30 F.4th 929
9th Cir.2022Background:
- Plaintiffs Central Sierra Environmental Resource Center (CSERC) and Sierra Forest Legacy (SFL) challenged the Forest Service’s authorization of livestock grazing in three Stanislaus National Forest allotments (Bell Meadow, Eagle Meadow, Herring Creek), alleging fecal coliform pollution in local streams.
- Plaintiffs sued under the APA, alleging the Government violated 33 U.S.C. § 1323 (§ 313 of the Clean Water Act) by failing to comply with California’s Porter‑Cologne reporting and permitting requirements (Cal. Wat. Code §§ 13260, 13263, 13264) and by authorizing grazing that caused Basin Plan water‑quality objective exceedances.
- In 1981 the California State Water Resources Control Board and the U.S. Forest Service entered a Management Agency Agreement (MAA) designating the Forest Service as the management agency for National Forest System lands and providing that reasonable implementation of Forest Service BMPs would constitute compliance with, and that regional boards would waive, certain Porter‑Cologne reporting/permit requirements.
- The State Board later adopted the 2004 Nonpoint Source (NPS) Policy but expressly treated MAAs as potential substitutes for direct regulation; the Central Valley Regional Board continued to "abide" by the 1981 MAA and had not formally abrogated it.
- The district court granted summary judgment for the Government and intervenors; the Ninth Circuit affirmed, holding (1) the MAA (and related administrative practice) precluded a Porter‑Cologne reporting/WDR violation showing on summary judgment, and (2) Basin Plan water‑quality objectives are not directly enforceable against the Government absent WDRs, waivers, or prohibitions imposed by the regional board.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Forest Service violated Porter‑Cologne by initiating or modifying discharges without filing reports or obtaining WDRs/waivers | The Forest Service allowed grazing (a nonpoint source) and failed to file required discharge reports or obtain WDRs/waivers under Cal. Wat. Code §§ 13260, 13264 | The 1981 MAA contemplates that reasonable implementation of Forest Service BMPs satisfies those reporting/permit obligations and that regional boards would waive them; the State/Regional Boards have not abrogated the MAA | Summary judgment for defendants affirmed: plaintiffs failed to show violation because the MAA (and Basin Plan language) operates as the substitute compliance/waiver framework and has not been superseded by affirmative regional‑board action |
| Whether regional Basin Plan water‑quality objectives are directly enforceable against the Government to prohibit the grazing activity | Plaintiffs argued grazing causes fecal coliform exceedances of Basin Plan objectives, so § 313 makes the Government liable for violating those objectives | Defendants argued Basin Plan objectives set regulatory standards for the regional board to implement via prohibitions, WDRs, or waivers; objectives alone do not create direct liability for individual dischargers | Summary judgment for defendants affirmed: basin plan objectives are implementation standards for regulators, not self‑executing obligations enforceable against individual dischargers absent WDRs, waivers, or basin prohibitions |
Key Cases Cited
- PUD No. 1 of Jefferson Cnty. v. Washington Dep’t of Ecology, 511 U.S. 700 (1994) (Clean Water Act allocates point‑source permitting to EPA and states play lead role over nonpoint sources)
- Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998) (runoff from animal grazing is nonpoint source pollution; CWA lacks direct control mechanism for nonpoint sources)
- Northwest Indian Cemetery Protective Ass’n v. Peterson, 795 F.2d 688 (9th Cir. 1986) (MAA BMPs do not displace basin plan standards; BMPs are means to achieve objectives)
- Marble Mountain Audubon Soc’y v. Rice, 914 F.2d 179 (9th Cir. 1990) (challenge under APA to agency interpretation/application of state water‑quality objectives is proper)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (affirming federal courts’ obligation to ensure Article III standing)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) (standing and redressability in environmental suits)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III injury‑in‑fact, causation, redressability requirements)