Florida Wildlife Federation et al v. McCarthy et al
Filing
94
ORDER denying 77 --motion for summary judgment; granting 79 --motion for summary judgment; granting 80 --motion for summary judgment; directing the clerk to ENTER JUDGMENT for the EPA and the intervenors and to CLOSE the case. Signed by Judge Steven D. Merryday on 2/15/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FLORIDA WILDLIFE FEDERATION,
et al.,
Plaintiffs,
v.
CASE NO. 8:14-cv-3204-T-23JSS
GINA MCCARTHY, et al.,
Defendants.
/
ORDER
Section 303(d) of the Clean Water Act imposes on the EPA a duty to approve
or reject a state’s list of “impaired waters.” From May 2012 to April 2014, the
Florida Department of Environmental Protection (FDEP) updated Florida’s list of
impaired waters. In September 2014, the EPA issued a “decision document,” which
partially approved the list.
Florida Wildlife Federation and Cindy Davis sue (Doc. 68) under Section
706(2)(A) of the Administrative Procedure Act. In Count I, the plaintiffs allege that
the EPA failed to correctly evaluate Florida’s antidegradation requirements. In
Count III, the plaintiffs allege that the EPA erroneously denied petitions for a
rulemaking to revise Florida’s antidegradation policy. No other claims remain.
A May 8, 2015 order (Doc. 38) grants the intervention of FDEP, the State of
Florida, and the Florida Department of Agriculture and Consumer Services
(collectively, the intervenors). The plaintiffs, the EPA, and the intervenors move
(Doc. 77, 79, 80) for summary judgment. The Fertilizer Institute files an amicus
brief. (Doc. 83)
STANDARD
Section 704 of the Administrative Procedure Act authorizes judicial review of
a “final agency action for which there is no other adequate remedy in a court[.]” The
EPA’s denial of the petitions for rulemaking represents a final agency action. Fox
Television Stations, Inc. v. FCC, 280 F.3d 1027, 1037 (D.C. Cir. 2002). And no party
disputes that the EPA’s partial approval of Florida’s impaired waters list marks “the
consummation of the agency’s decisionmaking process . . . from which legal
consequences will flow,” including the development of pollution controls for the
listed waters. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)
(internal quotation marks omitted); e.g., Sierra Club, Inc. v. Leavitt, 488 F.3d 904 (11th
Cir. 2007) (reviewing the EPA’s partial approval of an impaired waters list).
Section 706(2)(A) authorizes a reviewing court to “hold unlawful and set aside
agency action, findings, and conclusions found to be . . . arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law[.]” Under this highly
deferential standard, a court may not substitute its “judgment for that of the agency
as long as the agency’s conclusions are rational and reasonably explained.” Black
Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 833 F.3d 1274, 1285 (11th Cir.
2016). The agency’s judgment prevails unless (1) “the decision does not rely on the
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factors that Congress intended the agency to consider,” (2) “the agency failed entirely
to consider an important aspect of the problem,” (3) “the agency offers an
explanation which runs counter to the evidence,” or (4) “the decision is so
implausible that it cannot be the result of differing viewpoints or the result of agency
expertise.”1 Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.
2002).
DISCUSSION
Impaired Waters List (Count I)
Under 40 C.F.R. § 130.7(b)(1), a state must identify waters for which pollution
controls “are not stringent enough to implement” the state’s “water quality
standards.” Listed waters are targeted for additional pollution control. Leavitt, 488
F.3d at 908 n.1.
Subsection 130.7(b)(3) states that “water quality standards” include “numeric
criteria, narrative criteria, waterbody uses, and antidegradation requirements.” In
Count I, the plaintiffs allege that the decision document fails to correctly evaluate
Florida’s “antidegradation requirements.”2 Although the plaintiffs plead eleven
1
The plaintiffs cite Section 706(2)(E) in the motion for summary judgment (Doc. 77 at 4),
but not in the complaint (Doc. 68). Section 706(2)(E) allows a court to vacate agency action that is
“unsupported by substantial evidence.” Even if the issue is properly pleaded, the plaintiffs identify
no infirmities in the EPA’s factual findings.
2
Under a July 2014 settlement agreement, the EPA agrees to “consider all applicable State
water quality standards, including antidegradation requirements” when reviewing the impaired
waters list. (Case No. 8:13-cv-2084, Doc. 47-1 at 4) As a result, no occasion exists to address The
Fertilizer Institute’s argument that the Clean Water Act imposes “no basis or requirement . . . to
consider antidegradation” when the EPA reviews an impaired waters list. (Doc. 83 at 7)
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issues within Count I (Doc. 68 at ¶¶ 102-181), the issues are more efficiently covered
in three sections below.
1. High quality waters
Florida’s antidegradation policy creates special protection for high quality
waters, which are known as “Tier 2” waters. Rule 62-302.300(17), Florida
Administrative Code, permits the degradation of Tier 2 waters (that is, the lowering
of water quality) only if degradation is “clearly in the public interest.”
The decision document explains that the public-interest test “must be applied
during the permitting process for any new or expanded discharge that will reduce
the quality of receiving Tier 2 waters.” (Doc. 80-1 at 72–73) FDEP balances “the
importance and benefits of the project against adverse impacts caused by the
discharge, as well as an options review to demonstrate whether certain alternatives
that would minimize lowering of water quality are technologically or economically
feasible.” (Doc. 80-1 at 73); see Fla. Admin. Code R. 62-4.242(1)(b)
The decision document observes that Florida affords extra protection to
“Outstanding Florida Waters,” which are known as “Tier 2.5” waters. (Doc. 80-1 at
72–73); see Fla. Admin. Code R. 62-302.700(1) and (9). Rule 62-4.242(2), Florida
Administrative Code, states that a permit applicant must demonstrate that the
“existing ambient water quality . . . will not be lowered as a result of the proposed
activity or discharge[.]” The “existing ambient water quality” means the water
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quality in 1979. United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 708 n.5 (11th
Cir. 1991).
The decision document finds that “any lowering of water quality associated
with permits that was authorized in accordance with the State’s required
antidegradation process does not require section 303(d) listing.” (Doc. 80-1 at 73)
The decision document concludes “that the State has successfully assessed its
waterbodies for attainment of the state antidegradation policy, by confirming that the
state permitting program appropriately implemented Florida’s antidegradation
policy.” (Doc. 80-1 at 73) In particular, “FDEP provided assurance to the EPA that
no permits have been identified that were not subject to antidegradation review.”
(Doc. 80-1 at 73)
Notably, the plaintiffs raise no objection to the EPA’s determination that
permitted degradation of a water “does not require section 303(d) listing.” The
plaintiffs instead contest the EPA’s finding that “no permits have been identified that
were not subject to antidegradation review.” Specifically, the plaintiffs argue that
FDEP failed to establish the existing ambient water quality for Tier 2.5 waters and
that FDEP failed to conduct antidegradation reviews for water transfers and other
activities.
Existing ambient water quality
Citing Florida’s regulatory scheme, the intervenors vigorously argue that a
permit applicant, not FDEP, must establish existing ambient water quality.
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However, the EPA disclaims any obligation to examine the merits of permit
decisions when the EPA reviews an impaired waters list. As explained below, the
EPA’s interpretation is reasonable.
Section 303(d)(2) allows the EPA thirty days to approve or disapprove an
impaired waters list, but imposes no other restrictions on the EPA’s authority. The
implementing regulation, 40 C.F.R. § 130.7, introduces some additional limits.
Under 40 C.F.R. § 130.7(d)(2), the EPA may only approve a list “if it meets the
requirements of § 130.7(b),” which requires a state to submit, among other things, a
“description” of the data on which the state relied and a “description” of the state’s
methodology. Because a state submits only limited information to the EPA and
because the EPA promptly acts on that information, the EPA’s role in reviewing an
impaired waters list is properly characterized as one of “oversight.” Barnum Timber
Co. v. EPA, 835 F. Supp. 2d 773, 780-82 (N.D. Cal. 2011).
Of course, the EPA can request additional information, 40 C.F.R.
§ 130.7(b)(6)(iv), and the EPA can independently evaluate information. But Tier 2
antidegradation requirements differ from the other water quality standards
(numerical criteria, narrative criteria, and waterbody uses) assessed during the listing
process because Tier 2 requirements do not describe the condition of a water as a
whole. Rather, Florida’s Tier 2 balancing test applies only to an individual permit
application. If the EPA independently evaluates Tier 2 requirements, the EPA
effectively reviews FDEP’s permit decisions.
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The EPA points out that Florida provides the plaintiffs with a procedure to
object to permits. Rule 62-620.555, Florida Administrative Code, states that “any
interested person may submit written comments on [a] draft permit or may request
a public meeting,” and Section 120.569, Florida Statutes, states that a person may
appeal a permit decision that affects the person’s “substantial interests.” By
demanding that the EPA review permit decisions, the plaintiffs improperly seek to
expand the EPA’s limited role. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468 (2001) (explaining that Congress “does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions — it does not, one might
say, hide elephants in mouseholes.”).
The plaintiffs offer no competing analysis of Section 130.7(b), and the
plaintiffs fail to explain why the EPA’s interpretation is not entitled to deference.
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166–67 (2012). The
plaintiffs instead rely on two state-court decisions, neither of which addresses the
EPA’s review of an impaired waters list. Save Anna Maria, Inc. v. Dep’t of Transp.,
700 So. 2d 113 (Fla. 2d DCA 1997); DeCarion v. Dep’t of Envtl. Regulation, 445 So. 2d
619 (Fla. 1st DCA 1984).3
3
The decisions possess marginal relevance to this action — the decisions assume, consistent
with the intervenors’ argument, that a permit applicant (not FDEP) must establish existing ambient
water quality. Save Anna Maria, Inc., 700 So. 2d at 117; DeCarion, 445 So. 2d at 621.
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With the exception of the issues discussed below, the plaintiffs cite no record
evidence to undermine the EPA’s finding that “no permits have been identified that
were not subject to antidegradation review.” (Doc. 80-1 at 73) The EPA is therefore
entitled to rely on FDEP’s verification that all permits received an antidegradation
review. Bluewater Network v. EPA, 370 F.3d 1, 15 (D.C. Cir. 2004); BCCA Appeal Grp.
v. EPA, 355 F.3d 817, 844 n.11 (5th Cir. 2003).
No antidegradation reviews
The plaintiffs contend that FDEP failed to conduct any antidegradation
review for water transfers, non-point source discharges, best management practices,
consumptive use permits, and activities evaluated under Rule 62-25.025, Florida
Administrative Code. But the plaintiffs cite no provision under federal law or under
Florida law that subjects these activities to an antidegradation review. See, e.g.,
Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1227 (11th Cir. 2009)
(explaining that non-point sources are not covered by the Clean Water Act’s
permitting scheme); 40 C.F.R. § 122.3(i) (excluding water transfers from the Clean
Water Act’s permitting scheme).
The plaintiffs’ real quarrel lies with the scope of Florida’s antidegradation
policy. The plaintiffs concede (Doc. 77 at 18) that the EPA approved Florida’s
antidegradation policy in 1989. For the same reason that the EPA can rely on
FDEP’s permit decisions when the EPA reviews an impaired waters list, the EPA
can rely on Florida’s EPA-approved antidegradation policy. See Thomas v. Jackson,
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581 F.3d 658, 664 (8th Cir. 2009) (holding that the EPA was reasonable in relying
on EPA-approved water quality standards when reviewing an impaired waters list).
The plaintiffs raise two arguments specific to municipal separate storm sewer
system (MS4) permits. The decision document observes that MS4 permits received
no antidegradation reviews before September 15, 2010, because FDEP’s “position
was that MS4 permits did not cause degradation of waters but rather that such
permits reduced the degradation that would result from unregulated storm water
discharges to State waters.” (Doc. 80-1 at 73) The decision document finds that
since September 15, 2010, “all new or expanded MS4 permits have been subject to
antidegradation analysis[.]”4 (Doc. 80-1 at 73)
The plaintiffs argue that FDEP’s failure to conduct antidegradation reviews for
MS4 permits before September 2010, undermines the EPA’s finding that “no permits
have been identified that were not subject to an antidegradation review.” (Doc. 80-1
at 73) But the decision document explains that the EPA applies “the State’s
reasonable interpretations of [water quality] standards.” (Doc. 80-1 at 72) The
plaintiffs advance no challenge to the FDEP’s initial interpretation “that MS4
permits did not cause degradation of waters.” (Doc. 80-1 at 73)
4
Belatedly, the EPA asserts that all MS4 permits, including the permits issued before
September 2010, received an antidegradation review upon renewal. (Doc. 85 at 10, Doc. 80 at 19
n.16) The decision document contains no such finding. A court cannot “supply a reasoned basis for
the agency’s action that the agency itself has not given.” Black Warrior Riverkeeper, Inc., 833 F.3d at
1285 (internal quotation marks and citation omitted).
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The plaintiffs alternatively argue that by acknowledging FDEP’s altered
position on MS4 permits, the EPA improperly approves a “non-rule” change to
Florida’s antidegradation policy. A February 2, 2016 order (Doc. 67 at 2–3) denies
the plaintiffs’ request to challenge the EPA’s “non-rule” approval of Florida’s
antidegradation policy. But even indulging this argument, the plaintiffs still lose
because the decision document, which contains no “non-rule” approval, merely
recounts FDEP’s interpretation of Florida’s antidegradation policy.
2. Existing uses
Besides forbidding degradation of high quality waters, Rule 62-302.300(14),
Florida Administrative Code, ensures no degradation below the existing use of
waters that currently meet an existing use (“Tier 1” waters). Rule 62-302.200(14)
states that “existing use” means “any actual beneficial use of the waterbody on or
after November 28, 1975.”
The decision document recommends the addition of seven waters to the
impaired waters list because each of the seven fails to attain the designated use (and
existing use) of “shellfish harvesting.” (Doc. 80-1 at 72) Although the plaintiffs raise
a general challenge to the EPA’s evaluation of shellfish harvesting, the decision
document demonstrates that the EPA considered the same information on which the
plaintiffs rely: historical shellfishing maps and shellfish classification standards.
(Doc. 80-1 at 70–72) The plaintiffs identify no specific evidence in the administrative
record that the EPA overlooked or that conflicts with the EPA’s findings.
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In a similarly conclusory fashion, the plaintiffs argue that the EPA failed to
properly assess the existing use of “fishing” for waters in the Everglades. As the EPA
responds (Doc. 85 at 11), FDEP listed each of the forty-one waters in the Everglades.
(See Doc. 85-1 at 2–4) Again, the plaintiffs fail to explain how the decision document
contradicts evidence in the administrative record.
3. Clam Bayou
In a final challenge, the plaintiffs argue that the decision document neglects to
“discuss or analyze” an antidegradation study of Clam Bayou in Pinellas County.
(Doc. 77 at 20)
By a letter on September 30, 2014, the same day the decision document issued,
the EPA addresses the study and explains that the study relied on data collected
between July and November 2011, a period outside the “verified period” for the
impaired waters list (January 1, 2004 to June 30, 2011). (Doc. 37-2 at 5) The EPA
further explains that a state “may set a reasonable ‘cut-off’ date, after which no
additional data or information will be considered in the preparation of the draft
section 303(d) list.” (Doc. 37-2 at 5–6 n.3)
The decision document is “properly read together with accompanying
explanatory correspondence.” Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S.
461, 497 (2004); Leavitt, 488 F.3d at 914 n.16. The plaintiffs raise no objection to the
explanation provided in the letter.
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Summary
To survive a challenge to an agency action as “arbitrary and capricious,” an
agency must “examine the relevant data and articulate a satisfactory explanation for
its action[.]” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). The plaintiffs’ conclusory and irrelevant arguments, which
are consistent throughout this action (see Doc. 51 at 3 n.5, Doc. 73 at 7–8), fall
distinctly short of discharging their “heavy burden” under Section 706(2)(A). Legal
Envtl. Assistance Found., Inc. v. EPA, 276 F.3d 1253, 1265 (11th Cir. 2001) (internal
quotation marks omitted).
The plaintiffs’ motion for summary judgment on Count I is denied, the EPA’s
and the intervenors’ motions for summary judgment on Count I are granted, and the
September 30, 2014 decision document is affirmed.
Petitions for Rulemaking (Count III)
Section 303(c)(4)(B) of the Clean Water Act requires the EPA to “promptly
prepare and publish proposed regulations setting forth a revised or new water quality
standard . . . in any case where the Administrator determines that a revised or new
standard is necessary to meet the requirements of this Act.” A person can petition
the EPA to determine that a revised standard is necessary — in other words, a person
can request a “necessity determination.” Gulf Restoration Network v. McCarthy,
783 F.3d 227, 231 (5th Cir. 2015). If the EPA denies the petition, the EPA must
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“provide[] an adequate explanation, grounded in the statute” for declining to issue a
necessity determination. Gulf Restoration Network, 783 F.3d at 243.
After the EPA partially approved the impaired waters list, Davis petitioned the
EPA to determine that a revised or new antidegradation standard was necessary. In
July 2015, the EPA denied the petition, along with a similar 2012 petition by Florida
Wildlife Federation. (Doc. 83 at 115–117) The plaintiffs allege that the EPA failed
to provide a reasonable explanation for declining to issue a necessity determination.
(Doc. 68 at ¶ 220)
In the July 2015 letter, the EPA explains that the plaintiffs’ “requested
revisions to Florida’s antidegradation requirements would require a level of detail
and specificity far beyond what the national regulations require and do not reflect
the cooperative federal approach employed by 33 U.S.C. § 1313(c) and the EPA’s
implementing regulation.” (Doc. 80-3 at 116) The EPA observes that “States are
responsible for reviewing, establishing and revising water quality standards, and the
EPA has a review and approval or disapproval role in addition to its authority to
make a [necessity determination].” (Doc. 80-3 at 116)
The EPA further explains that, even if the plaintiffs’ “environmental concerns
were substantiated,” the EPA recently revised the federal antidegradation regulation
to require states and tribes “to follow a more structured process when making
decisions about preserving high water quality.” (Doc. 80-3 at 116) Rather than
conducting a separate rulemaking for Florida, the EPA elects to expend its “limited
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resources” by assisting all states and tribes with the implementation of the new
regulation. (Doc. 80-3 at 116)
The EPA provides an adequate explanation, grounded in the Clean Water
Act, for declining to issue a necessity determination. The EPA prefers national
action, rather than the implementation of sweeping changes to Florida’s
antidegradation policy, a preference consistent with 33 U.S.C. § 1251(b), which
emphasizes “the primary responsibilities and rights of States,” as well as with 33
U.S.C. § 1313(c), in which “the primacy of the States’ role permeates the text.” Gulf
Restoration Network v. Jackson, 2016 WL 7241473, at *5 (E.D. La. Dec. 15, 2016)
(holding that the EPA’s explanation for declining to issue a necessity determination
was grounded in 33 U.S.C. § 1313(c) and 33 U.S.C. § 1251(b)); see also Defs. of Wildlife
v. Gutierrez, 532 F.3d 913, 921 (D.C. Cir. 2008) (deferring to the agency’s “policy
decision to focus its resources on a comprehensive strategy”); WildEarth Guardians v.
EPA, 751 F.3d 649, 656 (D.C. Cir. 2014) (recognizing that an agency retains
“significant latitude as to the manner, timing, content, and coordination of its
regulations” (emphasis in original)).
According to the plaintiffs, the EPA “implies” that Florida’s antidegradation
policy violates the federal antidegradation regulation. (Doc. 87 at 13) But the
plaintiffs fail to address whether the EPA’s explanation is “adequate” and whether
the EPA’s explanation is “grounded in the statute.” Gulf Restoration Network,
783 F.3d at 243. Absent a more focused challenge, the EPA’s explanation easily
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survives an “extremely limited” and “highly deferential” review. Massachusetts v.
EPA, 549 U.S. 497, 527–28 (2007); Gulf Restoration Network, 783 F.3d at 243.
The plaintiffs’ motion for summary judgment on Count III is denied, the
EPA’s and the intervenors’ motions for summary judgment on Count III are granted,
and the July 29, 2015 denial letter is affirmed.
CONCLUSION
The plaintiffs’ motion for summary judgment (Doc. 77) is DENIED. The
EPA’s motion for summary judgment (Doc. 80) is GRANTED, and the intervenors’
motion for summary judgment (Doc. 79) is GRANTED. The clerk is directed to
enter in favor of the EPA and the intervenors a JUDGMENT that affirms the EPA’s
September 30, 2014 decision document and the EPA’s July 29, 2015 denial letter.
The clerk must deny any pending motion and close the case.
ORDERED in Tampa, Florida, on February 15, 2017.
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