Is a cow a point source of pollution? 

When livestock defecate in a stream without a permit, are they violating the Clean Water Act? In the view of a federal judge in Portland, Oregon, the answer is yes, but in the view of judges in the Ninth U. S. Circuit Court of Appeals in San Francisco, the answer is no. In a case filed by several environmental groups and one Indian tribe in Oregon, the Ninth Circuit overturned a federal judge's ruling that grazing permits issued by the U. S. Forest Service must comply with Oregon's water quality standards. The federal judge and the appeals court disagree whether, under the Clean Water Act , cows are point sources.

The appeals court ruled that cows are not discrete conveyances of pollution, as defined by the Act, and therefore are not subject to a provision in Section 401 requiring states to certify that federal permits do not violate standards. It said cows are not even point sources when they defecate directly into the stream. "It would be strange indeed to classify as a point source something as inherently mobile as a cow," the court said.

"The practical effect of this is, we thought we had a new tool to address nonpoint pollution on federal land," said Bill Marlett, executive director of the Oregon Natural Desert Association, one of the plaintiffs. "Almost all pollution from federal lands is nonpoint. That tool may still be available one day.

"It's not the end of the world; but if we lose… here, it means we are back to square one trying to find some handle on addressing nonpoint pollution on federal lands," Marlett says. But he's hopeful Section 401 will be used in the future to help reduce pollution from ranching, logging and mining throughout the West. And he has an important ally in the fight: the EPA has filed briefs that agree with this view.