## Facts

- The U.S. Forest Service issued a grazing permit authorizing cattle grazing on an allotment in the Malheur National Forest in eastern Oregon.
- Environmental organizations and a tribal intervenor alleged that grazing degraded water quality in forest streams through effects such as sedimentation and bank damage.
- Plaintiffs contended the permit was an “activity … which may result in any discharge into the navigable waters” under Clean Water Act (CWA) § 401(a)(1), requiring prior state water-quality certification.
- The Forest Service did not obtain Oregon certification and maintained that § 401 does not apply to grazing permits because grazing does not involve a statutory “discharge” that triggers certification.
- The district court held § 401 applied, entered judgment for plaintiffs, and enjoined the Forest Service from issuing grazing permits without state certification.
- The Forest Service and local intervenors appealed.

## Issues

1. Whether CWA § 401(a)(1) requires state water-quality certification only for activities that may result in point-source discharges, or also for activities associated solely with nonpoint source pollution such as grazing-related runoff.
2. Whether plaintiffs could proceed under the CWA citizen-suit provision and satisfied standing requirements, given the nature of the claimed statutory violation.

## Decision

- The Ninth Circuit reversed the district court’s judgment.
- The court held that “discharge” in § 401(a)(1) refers to discharges from point sources, not nonpoint source runoff.
- Because grazing typically causes diffuse, nonpoint source pollution rather than pollution from a “discernible, confined and discrete conveyance,” the Forest Service was not required to obtain state § 401 certification before issuing the grazing permit.
- The injunction requiring certification for grazing permits was vacated.

## Legal Principles

- The CWA establishes distinct regulatory systems for point source pollution (principally through NPDES permitting and effluent limitations) and nonpoint source pollution (principally through state management programs).
- For § 401(a)(1), an “activity … which may result in any discharge into the navigable waters” triggers certification only when the activity may result in a point-source discharge.
- Courts interpret “discharge” in § 401 in harmony with the CWA’s definitional structure and its consistent linkage of “discharge of a pollutant” to point sources.
- Extending § 401 certification to nonpoint source pollution would collapse the statutory point/nonpoint distinction and expand certification beyond the CWA’s design.
- Where § 401 does not apply on the merits, injunctive relief premised on enforcing § 401 through a citizen-suit theory is unavailable.

## Conclusion

The Ninth Circuit held that Clean Water Act § 401 state water-quality certification is required only for federally permitted activities that may result in point-source discharges, and it does not apply to Forest Service grazing permits alleged to cause only nonpoint source runoff; the court therefore reversed and vacated the certification-based injunction.


Or. Nat. Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998)