FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

OREGON NATURAL DESERT                   
ASSOCIATION; WESTERN
WATERSHEDS PROJECT; NORTHWEST
ENVIRONMENTAL DEFENSE CENTER;
OREGON WILD; CENTER FOR
BIOLOGICAL DIVERSITY; FRIENDS OF              No. 08-35205
OREGON’S LIVING WATERS,
             Plaintiffs-Appellants,            D.C. No.
                                            07-CV-000634-KI
                and
                                               OPINION
FOREST   GUARDIANS,
                           Plaintiff,
                 v.
UNITED STATES FOREST SERVICE,
              Defendant-Appellee.
                                        
         Appeal from the United States District Court
                  for the District of Oregon
           Garr M. King, District Judge, Presiding

                   Argued and Submitted
             October 20, 2008—Portland, Oregon

                  Filed December 11, 2008

   Before: David R. Thompson, A. Wallace Tashima, and
            Milan D. Smith, Jr., Circuit Judges.

            Opinion by Judge Milan D. Smith, Jr.




                            16295
              OREGON NATURAL DESERT v. USFS           16297


                        COUNSEL

David H. Becker and Peter M. Lacy, Oregon Natural Desert
Association; Daniel P. Mensher, Pacific Environmental Advo-
cacy Center; Kristin F. Ruether, Advocates for the West, for
the plaintiffs-appellants.

Ronald J. Tenpas, Assistant Attorney General; Russell Young
and Lisa E. Jones, United States Department of Justice Envi-
16298            OREGON NATURAL DESERT v. USFS
ronment & Natural Resources Division, for the defendant-
appellee.


                              OPINION

MILAN D. SMITH, JR., Circuit Judge:

   Plaintiffs-Appellants, Oregon Natural Desert Association,
Western Watersheds Project, Northwest Environmental
Defense Center, Oregon Wild, Center for Biological Diver-
sity, and Friends of Oregon’s Living Waters (collectively
ONDA), sued Defendant-Appellee, the United States Forest
Service (Forest Service), for allegedly failing to comply with
§ 401 of the Clean Water Act (CWA, or Act) in its issuance
of grazing permits on Forest Service lands. 33 U.S.C. § 1341.1
ONDA specifically argued that the outcome and reasoning of
S.D. Warren Co. v. Maine Board of Environmental Pro-
tection, 

(2006), are clearly irreconcilable with
our reasoning in Oregon Natural Desert Ass’n v. Dombeck,

(9th Cir. 1998), and that Dombeck is, there-
fore, no longer controlling law.

   The Forest Service moved for judgment on the pleadings
pursuant to Federal Rules of Civil Procedure 12(c). The mat-
ter was referred to a magistrate judge, who made Findings and
Recommendations suggesting that the district court grant the
motion for judgment on the pleadings on the ground that
ONDA’s claim was barred by the doctrine of collateral estop-
pel. The district court adopted the Findings and Recommen-
dations and granted the motion for judgment on the pleadings.
This appeal followed. We have jurisdiction to review this
decision under 28 U.S.C. § 1291, and we affirm.
  1
    We cite to the original Act throughout this opinion, and provide a par-
allel citation to the U.S. Code only the first time we cite each CWA provi-
sion. See Our Children’s Earth Found. v. EPA, 

, 845 n.1 (9th
Cir. 2008).
               OREGON NATURAL DESERT v. USFS              16299
                       BACKGROUND

A.   Statutory Background

  The CWA was enacted in 1972 “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters.” CWA § 101; 33 U.S.C. § 1251(a). The CWA
requires, among other things, that

     [a]ny applicant for a Federal license or permit to
     conduct any activity including, but not limited to, the
     construction or operation of facilities, which may
     result in any discharge into the navigable waters,
     shall provide the licensing or permitting agency a
     certification from the State in which the discharge
     originates or will originate.

Any such discharge must also comply with
other provisions in the CWA that establish effluent limitations
and national performance standards. 

§§ 301-
303, 306, 307; 33 U.S.C. §§ 1311-1313, 1316, 1317).

   The parties in this case dispute the meaning of the word
“discharge,” as used in § 401. ONDA claims that “discharge”
includes “pollutants” emitted by grazing livestock in the form
of sediment, fecal coliform, and fecal streptococci. The Forest
Service responds that because cattle do not fall under the defi-
nition of “point sources,” they are not covered under § 401.

   The CWA does not define “discharge,” but states that
“[t]he term ‘discharge’ when used without qualification
includes a discharge of a pollutant, and a discharge of pollu-
tants.” 

33 U.S.C. § 1362(16). The Act further
defines “discharge of a pollutant” and “discharge of pollu-
tants” to mean “(A) any addition of any pollutant to navigable
waters from any point source, (B) any addition of any pollu-
tant to the waters of the contiguous zone or the ocean from
any point source other than a vessel or other floating craft.”
16300          OREGON NATURAL DESERT v. USFS
§ 502(12). Finally, the Act defines “point source” as “any dis-
cernible, confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well, dis-
crete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from
which pollutants are or may be discharged.” § 502(14). All
other sources of pollution are characterized as “nonpoint
sources.” See Or. Natural Res. Council v. U.S. Forest Serv.,

, 849 n.9 (9th Cir. 1987) (“Nonpoint source pol-
lution is not specifically defined in the Act, but is pollution
that does not result from the ‘discharge’ or ‘addition’ of pollu-
tants from a point source.”).

   The CWA’s disparate treatment of discharges from point
sources and nonpoint sources is an organizational paradigm of
the Act. From the passage of the Act, Congress imposed
extensive regulations and certification requirements on dis-
charges from point sources, but originally relied almost
entirely on state-implemented planning processes to deal with
nonpoint sources, later amending the Act in 1987 to include
more federal review of nonpoint sources. 

319; 33
U.S.C. §§ 1288, 1329; see also William L. Andreen, Water
Quality Today — Has the Clean Water Act Been a Success?,
55 ALA. L. REV. 537, 545 n.42 (2004). Congress primarily
focused its regulation under the Act on point sources, which
tended to be more notorious and more easily targeted, in part
because nonpoint sources were far more numerous and more
technologically difficult to regulate. See S. REP. NO. 92-414,
at 39 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3674
(acknowledging that “many nonpoint sources of pollution are
beyond present technology of control”); 118 CONG. REC.
10611, 10765 (1972), reprinted in 1 LEGISLATIVE HISTORY OF
THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at
8 (1973) (noting that “we do not have the technology” to deal
with nonpoint sources in the same way as industrial pollu-
tion).
                 OREGON NATURAL DESERT v. USFS                   16301
B.    Factual and Procedural Background

   On February 23, 2006, the Forest Service issued federal
term grazing permit # 01825 authorizing the Colvin Cattle
Company (Colvin) to graze cattle within the boundaries of the
Lower Middle Fork Allotment on the Malheur National For-
est. The Forest Service did not require Colvin to obtain a cer-
tificate from the State of Oregon prior to issuing the permit.

   On April 26, 2007, ONDA,2 along with six other environ-
mental conservation groups, filed suit against the Forest Ser-
vice alleging violation of CWA § 401. The complaint alleged
that “[t]he Forest Service’s authorized grazing has resulted in,
and continues to result in, significant short- and long-term
damage to riparian resources and stream habitat throughout
the Middle Fork John Day River basin.” Further, it alleged
that “[l]ivestock grazing is an activity that may cause dis-
charges into navigable waters,” hence “[t]he Forest Service
violated [CWA § 401] by issuing federal grazing permit #
01825 when the applicant failed to provide certification from
the state.” The Forest Service denied the allegations contained
in the complaint, and countered with affirmative defenses
sounding in principles of res judicata and collateral estoppel.

   Over ten years prior, in 1994, ONDA and two other groups
filed a substantially identical claim against the Forest Service
concerning the issuance of a grazing permit within the Mal-
heur National Forest. See Or. Natural Desert Ass’n v.
Thomas, 

, 1537 (D. Or. 1996). ONDA
sought a declaratory judgment requiring applicants for federal
grazing permits to receive state certification “as a necessary
precondition to the issuance of that permit.” 

After analyzing the meaning of “discharge” in § 401, the Ore-
gon district court concluded that “the plain meaning of ‘dis-
charge’ does not restrict the definition to point sources or
  2
   In this portion of the discussion, ONDA refers only to the individual
organization, not the collective Plaintiffs-Appellants.
16302          OREGON NATURAL DESERT v. USFS
nonpoint sources with conveyances.” 

The district
court rejected the Forest Service’s argument that its interpre-
tation of § 401 should receive deference, indicating that
“[e]ven though nonpoint sources are not mentioned in the
1972 amendments, the court cannot construe that Congress
intended to preclude their application to § 401.” 

The district court subsequently granted ONDA’s motion for
declaratory judgment. 

Service appealed.

   On appeal, this court reversed the district court, holding
that “the language and structure of the [CWA indicate] that
the certification requirement of [§ 401] was meant to apply
only to point source releases.” 

.
Citing Ninth Circuit precedent, the court noted certain limita-
tions of the Act.

    In 1972, Congress passed the Clean Water Act,
    which made important amendments to the water pol-
    lution laws. The amendments place certain limits on
    what an individual firm could discharge . . . The Act
    thus banned only discharges from point sources. The
    discharge of pollutants from nonpoint sources — for
    example, the runoff of pesticides from farmlands —
    was not directly prohibited. The Act focused on
    point source polluters presumably because they
    could be identified and regulated more easily that
    [sic] nonpoint source polluters.

(quoting Natural Res. Def. Council v. EPA, 

, 1316 (9th Cir. 1990)). The court further found that
a cow is not a point source under the CWA, because it is “in-
herently mobile,” and therefore directed the district court to
enter judgment in favor of the Forest Service. 

The
Supreme Court denied ONDA’s petition for a writ of certio-
rari on November 1, 1999. 

(1999).

   In light of the foregoing procedural history, the Forest Ser-
vice responded to ONDA’s 2007 complaint with a motion for
               OREGON NATURAL DESERT v. USFS             16303
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) based on the argument that ONDA was
barred by principles of collateral estoppel and res judicata.
The magistrate judge found that the two lawsuits did not
involve the same claim for the purposes of res judicata
because of the amount of time that had passed between issu-
ance of the two permits. However, he recommended that
ONDA’s claim be barred under the doctrine of collateral
estoppel because the parties had actually litigated the dispute
over § 401 in Thomas and Dombeck, and the Forest Service
had prevailed.

   The magistrate judge further found that the parties joining
ONDA who had not been party to the earlier cases were
barred under the doctrine of virtual representation. The magis-
trate judge reasoned that ONDA had sufficiently represented
the interests of the newly added plaintiffs in the earlier suit
because the two suits presented an identical issue.

   The district court adopted the magistrate’s Findings and
Recommendations and granted the Forest Service’s motion
for judgment on the pleadings. ONDA subsequently appealed
to this court on the theory that the outcome and reasoning of
S.D. Warren Co. are clearly irreconcilable with our reasoning
in Dombeck, making a finding of collateral estoppel inappro-
priate. ONDA also asserted that the theory of virtual represen-
tation had been disavowed by the Supreme Court, and could
not serve as a basis for disposing of any portion of this suit.

   STANDARD OF REVIEW AND JURISDICTION

   We review the district court’s grant of judgment on the
pleadings de novo. Kotrous v. Goss-Jewett Co. of N. Cal., 

, 929 (9th Cir. 2008). On review, we “accept all
material allegations in the complaint as true and construe
them in the light most favorable to [the nonmoving party].”
Turner v. Cook, 

, 1225 (9th Cir. 2004) (alter-
ations in original). This court may affirm the district court’s
16304            OREGON NATURAL DESERT v. USFS
grant of summary judgment “on any basis supported by the
record.” Valdez v. Rosenbaum, 

, 1043 (9th Cir.
2002). We have jurisdiction pursuant to 28 U.S.C. § 1291.

                           DISCUSSION

   ONDA’s principal argument in this case is that “dis-
charge,” as used in § 401 of the CWA, should be read to
include the discharge of pollutants from nonpoint sources,
such as livestock grazing. Although this court has previously
limited its interpretation of “discharge” to effluents from point
sources, 

, ONDA3 argues that the
outcome and reasoning of S.D. Warren are clearly irreconcil-
able with our reasoning in Dombeck, and that, accordingly,
Forest Service permits for cattle grazing are subject to state
certification under § 401, because they may result in a “dis-
charge.” We analyze this claim first to determine whether the
principles of stare decisis apply to bar ONDA’s claim. If so,
there is no need to reach the issues of collateral estoppel or
virtual representation.

  A.    Stare Decisis and Supervening Authority

   [1] Typically, we are bound by earlier published decisions
of our court. However, circuit precedent may be effectively
overruled by subsequent Supreme Court decisions that are
closely on point, even if the precedent is not expressly over-
ruled. Galbraith v. County of Santa Clara, 

,
1123 (9th Cir. 2002). In such circumstances, a panel may rule
in contradiction to circuit precedent even without en banc
review. We have held that “the issues decided by the higher
court need not be identical in order to be controlling.” Miller
v. Gammie, 

, 900 (9th Cir. 2003) (en banc). As
long as “the reasoning or theory of [the] prior circuit authority
is clearly irreconcilable with the reasoning or theory of inter-
  3
  ONDA is again used in the collective sense to represent all Plaintiffs-
Appellants.
               OREGON NATURAL DESERT v. USFS              16305
vening higher authority,” the panel may consider the prior cir-
cuit opinion as “having been effectively overruled.” 

ONDA argues that the outcome and reasoning of S.D.
Warren are clearly irreconcilable with our reasoning in Dom-
beck.

  1.   The Ruling in S.D. Warren

   The S. D. Warren Company (Company), which operates
several hydroelectric power dams along the Presumpscot
River in Maine, sought renewal of federal licenses for five of
its dams. S.D. 

. Before receiving the
requested license renewals, the Company was compelled to
obtain water quality certifications from the Maine Department
of Environmental Protection, which it did under protest. 

The Maine agency required, as a condition of certifi-
cation, that the Company maintain a minimum stream flow,
and the federal licenses reflected those conditions. 

The Company appealed the conditions placed on the licenses
to the Maine state courts, contending that because its dams
did not create or permit “discharges,” it was not required to
obtain state certification under § 401. 

court ruled against the Company, and the
Company appealed to the Supreme Judicial Court of Maine,
which affirmed. 

(Me. 2005). The United States
Supreme Court then granted certiorari. 

(2005).
The question presented in the petition for writ of certiorari
was: “Does the mere flow of water through an existing dam
constitute a ‘discharge’ under Section 401, 33 U.S.C. § 1341,
of the Clean Water Act, despite this Court’s holding last year
in [South Florida Water Management District v.] Miccosukee
[Tribe of Indians, 

(2004),] that a discharge
requires the addition of water from a distinct body of water?”
Petition for Writ of Certiorari, S.D. Warren, 

(No. 04-1527).

  [2] Before the Supreme Court, the Company argued that
“because the release of water from the dams adds nothing to
16306            OREGON NATURAL DESERT v. USFS
the river that was not there above the dams,” there was no
“discharge” within the meaning of § 401. 

In other
words, because the Company was not adding anything to the
water as it moved through its turbines, it could not be said to
be discharging into the Presumpscot River. The Supreme
Court rejected the notion that “an addition is fundamental to
any discharge,” and affirmed the Supreme Judicial Court of
Maine on the ground that a “discharge” means a “flowing or
issuing out,” and does not require any addition to the water as
it leaves the dam. 

In sum, the United States
Supreme Court held that the term “discharge” is not limited
to the “discharge of a pollutant,” but may also include the
“flowing or issuing out” of non-pollutants, or even water.

   [3] The parties to this action agree that S.D. Warren is not
precisely on point. In S.D. Warren, no one questioned
whether a “point source” existed for the purpose of determin-
ing whether a “discharge” had occurred. The movement of
water at issue in S.D. Warren was achieved by each dam cre-
ating a pond and running the water through turbines back into
the waterbed. These turbines are undeniably point sources
under the CWA definition. See CWA § 502(14). Indeed, the
Company contended on appeal, and the State of Maine did not
disagree, that it was “undisputed that 401 does not cover non-
point source . . . pollution.” Transcript of Oral Argument at
5, S.D. Warren, 

(No. 04-1527). The issue in
S.D. Warren was narrowly tailored to determine whether a
discharge from a point source could occur absent addition of
any pollutant to the water emitted from the dam turbines.4
   4
     ONDA argues that we should not read S.D. Warren to pertain only to
point sources because neither the Supreme Court nor this court has
unequivocally held that a dam is a point source. ONDA also notes that
§ 304(f) of the CWA includes “changes caused by the construction of
dams” under the classification of “nonpoint sources of pollution.” 33
U.S.C. § 1314(f).
  Other circuits have linked dams to nonpoint sources of pollution. The
Sixth Circuit has recognized that the “EPA has consistently treated dams
                  OREGON NATURAL DESERT v. USFS                       16307
   [4] ONDA urges us to read S.D. Warren as expanding the
meaning of “discharge” in § 401 to include discharge from
nonpoint sources. However, the holding in S.D. Warren is
limited to the conclusion that a discharge need not involve
pollutants, hence the expulsion of water from a dam turbine
is a discharge. Not only does S.D. Warren fail to address the
issue of nonpoint source pollution, it confirms our conclusion
in Dombeck that “ ‘[d]ischarge’ is the broader term because
it includes all releases from point sources, whether polluting
or 

.

  2.    The Reasoning of S.D. Warren

   [5] The reasoning in S.D. Warren is likewise easily recon-
cilable with our reasoning in Dombeck. ONDA argues that
because the Supreme Court was able to look beyond the defi-
nitions in the statute to include “non-pollutants” within the
meaning of “discharge,” we should also include nonpoint
sources within the meaning of “discharge” in § 401. However,
while the Supreme Court’s interpretation is supported by the
legislative history of the CWA, ONDA’s recommended con-
struction of the CWA is not.

as nonpoint sources of pollution.” United States ex rel. TVA v. Tenn.
Water Quality Control Bd., 

, 999 (6th Cir. 1983). The D.C.
Circuit has also recognized “congressional intent [in § 304(f)] that some
water quality changes caused by dams be regulated as nonpoint pollution.”
Nat’l Wildlife Fed’n v. Gorsuch, 

, 177 (D.C. Cir. 1982).
   ONDA observes that in cases where a dam has been held to be a point
source, our court has simply accepted the parties’ stipulation to that effect.
Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist., 

, 308 (9th Cir. 1993). Even if ONDA’s observation is generally accu-
rate, its argument is not dispositive concerning the facts in S.D. Warren
because, while a dam might not always be considered a point source, the
dam turbines that were the focus of the decision in S.D. Warren clearly
were a point 

. See also 

n.22 (“The pipes or spillways through which water flows from the reser-
voir through the dam into the downstream river clearly falls within [the
definition of point source].”).
16308          OREGON NATURAL DESERT v. USFS
   [6] The Supreme Court noted in S.D. Warren that the pur-
pose of the CWA went beyond controlling the “addition of
pollutants” to also deal with “pollution” generally, including
“ ‘the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water.’ 

(quoting CWA § 502(19)); see also CWA
§ 101(b). The Court referred to findings by amici that dams
cause chemical modifications to the water that disrupt aquatic
life forms, as well as findings by the Maine courts that the
Company’s dams blocked passage of eels and sea-run fish,
and prevented recreational access to and use of the 

. The Court ruled that these changes in the river
went to the core of the CWA’s purpose, and were of the type
intended by the CWA to be subject to State certification. 

Therefore, “[r]eading § 401 to give ‘discharge’ its
common and ordinary meaning preserves the state authority
apparently intended” under the CWA. 

contrast, nonpoint sources of pollution have not gen-
erally been targeted by the CWA; instead they are generally
excluded from CWA regulations, except to the extent that
states are encouraged to promote their own methods of track-
ing and targeting nonpoint source pollution. It is generally
understood among students of the CWA that “[w]hile Con-
gress could have defined a ‘discharge’ to include generalized
runoff as well as the more obvious sources of water pollution,
. . . it chose to limit the permit program’s application to the
latter [point source] category.” 55 ALA L. REV. at 562. See
also Marc R. Poirier, Non-point Source Pollution, in ENV’L L.
PRACTICE GUIDE § 18.13 (2008).

   [8] The reason for the CWA’s focus on point sources rather
than nonpoint sources is simply that “[d]ifferences in climate
and geography make nationwide uniformity in controlling
non-point source pollution virtually impossible. Also, the con-
trol of non-point source pollution often depends on land use
controls, which are traditionally state or local in nature.” Poi-
rier, Non-point Source Pollution, § 18.13. Instead, § 208 and
               OREGON NATURAL DESERT v. USFS              16309
then § 319 were designated by Congress as methods to keep
states accountable for identifying and tracking nonpoint
sources of pollution, as well as identifying “the best manage-
ment practices and measures” to reduce such pollution. CWA
§ 319(b)(2)(A).

   In summary, while many scholars recognize the harmful
effects of nonpoint source pollution, they also recognize that
the CWA does not generally exercise jurisdiction over those
nonpoint sources.

    [U]nlike the permitting and enforcement provisions
    for point sources, [under the CWA] EPA lacks direct
    implementation or regulatory authority in the face of
    nonexistent or inadequate state implementation. At
    most, under the nonpoint source control provisions,
    EPA is authorized to withhold grant funding for
    delinquent states. This policy judgment appears con-
    sistent with Congress’s reluctance, as expressed in
    sections 101(b) and (g) of the Act, to allow extensive
    federal intrusion into areas of regulation that might
    implicate land and water uses in individual states.

Robert W. Adler, The Two Lost Books in the Water Quality
Trilogy: The Elusive Objectives of Physical and Biological
Integrity, 33 ENVTL. L. 29, 56 (2003).

   [9] Neither the ruling nor the reasoning in S.D. Warren is
inconsistent with this court’s treatment of nonpoint sources in
§ 401 of the Act, as explained in Dombeck. Accordingly, the
principles of stare decisis apply, and this court need not
revisit the issue decided in Dombeck. As every first-year law
student knows, the doctrine of stare decisis is often the deter-
mining factor in deciding cases brought before any court. The
doctrine of stare decisis is “the means by which we ensure
that the law will not merely change erratically, but will
develop in a principled and intelligible fashion.” Vasquez v.
Hillery, 

, 265 (1986). The doctrine helps to
16310          OREGON NATURAL DESERT v. USFS
ensure that “bedrock principles are founded in the law rather
than in the proclivities of individuals.” 

decisis does not control the outcome of
every case, the Supreme Court has noted that “detours from
the straight path of stare decisis in our past have occurred for
articulable reasons, and only when the Court has felt obliged
‘to bring its opinions into agreement with experience and with
facts newly ascertained.’ ” 

(quoting Burnet v. Coro-
nado Oil & Gas Co., 

, 412 (1932) (Brandeis, J.
dissenting)); see also Arizona v. Rumsey, 

, 212
(1984) (“any departure from the doctrine of stare decisis
demands special justification”). When, as in this case, there
are neither new factual circumstances nor a new legal land-
scape, stare decisis is an appropriate basis for our decision.

B.    Collateral Estoppel and Virtual Representation

   [10] Because we conclude that the principles of stare deci-
sis control all of the plaintiffs in this case, we need not reach
the issues of collateral estoppel and virtual representation.
Whether or not the individual Plaintiffs-Appellants in this
case were participants in the earlier trial, they are bound by
Dombeck as a matter of law. Accordingly, the district court’s
grant of the Forest Service’s motion for judgment on the
pleadings as to all Plaintiffs-Appellants is AFFIRMED.

     AFFIRMED.