Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTRAL SIERRA ENVIRONMENTAL No. 19-16711
RESOURCE CENTER; SIERRA FOREST
LEGACY, D.C. No.
Plaintiffs-Appellants, 1:17-cv-00441-
LJO-SAB
v.
STANISLAUS NATIONAL FOREST; OPINION
UNITED STATES FOREST SERVICE;
JASON KUIKEN, Forest Supervisor of
Stanislaus National Forest,
Defendants-Appellees,
ROBERT BRENNAN; SHERRINE
BRENNAN; JESSE RIEDEL; JENNY
RIEDEL; CLIFTON HODGE;
CALIFORNIA FARM BUREAU
FEDERATION; CALIFORNIA
CATTLEMEN’S ASSOCIATION;
STANISLAUS NATIONAL FOREST
GRAZING PERMITEES ASSOCIATION,
Intervenor-Defendants-
Appellees.
2 CSERC V. STANISLAUS NAT’L FOREST
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted October 14, 2020
San Francisco, California
Filed April 8, 2022
Before: Ferdinand F. Fernandez, Kim McLane Wardlaw,
and Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
SUMMARY *
Environmental Law
The panel affirmed the district court’s summary
judgment order, in which the district court rejected plaintiff
environmental groups’ challenges to the government’s
allowance of livestock grazing in three areas of the
Stanislaus National Forest in California.
In 1981, the California State Water Resources Control
Board signed a Management Agency Agreement (“MAA”)
with the U.S. Forest Service to formally recognize it as the
management agency on Forest Service lands to implement
water management plans.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CSERC V. STANISLAUS NAT’L FOREST 3
The U.S. Forest Service issued grazing permits in three
allotments at issue here – the Bell Meadow, Eagle Meadow,
and Herring Creek Allotments (the “BEH Allotments”).
Plaintiffs alleged that the Forest Service’s allowance of
livestock grazing in the BEH Allotments led to fecal matter
runoff that polluted streams in the area, and this impaired
their members’ ability to recreate in the relevant areas of the
Stanislaus National Forest. The BEH Allotments fall under
the jurisdiction of the Central Valley Regional Water Quality
Control Board, whose Basin Plan defines the beneficial uses
for the subject waterways and the water quality objectives
that would protect those beneficial uses. The only claim at
issue in this appeal alleged that the government violated
§ 313 of the Clean Water Act by failing to comply with
several requirements of California’s Porter-Cologne Water
Quality Control Act.
The panel held that the plaintiffs had Article III standing
under the associational standing doctrine. At least one
member of each plaintiff organization averred that they
regularly hike in all three Allotments and that the physical
impacts of the cattle grazing impair their present and
anticipated enjoyment of the area, including its creeks and
streams. This showing was sufficient to establish an Article
III injury-in-fact.
In alleging a violation of § 313 of the Clean Water Act,
plaintiffs first contended that the government violated
California’s Porter-Cologne Act by failing to file a discharge
report and by discharging waste without first obtaining either
water discharge requirements (“WDR”s) or a waiver. The
panel held that the MAA clearly established that, in lieu of
filing reports and obtaining WDRs, the Forest Service would
instead implement the agreed-upon Best Management
Practices (“BMP”s) and the provisions of the MAA.
4 CSERC V. STANISLAUS NAT’L FOREST
Second, plaintiffs asserted that the MAA was superseded by
the State Board’s adoption of the 2004 “Policy for
Implementation and Enforcement of the Nonpoint Source
Pollution Control Program” (“2004 NPS Policy”). The
panel held that this argument was refuted by the text of that
document. That the Forest Service is working with the
regional board on options for replacing the MAA did not
establish that the MAA has already been replaced.
Accordingly, the panel concluded that plaintiffs failed to
show that government violated the reporting and permitting
requirements of Cal. Water Code §§ 13260, 13263, and
13264. The panel affirmed the district court’s summary
judgment on these issues.
Plaintiffs also alleged that the government violated § 313
of the Clean Water Act by authorizing livestock grazing that
caused runoff that led to fecal coliform levels in local
waterways in excess of the relevant water quality objectives
in the Central Valley Regional Board’s Basin Plan. The
panel held that the argument failed because the Basin Plan
objectives did not apply directly, of their own force, to
individual dischargers but instead reflected standards that
regulators must take into account in fashioning the
requirements that do apply to dischargers (such as WDRs,
waivers, and basin-plan prohibitions). The panel affirmed
the district court’s summary judgment to defendants with
respect to plaintiffs’ claims based on asserted violations of
the basis plan’s water quality objectives.
CSERC V. STANISLAUS NAT’L FOREST 5
COUNSEL
Peter MK Frost (argued), Western Environment Law Center,
Eugene, Oregon, for Plaintiffs-Appellants.
Brian C. Toth (argued) and Robert J. Lundman, Attorneys;
Eric Grant, Deputy Assistant Attorney General;
Environmental Enforcement Section, United States
Department of Justice, Washington, D.C.; Stephen A.
Vaden, General Counsel; James L. Rosen, Attorney; United
States Department of Agriculture, Washington, D.C.; for
Defendants-Appellees.
Scott A. Keller (argued), Lehotsky Keller LLP, Washington,
D.C.; Kari E. Fisher, California Farm Bureau Federation,
Sacramento, California; Caroline Lobdell, Western
Resources Legal Center, Portland, Oregon; for Intervenor-
Defendants-Appellees.
OPINION
COLLINS, Circuit Judge:
Plaintiffs Central Sierra Environmental Resource Center
(“CSERC”) and Sierra Forest Legacy (“SFL”) appeal the
district court’s summary judgment order rejecting their
challenges to the Government’s allowance of livestock
grazing in three areas of the Stanislaus National Forest.
Plaintiffs contend that, in allowing such grazing, the
Government has violated multiple provisions of state water
quality laws made applicable to the Government under the
Clean Water Act. We affirm.
6 CSERC V. STANISLAUS NAT’L FOREST
I
Before turning to the specific factual background of this
case, we begin with an overview of the relevant water quality
laws that frame the parties’ dispute.
A
As rewritten in 1972, the Federal Water Pollution
Control Act, popularly known as the “Clean Water Act” (the
“Act”), 33 U.S.C. § 1251 et seq., aimed to “restore and
maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. § 1251(a); see also PUD
No. 1 of Jefferson Cnty. v. Washington Dep’t. of Ecology,
511 U.S. 700, 704 (1994). “To achieve these ambitious
goals, the Clean Water Act establishes distinct roles for the
Federal and State Governments.” PUD No. 1, 511 U.S. at
704. In particular, “the Administrator of the Environmental
Protection Agency (EPA) is required . . . to establish and
enforce technology-based limitations on individual
discharges into the country’s navigable waters from point
sources.” Id. (emphasis added) (citing 33 U.S.C. §§ 1311,
1314). Section 502 of the Act defines a “point source” to
mean “any discernible, confined and discrete conveyance
. . . from which pollutants are or may be discharged,” such
as a “pipe” or a “ditch.” 33 U.S.C. § 1362(14). As we have
previously held, however, “runoff from . . . animal
grazing”—which is the form of pollution at issue here—does
not fit this definition and is therefore considered to be a
“nonpoint source[].” Oregon Nat. Desert Ass’n v. Dombeck,
172 F.3d 1092, 1095 (9th Cir. 1998) (emphasis added). 1 The
1
We therefore have no occasion in this case to address or apply any
provisions of federal or state law specifically addressing regulation of
pollution from point sources.
CSERC V. STANISLAUS NAT’L FOREST 7
Clean Water Act “provides no direct mechanism to control
nonpoint source pollution” and instead “uses the ‘threat and
promise’ of federal grants” to incentivize the States to do so.
Id. at 1097.
Specifically, to “encourag[e] and facilitat[e] the
development and implementation of areawide waste
treatment management plans,” § 208 of the Act requires the
States to designate, for specified geographic areas, “an
organization capable of developing effective areawide waste
treatment management plans for such area.” 33 U.S.C.
§ 1288(a), (a)(2). Such plans are more commonly known as
“[w]ater quality management (WQM) plan[s],” see
40 C.F.R. § 130.2(k), and they must contain a variety of
elements, including “procedures and methods” to control
“agriculturally and silviculturally related nonpoint sources
of pollution, including . . . runoff from manure disposal
areas, and from land used for livestock and crop production.”
33 U.S.C. § 1288(b)(2)(F). Section 208(c) also requires
States to designate “one or more” agencies for each
geographic area to carry out the relevant WQM plans. Id.§ 1288(c)(1). In addition to WQM plans under § 208, the
Clean Water Act requires States, under § 319, “to adopt
nonpoint source management programs,” and it “similarly
provides for grants to encourage a reduction in nonpoint
source pollution.” Dombeck, 172 F.3d at 1097 (citing
33 U.S.C. § 1329).
Notably, § 313(a) of the Act requires any federal
“department, agency, or instrumentality” that has
“jurisdiction over any property or facility” or that “engage[s]
in any activity resulting, or which may result, in the
discharge or runoff of pollutants” to “comply with[] all
Federal, State, interstate, and local requirements . . .
respecting the control and abatement of water pollution in
8 CSERC V. STANISLAUS NAT’L FOREST
the same manner, and to the same extent as[,] any
nongovernmental entity.” 33 U.S.C. § 1323(a).
Accordingly, federal agencies managing federal lands
generally must comply with the water pollution laws and
regulations of the relevant State, including the State’s laws
concerning discharges from nonpoint sources.
The Porter-Cologne Water Quality Control Act (“Porter-
Cologne Act”), see CAL. WATER CODE § 13000 et seq., is
“the principal law governing water quality regulation in
California.” Monterey Coastkeeper v. Central Coast Reg’l
Water Quality Control Bd., ___ Cal. Rptr. 3d ___, 2022 WL
669903, at *1 (Ct. App. Feb. 10, 2022). It established the
State Water Resources Control Board (“State Board”) along
with nine regional water quality control boards (“regional
boards”). See CAL. WATER CODE §§ 13100, 13200, 13201;
see also id. § 175. These ten agencies have “primary
responsibility for the coordination and control of water
quality” in California. Id. § 13001.
The State Board formulates and adopts statewide water
quality control policies that are binding on the regional
boards. See CAL. WATER CODE §§ 13140, 13141, 13146,
13240. The State Board also “may adopt water quality
control plans” for “waters for which water quality standards
are required by” the Clean Water Act. Id. § 13170. Any
such water quality control plans adopted by the State Board
“supersede any regional water quality control plans for the
same waters to the extent of any conflict.” Id.
Subject to the approval of the State Board, each regional
board must “formulate and adopt water quality control
plans” for its respective region, id. § 13240; see also id.
§ 13245, which are commonly known as “basin plans,”
Monterey Coastkeeper, 2022 WL 669903, at *1. These
basin plans must specify, “for the waters within a specified
CSERC V. STANISLAUS NAT’L FOREST 9
area,” each of the following: (1) the “[b]eneficial uses to be
protected”; (2) the applicable “[w]ater quality objectives,”
i.e., “the limits or levels of water quality constituents or
characteristics which are established for the reasonable
protection of beneficial uses of water or the prevention of
nuisance within a specific area”; and (3) a “program of
implementation needed for achieving” those objectives.
CAL. WATER CODE § 13050(h), (j)(1)–(3). In establishing
“water quality objectives,” the regional board must consider
several nonexhaustive statutory factors, including the
relevant “[e]nvironmental characteristics,” the “[w]ater
quality conditions that could reasonably be achieved through
the coordinated control of all factors which affect water
quality in the area,” and general “[e]conomic
considerations.” Id. § 13241. In formulating a program of
implementation, the regional board must provide a
“description of the nature of [the] actions which are
necessary to achieve the objectives,” a “time schedule” for
such actions, and a “description” of the “surveillance to be
undertaken to determine compliance with objectives.” Id.
§ 13242. In addition to these programmatic elements, a
basin plan may contain specific prohibitions, i.e., it “may
specify certain conditions or areas where the discharge of
waste, or certain types of waste, will not be permitted.” Id.
§ 13243.
In addition to developing overall basin plans, the
regional boards are responsible for regulating the specific
actions of relevant dischargers through “permitting,
inspection, and enforcement actions.” Monterey
Coastkeeper, 2022 WL 669903, at *1. Among the primary
mechanisms regional boards use to regulate discharges are
(1) the receipt of statutorily required reports concerning
discharges and (2) the issuance of discharge permits. See
10 CSERC V. STANISLAUS NAT’L FOREST
Department of Finance v. Commission on State Mandates,
378 P.3d 356, 361–62 (Cal. 2016).
Specifically, unless the reporting requirement has been
waived under § 13269, the Porter-Cologne Act requires each
“person discharging waste, or proposing to discharge waste,
within any region that could affect the quality of the waters
of the state” to file with the appropriate regional board a
“report of the discharge, containing the information that may
be required by the regional board.” See CAL. WATER CODE
§ 13260(a)(1). After receiving the report, “[t]he regional
board then ‘shall prescribe requirements as to the nature’ of
the discharge.” Department of Finance, 378 P.3d at 361
(quoting CAL. WATER CODE § 13263(a)). Such “waste
discharge requirements” (“WDRs”) are “the equivalent of
the term ‘permits’ as used” in the Clean Water Act, see CAL.
WATER CODE § 13374, and they authorize the relevant
person to make the specified discharges in accordance with
those requirements. See id. §§ 13263(f), 13264, 13265. In
formulating such WDRs for specific discharges, the regional
board “shall implement” any relevant basin plan, and “shall
take into consideration,” inter alia, “the beneficial uses to be
protected, the water quality objectives reasonably required
for that purpose, other waste discharges, [and] the need to
prevent nuisance.” Id. § 13263(a). 2
Alternatively, the regional board may issue a waiver of
the need for WDRs for a “specific discharge or type of
discharge.” Id. § 13269(a)(1). The waiver must set forth
2
The State Board also has the authority to issue WDRs under
§ 13263. See CAL. WATER CODE § 13263(j). Moreover, under specified
circumstances, either the State Board or a regional board may “prescribe
general waste discharge requirements for a category of discharges.” Id.
§ 13263(i) (emphasis added).
CSERC V. STANISLAUS NAT’L FOREST 11
certain conditions, and it must generally provide for
appropriate monitoring and reporting of the covered
discharges. Id. § 13269(a)(2). As a general matter, in the
absence of WDRs under § 13263 or a waiver under § 13269,
no person “shall initiate any new discharge of waste or make
any material changes in any discharge.” Id. § 13264(a).
Because an applicable waiver under § 13269 authorizes the
relevant discharges, see id. § 13264(a)(3), it is in that sense
also functionally equivalent to a permit.
B
In 1981, the State Board signed a Management Agency
Agreement (“MAA”) with the United States Forest Service
(“Forest Service”). The MAA formally recognized the
State’s designation of the Forest Service, pursuant to
§ 208(c) of the Clean Water Act, “as the management
agency for all activities on NFS [i.e., National Forest
System] lands,” with responsibility “to implement
provisions of water quality management plans.” See
33 U.S.C. § 1288(c). The MAA references the Forest
Service’s report entitled “Water Quality Management for
National Forest System Lands in California” (also referred
to as the “Forest Service 208 Report”), which “describes
current Forest Service practices and procedures for
protection of water quality.” The MAA states that the “State
Board [a]grees” that “[t]he practices and procedures set forth
in the Forest Service 208 Report constitute sound water
quality protection and improvement on NFS lands,” except
with respect to certain issues that were enumerated in an
attachment. As to the items in that attachment, additional
“refinement” was needed before they could also be accepted,
like the remaining practices and procedures, as “Best
Management Practices (BMPs).”
12 CSERC V. STANISLAUS NAT’L FOREST
The MAA further states that “[i]t is contemplated by this
agreement” that the Forest Service’s “reasonable
implementation” of the BMPs and the MAA “will constitute
compliance with Section 13260, subdivision (a) of Section
13263, and subdivision (b) of Section 13264, Water Code,”
and that the regional boards will waive the reporting and
discharge requirements of those sections. The MAA also
states that “nothing herein will be construed in any way as
limiting the authority of the State Board, or the Regional
Boards in carrying out their legal responsibilities for
management, or regulation of water quality.”
In 1999, the California Legislature amended the Porter-
Cologne Act to require the State Board to “prepare a detailed
program” for “implementing the state’s nonpoint source
management plan.” See CAL. WATER CODE § 13369(a).
This implementation program must include measures to
promote the use of “best management practices.” Id.
§ 13369(b)(1). In carrying out this directive, the State Board
in 2004 adopted the “Policy for Implementation and
Enforcement of the Nonpoint Source Pollution Control
Program” (“2004 NPS Policy”). This policy states that “all
current and proposed NPS [i.e., nonpoint source] discharges
must be regulated under WDRs, waivers of WDRs, or a
basin plan prohibition, or some combination of these
administrative tools.” However, the Policy also
acknowledges that “[t]here are agencies . . . with the
authority to implement programs to meet water quality
objectives and protect beneficial uses” and that “[s]everal of
these agencies are formally linked” to the State Board and
regional boards through “management agency agreements.”
The Policy further notes that, while “[a]nother agency’s
actions pursuant to an . . . MAA” do not automatically fulfill
a regional board’s obligations “to address the relevant NPS
discharges,” they “can serve . . . as the basis, in part or in
CSERC V. STANISLAUS NAT’L FOREST 13
whole, for a [regional board] waiver of WDRs for the
activities covered in these agreements.”
In 2009, the State Board adopted a resolution directing
staff “to develop and propose a statewide approach to
address activities on national forest system lands.” In
response, the Board’s staff prepared a draft of a formal
waiver of WDRs for nonpoint source activities on federal
lands, but the Board ultimately rejected the proposal in late
2011. The State Board also considered adopting a
“statewide approach to addressing the water quality impacts
from livestock grazing” on both public and private lands, but
in 2015 it ultimately rejected that concept as well. Instead,
the State Board left it to each regional board to “determine
which actions” concerning livestock operations, “including
regulatory actions and effective non-regulatory efforts for
BMP implementation, are best suited to protect water
quality.” As the parties have noted in their post-argument
submissions, the relevant regional board is continuing to
work with the Forest Service to develop nonpoint source
permits covering Forest Service lands.
C
The Stanislaus National Forest is located in California’s
Sierra Nevada Mountains, northwest of Yosemite National
Park. The Forest Service has issued permits allowing
livestock grazing in the three allotments within the Park that
are at issue here—the Bell Meadow, Eagle Meadow, and
Herring Creek Allotments (collectively, the “BEH
Allotments”). According to a Forest Service report, the
“BEH meadows have had a history of grazing and
overgrazing going back to the 1890s.” In the 1920s, the
number of livestock allowed to graze in the BEH meadows
was “6 to 10 times more than present levels,” but stocking
levels were reduced in the 1970s.
14 CSERC V. STANISLAUS NAT’L FOREST
The current grazing permits for the Bell Meadow, Eagle
Meadow, and Herring Creek Allotments were issued,
respectively, in November 2016, March 2012, and June
2016; each was modified in 2017. In addition to setting
certain conditions in the permits themselves, the Forest
Service also issues annual operating instructions that contain
specific instructions that are “responsive to conditions that
the Forest Service could not or may not have anticipated.”
Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977,
980–81 (9th Cir. 2006). At the time the district court ruled,
the most recent annual operating instructions for the BEH
Allotments had been issued in May and June 2018.
According to Plaintiff CSERC, the Forest Service’s
allowance of livestock grazing in the BEH Allotments has
led to fecal matter runoff that has polluted streams in the
area. In particular, CSERC contends that local streams
contain levels of fecal coliform bacteria in excess of the
relevant water quality objective set by the regional board.
The BEH Allotments fall under the jurisdiction of the
Central Valley Regional Water Quality Control Board
(“Central Valley Regional Board”), whose basin plan
(“Basin Plan”) defines the beneficial uses for the subject
waterways and the water quality objectives that would
protect those beneficial uses. See supra at 8–9. CSERC
contends that the designated beneficial uses for several of the
relevant waterways include “Water Contact Recreation.”
That term refers to “recreational activities,” such as
“swimming, wading,” and “fishing,” that “involv[e] body
contact with water, where ingestion of water is reasonably
possible.” In setting the “water quality objective” that would
protect this beneficial use, the Basin Plan states that (1) the
“fecal coliform concentration” in the water may not “exceed
a geometric mean of 200/100 ml” based on at least “five
samples for any 30-day period”; and (2) no more than “ten
CSERC V. STANISLAUS NAT’L FOREST 15
percent of the total number of samples taken during any 30-
day period [may] exceed 400/100 ml.” Between 2009 and
2017, CSERC conducted tests on various streams in the BEH
Allotments, as well as elsewhere. As the district court noted,
Plaintiffs contend that CSERC’s data “demonstrate
136 violations” of the water quality objective “for fecal
coliform on the Bell Creek allotment, 12 on the Eagle
Meadow allotment, and 23 on the Herring Creek allotment.”
Indeed, CSERC’s testing data led to two of the local streams
being included in the list of “impaired waterways” that the
State is required to submit to the EPA under § 303(d) of the
Clean Water Act. See 33 U.S.C. § 1313(d). In listing those
streams, the Central Valley Regional Board concluded that
“grazing animals are a likely potential source of indicator
bacteria to these streams.”
Alleging that pollution from livestock grazing was
impairing their members’ ability to recreate in the relevant
areas of the Stanislaus National Forest, Plaintiffs CSERC
and SFL filed this suit in March 2017 against the Stanislaus
National Forest, the Forest Service, and the then-Forest
Supervisor in her official capacity (together, the
“Government”). Because Plaintiffs’ suit sought injunctive
relief modifying the grazing arrangements in the BEH
Allotments, the district court allowed the holders of the
relevant grazing permits, together with several interested
organizations (viz., the California Farm Bureau Federation,
California Cattlemen’s Association, and the Stanislaus
National Forest Grazing Permittees Association) to
intervene as Defendants (collectively, the “Intervenors”).
As the case comes to us, the only claim at issue is the
first cause of action in Plaintiffs’ operative Third Amended
Complaint, which is brought under the Administrative
Procedure Act (“APA”) and which alleges that the
16 CSERC V. STANISLAUS NAT’L FOREST
Government has violated § 313 of the Clean Water Act by
failing to comply with several requirements of the Porter-
Cologne Act. See Marble Mountain Audubon Soc’y v. Rice,
914 F.2d 179, 183 (9th Cir. 1990) (holding that the “judicial
review provision[s] of the [APA] permit[] private citizens to
sue for alleged state water quality control violations from
nonpoint sources”) (citing Oregon Nat. Res. Council v. U.S.
Forest Serv., 834 F.2d 842, 848–52 (9th Cir. 1987)).
Specifically, Plaintiffs allege that the Government has
violated the Porter-Cologne Act in two respects. First,
Plaintiffs allege that the Government made new or modified
discharges of waste without filing a discharge report as
required by § 13260 and without first obtaining WDRs or a
waiver in accordance with § 13264(a). Second, Plaintiffs
allege that the Government violated the Porter-Cologne Act
by “authoriz[ing] livestock grazing on the BEH allotments
that has caused violations of state water quality standards for
fecal coliform bacteria,” as set forth in the Basin Plan.
After the parties filed cross-motions for summary
judgment, the district court granted summary judgment to
the Government and the Intervenors. After entry of final
judgment, Plaintiffs timely appealed.
II
We have statutory jurisdiction pursuant to 28 U.S.C.
§ 1291, and we review the district court’s grant of summary
judgment de novo. See Dominguez-Curry v. Nevada Transp.
Dep’t, 424 F.3d 1027, 1033 (9th Cir. 2005).
Although Defendants have not challenged Plaintiffs’
Article III standing, we have “an independent obligation to
assure that standing exists, regardless of whether it is
challenged by any of the parties.” Summers v. Earth Island
Inst., 555 U.S. 488, 499 (2009). We conclude that Plaintiffs
CSERC V. STANISLAUS NAT’L FOREST 17
have standing under the associational standing doctrine
recognized in Hunt v. Washington State Apple Advertising
Commission, 432 U.S. 333 (1977).
Under that doctrine, an association may establish
standing as the representative of its members by showing
that “(a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Id. at
343. The second and third requirements are plainly satisfied
here: Plaintiffs’ claims alleging violation of the Porter-
Cologne Act are clearly germane to CSERC’s mission to
“identify threats to the environment in the central region of
the Sierra Nevada” and to SFL’s “work[] to protect and
restore the forests, wildlands, wildlife, and watersheds of the
Sierra Nevada.” Nothing about the adjudication of
Plaintiffs’ claims for declaratory and injunctive relief would
require the participation of individual members. And as to
the first requirement, Plaintiffs presented, at summary
judgment, declarations from members that sufficiently
establish their individual Article III standing.
“[T]o satisfy Article III’s standing requirements, a
plaintiff must show (1) it has suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (citation omitted). At least one member
of each organization averred that she regularly hikes in all
three Allotments and that the physical impacts of the cattle
18 CSERC V. STANISLAUS NAT’L FOREST
grazing impair her present and anticipated enjoyment of the
area, including its creeks and streams. This showing is
sufficient to establish an Article III injury-in-fact. See
Inland Empire Waterkeeper v. Corona Clay Co., 17 F.4th
825, 832 (9th Cir. 2021) (finding Article III standing where
plaintiff organization “presented sworn testimony from
several of its members that they lived near the Creek, used it
for recreation, and that pollution from the discharged storm
water impacted their present and anticipated enjoyment of
the waterway”). Construing the evidence in the light most
favorable to Plaintiffs, they have made a sufficient showing
that these adverse impacts are attributable, at least in part, to
the challenged cattle grazing and that those injuries would
be redressed by a reduction or elimination of such grazing.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992).
Accordingly, Plaintiffs have standing, and we may
proceed to the merits.
III
As noted earlier, § 313 of the Clean Water Act states that
any agency that has “jurisdiction over any property or
facility” or that engages in activities that “result[], or which
may result, in the discharge or runoff of pollutants” must
“comply with,” inter alia, all “State . . . and local
requirements, administrative authority, and process and
sanctions respecting the control and abatement of water
pollution in the same manner, and to the same extent as[,]
any nongovernmental entity.” 33 U.S.C. § 1323(a).
Plaintiffs’ sole remaining cause of action is based
exclusively on the Government’s alleged failure to comply
with this provision, and we therefore have no occasion to
address whether the Government’s challenged conduct here
independently violated any other provision of the Act. In
CSERC V. STANISLAUS NAT’L FOREST 19
alleging a violation of § 313, Plaintiffs first contend that the
Government violated California’s Porter-Cologne Act—
made applicable by § 313—by failing to file a discharge
report and by discharging waste without first obtaining either
WDRs or a waiver. 3 See CAL. WATER CODE §§ 13260,
13264(a). We conclude that the district court properly
granted summary judgment to Defendants on this issue.
A
In reviewing the basic framework of the Porter-Cologne
Act, we explained earlier that, absent a waiver of the
reporting requirement under § 13269 of the California Water
Code, § 13260(a) generally requires any person
“discharging waste, or proposing to discharge waste,” to file
a “report of the discharge” with the relevant regional board.
CAL. WATER CODE § 13260(a)(1). Unless and until the
regional board issues either WDRs under § 13263 or a
waiver under § 13269, the person shall not “initiate any new
discharge of waste or make any material changes in any
discharge.” Id. § 13264(a).
However, the 1981 MAA jointly agreed to by the State
Board and the Forest Service specifically addresses those
obligations in the following terms:
It is contemplated by this agreement that
Forest Service reasonable implementation of
those practices and procedures and of this
3
The parties vigorously dispute whether the Forest Service counts
as a discharger who is subject to the relevant provisions of the Porter-
Cologne Act. Because we dispose of this case on other grounds, we need
not decide this issue. We therefore assume arguendo, for purposes of
this appeal, that the Forest Service is a discharger subject to the Porter-
Cologne Act.
20 CSERC V. STANISLAUS NAT’L FOREST
agreement will constitute compliance with
Section 13260, subdivision (a) of Section
13263, and subdivision (b) of Section 13264,
Water Code. It is further contemplated that
these provisions requiring a report of
proposed discharge and issuance of waste
discharge requirements for nonpoint source
discharges will be waived by the Regional
Board pursuant to Section 13269, Water
Code, provided that the Forest Service
reasonably implements those practices and
procedures and the provisions of this
agreement.
The referenced “practices and procedures” are the BMPs set
forth in the Forest Service 208 Report (or, in the case of a
few specific issues, those to be agreed upon by the State
Board and the Forest Service), and these BMPs were
expressly declared to “constitute sound water quality
protection and improvement on NFS lands.” See supra
at 11. By its plain terms, therefore, the MAA provides that
implementation of those BMPs “will constitute compliance”
with (1) the reporting requirement of “Section 13260”;
(2) the obligation to comply with WDRs in § 13263; and
(3) the obligation in § 13264 to refrain from discharges
absent WDRs or a waiver. 4 The MAA also expressly states
that it is “further contemplated” that the obligations to file a
report or to obtain WDRs “will be waived by the Regional
Board pursuant to Section 13269.” See CAL. WATER CODE
§ 13269(a)(1) (authorizing waiver of the obligations in
“subdivisions (a) and (c) of Section 13260” and “subdivision
4
The MAA references “subdivision (b) of Section 13264,” which is
the provision providing for enforcement of the obligations set forth in
§ 13264(a).
CSERC V. STANISLAUS NAT’L FOREST 21
(a) of Section 13264”). The MAA thus clearly establishes
that, in lieu of filing reports and obtaining WDRs, the Forest
Service will instead implement the agreed-upon BMPs and
the provisions of the MAA.
B
The MAA also expressly states, however, nothing in it
“will be construed in any way as limiting the authority of the
State Board, or the Regional Boards in carrying out their
legal responsibilities for management, or regulation of water
quality.” Moreover, we held in Northwest Indian Cemetery
Protective Ass’n v. Peterson, 795 F.2d 688 (9th Cir. 1986),
rev’d on other grounds, 485 U.S. 439 (1988), that the 1981
MAA did not displace the relevant basin plans of the
regional boards. Id. at 697. As we explained, the BMPs set
forth in the MAA “are merely a means to achieve” the water
quality objectives of those plans. Id. Thus, if the State Board
or a regional board concluded that the MAA was no longer
an adequate substitute for compliance with the ordinary
reporting and permitting processes envisioned in §§ 13260,
13263, and 13264, those entities could take appropriate steps
to abrogate the MAA and to require compliance with those
ordinary processes in accordance with their terms. Plaintiffs
contend that the MAA has been superseded here, but we
disagree.
Plaintiffs assert that the MAA was superseded by the
State Board’s adoption of the 2004 NPS Policy, but this
argument is refuted by the text of that document. The Policy
expressly references, as still operative, the “memoranda of
understanding (MOUs) or management agency agreements
(MAAs)” that the State Board and regional boards have with
other agencies. Moreover, the Policy reaffirms that, in the
case of an MAA in which the State Board has “designate[d]
another agency as a management agency to take the lead in
22 CSERC V. STANISLAUS NAT’L FOREST
implementing NPS pollution control,” the “fundamental
purpose” of such an MAA is to achieve “at least the same
degree of control over NPS pollution as could be attained
through direct regulation under [State Board or regional
board] authority, but to do so more efficiently.” Because the
1981 MAA expressly recognizes the Forest Service’s
designation as “the management agency for all activities on
NFS lands,” this language from the 2004 NPS Policy
confirms that the actions of the Forest Service under the
MAA remain a substitute means for achieving the same
water quality control “as could be obtained through direct
regulation” using the regional boards’ conventional tools
(such as reports, WDRs, and waivers).
To be sure, the Policy further states that neither the State
Board nor the regional boards have given up their ultimate
authority: neither may “delegate their NPS authorities and
responsibilities to another agency,” and they “may not
indefinitely defer taking necessary action if another agency
is not properly addressing a NPS problem.” But this
language confirms that the State Board, or the relevant
regional board, must take affirmative action to exercise that
authority, and thereby to abrogate, amend, or supersede the
terms of an MAA. The 2004 NPS Policy, by itself, does not
take that step.
The State Board in recent years has expressed
dissatisfaction with the MAA and has considered a variety
of alternatives, including a formal detailed waiver of WDRs
for nonpoint sources on federal lands and a statewide
approach specific to public and private livestock grazing.
See supra at 13. The State Board ultimately rejected these
options and instead left the matter in the hands of the
regional boards. The Central Valley Regional Board has
been working with the Forest Service on that issue, but it has
CSERC V. STANISLAUS NAT’L FOREST 23
thus far not taken affirmative steps to vitiate the MAA. On
the contrary, the current Basin Plan expressly reaffirms that
the regional board “abides” by the existing MAAs, including
specifically the 1981 MAA with the Forest Service. Indeed,
the Basin Plan reiterates that that the MAA “waives
discharge requirements” for certain Forest Service NPS
discharges, provided that the Forest Service implements the
BMPs and the MAA.
Despite this overwhelming confirmation that the MAA
remains operative and continues to waive compliance with
the reporting and permitting requirements of §§ 13260,
13263, and 13264, Plaintiffs assert that the Forest Service
admitted in a draft Environmental Impact Statement
concerning the BEH Allotments that it is required to obtain
WDRs or a waiver from the regional board. But the
statement they cite merely adverts to the Forest Service’s
ongoing discussions to develop relevant permits that would,
to that extent, supersede the MAA. See also supra at 13.
That the Forest Service is working with the regional board
on options for displacing the MAA does not establish that
the MAA has already been displaced. 5
Accordingly, we conclude that Plaintiffs failed to show
that the Government violated the reporting and permitting
requirements of §§ 13260, 13263, and 13264. We therefore
5
Plaintiffs also note that the Forest Service stated, in litigation
concerning logging in another part of the State, that it had applied for an
express waiver from the relevant regional board. It is not clear that the
mere application for a waiver to cover a specific subject reflects any
concession that the waiver was required to be sought in that case or that
waivers are required generally. In any event, the cited suit was dismissed
voluntarily and can give rise to no estoppel against the Government here.
United States v. Mendoza, 464 U.S. 154, 160 (1984); Amadeo v.
Principal Mut. Life Ins. Co., 290 F.3d 1152, 1159 (9th Cir. 2002).
24 CSERC V. STANISLAUS NAT’L FOREST
affirm the district court’s grant of summary judgment on
these issues.
IV
Plaintiffs also allege that the Government violated § 313
of the Clean Water Act by authorizing livestock grazing that
caused runoff that led to fecal coliform levels in local
waterways in excess of the relevant water quality objectives
in the Central Valley Regional Board’s Basin Plan. This
argument fails, because these Basin Plan objectives do not
directly apply, of their own force, to individual dischargers
but instead reflect standards that regulators must take into
account in fashioning the requirements that do apply to
dischargers (such as WDRs, waivers, and basin-plan
prohibitions).
Plaintiffs contend that we have already held that a basin
plan’s objectives can be enforced against specific projects
under § 313, citing our decisions in Northwest Indian
Cemetery, 795 F.2d at 697, and Marble Mountain, 914 F.2d
at 182–83. But the judicial enforceability of such water
quality objectives against specific projects does not appear
to have been contested by the defendants in those cases or
otherwise presented as an issue for our resolution. Instead,
in Northwest Indian Cemetery, the Government argued that
the water quality standards in the basin plan had been
formally or effectively superseded by the BMPs in the 1981
MAA, and we rejected that argument. As we explained, the
BMPs did not displace the water quality standards but were
“merely a means to achieve” them, and “[a]dherence to the
BMPs does not automatically ensure that the applicable state
standards are being met.” 795 F.2d at 697. The Government
did not otherwise contest that a court could enjoin a specific
project that was alleged to result in a violation of a water
quality objective, and we therefore had no occasion to
CSERC V. STANISLAUS NAT’L FOREST 25
address whether that concession was or was not correct.
Likewise, in Marble Mountain, the Government argued that
the plaintiffs had not properly challenged, and could not
successfully challenge, “the Forest Service’s interpretation
and application” of the relevant water quality objectives, but
it did not contest that those objectives were directly
enforceable against the particular project at issue. 914 F.2d
at 182–83. We rejected the Government’s arguments,
holding only that “the plaintiffs properly challenged the
[Government’s] interpretation of state water quality
objectives,” and we remanded the case for the district court
“to address the merits of that claim.” Id. at 183; cf. also
Oregon Nat. Res. Council, 834 F.2d at 852 (rejecting, as
oversimplified, the district court’s analysis of Oregon
regulations concerning water quality standards and
remanding for district court to determine “whether the
activities . . . will violate the applicable regulations”). Here,
however, we are squarely presented with the direct-
enforceability issue that was uncontested and taken for
granted in those cases.
As our detailed summary of the Porter-Cologne Act
makes clear, the water quality objectives established by a
regional board in a basin plan provide the relevant standards
that must guide the overall package of regulatory actions that
the board determines “are necessary to achieve the
objectives.” See CAL. WATER CODE § 13242(a). Thus, in
requiring the board to establish such objectives, the Porter-
Cologne Act also requires it to develop a “program of
implementation needed for achieving water quality
objectives.” Id. § 13050(j)(3) (emphasis added). The tools
for implementation provided by the statute include three
different methods for imposing specific obligations on
dischargers. First, the basin plan itself may set forth
particular prohibitions “specify[ing] certain conditions or
26 CSERC V. STANISLAUS NAT’L FOREST
areas where the discharge of waste, or certain types of waste,
will not be permitted.” Id. § 13243. Second, the board may
impose “waste discharge requirements” under § 13263(a),
which function as “permits” authorizing the specified
discharges under the enumerated conditions. Id. § 13374.
Third, the board may grant “waivers” under § 13269, which
must contain conditions restricting the discharges covered
by the waivers. Id. § 13269(a)(2). In invoking each of these
tools, the regional board must consider the relevant water
quality standards that it is seeking to implement. In
particular, in issuing WDRs, the board must consider the
beneficial uses of the relevant waterways, the “water quality
objectives reasonably required” to protect those uses, and,
importantly, “other waste discharges” that may contribute to
a failure to achieve those objectives. Id. § 13263(a).
Waivers may only be issued if the board determines that they
are consistent with the relevant basin plan, and any such
waiver must contain monitoring requirements to allow the
board to evaluate “the adequacy and effectiveness of the
waiver’s conditions.” Id. § 13269(a)(2).
Once the board translates the water quality objectives
into particular prohibitions, WDRs, and waivers imposing
restrictions on specific discharges or categories of
discharges, the board and the California Attorney General
may take appropriate steps to enforce those obligations on
individual dischargers. For example, the Porter-Cologne
Act allows a regional board to issue cease and desist orders
in the event of an actual or threatened discharge in violation
of WDRs or basin plan prohibitions. See id. § 13301. The
board can also request that the Attorney General file an
action for civil penalties for any discharges “in violation of
a waste discharge requirement, waiver condition,
certification, or other order or prohibition.” Id. § 13350(a);
see also id. § 13350(g). The board can likewise request that
CSERC V. STANISLAUS NAT’L FOREST 27
the Attorney General file suit enjoining, and seeking civil
liability for, unauthorized discharges made in violation of
§ 13264(a). See id. §§ 13264(b), 13265(a), (b)(2). The
board can also impose civil liability for such violations of
§ 13264 administratively. Id. § 13265(b)(1).
The parties have not cited, nor have we found, any
provision of the Porter-Cologne Act that would make a
discharger directly liable for violating a water quality
objective contained in a basin plan that is not contained in
applicable WDRs, waivers, or prohibitions. Cf. County of
Sacramento v. State Water Res. Control Bd., 64 Cal. Rptr.
3d 302, 305–07 (Ct. App. 2007) (upholding inclusion, in
WDRs applicable to a county facility, of the numerical water
quality objective for a particular bacterium in the basin plan).
To the extent that discharges authorized by the board (e.g.,
through WDRs or waivers) have resulted in a failure to attain
water quality objectives, that might lead the board to modify
previously issued WDRs or to terminate a waiver. See CAL.
WATER CODE § 13263(e) (stating that board, on its own
motion, “may review and revise” WDRs); id. § 13263(g)
(stating that there are no “vested right[s]” to continue
discharges); id. § 13269(a)(2) (providing that waivers “may
be terminated at any time”). Moreover, because the regional
board sets water quality objectives by considering the
“[w]ater quality conditions that [can] reasonably be achieved
through the coordinated control of all factors which affect
water quality in the area,” id. § 13241(c) (emphasis added),
the board could decide to respond to a failure to meet those
objectives by restricting some uses deemed less valuable,
while allowing the WDRs for other uses to remain
unchanged. The board’s actions in addressing such a failure
could also conceivably lead to administrative action, or a
petition for a writ of mandate, against the regional board.
See id. § 13320(a) (providing for state board review of
28 CSERC V. STANISLAUS NAT’L FOREST
regional board actions or failure to act); id. § 13330(b)
(authorizing writ of mandate review in state court). But a
discharge that otherwise complies with applicable WDRs,
waivers, or prohibitions does not violate the Porter-Cologne
Act merely because the water quality objectives are not
being met.
For the reasons we have previously explained, the
Government has not been shown to have violated the
reporting or discharge restrictions of §§ 13260, 13263, or
13264. Nor have Plaintiffs contended that the Government
has violated any prohibition contained within the relevant
basin plan. Cf. id. § 13243. Although the regional board
thus has not translated its water quality objectives into
prohibitions, WDRs, or waivers that are directly enforceable
against the Government, Plaintiffs ask us, in effect,
judicially to assume that task and to hold that the
Government’s allowance of livestock grazing should be
prohibited or restricted because it assertedly contributes,
perhaps with other contributing causes, to a failure to
achieve certain of the water quality objectives of the basin
plan. This we cannot do. The Porter-Cologne Act assigns
the task of developing a program of implementation of water
quality objectives to the regional board, which can assess the
problem as a whole and in light of other competing sources.
See id. § 13050(j)(3). It does not assign that task to the
federal courts.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to Defendants with respect to
Plaintiffs’ claims based on asserted violations of the basis
plan’s water quality objectives.
CSERC V. STANISLAUS NAT’L FOREST 29
V
We affirm the district court’s denial of summary
judgment for Plaintiffs and grant of summary judgment for
Defendants.
AFFIRMED.