FLORIDA WILDLIFE FEDERATION, INC. et al v. JOHNSON et al

Filing 361

ORDER granting 354 motion to clarify or extend; approving the extension of the lake and flowing-water rule's effective date to July 6, 2012. Signed by JUDGE ROBERT L HINKLE on 3/5/12. (RH)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

FLORIDA WILDLIFE
FEDERATION, INC. et al.,
Plaintiffs,
v.

CONSOLIDATED CASE
NO. 4:08cv324-RH/WCS

LISA P. JACKSON, etc., et al.,
Defendants.
__________________________________/

ORDER APPROVING THE EXTENSION OF THE LAKE AND
FLOWING-WATER RULE’S EFFECTIVE DATE TO JULY 6, 2012

The opinion on the merits and the resulting judgments in each of these cases
upheld—with two exceptions—the federal rule setting numeric nutrient criteria for
Florida lakes and flowing waters. The opinion and judgments included this
declaration:
Each valid provision of the rule will take effect on March 6, 2012—or
an extended date approved by the court under section X of the consent
decree—unless by that date the provision has been superseded by a
Florida rule that the Administrator has approved.
E.g., Judgment ¶ 2, ECF No. 353. The Administrator has moved to “clarify” the
opinion and judgments by in effect eliminating the quoted sentence. Alternatively,
Case No. 4:08cv324-RH/WCS

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the Administrator asks to extend the rule’s effective date under section X of the
consent decree. The Florida Wildlife parties have filed a response in opposition to
the motion.
The consent decree required the Administrator to sign for publication by a
date certain a notice of final rulemaking. Section X of the consent decree allowed
an extension of the deadline with the Florida Wildlife parties’ agreement or the
court’s approval. But the consent decree did not explicitly speak to the effective
date of a rule. The Administrator made the rule effective at a date of her choice—
March 6, 2012—and no party objected. The Administrator asserts she was free to
extend the effective date unilaterally, without the Florida Wildlife parties’
agreement or the court’s approval. Based on this view, the Administrator signed
for publication on February 16, 2012, a rule extending the nutrient rule’s effective
date to July 6, 2012.
At the oral argument in this court in January, the Administrator indicated she
might seek to extend the rule’s effective date, and the Florida Wildlife parties
indicated they would or might oppose an extension. Neither side raised the issue
of whether an extension would be subject to section X of the consent decree.
When I issued the opinion on the merits on February 18, 2012, I was unaware that
on February 16 the Administrator had signed a rule extending the deadline to July
6, 2012. I was unaware of the Administrator’s position that an extension of the

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nutrient rule’s effective date did not require either the Florida Wildlife parties’
agreement or the court’s approval.
The Florida Wildlife parties disagree with the Administrator’s position.
They assert that the proposed extension of the effective date is inconsistent with
the consent decree and the Clean Water Act and will result in degradation of
Florida’s waters. For a long enough extension that would be so. But an extension
until July 6—under all the circumstances and in light of the state’s proposal of its
own numeric nutrient criteria and the invalidation of a portion of the federal rule—
is reasonable. The Florida Wildlife parties suggest the Clean Water Act is not this
flexible, and perhaps it is not. But the equitable principles that guide a federal
court in issuing and modifying an injunction are this flexible.
For these reasons,
IT IS ORDERED:
The motion to clarify the February 18 order or alternatively for approval to
extend the numeric nutrient rule’s effective date, ECF No. 354, is GRANTED to
the extent set out in this order. Based on section X of the consent decree, the
requirement for the Administrator to sign for publication a notice of final
rulemaking for numeric nutrient criteria for Florida lakes and flowing waters is
modified to allow the rule’s effective date to be extended to not later than July 6,

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2012. This order does not affect the schedule for a rule for flowing waters in the
South Florida region.
SO ORDERED on March 5, 2012.
s/Robert L. Hinkle
United States District Judge

Case No. 4:08cv324-RH/WCS