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

Filing 463

ORDER granting 424 Motion to Modify the Consent Decree; denying 438 Motion to Enforce the Consent Decree. Signed by JUDGE ROBERT L HINKLE on 1/7/14. (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.

CASE NO. 4:08cv324-RH/CAS

GINA McCARTHY, Administrator
of the United States Environmental
Protection Agency, et al.,
Defendants.
__________________________________/

ORDER MODIFYING THE CONSENT DECREE

This is the latest chapter in a long-running dispute over nutrient
criteria for Florida waters. A consent decree requires the Environmental
Protection Agency to adopt numeric nutrient criteria for Florida’s waters
unless the state does so first. The state has adopted new nutrient criteria, but
for some waters, the criteria are not numeric. The EPA has moved to
modify the consent decree so that the state criteria can control across the
board. The plaintiff environmental organizations, who are parties to the
consent decree, oppose the modification and have moved instead to enforce
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the decree; they say the requirement for numeric criteria should be retained
and that even some of the criteria that the state and the EPA label “numeric”
are not. This order modifies the consent decree and denies the motion to
enforce.
I
The background of this litigation is set out at length in the order of
February 18, 2012, ECF No. 351. The basis for the consent decree is set out
in the order of December 30, 2009, ECF No. 152. This order does not repeat
all that was said there.
II
The plaintiffs are The Florida Wildlife Federation, Inc.; Sierra Club,
Inc.; Conservancy of Southwest Florida, Inc.; Environmental Confederation
of Southwest Florida, Inc.; and St. Johns Riverkeeper, Inc. They are referred
to in this order as “the Florida Wildlife parties.”
The defendants are the Environmental Protection Agency and its
Administrator. For convenience, this order usually refers only to the EPA,
without drawing a distinction between the EPA and its Administrator and
without noting each time that the Administrator is also a defendant.
There are numerous intervenors. Some are political subdivisions or
agencies of the State of Florida. Some are firms or individuals—or trade

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associations whose members include firms or individuals—who introduce
nutrients into Florida waters. For convenience, this order refers to those
intervenors somewhat imprecisely as “state and industry parties.”
III
Congress adopted the Clean Water Act in 1972. The objective was
“to restore and maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. § 1251(a). The Act recognizes the primary
responsibility of the states to prevent or reduce pollution. Id. § 1251(b).
The Act thus allows a state to adopt its own water-quality standards, subject
to the EPA’s approval.
In setting out the roles of the states and the EPA, the Act employs
three terms of art: “uses,” “criteria,” and “standards.” Id. § 1313(c)(2)(A).
A state designates the “uses” for its navigable waters and sets “water quality
criteria” for the waters “based upon such uses.” Id. A “standard” consists of
the uses and corresponding criteria. Id. The standard must “protect the
public health or welfare, enhance the quality of water and serve the purposes
of” the Act. Id. And the standard must “be established taking into
consideration [the waters’] use and value for public water supplies,
propagation of fish and wildlife, recreational purposes, and agricultural,

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industrial, and other purposes, and also taking into consideration [the
waters’] use and value for navigation.” Id.
If a state standard is not “consistent with” the Act’s requirements, or if
the Administrator “determines that a revised or new standard is necessary”
to meet the Act’s requirements, the Administrator must “promptly prepare
and publish proposed regulations setting forth a revised or new” standard.
Id. § 1313(c)(4). The Administrator 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 that is approved by the Administrator. Id. Whether
the 90-day limit is judicially enforceable is less than clear. See Miss.
Comm’n on Natural Res. v. Costle, 625 F.2d 1269, 1278 (5th Cir. 1980).
This case involves waters that Florida has designated as “class I” or
“class III.” The numbers run from most protected (class I) to least protected
(class V). The designated uses of class III waters are “Fish Consumption;
Recreation, Propagation and Maintenance of a Healthy, Well-Balanced
Population of Fish and Wildlife,” and they incorporate the additional uses of
waters of a lower class: “Agricultural Water Supplies” and “Navigation,
Utility and Industrial Use.” Fla. Admin. Code r. 62-302.400(1) (2013); see
also id. r. 62-302.400(6). The designated uses of class I waters incorporate

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all these uses and add “Potable Water Supplies.” Id. r. 62-302.400(1); see
also id. r. 62-302.400(6).
IV
Water-quality criteria can be numeric or narrative. Some of the
parties have suggested a useful analogy: a state could adopt a numeric speed
limit—70 miles per hour—or a narrative standard—don’t drive too fast. Or
a state could adopt a combination of both—don’t drive over 70, and don’t
drive too fast for conditions.
Florida’s longstanding criterion for nutrients, as in effect when the
consent decree was entered, was narrative: “In no case shall nutrient
concentrations of a body of water be altered so as to cause an imbalance in
natural populations of aquatic flora or fauna.” Fla. Admin. Code r. 62302.530(47)(b) (2006). With limited exceptions, Florida did not have
numeric nutrient criteria. See Order of February 18, 2012, ECF No. 351 at
13 & n.2.
V
The Florida Wildlife parties filed this action in 2008. They asserted
that documents issued by the EPA ten years earlier, in 1998, constituted a
determination that Florida’s narrative nutrient standard was inadequate, thus
imposing on the EPA the nondiscretionary duty to adopt new standards. The

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EPA, together with the intervening state and industry parties, denied that the
1998 documents constituted such a determination.
On January 14, 2009, the EPA exercised its explicit statutory authority
to determine that a new standard—a standard using numeric nutrient
criteria—was necessary for Florida to meet the Clean Water Act’s
requirements. This order sometimes refers to this as the “2009
determination” or simply “the determination.” The EPA set out the basis for
the determination in a ten-page letter. The letter noted that the determination
obligated the EPA to promptly propose and adopt a new standard, unless
Florida did so first.
The Florida Wildlife parties filed an amended complaint—
denominated the “third amended supplemental complaint” because there had
been two earlier amendments on other grounds—that added a claim for relief
based on the 2009 determination. The EPA did not deny—and could not
plausibly have denied—the nondiscretionary duty to promptly publish
revised or new standards based on the 2009 determination; that was the
whole point of the determination. But at least some of the state and industry
parties did deny the duty; they asserted that the 2009 determination was
invalid.

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On August 25, 2009, the Florida Wildlife parties and the EPA moved
for entry of a consent decree. The decree required the EPA to propose and
adopt, in two phases, numeric nutrient criteria for Florida waters. In phase
one, the decree required the EPA to sign for publication—by January 14,
2010, one year after the 2009 determination—a proposed rule setting
numeric nutrient criteria for “lakes” (a term used there to include springs)
and “flowing waters” (a term synonymous with “streams,” the term most
often used in this order). The proposed decree required the EPA to adopt
such a rule by October 15, 2010. In phase two, the proposed decree imposed
analogous deadlines one year later—on January 14, 2011, and October 15,
2011—for publication and adoption of numeric nutrient criteria for coastal
and estuarine waters.
The consent decree explicitly provided that the EPA would not be
required to propose or adopt standards if the state proposed its own numeric
criteria and the EPA approved them. The decree thus recognized the Clean
Water Act’s allocation of responsibilities between the state and federal
governments: establishing standards is the state’s job, in the first instance,
subject to EPA approval; the EPA takes over only if the state fails to adopt
appropriate standards.

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On December 30, 2009, I entered the proposed consent decree. A
separate order explained at some length that the decree met the standards
governing consent decrees. And the order continued:
One final point deserves mention. The consent decree
obligates the Administrator to do nothing more than she could
voluntarily choose to do anyway. The Administrator has
already determined that the Florida narrative standard fails to
meet the Clean Water Act’s requirements. She could publish a
revised or new standard for lakes and flowing waters by
January 14, 2010, and for coastal or estuarine waters by January
14, 2011—and could do so earlier if she chose. She could
adopt a revised or new standard as soon after publication as the
administrative process would allow—and thus by October 15,
2010, or October 15, 2011. Any revised or new standard would
have to comply with the governing procedural and substantive
law and would be subject to judicial review—but the same is
true under the consent decree. The intervenors challenge the
underlying determination that Florida’s narrative standard is
inadequate, but with or without the consent decree, that
determination will be equally subject to challenge—based on
the same standard of review and with an equal level of
deference to the Administrator—on judicial review of any
revised or new standard. The consent decree has compromised
the intervenors’ rights not at all.
Order Approving Consent Decree, ECF No. 152 at 14-15.
Two intervenors appealed the consent decree. In an opinion issued on
August 2, 2011, the Eleventh Circuit dismissed the appeal for lack of
standing, essentially agreeing with my ruling that the 2009 determination—
not the consent decree—was the source of any harm allegedly suffered by

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the state and industry parties. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water
Mgmt. Dist., 647 F.3d 1296 (11th Cir. 2011).
VI
The EPA went forward as required by the consent decree, sometimes
with extensions of the deadlines. The decree allowed extensions by
agreement between the Florida Wildlife parties and the EPA, with notice to
the court. And the decree allowed extensions on the EPA’s motion, without
the Florida Wildlife parties’ consent, in the court’s discretion.
One extension was this. In June 2010, the Florida Wildlife parties and
the EPA agreed to extend the deadlines for streams in the South Florida
region, in effect moving those waters from phase one to phase two.
On November 14, 2010, the EPA adopted a phase-one rule setting
numeric nutrient criteria for lakes and springs and for streams outside the
South Florida region. The rule was challenged from both sides under the
APA and on other grounds. Some parties asserted the EPA did too much;
some asserted the EPA did too little. The challenges came in the original
case and in a series of new cases that eventually were consolidated with the
original case.
The order of February 18, 2012, upheld the EPA’s 2009 determination
that numeric nutrient criteria were necessary. The order upheld the phase-

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one rule except for the stream criteria and the downstream-protection criteria
for unimpaired lakes. With those exceptions, the phase-one rule took effect
on January 6, 2013. The invalidated provisions were remanded to the EPA.
On November 4, 2013, the Eleventh Circuit dismissed an appeal for lack of
jurisdiction—that is, for lack of a final judgment on all issues among all
parties.
After extensions, the deadline for the EPA to adopt a rule replacing
the invalidated phase-one criteria was August 31, 2013. The deadline for the
EPA to adopt a phase-two rule was September 30, 2013. But before those
deadlines, the EPA approved rules adopted by the Florida Department of
Environmental Protection (“FDEP”) setting nutrient criteria for the affected
waters. The criteria for some waters were plainly numeric; for those waters,
the approval of the state criteria abrogated the EPA’s obligation under the
consent decree to adopt its own rules. The deadline for the EPA to adopt
criteria for the remaining waters has been stayed pending issuance of this
order.
VII
On June 13, 2012, the FDEP submitted to the EPA for approval a set
of nutrient criteria for all Florida waters. See Fla. Admin. Code Ann. ch. 62302 & 62-303 (2013). The FDEP’s proposal included numeric criteria for

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only some waters; the FDEP proposed to govern other waters with narrative
criteria, albeit criteria that incorporated a quantitative approach. The
FDEP’s proposal included numeric criteria for lakes and springs that
mirrored the EPA’s criteria. The FDEP’s proposal used nonnumeric criteria
for downstream protection, jettisoning the EPA’s numeric downstreamprotection criteria. The FDEP’s proposal used narrative criteria for South
Florida streams and for marine lakes, tidally influenced streams, and
conveyances primarily used for water-management purposes with marginal
or poor stream habitat components. And the FDEP’s proposal included
numeric components that it said constituted numeric nutrient criteria for
other streams, estuaries, and coastal waters.
The EPA reviewed the FDEP’s proposed criteria and concluded that
they met the requirements of the Clean Water Act. The EPA’s approval of a
state water-quality standard is judicially reviewable under the
Administrative Procedure Act, but the Florida Wildlife parties have not filed
an APA challenge. Nothing in this record indicates that the EPA’s decision
was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). This is the standard under
which a court reviews administrative actions of this kind.

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VIII
In response to the FDEP’s actions, the EPA has twice amended the
2009 determination.
First, on November 30, 2012, the EPA concluded that Florida’s
approach to the protection of downstream waters—an approach that does not
use numeric downstream-protection criteria—meets the Clean Water Act’s
requirements.
Second, on June 28, 2013, the EPA concluded that, in light of
developments since the 2009 determination, numeric nutrient criteria are not
necessary to meet the Clean Water Act’s requirements for the waters for
which the FDEP did not adopt criteria it said were numeric—that is, for
South Florida streams and for marine lakes, tidally influenced flowing
waters, and conveyances primarily used for water-management purposes
with marginal or poor stream habitat components.
The amendments to the 2009 determination are administrative actions
that are subject to challenge under the APA. But the Florida Wildlife parties
have not filed an APA challenge. The record in this litigation does not
include the entire administrative record that led to the amendments. But
nothing in this record suggests that the EPA’s actions were “arbitrary,

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capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
IX
The amendments to the 2009 determination do not, standing alone,
affect the EPA’s obligations under the consent decree. The consent decree is
a binding injunction. Unless the decree is modified, the EPA must adopt
numeric nutrient criteria for all affected waters for which the FDEP did not
adopt numeric criteria. Recognizing this, the EPA has moved to modify the
consent decree to conform with the amendments to the 2009
determination—that is, to eliminate the requirement for numeric nutrient
criteria that, as recognized by the amendments, are not necessary to meet the
Clean Water Act’s requirements.
Federal Rule of Civil Procedure 60(b) allows modification of a
judgment or order for specified reasons:
On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or
proceeding for the following reasons:
....
(5) . . . applying [the judgment] prospectively is no
longer equitable; or
(6) any other reason that justifies relief.

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The rule applies to consent decrees, even those requiring action by a
governmental entity to comply with standards affecting the public interest.
See, e.g., Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367 (1992).
Rufo addressed a decree setting pretrial-detention standards for a local
jail. The Supreme Court referred to this as “institutional reform litigation”
and cited Brown v. Board of Education, 347 U.S. 483 (1954), as another
example of such litigation. The Florida Wildlife parties say the case at bar
also is “institutional reform litigation.” The description may not accurately
describe this case, but the Rufo analysis of Rule 60(b) plainly applies here.
No party contends otherwise.
The Florida Wildlife parties say Rufo set an exacting standard
inconsistent with modification of the consent decree in this case. But Rufo
did nothing of the kind. To the contrary, Rufo rejected the assertion that a
consent decree can be modified only on “a clear showing of grievous wrong
evoked by new and unforeseen conditions.” Rufo, 502 U.S. at 379 (quoting
United States v. Swift & Co., 286 U.S. 106, 119 (1932)). Instead of
embracing this “grievous wrong” standard, Rufo noted the “traditional
flexible standard for modification of consent decrees,” noted that a postSwift decision, Railway Employes v. Wright, 364 U.S. 642 (1961), had
“emphasized the need for flexibility in administering consent decrees,” and

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said the upsurge in institutional-reform litigation had “made the ability of a
district court to modify a decree in response to changed circumstances all the
more important.” Rufo, 502 U.S. at 379-80.
The Eleventh Circuit has said that, under Rufo, a party seeking to
modify a consent decree “must show, first, ‘a significant change either in
factual conditions or in law,’ id. at 384, 112 S.Ct. at 760, and, second, that
‘the proposed modification is suitably tailored to the changed circumstance.’
Id. at 391, 112 S.Ct. at 763.” Sierra Club v. Meiburg, 296 F.3d 1021, 1033
(11th Cir. 2002). “A party seeking to modify a consent decree has a high
hurdle to clear and the wind in its face.” Id. at 1034. “Long standing
precedent evinces a strong public policy against judicial rewriting of consent
decrees.” Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000).
Based on these standards, modification is appropriate here. The
FDEP’s adoption of comprehensive new nutrient criteria is a significant
change in the factual conditions and law. The studies and analysis that led to
the FDEP’s adoption of its approach are a significant change in the factual
conditions. Indeed, appropriate numeric nutrient criteria for streams had
proven elusive, as shown by the invalidation of the EPA’s initial rule
adopting such criteria. Both the FDEP and EPA now agree that Florida’s
approach meets the requirements of the Clean Water Act.

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The EPA’s proposed modification of the consent decree is suitably
tailored to—indeed, a perfect match with—the changed circumstances. Both
the 2009 determination and the consent decree will remain in force except to
the extent inconsistent with approval of the FDEP’s alternative approach.
So the proposed modification meets the requirements of Rufo and
Meiburg. In the language of Rule 60(b), applying the affected provisions of
the consent decree prospectively is no longer equitable.
And the modification makes sense on a broader view as well. Had the
FDEP adopted the new criteria before the EPA’s 2009 determination, the
determination would have been modified—as now has occurred—to
eliminate any inconsistent requirement. Neither the 2009 determination nor
the consent decree was intended to change the Clean Water Act’s allocation
to the state of primary responsibility for setting water-quality criteria. Nor
were they intended to foreclose an approach based on further study and
analysis, so long as the approach was consistent with sound science.
In opposing the modification, the Florida Wildlife parties assert that
modification of a consent decree is never appropriate based on a change in
circumstances wholly within the defendant’s own control. The assertion is
wrong on both the law and the facts.

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First, the law. Nothing in Rule 60(b) or in such cases as Rufo and
Meiburg forecloses a modification based on circumstances within a party’s
own control. Indeed, circumstances within a party’s own control may
present the very paradigm of a proper case for modification. Examples
include a school district that, through its own good efforts, has become
unitary, or a public employer that, through its own good efforts, has
eliminated racial discrimination. If modification were not allowed in these
circumstances, injunctions or consent decrees would remain in effect long
after they were needed.
Second, the facts. The changed circumstances that make modification
appropriate here include the FDEP’s further study and analysis and its
adoption of comprehensive nutrient criteria. The EPA’s amendments to the
2009 determination are also changed circumstances, but the amendments
standing alone, without the FDEP’s adoption of its own criteria, would not
have led to modification of the consent decree. In short, this modification is
not being granted based on circumstances wholly within the EPA’s own
control.
The Florida Wildlife parties base their “own control” argument on
language in Rufo taken completely out of context. See Pls.’ Resp. to Mot.
To Modify the Consent Decree, ECF No. 440 at 7. Rufo cited a lower-court

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case in which a consent decree was properly modified “in light of changes in
circumstances that were beyond the defendants’ control and were not
contemplated by the court or the parties when the decree was entered.”
Rufo, 502 U.S. at 380-81 (describing Phila. Welfare Rights Org. v. Shapp,
602 F.2d 1114, 1119-21 (3d Cir. 1979)). But citing a case in which there
were changed circumstances beyond a defendant’s control comes nowhere
close to a holding that a decree can be modified only when there are changed
circumstances beyond the defendant’s control. The Florida Wildlife parties’
argument confuses a sufficient condition with a necessary one.
Rufo explicitly embraced Rule 60(b) and mandated a flexible
approach. Rufo did not impose a rigid requirement for changed
circumstances beyond a defendant’s control. Modification is proper here.
X
Modification of the consent decree to conform with the amendments
to the 2009 determination only partially moots the Florida Wildlife parties’
motion to enforce the decree. The Florida Wildlife parties assert that the
EPA has failed to comply with the consent decree in two additional respects.
A
First, the Florida Wildlife parties assert that for streams that remain
subject to the consent decree’s requirement for numeric nutrient criteria, the

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FDEP has adopted only numeric thresholds, not numeric criteria that meet
the requirements of the consent decree. The consent decree requires
“[n]umeric water quality criteria for nutrients” that “consist of numeric
values that EPA determines are protective of the designated uses of waters.”
Consent Decree, ECF No. 153 at 4 ¶ 3. The FDEP’s numeric nutrient
thresholds for streams meet this definition.
In arguing the contrary, the Florida Wildlife parties mistakenly assert
that a stream’s failure to meet the FDEP’s numeric thresholds will not render
the stream impaired unless a site-specific study shows that the stream is in
fact impaired. Not so. The FDEP’s approach allows site-specific studies,
but a stream that fails to meet the numeric thresholds must be treated as
impaired until a site-specific study shows otherwise. See Fla. Admin. Code
r. 62-303.390(2)(e) (requiring the placement of such a stream on the
impaired-waters study list).
Allowing site-specific studies is not inconsistent with the consent
decree. The point of the endeavor is to protect against adverse effects on
flora or fauna. Under the EPA’s original approach, a water body that
exceeds the prescribed nitrogen or phosphorous levels is deemed impaired,
while a water body that complies with the prescribed levels is deemed
unimpaired. But when judged by the effects on flora and fauna, sometimes a

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water body that exceeds the prescribed levels is in fact unimpaired.
Sometimes a water body that complies with the prescribed levels is in fact
impaired. The FDEP rule uses as its starting point nitrogen and phosphorous
levels like those the EPA incorporated into its own proposed rule. But the
FDEP rule allows a site-specific analysis to properly classify a water body
based on the actual effects on flora and fauna. If properly and honestly
implemented, this is an improvement. And in any event, nothing in this
approach is inconsistent with the consent decree.
B
Second, the Florida Wildlife parties assert that the FDEP rules
improperly exclude intermittent streams from their coverage. That is not so.
The FDEP rule, like the 2009 determination and the EPA’s own stream rule
as originally proposed, applies to intermittent streams with taxa
characteristic of streams. The FDEP rule, like the 2009 determination and
the EPA’s own stream rule as originally proposed, does not apply to streams
with taxa characteristic of wetlands. This is entirely proper; the consent
decree does not apply to wetlands. See Consent Decree, ECF No. 153 at
¶¶ 4, 8.
To be sure, the FDEP rule also excludes intermittent streams with taxa
characteristic of uplands. The EPA has explained that this accounts for very

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dry periods when terrestrial taxa may come to dominate wetlands. In any
event, the Florida Wildlife parties failed to raise this dispute with the EPA
under the procedures required by the consent decree. The issue provides no
basis for entry of an order enforcing the decree.
XI
For the reasons set out to this point, this order grants the EPA’s
motion to modify the consent decree and denies the Florida Wildlife parties’
motion to enforce the decree. The decision is further supported by—but
would be entered separate and apart from—the discussion that follows.
A consent decree cannot be entered without the consent of a party
whose rights would be affected. See United States v. City of Hialeah, 140
F.3d 968, 978-81 (11th Cir. 1998); White v. Alabama, 74 F.3d 1058, 1073
(11th Cir. 1996). Over the objection of numerous intervenors, I entered the
consent decree, concluding that their rights would not be affected. See ECF
No. 152. The Eleventh Circuit agreed and dismissed for lack of standing the
attempt of some of the intervenors to appeal the consent decree.
Had the FDEP adopted its new rules and had the EPA approved them
and amended the 2009 determination before entry of the consent decree, the
Florida Wildlife parties would have had, at most, a right to challenge the
approval under the APA; the Florida Wildlife parties would have had no

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right to relief in this citizen’s suit. The Florida Wildlife parties’ position on
the pending motions thus rests on the proposition that the consent decree put
the state and industry parties in substantially worse position than they
occupied before the decree was entered. That proposition is squarely at odds
with the position the Florida Wildlife parties successfully advocated in
support of the consent decree. If, as the Florida Wildlife parties now
apparently assert, the consent decree affected the state and industry parties’
substantial rights, the consent decree should not have been entered, and the
appeal from the decree should not have been dismissed.
The answer is that the consent decree did not affect the state and
industry parties’ substantial rights. The decree was properly entered, and the
appeal was properly dismissed. The Florida Wildlife parties may not be
judicially estopped from asserting the contrary. But they are asserting in the
district court a position inconsistent with the prior ruling of the Eleventh
Circuit. That is a losing proposition.
The prior rulings of this court and the Eleventh Circuit were correct
because the consent decree required administrative action that the EPA was
free to take if it chose, with or without the consent decree. And if
circumstances changed, as they have, the consent decree could be modified,
as Rule 60(b) provides. Now, as then, the primary responsibility for

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adopting standards meeting the Clean Water Act’s requirements rests with
the State of Florida, subject to the EPA’s approval. Now, as then, the Clean
Water Act depends in part on honest administrative enforcement of duly
adopted standards. At least as shown by this record, the FDEP’s new
standards have been duly adopted.
XII
For these reasons,
IT IS ORDERED:
1.

The EPA’s motion, ECF No. 424, to modify the consent decree,

ECF No. 153, is GRANTED. The decree is amended to exclude any
requirement to adopt numeric downstream-protection criteria or numeric
nutrient criteria for South Florida streams or for marine lakes, tidally
influenced streams, or conveyances primarily used for water-management
purposes with marginal or poor stream habitat components.
2.

The Florida Wildlife parties’ motion, ECF No. 438, to enforce

the consent decree is DENIED.
SO ORDERED on January 7, 2014.
s/Robert L. Hinkle
United States District Judge

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