitation efforts, the state can simply attach conditions to the permit at the outset. Common sense tells us that it is more cost-effective to regularly maintain a car engine than to pay for huge damages incurred by neglect; the same common sense reasoning applies to ecosystem management. Not only is it difficult and expensive to rehabilitate the aquatic ecosystems that promote water quality, but it also can take many years to undo damage caused by one clearcut or a season of grazing. From the states' perspective, application of section 401 to nonpoint source pollution offers some clear financial and ecological advantages.

Recognizing the appeal of applying section 401 certifications to federally permitted nonpoint source activities, both Arizona and Washington have recently drafted rules to take advantage of the ONDA ruling.(241) Arizona's "draft rule recognizes grazing activities as nonpoint source pollutant contributors to surface water contamination," and gives specific requirements for certification by the state.(242) Arizona plans to implement these rules unless and until ONDA is overturned.(243) The State of Washington has joined in with draft rules for regulating a broad range of nonpoint source activities under section 401, including road building and livestock grazing.(244) Washington is gladly embracing the ONDA decision, stating that incorporation of watershed-based best management practices (BMPs) as conditions on section 401 certifications would require livestock grazing and road building permits to "guarantee that their activity will not contaminate waters."(245) Arizona and Washington's draft rules indicate that some states would be eager to use state certification to regulate federally permitted nonpoint source pollution, but these rules remain in the draft stage.

B. A Look at Oregon's Response

1. Oregon Certification of Salting on Mount Hood--A Case Study

DEQ is the state agency in Oregon that handles section 401 certification reviews. After the ONDA opinion declared that federally permitted nonpoint source activities must be certified by the state of Oregon, DEQ was immediately faced with new situations. For example, Timberline ski area located on Mount Hood uses as much as 1.2 million pounds of salt each summer to keep the surface of the Palmer snowfield firm for best summer ski conditions.(246) A local environmental group fried a lawsuit against Timberline, claiming that Timberline needed certification from DEQ to discharge salt into a public water supply.(247) The Forest Service had always considered salting a nonpoint source activity, and had never required Timberline to get DEQ certification of the release.(248) While both the lawsuit and DEQ's decision on whether certification was required were pending, Timberline wisely decided that in light of the ONDA decision, it should apply for state certification.(249) According to Deputy Director of DEQ Lydia Taylor, DEQ examined the impact that discharge of the salt was having on the affected watersheds, and determined that while data showed an increase in salt concentration over natural levels, water quality standards for salt were not close to being violated.(250) DEQ certified salting of the Palmer snowfield, and the Forest Service issued the permit to Timberline.(251) The salting on Mt. Hood scenario illustrates that state involvement in a federal land use permit can monitor water pollution without greatly disrupting existing practices.(252)

2. DEQ "Universal 401 Certification" of Grazing Permits

On January 10, 1997, the Oregon Department of Agriculture (DOA) and DEQ responded to the ONDA opinion by proposing a "streamlined method of issuing section 401 certification to people who may need them in order to receive grazing permits from federal agencies."(253) This shortterm response was the product of DEQ's concern that ranchers be able to get their grazing permits up and running by spring without going out of business.(254) Since regulation of agricultural activities affecting water quality falls to the DOA under Oregon law, the DOA has drafted emergency rules that describe the conditions to be placed in a section 401 certification of a grazing permit.(255) For its part, DEQ has issued draft emergency rules that amend its own procedural rules for "Certification of Compliance with Water Quality Requirements and Standards" to include a new subsection called "Certification of Federal Grazing Leases."(256) The two sets of rules are intended to work together to allow for a streamlined application process.(257)

Oregon's DEQ response to the opportunity to issue state certification reviews of grazing permits has demonstrated remarkably little concern for assuring that each grazing permit they issue will not violate water quality standards. Instead, the main thrust of DEQ's response seems to be to maintain the status quo, and with as little paperwork as possible. The DOA conditions that will be attached to federal grazing permits includes prohibition of "active channel erosion," and a requirement that "livestock grazing... within near-stream management areas shall maintain or improve appropriate vegetative cover to decrease or conserve stream temperature in the near-stream management area."(258) The conditions incorporate discretionary, but sound ecological approaches to protecting water quality, and were adopted from the already existent DOA best management practices.(259)

It is not the certification conditions proposed by Oregon that fall so far short of protecting water quality, but rather the state's "universal permit" approach to issuing the actual certification. DEQ's proposed rule provides that in lieu of individual permit applicants requesting state certification, "a federal land management agency may submit proposed conditions for certification of all its grazing leases within the state or a specified geographical area within the state. If the conditions are accepted by DEQ and DOA, a general certification shall be issued for leases within the area covered by the agency's application."(260) While this subsection certainly provides for an efficient and streamlined application process, it is not at all clear how effectively it will protect water quality standards. In January of 1996, DEQ published a list of 904 stream and river segments that do not meet state water quality standards, including streams and rivers from nearly all of the major watersheds in the state.(261) Seven hundred thirty-eight water bodies have violated the temperature water quality standard.(262) Other standards violated include bacteria and dissolved oxygen.(263) Agriculture is considered a major cause of violations across the state.(264) Considering that each water body is subject to different discharges and violations, it is difficult to understand how DEQ could issue generic certification conditions for grazing on BLM land across the state with any confidence that water quality standards will not be violated.

As National Wildlife Federation attorney Tom Lustig pointed out, "[t]he states aren't there yet as far as a commitment to enforcing water quality standards.., they could easily say, `grazing has no effect, everything is OK.'"(265) It remains to be seen how DEQ will handle section 401 certification reviews for other nonpoint source activities. Certainly if DEQ were pressured by public interest to attain water quality standards, section 401 would give DEQ the authority to strengthen certification conditions accordingly. It is clear, however, that it may take some time for states to realize the full potential of section 401 certification of federally permitted nonpoint sources affecting water quality.

VII. CONCLUSION

If affirmed on appeal, ONDA will represent a major shift in the regulation of nonpoint source pollution, and will have far-reaching implications. While it remains to be seen whether states will use section 401 certification as the powerful tool that it is for achieving water quality standards, states should at least be given the opportunity to certify nonpoint source activities under section 401. The plain meaning, statutory scheme, and legislative history of the CWA, as well as federal water pollution control policy, generally weigh in to support a broad interpretation of the term discharge. The Ninth Circuit should give full effect to the intent and goals of Congress by interpreting the term discharge as it is used in section 401 to include discharges from nonpoint sources.

(1) 940 F. Supp. 1534 (D. Or. 1996).

(2) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994).

(3) ONDA, 940 F. Supp. at 1541.

(4) 33 U.S.C. [sections] 1341(a) (1994).

(5) ONDA, 940 F. Supp. at 1540.

(6) Id. at 1539-40.

(7) Id. at 1541 (emphasis added).

(8) ENVIRONMENTAL PROTECTION AGENCY, NATIONAL WATER QUALITY INVENTORY, 1994 REPORT TO CONGRESS, at ES-11 to ES-12 (1994) [hereinafter 1994 WATER QUALITY REPORT].

(9) No. 95-394-S-MHW (D. Idaho Aug. 12, 1996).

(10) Id.

(11) Agencies Delay Appeal on Water Quality Certification Ruling, INSIDE EPA's WATER POL'Y REP., Jan. 29, 1997, at 19.

(12) Special Report: Despite Possibility of DOJ Court Case Appeal EPA Staff Drafts Regulations for Nonpoint Sources on Federal Lands, INSIDE EPA's WATER POL'Y REP., Feb. 26, 1997, at 2.

(13) EPA Suspends Rulemaking on Runoff from Federal Lands, INSIDE EPA's WATER POL'Y REP., Apr. 16, 1997, at 7.

(14) Despite EPA Opposition Administration Fights Court Ruling on Water Quality Certification, INSIDE EPA's WATER POL'Y REP., July 9, 1997, at 8.

(15) Id. at 8-9. To spice things up even further, on November 4, 1997, the Oregon Natural Desert Association filed suit against the BLM for failing to get state certification of permits issued for livestock grazing on BLM land on the lower John Day River in Eastern Oregon. Oregon Natural Desert Association, Conservationists File Lawsuit Against BLM to Protect Water Quality From Livestock (Nov. 4, 1997) (press release, on file with the author) [hereinafter ONDA Press Release].

(16) It is interesting to observe that had the EPA draft implementing regulations for section 401 been finalized prior to the ONDA litigation, proper judicial review by the Ninth Circuit might have entailed the two-step analysis required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If the court found 1) that Congress did not express clear intent on this issue in the CWA, and 2) that the EPA interpretation of discharge was reasonable, the EPA interpretation would be entitled to deference. Id. However, since EPA did not clearly express its intent before the ONDA litigation began, the Ninth Circuit has no agency interpretation to which it may defer and the issues in ONDA cannot be resolved using a Chevron analysis. Therefore, the EPA perspective on the matter is not binding, although, it should probably have some persuasive power.

(17) The district court's decision in ONDA also highlights a more subtle issue that is intrinsic to the first, and is worthy of incorporation in this Comment. If discharge includes nonpoint sources, does it include all activities that may cause nonpoint source pollution, or just discharges from nonpoint sources? Nonpoint source pollution is generally thought to include everything from liquid runoff to changes in water conditions resulting from a nondischarge chain of events, such as temperature increases resulting from removal of riparian vegetation. See discussion infra Part II.B.1. In ONDA, Judge Haggerty's opinion did not isolate a specific aspect of cattle gazing as a discharge in order to find that section 401 applied. Instead, the court's analysis is based on the fact that the "parties do not dispute that cattle grazing may cause water pollution." ONDA, 940 F. Supp. 1534, 1541 (D. Or. 1996).

(18) Pub. L. No. 758, 62 Stat. 1155 (1948) (codified as amended in scattered sections of 33 U.S.C.).

(19) ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 881 (2d ed. 1996).

(20) Pub, L. No. 518, 70 Stat. 498 (1956) (codified as amended in scattered sections of 33 U.S.C.).

(21) Federal Water Pollution Control Act of 1965, Pub. L. No. 89-234, 79 Stat. 903, 907-08 (1965) (codified as amended in scattered sections of 33 U.S.C.).

(22) PERCIVAL, supra note 19, at 882.

(23) Id.

(24) 117 CONG. REC. 38,798 (1971) (statement of Sen. Edmund S. Muskie (D-Me.)), reprinted in HOUSE COMM. ON PUBLIC WORKS, FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 1253 [hereinafter LEGISLATIVE HISTORY VOLUME 2].

(25) LEGISLATIVE HISTORY VOLUME 2, supra note 24, at 1254.

(26) Id. The Committee on Public Works recommended "the change to effluent limits as the best available mechanism to control water pollution. With effluent limits, the Administrator can require the best control technology: He need not search for a precise link between pollution and water quality." Id.

(27) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994).

(28) Id. [sections] 1251(a).

(29) Id. [sections] 1362(14) (emphasis added). "[A]gricultural stormwater discharges" and "return flows from irrigated agriculture" are specifically exempted from the definition of point source. Id.

(30) The CWA defines "pollutant" as:

dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt

and industrial, municipal, and agricultural waste discharged into water.

Id. [sections] 1362(6). For an interpretation of the point source definition, see National Wildlife Fed. v. Gorsuch, 693 F. 2d 156 (D.C. Cir. 1982) which stated that a dam that discharged water with low dissolved oxygen content was a nonpoint source because the oxygen content was a change in condition, not the "addition of a pollutant." However, Gorsuch did not hold that the CWA list of pollutants was exclusive. The court reasoned that Congress intended for EPA interpretations of CWA definitions to be given deference, and EPA could consider low dissolved oxygen and other water conditions as pollutants if it wanted to. Id. at, 170-71.

(31) 33 U.S.C. [sections] 1311(b)(1)(C) (1994) (requiring NPDES permits to incorporate "any more stringent limitation, including those necessary to meet water quality standards" by July 1, 1977).

(32) See, e.g., id. [sections] 1288(b)(2)(F) ("Any [wastewater treatment management plans] prepared under such process shall include... a process to... identify.., agriculturally and silviculturally related nonpoint sources of pollution .... ") (emphasis added); id [sections] 1329 (describing various nonpoint source management programs set out by the CWA).

(33) U.S. ENVTL. PROTECTION AGENCY, NONPOINT SOURCE GUIDANCE 3 (1987), reprinted in ENVIRONMENTAL LAW INSTITUTE, CLEAN WATER DESKBOOK 177 (1988).

(34) National Wildlife Fed. v. Gorsuch, 693 F.2d 156, 164 (1982); United States v. Plaza Health Laboratories, 3 F.3d 643, 650 (1993) (Oakes, J., dissenting) (noting that the CWA "does not bar nonpoint source pollution"), cert. denied sub nom. United States v. Villegas, 512 U.S. 1245 (1994); 2 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER 146 (1986); see also GA. CODE ANN. [sections] 12-5-22 (1996) (defining "nonpoint source" as "any source which discharges pollutants into the waters of the State other than a point source"). There are probably as many definitions for nonpoint source as there are nonpoint source causes of pollution. For a thorough treatment of the ecological and human processes that converge to become nonpoint sources of water pollution, see VLADIMIR NOVOTNY & GORDON CHESTERS, HANDBOOK OF NONPOINT POLLUTION 6-8 (1981). The term nonpoint source has also been criticized as a "passive, undirected, `non-term'" that is not suitable to define the leading cause of water pollution. PAUL THOMPSON, NATURAL RESOURCES DEFENSE COUNCIL, POISON RUNOFF 4 (1989) (suggesting that the term "poison runoff" be used instead of nonpoint source pollution) [hereinafter THOMPSON, NRDC]. However, many leading types of nonpoint source pollution could not be characterized as "poison runoff," such as changes in water conditions caused by hydrologic modifications. Use of the term "poison runoff" tends to oversimplify the complex nature of the nonpoint source pollution problem.

(35) 33 U.S.C. [sections] 1362(19) (1994).

(36) Id. [sections] 1362(14).

(37) See supra note 30 (discussing the Gorsuch holding that the oxygen change in water as it passed a dam was not an addition of a pollutant).

(38) United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979) (holding that a settling pond used to process gold is a point source if it overflows due to sudden snowmelt); Sierra Club v. Abston Constr. Co., 620 F.2d 41 (5th Cir. 1980) (holding that a surface runoff from a strip mine is a point source when piles are designed so that it is likely that pollutants will be discharged through ditches or other discrete conveyances).

(39) Gorsuch, 693 F.2d at 161-64; see also discussion supra note 34 (discussing definition of nonpoint sources).

(40) 33 U.S.C. [sections] 1362(6) (1994).

(41) ROBERT W. ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER 9 (1993).

(42) 33 U.S.C. [sections] 1313 (1994). Section 101 of the Act set forth the following subsidiary goals:

1) it is the national goal that the discharge of pollutants into the

navigable waters be eliminated by 1985; 2) it is the national goal that

wherever attainable, an interim goal of water quality which provides for

the protection and propagation of fish, shellfish, and wildlife and provides

for recreation in and on the water be achieved by July 1, 1983; 3) it is the

national policy that the discharge of toxic pollutants in toxic amounts

be prohibited.

Id. [sections] 1251(a)(1)-(3).

(43) Id. [sections] 1313(c)(2)(A).

(44) 40 C.F.R. [sections] 131.10 (1997).

(45) 33 U.S.C. [sections] 1313(b)(2)(B) (1994).

(46) Id. For example, water quality criteria might set a limit of "1 mg. of mercury per X liters of water," or it might state broadly that "diversity of aquatic species must be maintained."

(47) Id.

(48) See infra Part V.A. 2. (discussing the role of the states in the CWA scheme).

(49) 33 U.S.C. [sections] 1288 (1994); PERCIVAL, supra note 19, at 893.

(50) See, e.g., Daniel R. Mandelker, Controlling Nonpoint Source Water Pollution: Can It Be Done?, 65 CHI.-KENT L. REV. 479 (1989) (arguing that the wide variety of nonpoint sources makes effective regulation difficult and suggesting that use of controversial alternatives such as land use planning may be appropriate); David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control: The Clean Water Act's Bleak Present and Future, 20 HARV. ENVTL. L. REV. 515 (1996) (discussing efforts by special interest groups to block effective nonpoint source controls by Congress).

(51) ADLER, supra note 41, at 171. In a chapter entitled "Virtually Nonexistent Poison Run off Controls," CWA commentator Robert Adler observes that even though "[p]oison runoff impairs more water bodies, surface and ground, urban and rural, than any other pollution source in the country .... [W]e have failed to create and implement effective programs that protect and restore our nation's waters." Id.

(52) 33 U.S.C. [sections] 1288(b)(2)(F) (1994).

(53) 40 C.F.R. [sections] 130.2(1) (1997). EPA defines BMPs as "[m]ethods, measures or practices selected by an agency to meet its nonpoint source control needs. BMPs include but are not limited to structural and nonstructural controls and operation and maintenance procedures." Id.

(54) 40 C.F.R. [sections] 122.2 (1997).

(55) Mandelker, supra note 50, at 482.

(56) ADLER, supra note 41, at 184; UNITED STATES GENERAL ACCOUNTING OFFICE, WATER POLLUTION: GREATER EPA LEADERSHIP NEEDED TO REDUCE NONPOINT SOURCE POLLUTION 3 (1990).

(57) 33 U.S.C. [sections] 1329 (1994); see also Brian L. Frank, Cows in Hot Water: Regulation of Livestock Grazing Through the Federal Clean Water Act, 35 SANTA CLARA L. REV. 1269 (1995) (analyzing the differences between section 208 and section 319).

(58) 1994 WATER QUALITY REPORT, supra note 8, at ES-11 to ES-12.

(59) The first nonpoint source pollution control provision was passed in 1972. Federal Water Control Act Amendment of 1972, Pub. L. No. 92-500, 86 Stat. 839 (codified as amended at 33 U.S.C. [sections] 1288 (1994)).

(60) Letter from Carol Browner, Preface to 1994 WATER QUALITY REPORT, supra note 8, at ES-11 to ES-12.

(61) Id. at ES-15. It is interesting that EPA chooses to use the word "pollutants" to describe these water quality problems in the 1994 Report, because they certainly are not listed as "pollutants" in the CWA definition. If a pollutant can broadly be understood as a substance added to water, then bacteria, siltation, nutrients, metals, and suspended solids are pollutants. But why habitat alteration? EPA seems to be identifying anything that causes "pollution" as a "pollutant." As our understanding of water pollution outgrows the existing language of the regulatory framework, EPA seems to be interpreting terms broadly to give effect to the intent of Congress.

(62) Id. at ES-13.

(63) Id.

(64) Id. at ES-11.

(65) Id. at ES-13.

(66) Id. at ES-14.

(67) See GEORGE C. COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 17-21 (3d ed. 1993) (giving a general description of these activities and how they affect public lands).

(68) Id. at 12. The eleven western states are Washington, Oregon, California, Nevada, Arizona, New Mexico, Colorado, Utah, Wyoming, Montana, and Idaho. Id.

(69) Id. at 17.

(70) See generally DENZEL FERGUSON & NANCY FERGUSON, SACRED COWS AT THE PUBLIC TROUGH (1983) (explaining how overgrazing affects rangeland resources and ecologically impacts native ecosystems); LYNN JACOBS, WASTE OF THE WEST: PUBLIC LANDS RANCHING (1991) (discussing grazing in the western United States); COUNCIL ON ENVTL. QUALITY, DESERTIFICATION OF THE UNITED STATES 9-10 (1981) (discussing how deterioration of public lands due to overgrazing results in "desertification" and pointing out that many U.S. lands with the most severe ecological problems are public lands).

(71) FERGUSON & FERGUSON, supra note 70, at 15.

(72) Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 939-40 (1997).

(73) COGGINS ET AL., supra note 67, at 20.

(74) 1994 WATER QUALITY REPORT, supra note 8, at ES-14.

(75) JACOBS, supra, note 70, at 34, 95, 108-09.

(76) Id. at 109 (emphasis added).

(77) 1994 WATER QUALITY REPORT, supra note 8, at ES-10. EPA reports that bacteria and siltation are the most widespread pollutants impairing the nation's rivers. Id. at ES-14.

(78) Id. at ES-9.

(79) JACOBS, supra note 70, at 107. Another name for sediment load is "siltation," which EPA reports is tied with bacteria as the most widespread pollution problem in the nation's rivers. 1994 WATER QUALITY REPORT, supra note 8, at ES-14. For extensive exploration of the effects of livestock grazing on riparian zones, see ED CHANEY ET AL., U.S. ENVTL. PROTECTION AGENCY, LIVESTOCK GRAZING on WESTERN RIPARIAN ZONES (1990); UNITED STATES GENERAL ACCOUNTING OFFICE, PUB. No. B-230548, PUBLIC RANGELANDS: SOME RIPARIAN AREAS RESTORED BUT WIDESPREAD IMPROVEMENT WILL BE SLOW (1988) (concluding that livestock management is the key to restoring riparian areas, and that ranchers holding permits to graze their livestock on federal rangelands play an important role in the restoration process.)

(80) WILLIAM S. PLATTS, U.S. DEP'T of AGRIC., INFLUENCE OF FOREST and RANGELAND MANAGEMENT on ANADROMOUS FISH HABITAT in WESTERN NORT AMERICA: EFFECTS of LIVESTOCK GRAZING (1982).

(81) JACOBS, supra note 70, at 108. Lynn Jacobs writes, "Thus, ranching's overall contribution to water pollution is much greater than indicated by figures for its direct contribution." Id.

(82) Section 208 of the CWA, passed in 1972, identifies silvicultural activities as a cause of nonpoint source pollution. 33 U.S.C. [sections] 1288(b)(2)(F) (1994).

(83) COGGINS ET AL., supra note 67, at 19. According to one assessment, "[t]he U.S. Forest Service, the Bureau of Land Management and other federal agencies collectively own 39% of all the forested land in the nation (72% of western forest lands are in federal ownership)." THOMPSON, NRDC, supra note 34, at 238.

(84) J. ROBERT SINGER & RALPH C. MALONEY, U.S. ENVTL. PROTECTION AGENCY, NONPOINT SOURCE CONTROL GUIDANCE for SILVICULTURE, at II to II-6 (1977).

(85) Id. at II-11.

(86) National Wildlife Fed'n v. United States Forest Serv., 592 F. Supp. 931, 935 (1984), amended by 643 F. Supp. 653 (D. Or. 1984), modified, No. 83-1153-LE, 1990 WL 375178 (D. Or. Mar. 5, 1990).

(87) Id.

(88) NONPOINT SOURCE CONTROL GUIDANCE for SIVICULTURE, supra note 84, at II-10 to II-12.

(89) Id. at II-13; see also H. MICHAEL ANDERSON & CRAIG GEHRKE, THE WILDERNESS SOCIETY, NATIONAL FOREST, Vol. 1: WATER QUALITY and TIMBER MANAGEMENT 2 (1989).

(9O) Houck, supra note 72, at 934-35.

(91) See COGGINS ET AL., supra note 67, at 17-18 (describing the history of mining on public lands)

(92) THOMPSON, NRDC, supra note 34, at 214.

(93) 1994 WATER QUALITY REPORT, supra note 8, at ES-11.

(94) THOMPSON, NRDC, supra note 34, at 214-15.

(95) 1994 WATER QUALITY REPORT, supra note 8, at ES-11.

(96) Id.

(97) Terry Richard, Concern Increases Along With Use of Salt at Timberline, OREGONIAN, Aug. 1, 1996, at C12.

(98) 2 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER [sections] 4.9, at 130 (1986); see also Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 Ecology L.Q. 201, 205, 278-79 (1996) (noting that nonpoint source activities such as grazing, silvicultural operations and building roads cause grave threats to water quality in the western states).

(99) 33 U.S.C. [sections] 1251(a) (1994).

(1OO) Id. [section] 1341(a)(1). State certification is primarily required from the state in which the discharge originates but, "if appropriate," an "interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate" can provide certification. Id.

(101) Id; see also id. [sections] 1313(a) (discussing continuation of existing state water quality standards).

(102) 33 U.S.C. [sections] 1313(a) (1994). For a list of common federal permits that one commentator suggests should require section 401 certification, see Donahue, supra note 98, at 226-28.

(103) 33 U.S.C. [sections] 1341(a). The term discharge is the subject of the Ninth Circuit split discussed herein at Part V.

(104) Donahue, supra note 98, at 258 (citing 33 U.S.C. [sections] 1341(a)(1) (1994)).

(105) Section 401(d) states:

Any Certification provided under this section shall set forth any effluent

limitations and other limitations, and monitoring requirements necessary to

assure that any applicant for a Federal license or permit will comply with

any applicable effluent limitations and other limitations [of sections 1311,

1312, 1316, and 1317], and with any other appropriate requirement of State

law set forth in such certification, and shall become a condition on any

Federal license or permit subject to the provisions of this section.

33 U.S.C. [sections] 1341(d) (1994).106 Id.

(107) Id.; see also U.S. ENVTL. PROTECTION AGENCY, WETLANDS and 401 CERTIFICATION: OPPORTUNITIES and GUIDELINES for STATES and ELIGIBLE INDIAN TRIBES 8-9 (1989) (discussing state waiver of section 401 certification).

(108) Water Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 91 (1970) (codified as amended in scattered sections of 33 U.S.C.).

(109) Katherine Ransel & Erik Meyers, State Water Quality Certification and Wetland Protection: A Call to Awaken the Sleeping Giant, 7 Va. J. Nat. RESOURCES L. 339, 345 (1988).

(110) See infra Part IV.B.2. (discussing PUD No. 1 which held that a state may require compliance with all portion of its water quality standards by imposing conditions on the whole activity).

(111) 511 u.s. 700 (1994) (allowing the state to impose water quality criteria on the PUD federal permit for a new hydroelectric project).

(112) Id. at 726.

(113) Donahue, supra note 98, at 219, 221.

(114) 33 U.S.C. [sections] 1341(a)(1) (1994) (emphasis added).

(115) See e.g., Donahue, supra note 98, at 243-51; Ransel & Meyers, supra note 109, at 340.

(116) Donahue, supra note 98, at 226-28.

(117) Id. at 228.

(118) Recent cases have had the opportunity to discuss the terms "Federal license or permit," and have chosen not to. See, e.g., PUD No. 1, 511 U.S. at 707-08 ("The limitations included in the [water quality] certification become a condition on any Federal license.").

(119) 33 U.S.C. [sections] 1341(d) (1994).

(120) Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982) (holding that the certification conditions imposed by the State of Maine must be included in any federal permit issued even if the conditions are more stringent than the federal requirements and the conditions are not subject to review by EPA).

(121) Georgia Pacific Corp. v. Vermont Dept. of Envtl. Conservation, 35 E.R.C. 2046, 2050-51 (Vt. Super. Ct. 1991), affd, 628 A. 2d 944 (Vt. 1992), cert. denied, 511 U.S. 1141 (1994) (finding substantial evidence that the continuous flow conditions imposed by the Department of Environmental Conservation was necessary to protect the aesthetic and recreational value of the river).

(122) Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274, 1278-79 (Or. Ct. App. 1986) (holding that any land use certificate of compliance must require compliance with state water quality standards).

(123) See, e.g., Georgia-Pacific, 628 A.2d at 944 (involving an appeal by an irrigation district challenging the imposition of conditions requiring protection of aesthetic and recreational values by Vermont Department of Environmental Conservation); PUD No. 1 v. Washington Dep't of Ecology, 849 P.2d 646 (Wash. 1993), affd, 511 U.S. 700 (1994) (involving an appeal by a local utility district challenging the imposition of minimum stream flow conditions put on the construction of a dam by Washington State Department of Ecology).

(124) See, e.g., Power Auth. of N.Y.v. Williams, 457 N.E. 2d 726 (N.Y. 1983); de Rham v. Diamond, 295 N.E.2d 763 (N.Y. 1973) (both courts holding that state certification authority is limited to violations of chemical water quality standards); Department of Envtl. Resources v. Harrisburg, 578 A.2d 563 (Pa. Commw. Ct. 1990) (holding that state could only base section 401 certification conditions on chemical changes related to direct discharges of pollutants, not physical and biological impacts). But see cases cited supra notes 120-23.

(125) 511 U.S. 700 (1994).

(126) Id. at 710-11.

(127) Id. at 715, 719.

(128) Id. at 723.

(129) Id. at 711-12. The Court's reasoning was based on section 401(d) language that the certification must "assure that any applicant... will comply" with limitations under section 301 and other state law requirements, and EPA section 401 implementing regulations requiring that "the activity will be conducted in a manner which will not violate applicable water quality standards." Id. at 711 (citing 33 U.S.C. [sections] 1341(d) (1994) and 40 C.F.R. [sections] 121.2(a)(3) (1993)); see generally Donahue, supra note 98, at 265 (discussing section 401 certification).

(130) PUD No. 1, 511 U.S. at 711. The latter discharge would probably be considered a nonpoint source of pollution because although it is a discharge from a conveyance, it does not discharge a pollutant.

(131) 33 U.S.C. [sections] 1341(a) (1994).

(132) PUD No. 1,511 U.S. at 711-12.

(133) For an in-depth analysis of the PUD No. 1 holding and its significance, see Katherine Ransel, The Sleeping Giant Awakens: PUD No. 1 of Jefferson County v. Washington Department of Ecology, 25 Envtl. L. 255 (1995).

(134) 940 F. Supp. 1534 (D. Or. 1996).

(135) Id. at 1537.

(136) Id.

(137) The Tribes have treaty rights to fish on the John Day River, but the rights go largely unused because most fish habitat has been destroyed by effects of livestock grazing in the area, and the fish populations are severely depleted. ONDA Press Release, supra note 15.

(138) ONDA, 940 F. Supp. at 1537.

(139) Id.

(140) Id. at 1541.

(141) Id. (emphasis added). Judge Haggerty granted plaintiffs' request for declaratory judgment that state certification is required before issuance of a grazing permit, and an injunction prohibiting the USFS from issuing grazing permits without section 401 certification. Id.

(142) Id.

(143) Id. (quoting 33 U.S,C. [sections] 1341(a)(1) (1994).).

(144) Id. The plaintiffs showed evidence of the presence of cow manure both in and near Camp Creek, the trampling and fouling of a seep that drains into Camp Creek, cattle trails leading into Camp Creek, and erosion of the streambank along Camp Creek. Testimony was offered to show that the waters were unswimmable due to cattle defecation, and increased water temperatures had resulted in fish kills. Plaintiffs Motion for Summary Judgment at 7, ONDA, 940 F. Supp. 1534 (D. Or. 1996) (No. 94522-ST).

(145) Idaho Conservation League v. Caswell, No. CV. 95-394-S-MHW, slip op. at 16 (D. Idaho Feb. 26, 1996).

(146) Id. at 3.

(147) Id.

(148) Id. at 3-4.

(149) Id. at 13-16.

(150) Id. at 16.

(151) H.R. REP. No. 92-911, at 75-76 (1972). The House Report further stated, "[t]he definitions of these terms are included in [sections] 502 of title V, and it is recommended that very special attention be accorded [sections] 502 .... [S]ome of the more important terms... [are] `pollution'..., `pollutant'..., `discharge of a pollutant'..., `discharge,'... [and] `point source'.... "Id.

(152) 33 U.S.C. [sections] 1341(a)(1) (1994) (emphasis added).

(153) Id. [sections] 1362(16) (emphasis added).

(154) Id. [sections] 1362(12).

(155) 40 C.F.R. [sections] 122.2 (1997).

(156) American Fed'n of Television and Radio Artists v. National Labor Relations Bd., 462 F.2d 887, 890 (D.C. Cir. 1972) (holding that the use of the word "include" in defining "person" under the National Labor Relations Act allows statutory protection to be extended to unincorporated divisions of a larger corporation even though the definition of person does not specifically include such an entity).

(157) Exxon Corp. v. Lujan, 730 F. Supp. 1535, 1545 (D. Wyo. 1990) (holding that, under a provision of the Outer Continental Shelf Lands Act, 43 U.S.C. [sections][sections] 1331-1356 (1994), the use of "includes" rather than "means" in a definition of refined products "indicates that what follows is a non-exclusive list which may be enlarged upon"); see also Helvering v. Morgan's, Inc., 293 U.S. 121, 125 n. 1 (1934) (holding that "the verb `includes' imports a general class, some of whose particular instances are those specified in the definition"); Highway and City Freight Drivers, Dockmen and Helpers, Local Union No. 600 v. Gordon Transp., Inc., 576 F.2d 1285, 1289 (8th Cir. 1978) (holding that because the definition of "person" in the Bankruptcy Act, 11 U.S.C. [sections] 1(8) (a) (1994), used "includes" instead of "means," the definition was not limited to the entities listed in the Act); Chemehuvi Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1054 (9th Cir. 1985) (holding that "includes" is a term of enlargement, not of limitation), rev'd on other grounds, 474 U.S. 9 (1985).

(158) 33 U.S.C. [sections] 1362 (1994). The definition of discharge is in subpart (16).

(159) Id.

(160) See, e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (interpreting 42 U.S.C. [sections] 1983 (1994) and holding that state and state officials acting in their official capacities are not "persons" under the statute).

(161) WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 360 (1984).

(162) This interpretation of the statute is supported by the historical development of the CWA, discussed herein at Section II. Section 401 was adopted from section 21(b) of the Water Quality Improvement Act of 1970, which did not provide for a definition of discharge. When Congress amended the Act in 1972, the concepts of point sources and nonpoint sources were first introduced. The phrase "discharge of a pollutant" was introduced to mean point source pollution. Because discharge and discharge of a pollutant are such similar terms, it would have been logical for Congress to clarify that when they just said "discharge," it meant what it always had, and included discharge from point sources.

(163) Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120, 123-24 (1989) (interpreting "person who signed" under Federal Rules of Civil Procedure and holding that the court may only sanction the individual attorney).

(164) 33 U.S.C. [sections] 1251(b) (1994).

(165) See id. [sections] 1370 (clarifying that states can adopt any limitation or standard for water pollution control except one less stringent than the federal standards set according to the CWA).

(166) Id. [sections] 1323(a).

(167) Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1424 (9th Cir. 1989) (applying water quality standards to timber sales on national forest land); Oregon Natural Resources Council v. U.S. Forest Serv., 834 F.2d 842, 850-52 (9th Cir. 1987) (enforcing state water quality standards from a nonpoint source); Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 696 (9th Cir. 1986) (requiring discussion of nonpoint source water quality impact in an environmental impact statement).

(168) See discussion infra Part V.A.3.a.

(169) 33 U.S.C. [sections] 1313(d)(1)(A) (1994); 40 C.F.R. [Sections] 131.4 (1997).

(170) 33 U.S.A. [sections] 1313(d)(1)(A) (1994).

(171) Id. [sections] 1311(a) (listing all of the different types of permits that would exempt a point source discharger from violating the CWA).

(172) Id. [sections] 1341(a)(1).

(173) See infra Part V.A.3.a.

(174) ADLER, supra note 41, at 171; see also H.R. REP. No. 92-911, at 106 (1972), reprinted in HOUSE COMM. ON PUBIC WORKS, FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 1 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 793 (1973) (discussing fact that "nonpoint sources of pollution are a major contributor to water quality problems," and that more stringent effluent limitations on point sources may not be adequate to achieve water quality standards).

(175) H.R. REP. No. 91-127, at 24 (1969), reprinted in 1970 U.S.C.C.A.N. 2691, 2710.

(176) Id. at 7, repented in 1970 U.S.C.C.A.N. 2691, 2697.

(177) S. REP. No. 91-351, at 8 (1969) (emphasis added).

(178) Id. at 3.

(179) 115 CONG. REC. 9030 (1969). Representative Edmond A. Edmondson (D-Okla.) stated, "One of the strange and embarrassing things about the pollution problem... is that the Federal Government itself has sometimes been a culprit with considerable responsibility .... This is something that subsections 11(a) and 110)) endeavor to deal with." Id.

(180) H.R. CONF. REP. No. 91-940, at 28, 51 (1970), reprinted in 1970 U.S.C.C.A.N. 2712, 2737 (emphasis added).

(181) Oregon Natural Desert Ass'n v. Thomas, 940 F. Supp. 1534, 1541 (1996) (quoting 115 CONG. REC. 28,970 (1969)) (emphasis added).

(182) 115 CONG. REC. 9030 (1969).

(183) Legislative history of the 1972 Amendments makes no reference to control of nonpoint source pollution. S. REP. No. 92-414, at 7-10 (1971), reprinted in LEGISLATIVE HISTORY VOLUME 2, supra note 24, at 1425-28.

(184) Northwest Envtl. Advocates (NWEA) v. City of Portland, 56 F.3d 979 (9th Cir. 1995) (holding that an environmental group could bring a claim against the City of Portland alleging that the City had violated non-numeric, qualitative water quality standards).

(185) Id. at 986.

(186) Hearings on H.R. 11896 Before the House Comm. on Public Works, 93rd Cong. 1st session (1972) (statement of William D. Ruckelshaus, EPA Administrator), reprinted in LEGISLATIVE HISTORY VOLUME 2, supra note 24, at 1187).

(187) See PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 714-15 (1994); NWEA, 56 F. 3d at 979.

(188) 117 CONG. REC. 38,854 (1971), reprinted in LEGISLATIVE HISTORY VOLUME 2, supra note 24, at 1388.

(189) Norman J. Singer, STATUTES AND STATUTORY CONSTRUCTION [Sections] 56.01 (5th ed. 1992) ("Public policy considerations exert a significant influence in the process of statutory interpretation by the courts.").

(190) See supra Part III. Nonpoint source activities on federal lands are a major cause of most states' failure to comply with their water quality standards.

(191) 33 U.S.C. [sections] 1251(a) (1994).

(192) See supra Part IV.B.2 (discussing the holding in PUD No. 1).

(193) See, e.g., PACIFIC NORTHWEST REGION, U.S. DEP'T OF AGRIC. AND U.S. FOREST SERV., GENERAL WATER QUALITY BEST MANAGEMENT PRACTICES 13, 17 (November 1988). In the Pacific Northwest, general BMPs have been drafted for timber management, road systems, watershed management, mining, recreation and range management among others. Id. [sections] T, at 9-21 (timber); id. [sections] R, at 22-47 (road systems); id. [sections] W, at 48-56 (watershed management); id. [sections] M, at 57-61 (mining); id. [sections] Rec, at 62-70 (recreation); id. [sections] RM, at 74-78 (range management). States could easily use such state or federal recommended BMPs for certification conditions; research costs for state section 401 implementation need not be significant.

(194) 33 U.S.C. [subsections] 1323, 1329(b)(2)(4) (1994); see supra notes 53-56 and accompanying text (discussing how agencies have created BMPs to prevent pollution such as treatment requirements, prohibition of certain practices, and maintenance procedures).

(195) Of course the down side of this is that states could do nothing if they choose. In that case, the existing BMP would still apply, and water quality would be no worse.

(196) See, e.g., George C. Coggins, Watershed as a Public Natural Resource on the Federal Lands, 11 VA. ENVTL. L.J. 1, 45 (1991) (discussing how watershed management, which entails consideration of all resources and values of federal lands, should be the focal point for management of those federal lands).

(197) Section 319 of the CWA requires states to "develop and implement a management program.., on a watershed-by-watershed basis within such State." 33 U.S.C. [sections] 1329(b)(4) (1994).

(198) See THOMPSON, NRDC, supra note 34 at 202, 226. In an analysis of programs designed to reduce poison runoff from silvicultural, mining and rangeland activities, Thompson and NRDC argue that because each of those activities take place on federal, state, and private lands, there is "a common management requirement - the integration and coordination of control programs on all classes of land ownership." Id. at 202. NRDC advocates water pollution control programs for both timber and range practices that apply to private land practices, but acknowledges that a large portion of silviculture and livestock grazing in the United States is conducted on federal lands and therefore "states still have a major role to play in controlling water pollution from federal lands." Id. With respect to rangeland management, for example, NRDC suggests that states coordinate implementation of controls on all classes of land ownership in a certain watershed. That way, "any potential benefits gained by good management in one ownership class are not negated by poor management or delayed implementation in another." Id. at 226. While NRDC's analysis does not discuss section 401 of the CWA as a tool for state regulation of activities on federal lands, it seems that their argument would implicitly support application of section 401 to nonpoint sources.

(199) Virginia K. Tippie, Assistant Administrator for Ocean Services and Coastal Zone Management of the National Oceanic and Atmospheric Administration (NOAA), stated her agency's opinion:

NOAA agrees with the concept of managing land uses which affect coastal

waters, as envisioned in the Senate draft bill. Coastal pollution, and

specifically non-point source pollution, which arises from the pattern of

land use and development, is a major cause of degrading coastal water quality

that needs greater attention. While many states have already made significant

contributions to water quality improvement through programs developed as part

of their coastal management efforts, the approach largely remains fragmented 

and needs a national emphasis.

Hearings on S. 1189 Before the National Ocean Policy Study of the Senate Comm. on Commerce, Science, and Transportation, 101st Cong. 36-37 (1990).

(200) 33 u.s.c. [sections] 1323 (1994).

(201) Water and Environmental Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 91 (1970), reprinted in 1970 U.S.C.C.A.N. 97, 118. Section 21(a) reads:

Each Federal agency ... having jurisdiction over any real

property or facility ... shall ... insure compliance with applicable water

quality standards and the purposes of this Act in the administration of such

property, facility, or activity .... [T]he Secretary shall include reference

to any discharges allegedly contributing to pollution from any such Federal

property,... and shall transmit a copy of such summary to the head of the

Federal agency having jurisdiction of such property, facility, or activity.

Id. (emphasis added). While section 21(a) does not function by requiring state certification, both sections 21(a) and 21(b) were designed to assure that activities directly controlled by or permitted by the federal government comply with state water quality standards. Congress used the language "any discharges" in the original form of both statutes.

(202) 33 U.S.C. [sections] 1323(a) (1994).

(203) Id.

(204) Recall that the CWA defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. [sections] 1362(12) (calculations on file with author).

(205) 33 U.S.C. [sections] 1288(b)(2)(f)-(g) (1994). For a full discussion of the operation of section 208, see supra Part II.B.3.

(206) Id. [sections] 1329(b)(2)(A) (1994).

(207) Id. [sections] 1314(e).

(208) Id. [sections] 1255.

(209) Id. (emphasis added).

(210) See discussion supra Part IV.B.I.

(211) For a discussion of these provisions, see supra Part II.B.

(212) 33 U.S.C. [sections] 1329(b)(2)(A) (1994); see supra notes 53-57 and accompanying text (discussing how agencies have created BMPs to prevent pollution such as treatment requirements, prohibition of certain practices, and maintenance procedures).

(213) See, e.g., infra notes 246-52 and accompanying text (describing how a ski lodge sought state certification when it applied for permit to discharge salt into a public water supply).

(214) EPA's Draft Proposed Strategy on Nonpoint Source Management October 7, 1997, Env't Rep. (BNA) (Oct. 21, 1997), available in Westlaw, 203 DEN E-1, 1997, at *2.

(215) Id.

(216) RODGERS, supra note 98, at 146.

(217) According to Justice Antonin Scalia, the "traditional tools of statutory construction" include "consideration and evaluation of competing policies"; for example, a court may choose a particular statutory construction "because the alternative would produce `absurd' results." Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515.

(218) 33 U.S.C. [sections] 1362(12) (1994); see supra note 29 and accompanying text (discussing how the word discharge is used in the definition of point source).

(219) 33 U.S.C. [sections] 1362(16) (1994); see supra notes 157-59 and accompanying text (discussing how the fact that nineteen of the definitions in the CWA use the word "means" and only the definition of the word "discharges" uses the word "includes" indicates that Congress left the term open to nonpoint sources of discharge).

(220) See supra notes 42-48 and accompanying text (discussing how states can reach a level of pollution control with section 401 certification which includes narrative criteria that couldn't be achieved with mere effluent limitations).

(221) Idaho Conservation League v. Caswell, No. CV. 95-394-S-MHW, slip op. at 17 (D. Idaho Feb. 26, 1996). For a discussion of these provisions, see supra Part II.B.

(222) Statutorily speaking, the existence of sections 208 and 319 do not preclude application of section 401 to nonpoint sources. However, the practical implications of applying section 401 to nonpoint sources lend strength to the argument that nonpoint source regulation should be left to these provisions. See discussion supra, Part V.B.3.

(223) 33 U.S.C. [sections] 1321 (1994).

(224) Id. [sections] 1291.

(225) Id. [sections] 1317.

(226) Id. [sections] 1323.

(227) United States v. Menasche, 348 U.S. 528, 538-39 (1955) (refusing to interpret section 405(a) of the Naturalization and Immunization Act in a way that would destroy the meaning of other sections in the statute).

(228) See supra Part V.A.3.a.

(229) See supra Part V.A.3.b.

(230) See supra Part V.A.3.b.

(231) Diarmuid F. O'Scannlain, Current Trends in Judicial Review of Environmental Agency Action, 27 ENVTL. L. 1, 6 (1997) (quoting Richard J. Pierce Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. Rev. 749, 750 (1995)).

(232) See supra Part V.A.1.

(233) O'Scannlain, supra note 231, at 6.

(234) Paul Larmer, Judge Sends a Message to Cows, High Country News (Oct. 28, 1996) at 4 (quoting Joe Hobson of the Oregon Farm Bureau).

(235) Federal agencies are not likely to want to wait for the one year waiver period to elapse on state certification review, and states will be forced to move forward with certification reviews as necessary.

(236) 33 U.S.C. [sections] 1311(a) (1994). ("Except as in compliance with [the various permitting provisions], the discharge of any pollutant by any person shall be unlawful"). Id. (emphasis added).

(237) Id. [sections] 1341(a)(1).

(238) Id. [sections] 1341(d). "Any [401] certification shall . . . become a condition on any Federal.., permit." Id.

(239) Donahue, supra note 98, at 292-95.

(240) Id. at 295. Debra Dons. hue suggests that states should charge a fee for processing certification requests, and ask applicants to bear any research costs. She also notes that by using BMPs as certification conditions and creating "blanket certifications for categories of activities," states might reduce the costs of certification review. Id.

(241) EPA Suspends Rulemaking on Runoff From Federal Lands But State Plans Move Ahead, 6 INSIDE EPA'S WATER POL'Y REP. 7, 8 (Apr. 16, 1997).

(242) Id.

(243) Id.

(244) Washington to Draft Rules For Runoff From Private and Public Land, 6 INSIDE EPA's WATER POL'Y REP. 9 (May 14, 1997).

(245) Id.

(246) Terry Richard, Concern Increases Along With Use of Salt at Timberline, OREGOn--, Aug. 1, 1996, at C-12, available in 1996 WL 11370500.

(247) Id.

(248) Id.

(249) Telephone Interview with Lydia Taylor, Deputy Director of Dept. of Environmental Quality (DEQ) (Jan. 6, 1997) [hereinafter Taylor Telephone Interview].

(250) Id.

(251) Id.

(252) Id. DEQ Deputy Director Lydia Taylor observed that section 401 is certainly a "powerful tool," but whether it is an effective way to regulate nonpoint sources depends on the type of nonpoint source pollution at issue. For example, because existing forest plans already impose conditions protecting state water quality on most federal permits, section 401 will just require additional time and paperwork for processing the permits. Id.

(253) Oregon Dep't of Agric. & Oregon Dep't of Envtl. Quality, Information Regarding "401" Certifications Which May Be Needed as a Result of District Judge Ancer Haggerty's Decision on U.S. Forest Service Grazing Permits (Jan. 6, 1997) [hereinafter DEQ Response] (on file with author).

(254) Taylor Telephone Interview, supra note 249.

(255) DEQ Response, supra note 253, at 1.

(256) Grazing Lease Amendments, OR. ADMIN. R. 340-48-023 (1996) (to be codified at OR. REV. STAT. [subsections] 183.335(5), (6)(a) (1995) (proposed January 10, 1997)) [hereinafter Grazing Lease Amendments].

(257) DEQ Response, supra note 253, at 1.

(258) Standard Permit Conditions, OR DOA Draft Emergency Rules [sections] 603-XX-0040 (Jan. 10, 1997).

(259) Taylor Telephone Interview, supra note 249.

(260) Grazing Lease Amendments, supra note 256.

(261) Point, Nonpoint Sources Affected by List of Impaired Water Bodies, 26 Envtl. L. Rep. (Envtl. L. Inst.) (BNA) 1801 (Jan. 26, 1996).

(262) Id.

(263) Id.

(264) Id.

(265) See Larmer, supra note 234, at 4.

ALIA S. MILES, Articles Editor, Environmental Law, 1997-1998; student, Northwestern School of Law of Lewis & Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected May 1998; B.A. 1992, University of California at San Diego. The Author wishes to thank Professor Craig Johnston for his assistance with this Comment.