Appeals from the United States District Courtfor the District of OregonAncer L. Haggerty, District Judge, PresidingArgued and SubmittedFebruary 10, 1998--San Francisco, CaliforniaFiled July 22, 1998Before: Mary M. Schroeder, Jerome Farris, andA. Wallace Tashima, Circuit Judges.Opinion by Judge Schroeder
_____________________________COUNSEL Nancy B. Firestone, Assistant United States Attorney, Wash-ington, D.C.; Daniel E. O'Leary, Davis Wright Tremaine,Portland, Oregon; Ronald S. Yockim, Roseburg, Oregon, forthe appellants.Michael Axline, Western Environmental Law Center, Eugene,Oregon; Howard G. Arnett, Karnopp, Petersen, Noteboom,Hubel, Hansen & Arnett, Bend, Oregon, for the appellees.
_____________________________OPINION SCHROEDER, Circuit Judge:The United States Forest Service appeals the district court'sruling that pollution from cattle grazing is subject to the certi-fication requirement of S 401 of the Clean Water Act, 33U.S.C. S 1341. This appeal requires us to consider whetherthe term "discharge" in S 1341 includes releases from non-point sources as well as releases from point sources. We con-clude from the language and structure of the Act that thecertification requirement of S 1341 was meant to apply onlyto point source releases. Accordingly, we reverse.The background of this case can be briefly described. In1993 the Forest Service issued a permit allowing Robert andDiana Burril to graze 50 head of cattle in Oregon's MalheurNational Forest. The cattle graze several months a year in andaround Camp Creek and the Middle Fork of the John DayRiver, polluting these waterways with their waste, increasedsedimentation, and increased temperature. In 1994 OregonNatural Desert Association (ONDA) filed an action under thecitizen suit provision of the Clean Water Act, 33 U.S.C.S 1365, as well as the Administrative Procedures Act, 5U.S.C. S 702. ONDA alleged that the Forest Service had vio-lated 33 U.S.C. S 1341 by issuing the grazing permit withoutfirst obtaining the State of Oregon's certification that thegrazing would not violate the state's water quality standards.The Burrils, Grant County, and the Eastern Oregon PublicLands Coalition intervened as defendants and the Confeder-ated Tribes of the Warm Springs Reservation intervened asplaintiffs. The district court granted the plaintiffs' summaryjudgment motion, concluding that the Forest Service mustobtain certification for activities that will potentially causenonpoint source pollution.Standing[1] We first address the Intervenor/Appellants' contentionthat ONDA lacks standing to bring this suit. To establishstanding a plaintiff must demonstrate: (1) the invasion of alegally-protected interest; (2) a causal connection between theinjury and the defendant's conduct; and (3) a likelihood thatthe court can redress the injury by a favorable decision. Lujanv. Defenders of Wildlife,
504 U.S. 555, 560
-61 (1992). ONDAis an environmental group whose members live adjacent tothe John Day River and use it for recreation. There is no ques-tion that the river's pollution has injured them. See SierraClub v. Morton,
405 U.S. 727, 734
(1972) (Harm to a plain-tiff's aesthetic and environmental well-being is a cognizableinjury.); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396(9th Cir. 1992) (An organization has standing by alleginginjury to individual members.).[2] The Intervenor/Appellants argue that by challenging thelack of certification, ONDA has alleged "only a proceduralinjury," and thus has not demonstrated a concrete injury or thelikelihood of redressability. The legal requirement ONDAseeks to impose is one that would affect the reality of theenvironment. This is a case, therefore, where plaintiffs seek"to enforce a procedural requirement the disregard of whichcould impair a separate concrete interest of theirs. " Lujan, 504U.S. at 572. We have held threatened harm to "health, recre-ational use, and enjoyment" from the use of herbicides consti-tutes an impairment of a concrete interest. Salmon RiverConcerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9thCir. 1994). Certainly, ONDA has demonstrated a concreteinterest where its members reside and engage in recreationalactivities along polluted waterways.[3] For similar reasons, the appellants' argument that thereis no redressable injury must fail. Appellants suggest thatONDA must prove either that the state would deny certifica-tion or that certification would necessitate a change in thegrazing operation. To establish redressability, however, theplaintiffs need not demonstrate that the ultimate outcome fol-lowing proper procedures will benefit them. See Idaho Con-servation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir.1992). The Supreme Court has recognized that the assertionof a procedural right is "special" and reduces the plaintiff'sburden of proving immediacy and redressability. Lujan, 504U.S. at 572 n.7. ONDA stands in a similar position to thehypothetical plaintiff, discussed in Lujan, who lives adjacentto the construction site for a federally-licensed dam. TheCourt noted that such a plaintiff could challenge a federalagency's failure to prepare an Environmental Impact State-ment, even though the plaintiff could not establish that theEIS would alter the construction plan for the dam or even thatthe dam would be completed in the near future. See id. Here,ONDA asserts a similar procedural right of certification underS 1341.Citizen Suit Provision[4] Appellants argue that even if ONDA has standing to sueunder Article III, its suit is not authorized under the CleanWater Act's citizen suit provision. That statute provides thatany citizen may bring a civil action against an agency allegedto be in violation of an effluent standard or limitation. 33U.S.C. S 1365(a). "Effluent standard or limitation" is definedto include "certification under section 1341 of this title." 33U.S.C. S 1365(f)(5).[5] Appellants contend that the statute authorizes suits toenforce only the discharge limitations already containedwithin state certifications. The statute on its face is not so lim-ited. Section 1365(f) cross-references the entirety of section1341, which provides in relevant part that "No license or per-mit shall be granted until the certification required by this sec-tion has been obtained . . . ." 33 U.S.C. S 1341(a). An agencythat has issued a permit without the appropriate certificationis in violation of the certification requirement under S 1341and therefore in violation of an "effluent standard orlimitation" under S 1365. The statute authorizes any citizen tobring a suit against such an agency, in this case the ForestService.Appellants' reliance on Bennet v. Spear, 117 S. Ct. 1154(1997), is misplaced. The Court there held that a citizen couldnot invoke the Endangered Species Act's general civil suitprovision to sue the Secretary of the Interior for a discretion-ary act, when a separate, specific provision authorized suitsagainst the Secretary only for nondiscretionary acts. See id. at1166. There is no similar limitation in the Clean Water Actthat would restrict citizen suits to challenges of certificationsalready granted. It authorizes suits for violation of certifica-tion requirements.The MeritsThe crux of this case is whether the Burrils' Forest Servicegrazing permit requires certification from the State of Oregon.The resolution of this question hinges on the interpretation ofthe term "discharge" as used in S 1341. That section provides: Any applicant for a Federal license or permit to con- duct any activity . . . which may result in any dis- charge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates . . . that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. . . . No license or permit shall be granted until the certification required by this section has been obtained or has been waived . . . .[6] The Clean Water Act defines point sources as"discernible, confined and discrete conveyances " such as apipe, ditch, or machine. 33 U.S.C. S 1362. Other pollutionsources, such as runoff from agriculture or in this case, animalgrazing, are nonpoint sources. See id.; Oregon NaturalResources Council v. United States Forest Serv., 834 F.2d842, 849 n.9 (9th Cir. 1987).The appellees argued before us and the district court that"discharge" in S 1341 refers to pollution from both pointsources and nonpoint sources. In accepting this argumentbelow, the district court relied exclusively onS 502 of theAct, which provides: (12) The term "discharge of a pollutant"[means] any addition of any pollutant to navigable waters from any point source . . . . (16) The term "discharge" when used without qualification includes a discharge of a pollu- tant . . . .33 U.S.C. S 1362. The district court reasoned that because theunqualified term "discharge" is defined as including, but notlimited to, point source releases, it must include releases fromnonpoint sources as well. The court therefore concluded thatthe term "discharge" encompassed nonpoint source pollutionlike runoff from grazing. It rejected the government's positionthat the unqualified term "discharge" is limited to pointsources but includes both polluting and nonpolluting releases.We review this question of law de novo. See Torres-Lopezv. May, 111 F.3d 633, 638 (9th Cir. 1997). We examine "thelanguage of the governing statute, guided not by a single sen-tence or member of a sentence, but look[ing] to the provisionsof the whole law, and to its object and policy." John HancockMut. Life Ins. Co. v. Harris Trust and Sav. Bank,
510 U.S. 86
,94-95 (1993) (quoting Pilot Life Ins. Co. v. Dedeaux, 481U.S. 41, 51 (1987)). The Clean Water Act, when examined asa whole, cannot support the conclusion that S 1341 applies tononpoint sources.We have discussed at length the impact of the 1972 enact-ment of the Clean Water Act, which largely supplanted the1970 Water and Environmental Quality Improvement Act byreplacing water quality standards with point source effluentlimitations. Prior to 1972, Congress attempted to control water pollution by focusing regulatory efforts on achieving "water quality standards," standards set by the states specifying the tolerable degree of pollution for par- ticular waters. See EPA v. State Water Resources Control Board,
426 U.S. 200, 202
-03 (1976). This scheme had two important flaws. First, the mecha- nism of enforcement was cumbersome. Regulators had to work backward from an overpolluted body of water and determine which entities were responsible; proving cause and effect was not always easy. Sec- ond, the scheme failed to provide adequate incen- tives to individual entities to pollute less; an entity's dumping pollutants into a stream was ignored if the stream met the standards. Id. The scheme focused on "the tolerable effects rather than the preventable causes" of pollution. Id. In 1972, Congress passed the Clean Water Act, which made important amendments to the water pol- lution laws. The amendments placed certain limits on what an individual firm could discharge, regard- less of whether the stream into which it was dump- ing was overpolluted at the time. . . . The Act thus banned only discharges from point sources. The dis- charge of pollutants from nonpoint sources--for example, the runoff of pesticides from farm- lands--was not directly prohibited. The Act focused on point source polluters presumably because they could be identified and regulated more easily that nonpoint source polluters.Natural Resources Defense Council v. EPA, 915 F.2d 1314,1316 (9th Cir. 1990) (footnote omitted).[7] The Clean Water Act thus overhauled the regulation ofwater quality. Direct federal regulation now focuses on reduc-ing the level of effluent that flows from point sources. This isaccomplished through the issuance of permits under theNational Pollutant Discharge Elimination System (NPDES).See 33 U.S.C. S 1342. The Act prohibits the release of pollu-tants from point sources except in compliance with anNPDES permit. 33 U.S.C. S 1311.[8] Nonpoint source pollution is not regulated directly bythe Act, but rather through federal grants for state wastewatertreatment plans. Section 208 of the Act requires each suchplan to contain procedures for the identification and control ofnonpoint source pollution. 33 U.S.C. S 1288(b)(2). If the EPAapproves a state's plan, it may make grants to the state todefray the costs of administering the plan, see 33 U.S.C.S 1288(f), or to construct facilities, see 33 U.S.C. S 1288(g).Thus, the Act provides no direct mechanism to control non-point source pollution but rather uses the "threat and promise"of federal grants to the states to accomplish this task. ShantyTown Assocs. Ltd. Partnership v. EPA, 843 F.2d 782, 791(4th Cir. 1988); see also Natural Resources Defense Councilv. EPA, 915 F.2d at 1316 n.3 (CWA does not penalize non-point source polluters). Section 1329, added to the Act in1987, requires states to adopt nonpoint source managementprograms and similarly provides for grants to encourage areduction in nonpoint source pollution. See Natural ResourcesDefense Council v. EPA, 915 F.2d at 1318.We recognized the Act's separate treatment of point andnonpoint source pollution in Oregon Natural ResourcesCouncil v. United States Forest Service, 834 F.2d at 842.There, an environmental group attempted to use the Act's citi-zen suit provision to enjoin a logging operation that causednonpoint source pollution. The Act allows a citizen to sue forthe violation of an effluent limitation under 33 U.S.C. S 1311.See 33 U.S.C. S 1365(f)(2). The plaintiffs argued that theeffluent limitations of S 1311 applied to nonpoint sources byvirtue of S 1311(b)(1)(C), which referenced state water qual-ity standards. We rejected this argument as contrary to thestructure and plain language of the Act. "The title and con-struction of section 1311(b)(1) lead us to the logical conclu-sion that the limitations set forth in section 1311(b)(1)(C) are`effluent limitations' and, therefore, by definition, applicableonly to point sources." Id. at 850.[9] We must reach the same conclusion with regard to thescope of the term "discharge" in S 1341. Prior to 1972, theprovision required the state to certify that a licensed activitywould "not violate applicable water quality standards." Pub.L. 91-224, S 21(b)(1), 84 Stat. 91 (1970). Now, the statuterequires certification that any discharge from the licensedactivity "will comply with the applicable provisions of sec-tions 1311, 1312, 1313, 1316, and 1317" of Title 33. 33U.S.C. S 1341(a)(1). The statute was thus amended "to assureconsistency with the bill's changed emphasis from water qual-ity standards to effluent limitations based on the eliminationof any discharge of pollutants." S. Rep. No. 414, at 69 (1971),reprinted in 1972 U.S.C.C.A.N. at 3764, 3735. The term"discharge" in S 1341 is limited to discharges from pointsources.[10] All of the sections cross-referenced in S 1341 relate tothe regulation of point sources. Appellees contend section1313, requiring states to establish water quality standards,relates to nonpoint source pollution because it addresses waterquality standards and implementation plans. The section doesnot itself regulate nonpoint source pollution. Water qualitystandards are established in part to regulate point source pol-lution. They provide "a supplementary basis . . . so thatnumerous point sources, despite individual compliance witheffluent limitations, may be further regulated to prevent waterquality from falling below acceptable levels." EPA v. Califor-nia ex. rel. State Water Resources Control Bd.,
426 U.S. 200
,205 n.12 (1976). In Oregon Natural Resources Council, 834F.2d at 850, we held that the reference to water quality stan-dards in S 1311(b)(1)(C) did not sweep nonpoint sources intothe scope of S 1311. For similar reasons,S 1313 does notsweep nonpoint sources into the scope of S 1341.Appellees' reliance on the Supreme Court's decision inPUD No. 1 v. Washington Dep't of Ecology,
511 U.S. 700
(1994), is similarly misplaced. In that case, the State of Wash-ington issued a S 1341 certification for a dam, conditioned onminimum stream flows in order to protect fisheries. The Courtheld that such a condition was permissible underS 1341 eventhough it did not relate to an effluent discharge from the dam.Thus, a state is free to impose such water-quality limitations"once the threshold condition, the existence of a discharge, issatisfied." Id. at 712. The Supreme Court in PUD No. 1 didnot broaden the meaning of the term "discharge " underS 1341. All parties conceded that the construction of the damwould result in discharges from both the release of dredge andfill material and the release of water through the dam's tail-race. See id. at 711. Both of these releases, however, wouldinvolve point sources; the tailrace is a conveyance and thedredge and fill operation presumably would involve a convey-ance or rolling stock. See 33 U.S.C. 1362(14).[11] The terminology employed throughout the CleanWater Act cuts against ONDA's argument that the term"discharge" includes nonpoint source pollution like runofffrom grazing. Neither the phrase "nonpoint source discharge"nor the phrase "discharge from a nonpoint source " appears inthe Act. Rather, the word "discharge" is used consistently torefer to the release of effluent from a point source. By con-trast, the term "runoff" describes pollution flowing from non-point sources. The term runoff is used throughout 33 U.S.C.S 1288, describing urban wastewater plans, and 33 U.S.C.S 1314(f), providing guidelines for identification of nonpointsources of pollution. Section 1341 contains no reference torunoff.[12] Had Congress intended to require certification for run-off as well as discharges, it could easily have written S 1341to mirror the language of S 1323, which directs federal agen-cies "engaged in any activity which may result in the dis-charge or runoff of pollutants" to comply with applicablewater quality standards. 33 U.S.C. S 1323(a). Section 1323plainly applies to nonpoint sources of pollution on federalland. ONDA does not seek relief under this provision, how-ever, because absent the issuance of an NPDES permit underS 1342, a citizen suit under the Clean Water Act may not bebased on a violation of 33 U.S.C. S 1323. See 33 U.S.C.S 1365(f).[13] We have recognized the distinction between the terms"discharge" and "runoff": Nonpoint source pollution is not specifically defined in the Act, but is pollution that does not result from the "discharge" or "addition" of pollutants from a point source. Examples of nonpoint source pollution include runoff from irrigated agriculture and silvicul- tural activities.Oregon Natural Resources Council, 834 F.2d at 849 n.9. Wehave further noted that "Congress had classified nonpointsource pollution as runoff caused primarily by rainfall aroundactivities that employ or create pollutants. Such runoff couldnot be traced to any identifiable point of discharge." Trusteesfor Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984).Appellees contend that we must adopt the district court'sinterpretation of "discharge" because that term is definedmore broadly than "discharge of pollutants . . . from any pointsource." They argue that "discharge" may only be the broaderterm if it includes releases from nonpoint sources. This isincorrect. "Discharge" is the broader term because it includesall releases from point sources, whether polluting or nonpol-luting. The D.C. Circuit reached this conclusion in NationalWildlife Fed'n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982).There, the court interpreted "discharge" inS 1362(16) of theAct to include the release from a point source of turbid waterthat did not contain any pollutant. This is the logical interpre-tation of S 1362(16) that comports with the structure and lexi-con of the Clean Water Act.[14] Intervenor/Appellee Confederated Tribes suggests thatthe grazing of cattle is "sufficiently similar " to point sourcepollution to require its inclusion in the definition of the term"discharge." The cattle in question wade in the John DayRiver and thus introduce their waste directly into the stream.The Tribes argue that we should not distinguish between themanmade conveyances that define a point source and cattle,whose range is normally controlled by manmade structuressuch as fences. The Clean Water Act, however, does notinclude animals in its definition of point sources. See 33U.S.C. S 1362(14). It would be strange indeed to classify asa point source something as inherently mobile as a cow. Weagree with the Second Circuit that the term "point source"does not include a human being, or any other animal. SeeUnited States v. Plaza Health Labs., Inc., 3 F.3d 643, 649 (2dCir. 1993).[15] The Tribes also suggest that these cattle may constitutea "concentrated animal feeding operation" under S 1362(14).This position is not tenable. Even assuming that open rangegrazing could be classified as a concentrated animal feedingoperation, a question we do not reach, the controlling regula-tions make the determination as to whether feeding operationsof this size must be certified a discretionary decision of thestate NPDES program Director. See 40 C.F.R. 122.23(c). Nei-ther the Director nor the record of any state administrativeproceeding is before us.CONCLUSIONFor these reasons we hold that certification underS 1341 isnot required for grazing permits or other federal licenses thatmay cause pollution solely from nonpoint sources.The judgment of the district court is REVERSED and thematter REMANDED for entry of judgment in favor of thedefendant. the end