Florida Wildlife Federation, Inc. v. South Florida Water Management District

647 F.3d 1296, 2011 WL 3298908
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 3, 2011
Docket10-10886, 10-11121
StatusPublished
Cited by62 cases

This text of 647 F.3d 1296 (Florida Wildlife Federation, Inc. v. South Florida Water Management District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Wildlife Federation, Inc. v. South Florida Water Management District, 647 F.3d 1296, 2011 WL 3298908 (11th Cir. 2011).

Opinions

DUBINA, Chief Judge:

Intervenors-Appellants Florida Water Environment Association Utility Council and South Florida Water Management District (“Appellants”) appeal the district court’s order approving a consent decree between the United States Environmental Protection Agency (EPA)1 and a group of environmentalist organizations (“Plaintiffs”). The consent decree settled a suit filed by the Plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for the State of Florida. The Appellants claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree. Because the Appellants have not demonstrated a live case or controversy that would give this court jurisdiction over their case, we dismiss their appeal.

I.

This case involves the Clean Water Act of 1972, codified at 33 U.S.C. § 1251 et seq. Congress passed the Clean Water Act in order “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2010). Under the Act, the states have the “primary responsibilities and rights ... to prevent, reduce, and eliminate pollution” in their waters. See id. § 1251(b). States can adopt their own water-quality standards, subject to the EPA’s approval. If the EPA determines that a state standard is not “consistent with” the Act’s requirements, or that “a revised or new standard is necessary” to meet the Act’s requirements, the EPA’s Administrator must “promptly prepare and publish proposed regulations setting forth a revised or new” standard. Id. § 1313(c)(4). The EPA must adopt the revised or new standard within 90 days after publication, unless by that time the state has adopted a revised or new standard approved by the EPA. Id. The Clean Water Act includes a citizen-suit provision, which allows a citizen to sue the Administrator to compel her to perform a duty that the Act makes nondiscretionary, such as proposing new water-quality standards after determining that they are necessary under § 1313(c)(4). See id. § 1365(a)(2).

In 1998, the EPA and the Secretary of the United States Department of Agriculture issued a report stating that about 40 percent of the waters tested by the various states did not meet water-quality goals. [See U.S. Dep’t of Envt’l. Prot. & U.S. Dep’t of Agrie., Clean Water Action Plan: Restoring and Protecting America’s Waters, R. 57-27 at 3.] The EPA’s Administrator and the Secretary of Agriculture adopted a Clean Water Action Plan in response. [Id. at 6-7.] As part of the effort to implement the Clean Water Action Plan, the EPA issued a second report entitled “National Strategy for the Development of Regional Nutrient Criteria.” [See R. 33-1.] The report recognized that excessive levels of nutrients such as nitrogen and phosphorous were a substantial part of the nation’s water-quality problem. Many states, including Florida, had non-numeric or “narrative” standards governing the introduction of nitrogen and phosphorous into bodies of water. [See id. at 9, 39-42.] The National Strategy Report indicated that the EPA expected all states [1300]*1300“to adopt and implement numerical nutrient criteria” to replace narrative standards by December 31, 2003. [Id. at 11-12.]

Coinciding with the EPA’s push to improve water-quality standards across the country, several environmentalist groups-— including some of the Plaintiffs in this case — sued the EPA under the Clean Water Act to force it to issue new site-specific standards regulating nutrient quality for certain bodies of water in Florida. To settle the lawsuit, the EPA and the environmentalist groups entered into a consent decree in 1999 (“1999 Consent Decree”) that required the EPA to set numeric water-quality standards for those specified sites, if Florida did not do so first. [R. 36-1J

By 2001, Florida’s Department of Environmental Protection had begun developing numeric nutrient standards. The Department, in conjunction with the state’s Water Management Districts, conducted detailed studies, held meetings, and promulgated 79 specific total maximum daily loads (“TDMLs”) for various nutrients in specific bodies of water. Fla. Admin. Code Ann. r. 62-304.300 to 810 (adopted 2005-2010). But the state did not adopt or even propose state-wide numeric standards. Instead, the state retained its narrative standard: the concentration of nutrients in a body of surface water must not be altered “so as to cause an imbalance in natural populations of aquatic flora or fauna.” Fla. Admin. Code Ann. r. 62-302.530(47)(b) (revised 2010).

Five environmentalist groups filed this lawsuit in July 2008, naming the EPA and its Administrator as the defendants.2 The Plaintiffs claimed that either the 1998 Clean Water Action Plan or the 1998 National Strategy Report constituted a “determination” that Florida’s narrative nutrient standard was inadequate, thus imposing on the Administrator the nondiscretionary duty to “promptly” publish proposed new standards and adopt them within 90 days of publication. Over time, 13 entities intervened as defendants.3 The EPA and intervenors denied that the 1998 documents constituted a determination under 33 U.S.C. 1313(c)(4).

While the suit was still pending, the Administrator made an explicit and unequivocal determination by a letter dated January 14, 2009 (“2009 Determination”) that the Florida narrative nutrient standard was inadequate and that a revised or new standard was necessary to meet the Clean Water Act’s requirements. [See R. 55-6.] The EPA’s formal determination that Florida’s water-quality standards were inadequate triggered the agency’s statutory obligation to “promptly prepare and publish proposed regulations setting forth a revised or new water quality standard.” 33 U.S.C. § 1313(c)(4).

On August 25, 2009, the Plaintiffs and the EPA moved for entry of a consent decree. [R. 90.] The proposed consent decree would require the EPA to imple[1301]*1301ment two separate phases of rulemaking. In Phase I, the agency would propose numeric nutrient standards for Florida’s lakes and flowing waters by January 14, 2010, and adopt those standards by October 15, 2010. These requirements would not apply, however, if by the same deadlines the state proposed its own numeric standards and the EPA’s Administrator approved them. In Phase II, the EPA would have to publish numeric nutrient standards for Florida’s coastal and estuarine waters by January 14, 2011, and adopt standards by October 15, 2011. The proposed decree would allow an extension of a deadline by agreement between the Plaintiffs and the EPA upon notice to the district court. The decree also gave the district court the discretion to grant time extensions even without the Plaintiffs’ consent.

All parties — including the intervenors— were allowed to file briefs, declarations, and other written evidence addressing the motion for entry of the consent decree. The parties presented extensive oral argument.

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647 F.3d 1296, 2011 WL 3298908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-wildlife-federation-inc-v-south-florida-water-management-ca11-2011.