High Court's Move On Water Act
Issue Seen As Ranching Victory

WASHINGTON — In a move largely ignored by the popular press, the U.S. Supreme Court last month left intact an appeals court ruling that could scuttle a Clinton administration scheme to extend Clean Water Act regulations to cover grazing.

The case, Oregon Natural Desert Association vs. Dombeck, was an effort by environmental activists to force an Oregon ranching family off Forest Service land by requiring them to obtain a permit for "non-point source" pollution discharge under Section 401(a) of the federal Clean Water Act.

The nominal target in the case was the U.S. Forest Service, which was expected to roll over and agree to the activists' demands, as has become common under the Clinton administration. Indeed, the Clinton EPA has attempted to extend its reach to agricultural regulations in California using precisely the same argument leveled by the Oregon activists.

True to the script, a U.S. District Court in Oregon found in favor of the activists, ruling that states can block federal grazing permits that may "impair" waters.

The gambit was foiled, however, by the Oregon Agricultural Legal Foundation, which appealed the ruling to the Ninth Circuit Court. The appellate court ruled in July of 1998 that Section 401(a) of the CWA does not apply to grazing and other potential "non-point" sources of pollution.

The activists then petitioned the Supreme Court, contending that the Clean Water Act should apply to "non-point" as well as "point" sources of pollution because its language covers all "discharges." The high court's refusal to overturn the appeals court ruling apparently indicates that the justices disagree.

American Farm Bureau Federation assistant counsel Rick Krause interprets the court's action as vindication of AFBF's contention that "discharge" has a particular meaning under the law. AFBF's News quotes Krause as explaining that the CWA's language would have included both "runoff" and "discharge" had it been intended to cover "non-point source" pollution as well as "point source" pollution.

The issue is critical to AFBF because of a lawsuit it is pursuing against EPA in the similar California case.

That case contends EPA overstepped its authority when it disapproved a California state list of "impaired" river and stream segments, then took it upon itself to expand the list by adding 17 areas where, it contended, agricultural and forestry runoff — all non-point sources — were contributing too much sediment. EPA further compounded the situation by arbitrarily issuing a "Total Maximum Daily Load" limit for sediment in California's Garcia River as a mechanism for restricting farming and timber harvest in the river's watershed.

AFBF sees the Oregon case as a precedent for overturning EPA's California power grab because it clearly establishes the intent of the Clean Water Act to distinguish between "point" and "non-point" sources.

"This is about as clear an indication as we've ever had as to how the Clean Water Act is to be interpreted," notes Joe Hobson, a University of Arkansas agricultural law expert and counsel for the Oregon group whose successful appeal the Supreme Court sustained.