U.S. District Court Judge Ancer Haggerty said Sept. 27 that the Clean Water Act requires all applications for grazing permits on national forests to first undergo a state review to determine if grazing will pollute state waters.
Thirty-two of the more than 400 grazing leases the Forest Service administers in Oregon are up for renewal this year, and the judge told the agency to issue no grazing permits until state water-quality officials give them a green light. With this new authority, the state could deny a permit or require modifications such as fencing along streams.
The ruling overjoyed many environmentalists, who have long felt that federal agencies care more about ranching than water quality.
"The principal source of all pollution in the West is from non-point sources arising on public lands," says Mike Axline of the Western Environmental Law Center, which represented seven environmental groups in the lawsuit against the Forest Service. "Now the state agencies that are concerned about water quality have the opportunity to be involved."
"There is no grazing decision that comes close to this one," says Bill Marlett, whose Oregon Natural Desert Association initiated the suit. "This gives us one big sledgehammer that we've never had before, and that's what it's going to take to get these guys (ranchers) to realize that the water of the state belongs to the public."
For Oregon ranchers, the decision adds insult to injury. They are fighting a November ballot initiative led by Marlett's group that would force all ranchers, including those using private lands, to remove their cattle from streams designated by the state as polluted (see story page 10).
"We see this as yet another attack on grazing," says Dan Van Shoiack, a third-generation rancher from Heppner, Ore., whose family grazes cattle on the Umatilla National Forest. "It's another paperwork barrier that leaves us open to more appeals and challenges from environmentalists."
Many legal experts predict the ruling, if it survives expected appeals, could ultimately have much broader application.
"It doesn't take much of a leap to realize that this could be applied to BLM lands, and to activities such as timber harvesting and even permits for irrigation water from federal water projects," says Joe Hobson, chief counsel for the Oregon Farm Bureau, which intervened in the case on the side of the Forest Service. "This could be a devastating blow to agriculture."
Making a non-point
The ruling springs from a case brought in 1994 by the Oregon Natural Desert Association, the Confederated Tribes of the Warm Springs Reservation, and six other environmental groups over a grazing allotment on eastern Oregon's Malheur National Forest. They charged the Forest Service with violating section 401 of the Clean Water Act, which requires state certification for any federally permitted activity that might result in a "discharge" into navigable waters.
Traditionally, section 401 has been used by states to evaluate the effects of hydroelectric dams and dredge and fill operations. Discharge has been defined as water pouring from a "point" source such as a pipe. Diffuse pollution from "non-point" sources such as livestock and logging operations has always been viewed as outside the law's scope.
But 401 does not explicitly exclude non-point sources, and environmentalists have searched for key cases to test the issue. In Haggerty, they found a judge who read the law as they did. Citing the Clean Water Act's legislative history and what he called "the plain meaning of discharge," Haggerty said Congress never intended to limit section 401 to point sources.
The Farm Bureau's Hobson disagrees. "You would have gotten a judicial guffaw five or six years ago for suggesting that the Clean Water Act should be applied to grazing this way," he says. As recently as this past August, Hobson notes, a federal magistrate in Idaho concluded that runoff from a road-building project on a national forest was not a discharge under the law.
"The Forest Service has one judge telling it to go south and the other north," says Hobson. "This thing will go to the Supreme Court."
The straight poop
The ruling validates the belief of many conservationists that cattle are a major polluter of Western waters. Judge Haggerty found that the plaintiffs offered "undisputed evidence that cattle grazing on the Camp Creek allotment ... has resulted in the pollution of both Camp Creek and the Middle Fork of the John Day River."
Much of that evidence was gathered by grazing activist Denzel Ferguson, most famous for co-authoring Sacred Cows at the Public Trough. Ferguson lives just downstream from the allotment, and, in his court declaration, displayed photos showing cattle wallowing in and around Camp Creek. He also offered evidence of physical degradation, including trampled and denuded stream banks, a silted-in swimming hole, and fish kills from high water temperatures that consistently exceeded state standards.
Hobson claims that, compared to other sources, water pollution from cattle grazing "doesn't even show up on the screen. If you were to remove all of the cows from the public lands, you wouldn't even see a noticeable change in water quality."
Ed Sales of the Oregon Department of Environmental Quality says a 1988 state report showed that 9,300 miles of stream, rivers and lakes were affected by grazing. But he cautions that the actual contribution of grazing to statewide pollution, which comes mostly from non-point sources, has not been calculated.
Tom Lustig, an attorney with the National Wildlife Federation, says the uncertainties make proving that cattle damage waterways a difficult task. "Everyone can see that the cows poop and pee in the streams," he says, "but how much do they really affect water quality? They also cause erosion on the banks, but the ranchers can claim it's just the drought."
Lustig says it's too early to tell if the Oregon ruling will clean up polluted waters. The ruling could motivate Congress to try to water down the law. Retiring Rep. Wes Cooley, R-Ore., attempted to do that earlier in the year, but his amendment exempting cattle grazing from the Clean Water Act ultimately died when the Republican Congress' rewrite of the act stumbled into broad public opposition.
Though section 401 gives the states the chance to evaluate federally permitted actions, there is no obligation to do so. If state water quality officials fail to make a decision on a given permit within a year, that activity automatically receives state certification and can proceed.
"The states aren't there yet as far as commitment to enforcing water quality standards," says Lustig. "They could easily say, "grazing has no effect, everything is OK." "
Though some states may not welcome the chance to review thousands of grazing permits, ranchers say they dread another layer of public scrutiny.
Dan Van Shoiack says his family is already working with the Forest Service and the state to employ what are known as "best management practices' on the public lands they graze. That includes periodically chasing cattle out of riparian areas, rotating pastures and stringing electric fences along streams at certain times.
"I don't think anyone wants clean water more than the ranchers," says the Farm Bureau's Hobson, "but it's a question of how we get there. Environmentalists want clean water come hell or high water."
Ranchers who make sure their cattle do not pollute have nothing to worry about, says Mike Axline, of the Western Environmental Law Center. "Those that are polluting need to sit down with the state and figure out a way to deal with their problem."
For more information contact the Western Environmental Law Center at 503/485-2471; the Oregon Farm Bureau at 503/399-1701 and the Oregon Department of Environmental Quality at 503/229-5696.
* Paul Larmer
Paul Larmer is an associate editor for HCN.