FLORIDA CLEAN WATER NETWORK INC v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Filing 111

ORDER. The plaintiffs' motion for summary judgment (doc. 73 ) is GRANTED with respect to Counts I through V of their complaint and DENIED with respect to Counts VI and VII and the defendants' motion for summary judgment (doc. 88 ) is DENIED with respect to Counts I through V of the plaintiffs' complaint and GRANTED with respect to Counts VI and VII. This matter is remanded to the EPA for 120 days for further development of the administrative record with regar d to the effect of the provisions of the amended IWR at issue in Counts I through V of the plaintiffs' complaint on the state's listing decisions according to the test prescribed by the Eleventh Circuit in FPIRG II. The Clerk of Court is directed to enter summary final judgment consistent with this order. The parties shall have fourteen (14) days in which to submit requests for attorneys' fees and costs. Signed by CHIEF JUDGE M CASEY RODGERS on March 30, 2012. (pmc)

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

FLORIDA CLEAN WATER NETWORK,
INC., et al.,
Plaintiffs,
v.

Case No. 4:09cv165/MCR/WCS

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,
Defendants.
_________________________________/
ORDER
The plaintiffs, Florida Clean Water Network, Inc.; Conservancy of Southwest Florida;
St. Johns Riverkeeper; and Linda L. Young, filed this lawsuit against the defendants,
United States Environmental Protection Agency; Lisa P. Jackson, in her official capacity
as Administrator of the United States Environmental Protection Agency; United States
Environmental Protection Agency Region 4; and A. Stanley Meiberg, Acting Regional
Administrator, Environmental Protection Agency Region IV (collectively, “EPA”),
challenging the EPA’s determination that certain provisions of Florida’s amended Impaired
Waters Rule (“IWR”), which was submitted to the EPA for review, are not new or revised
water quality standards and thus do not require approval by the EPA and that other
provisions constitute new or revised water quality standards but are consistent with federal
regulations and the Clean Water Act (“CWA”).1 Before the court are the parties’ cross
motions for summary judgment (docs. 73, 88). Having carefully reviewed the record,
considered the parties’ motions, and heard oral argument from counsel, the court finds that

1

The plaintiffs brought this action under the Adm inistrative Procedures Act, 5 U.S.C. § 701, et seq.

(“APA”).
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both motions should be granted in part and denied in part.
BACKGROUND
In an effort to “restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters,” Congress adopted the Clean Water Act in 1972. 33 U.S.C.
§ 1251(a). Under the CWA, the federal and state governments share duties to monitor and
regulate water pollution, with the states bearing primary responsibility for implementing
pollution control mechanisms and the federal government overseeing the states’ actions
in that regard. As a threshold matter, states are required to establish water quality
standards to define the level of water quality for each waterbody within their borders.
Water quality standards consist of three components: (1) the designated uses of the
waterbody, see 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.3(f), 131.10;2 (2) the water
quality criteria necessary to support the designated uses, expressed as constituent
concentrations, levels, or narrative statements, see 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R.
§§ 131.3(b) and (i), 131.11;3 and (3) an anti-degradation policy that is consistent with the

2

“Designated uses are those uses specified in water quality standards for each water body or
segm ent whether or not they are being attained,” 40 C.F.R. § 131.3(f), and include uses such as public water
supply, propagation of fish and wildlife, recreation, agricultural, industrial, and navigation, see 33 U.S.C.
§ 1313(c)(2)(A); 40 C.F.R. § 131.10.
3

According to the EPA,
[w]ater quality criteria for protection of aquatic life also usually have three
com ponents. The first com ponent is “m agnitude” . . . of a pollutant or
pollutant indicator than can occur in the am bient water without adversely
affecting the designated use the criteria is intended to support. The second
com ponent is “duration,” or the period of tim e over which the instream
concentration is averaged for com parison with criteria concentrations. . . .
The third com ponent is “frequency,” or how often the m agnitude/duration
condition can be exceeded within a specified duration period and still protect
the designated use.

AR EPA001043.08. As the EPA explained,
“[b]ecause of variation in the flows of the effluent and the upstream receiving
water as well as variation in the concentrations of pollutants in the upstream
effluent and in the receiving water, a sim ple form at, such as specifying
concentration that m ust not be exceeded at any tim e or place, is not
realistic. Furtherm ore, such a sim ple form at does not take into account the
fact that aquatic organism s can tolerate higher concentrations of pollutants
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EPA’s anti-degradation regulation and specifies the circumstances under which the state
may authorize the lowering of water quality criteria, see 40 C.F.R. § 131.12(a)(2); Am.
Wildlands v. Browner, 260 F.3d 1192, 1194 (10th Cir. 2001).4

Once water quality

standards have been established, states must monitor waterbodies to determine whether
the standards are being met and develop mechanisms to either maintain or restore water
quality, depending on the circumstances.
States also are required to review and, if appropriate, revise their water quality
standards at least once every three years and submit any new or revised water quality
standards to the EPA for approval. See 33 U.S.C. § 1313(c)(1), (2)(A). The EPA reviews
a new or revised water quality standard to determine whether the state has adopted criteria
that are consistent with the requirements of the CWA and protect the designated water
uses, whether the state has followed its legal procedures for revising or adopting
standards, and whether any designated uses not specified in 33 U.S.C. § 1251(a)(2) are
based on appropriate technical and scientific data and analyses. See 40 C.F.R. § 131.5.
Revisions also must comply with the state’s anti-degradation policy and must maintain the
existing quality of each of the state’s waterbodies. See 33 U.S.C. § 1313(d)(4)(B); 40
C.F.R. § 131.12. If the EPA determines that a new or revised water quality standard is
consistent with the CWA, it must approve the standard within sixty days, which then
becomes effective. See 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(a)(1). If, on the other
hand, the EPA determines that a new or revised water quality standard is not consistent
with the CWA, it must notify the state within ninety days and specify the changes that need
to be made in order to bring the standard into compliance. See 33 U.S.C. § 1313(c)(3);
40 C.F.R. § 131.21(a)(2). If the state does not adopt the EPA’s changes within ninety

for short periods of tim e than they can tolerate throughout a com plete life
cycle. . . . Use of this concentration-duration-frequency form at allows water
quality criteria for aquatic life to be adequately protective without being as
overprotective as would be necessary if criteria were expressed using a
sim pler form at.
Id.
4

States also are required to identify m ethods for im plem enting their anti-degradation policies. See
40 C.F.R. § 131.12.
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days, the EPA must “promptly prepare and publish proposed regulations setting forth a
revised or new water quality standard.” 33 U.S.C. § 1313(c)(3), (4)(A). Unless the state
cures the defect within ninety days thereafter, the EPA must promulgate the standard
itself.5 See 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.22(a).
The Florida legislature authorized the Florida Department of Environmental
Protection (“FDEP”) to promulgate water quality standards for the state. See Fla. Stat.
§ 403.061(11). Exercising that authority, on May 29, 1990, the FDEP promulgated chapter
62-302 of the Florida Administrative Code, which sets forth the water quality standards for
all of the state’s surface waters. See Fla. Admin. Code r. 62-302.200-.800. Because water
quality standards are essential to ensure the safety and integrity of the nation’s
waterbodies, the CWA requires that states identify and compile a list of the waters within
their boundaries that do not meet the applicable water quality standards and thus are not
safe for their designated purposes. See 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b),
(d)(1). The list is known as the “Impaired Waters List” or “section 303(d) list.” For each
waterbody included on the section 303(d) list, the state must calculate a Total Maximum
Daily Load (“TMDL”) for every pollutant causing the waterbody not to meet the applicable
standards; as the phrase suggests, the TMDL establishes the maximum quantity of the
pollutant that can be received on a daily basis without exceeding the standard.6 See 33
U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c).

5

The EPA also has discretionary authority to prom ulgate water quality standards for a state when
necessary to m eet the requirem ents of the CW A. See 33 U.S.C. § 1313(c)(4)(B).
6

According to Fla. Adm in. Code. r. 62-303.200(24), the TMDL
for an im paired water body or water body segm ent shall m ean the sum of
the individual wasteload allocations for point sources and the load
allocations for nonpoint sources and natural background.
Prior to
determ ining individual wasteload allocations and load allocations, the
m axim um am ount of a pollutant that a water body or water segm ent can
assim ilate from all sources without exceeding water quality standards m ust
first be calculated. A TMDL shall include either an im plicit or an explicit
m argin of safety and a consideration of seasonal variations.

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On May 26, 1999, the Florida legislature adopted the Florida Watershed Restoration
Act, directing the FDEP to “adopt by rule a methodology for determining those waters
which are impaired.” See Fla. Stat. § 403.067(3)(b). The legislature also instructed that,
in applying water quality standards, the EPA was to “take into account the variability
occurring in nature” and “recognize the statistical variability inherent in sampling and testing
procedures that are used to express water quality standards.” Fla. Stat. § 403.021(11).
Accordingly, on April 26, 2001, the FDEP adopted chapter 62-303 of the Florida
Administrative Code, entitled “Identification of Impaired Surface Waters” (known as the
“Impaired Waters Rule” or “IWR”), which sets forth a
methodology to identify surface waters of the state that will be
included on the state’s planning list of waters that will be
assessed . . . and a methodology to identify impaired waters
based on representative data that will be included on the
state’s verified list of impaired waters, for which the [FDEP] will
calculate [TMDLs] . . . and which will be submitted to the [EPA]
....
Fla. Admin. Code r. 62-303.100(1).7 States are required to submit their section 303(d) list
and TMDLs to the EPA for review and approval every two years. See 33 U.S.C.
§ 1313(d)(2); 40 C.F.R. § 130.7(d)(1). In reviewing the list and TMDLs, the EPA must
consider whether the state’s methodologies for identifying impaired waters result in listing
decisions consistent with the state’s water quality standards. If the EPA approves the
section 303(d) list, the state must incorporate the list and TMDLs into its “continuing
planning process.” See 33 U.S.C. § 1313(d)(2), (e). If the EPA disapproves the section
303(d) list, it must establish one for the state. See 33 U.S.C. § 1313(d)(2). On October
1, 2002, Florida submitted to the EPA its first section 303(d) list using the methodology set
forth in the IWR.

7
The IW R was signed into law by the governor and becam e effective on June 10, 2002. It was
“intended to evaluate attainm ent of water quality standards as set forth in Chapter 62-302, F.A.C., for the
purposes of identifying water bodies or segm ents for which TMDLs w[ould] be established.” Fla. Adm in. Code
r. 62-303.100(3).

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On December 2, 2002, a number of parties, including Linda Young, a plaintiff in this
case, filed a citizen suit in this court against the EPA, alleging that the EPA failed to
perform a nondiscretionary duty under § 303(c) of the CWA to review Florida’s IWR as
establishing new or revised water quality standards.8 See Fla. Pub. Interest Research
Group Citizen Lobby, Inc. v. E.P.A. (“FPIRG I”), No. 4:02cv408 (N.D. Fla. filed Dec. 2,
2002) (doc. 1). The EPA filed a motion for summary judgment in which it argued, among
other things, that the State of Florida did not submit – and the EPA did not approve – the
IWR and that the IWR therefore did not constitute a change to Florida’s existing water
quality standards requiring the EPA’s review and approval. See id., at doc. 29. The
Honorable William Stafford, writing for the court, agreed with the EPA’s position and found
that the IWR did not establish new or revised water quality standards and that the EPA
thus had no nondiscretionary duty to review and approve it. See id., at doc. 64. The
Eleventh Circuit reversed Judge Stafford, holding that the fact that the state did not
characterize the IWR as new or revised water quality standards and engage in formal
rulemaking proceedings did not mean that the IWR did not constitute a change to Florida’s
existing water quality standards, if the standards in fact were modified. See Fla. Pub.
Interest Research Group Citizen Lobby, Inc. v. E.P.A. (“FPIRG II”), 386 F.3d 1070 (11th
Cir. 2004). According to the Eleventh Circuit, in determining whether the IWR constituted
new or revised water quality standards, the district court was required to conduct an
independent review of the effect of the IWR on Florida’s existing water quality standards.
Id. at 1088-89. If “waterbodies that under pre-existing testing methodologies would have
been included on the list were left off the list because of the Impaired Waters Rule, then
in effect the Rule would have created new or revised water quality standards . . . .” Id. at
1090. In other words, the district court should have “examine[d] whether there were
waterbodies that were equally polluted both before and after the Impaired Waters Rule
took effect, but that were classified differently depending on whether or not the Rule was
used.” Id. Because Judge Stafford failed to perform the pertinent analysis, the Eleventh
8

Pursuant to 33 U.S.C. § 1365(a)(2), citizens m ay sue the EPA in federal district court for alleged
failures “to perform any act or duty under [the CW A] which is not discretionary with the Adm inistrator.”
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Circuit remanded the case for additional fact finding and a determination of “whether the
Impaired Waters Rule, as applied, was an effective change to . . . Florida’s existing water
quality standards, as applied.”9 Id. Pursuant to the EPA’s request, Judge Stafford referred
the matter to the EPA so it could conduct an examination of whether the IWR, as applied,
revised or modified Florida’s existing water quality standards.
The EPA issued a determination on July 6, 2005 (“2005 Determination”), finding that
many portions of the IWR did not constitute new or revised water quality standards but that
other portions did, requiring the EPA’s review and approval. AR EPA001041-43.18; see
also FPIRG I, at doc. 110. In order to determine whether a provision constituted a new or
revised water quality standard, the EPA engaged in a two-part analysis, considering (1)
whether the provision related to an attainment decision;10 and, if so, (2) whether the
provision defined, changed, or established the magnitude, duration, or frequency related
to water quality criteria necessary to support a designated use. AR EPA001043.09.
According to the EPA, “[p]rovisions that affect attainment decisions made by the State and
that define, change, or establish the level of protection to be applied in those attainment
decisions, affect existing standards implemented under section 303(c) of the Act” and thus
“constitute new or revised water quality standards.” Id.
On the other hand, provisions that merely describe the
sufficiency or reliability of information necessary for the State
to make an attainment decision, and do not change a level of
protection, are methodologies under section 303(d) of the Act.
These provisions set out the circumstances that must exist for
the State to make an attainment decision in the first instance
and contain policy choices about the reliability of data, . . . [but]

9

The court noted that, based on the record, it was unable “to determ ine, with any confidence, whether
the de-listing of these waterbodies resulted from the application of m ore rigorous statistical m ethods contained
in the Im paired W aters Rule, or whether these waterbodies were rem oved from the Im paired W aters List
because their pollution levels really did drop.” Id. at 1091.
10

An attainm ent decision, according to the EPA, is “one where a State decides what it m eans to attain
or to not attain any ‘water quality standard applicable to such waters’ for purposes of establishing total
m axim um daily loads (TMDLs) under section 303(d)(1)(A) of the Act, 33 U.S.C. § 1313(d)(1)(A).” AR
EPA001043.09.
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do not describe the condition of the water body assessed.11
AR EPA001043.09-.10. “Primary examples of provisions of the IWR that are only section
303(d) methodologies include minimum sample size requirements, age of data
requirements, and the requirement that FDEP know the pollutant causing a water quality
impairment before that water may be included on the section 303(d) list.”

AR

EPA001043.11. Such provisions, according to the EPA, “do not relate to the ambient
condition in the waterbody, i.e., what level of pollutant (or pollutant indicator) may be in the
waterbody before determining that the waterbody is not meeting all applicable water quality
standards. Instead, these provisions may relate to the information necessary to conduct
an attainment decision pursuant to section 303(d) of the Act and 40 C.F.R. § 130.7(b)(5)(6) (as compared to section 303(c) of the Act) and, as such, do not constitute water quality
standards.” AR EPA001043.11. Accordingly, the EPA determined that it had no duty to
review those provisions of the IWR.12

11

The EPA acknowledged, however, that such provisions m ay have affected Florida’s section 303(d)
list. AR EPA001043.17.
12

The EPA noted that
[t]he fact that a provision of the IW R is not reviewed by EPA as a new or
revised water quality standard does not rem ove that provision from EPA’s
oversight responsibilities. To the extent that such provisions do not com ply
with the requirem ents for developing im paired water lists pursuant to section
303(d) of the Act and its im plem enting regulations at 40 C.F.R. § 130.7(b),
EPA has taken and will continue to take action as necessary when reviewing
Florida’s section 303(d) list subm ittals.”

AR EPA001043.12. For exam ple,
[a]fter reviewing Florida’s Group 1 Update, EPA decided that the IW R
provision prohibiting the listing of any water based on less than 20 sam ples
was not reasonable in all situations. EPA disapproved the State’s failure to
list certain waters based on this provision and added those waters to the
State 303(d) list. EPA also decided that the IW R provision prohibiting the
listing of any water where the pollutant causing an im pairm ent is unknown
was not reasonable. EPA disapproved the State’s failure to list certain
waters based on this provision and added those waters to the State list.
Id.
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With regard to the portions of the IWR that constituted new or revised water quality
standards, the EPA found that the FDEP was required to engage in rulemaking procedures
under Florida’s Administrative Procedure Act and that, because the FDEP had failed to do
so, the EPA could not approve the provisions. AR EPA001041-42. The EPA also
expressed disagreement with the test set forth by the Eleventh Circuit, declaring that “it is
not appropriate simply to look at whether a water was no longer listed or added to Florida’s
section 303(d) list after application of the IWR in order to determine whether the IWR
provision constitutes a new or revised water quality standard.” AR EPA001043.16.
According to the EPA, “such an ‘effects test’ presumes that the first or original section
303(d) list correctly identified all impaired waterbodies” when, “[w]ithout a methodology, .
. . it is often impossible to determine the basis for or validity of the initial listing decisions.
Thus, more recent changes to the list may actually correct a mistake from a previous list,
or may reflect a lack of certainty as to the basis for listing a water in the first instance.” Id.
Application of the “effects test,” in the EPA’s view, “could result in a situation where any
state provision which causes a different result than that of a previous list would be
classified as a water quality standard subject to EPA’s mandatory duty to review . . . , even
if the provision clearly does not meet the definition of water quality standard under the
CWA and its implementing regulations.” AR EPA001043.16-.17. In other words, in the
EPA’s opinion, “[a] strict application of the ‘effects’ test . . . would inappropriately expand
the scope of water quality standards beyond use, criteria and antidegradation in a manner
not contemplated by the CWA and its implementing regulations. . . . and contravene the
principle that mandatory duties be narrowly construed.” AR EPA001043.17. The EPA thus
rejected the “effects test” and indicated its intent to apply the “level of protection test
pursuant to section 303(c) of the [CWA] and its implementing regulations at 40 C.F.R. Part
131,” which it considered to be “the appropriate interpretation of the term ‘water quality
standard’ as that term is used in the CWA and its implementing regulations.” AR
EPA001043.18.
The plaintiffs challenged the EPA’s determination that certain provisions of the IWR
did not constitute new or revised water quality standards based on the EPA’s failure to
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apply the “effects test.” See FPIRG I, at doc. 157. Focusing on what he considered to be
the Eleventh Circuit’s “ultimate instruction” – to “determine whether the Impaired Waters
Rule, as applied, was an effective change to [ ] Florida’s existing water quality standards,
as applied” – rather than on the “effects text,” Judge Stafford again granted summary
judgment in favor of the EPA, finding that its “review of the IWR was meticulous” and that
“its conclusions were reasoned, based on a consideration of relevant factors.” Id. at doc.
185 (emphasis in original). According to Judge Stafford, focusing solely on the fact that
waterbodies had been removed from the state’s 303(d) list without evidence of the pollution
levels in those waterbodies would “conflat[e] the IWR’s effect on the State’s listing
decisions with the IWR’s effect on Florida’s water quality standards.” Id. Thus, like the
EPA, Judge Stafford rejected the “effects test” as applied to water quality standards.
After the EPA issued its determination on remand from the Eleventh Circuit, Florida
amended its IWR several times to address procedural deficiencies identified by the EPA
and to make other substantive and editorial changes.13 The FDEP submitted the amended
IWR to the EPA for review on September 14, 2007. AR EPA001191.01. On February 19,
2008, the EPA issued its determination on the amended IWR (“2008 Determination”),
finding that some portions constituted new or revised water quality standards, which it
approved, and that other portions did not constitute new or revised water quality standards
and thus did not require review or approval by the EPA.14 AR EPA 001191.01-.50. In so
finding, the EPA “applied the same analytical framework that it used in the 2005
Determination.” AR EPA001191.04. Thus, the EPA’s findings were based on the premise
that only provisions relating to an attainment decision – i.e., provisions defining, changing,
or establishing a designated use or the magnitude, duration, or frequency related to water
quality criteria – constitute new or revised water quality standards. The EPA did not focus
on the effect the amended IWR had on the state’s listing decisions; in others words, it did

13

Specifically, the IW R was am ended on Septem ber 28, 2006; Decem ber 5, 2006; and June 26,

2007.
14

The EPA exam ined only the portions of the rule that were am ended in 2007, leaving its 2005
Determ ination otherwise in tact.
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not apply the “effects test” espoused by the Eleventh Circuit.15
The plaintiffs filed this lawsuit on May 6, 2009, alleging, in Counts I through V, that
the EPA’s determination that several provisions of the IWR are not new or revised water
quality standards is arbitrary and capricious. The plaintiffs seek a declaration that the
provisions, in fact, constitute new or revised water quality standards and remand to the
EPA to determine whether the standards are consistent with the CWA and approval or
disapproval thereof. In Counts VI and VII, the plaintiffs challenge the EPA’s approval of
other provisions of the IWR. The plaintiffs seek a declaration that the approved standards
are inconsistent with the CWA and an order directing the EPA to disapprove the standards
and specify the changes that need to be made in order for the standards to comply with
the CWA.
DISCUSSION
A.

Standard of Review
Summary judgment is appropriate where “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “Under the APA, a court shall ‘set aside agency action, findings, and
conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007)
(quoting 5 U.S.C. § 706(2)(A)). Agency action is considered arbitrary or capricious where
the agency has
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.
Id. (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

15

The EPA did, however, add waterbodies to the state’s 303(d) List.

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(1983)). In other words, “[t]he arbitrary and capricious standard is exceedingly deferential,”
and the court is “not authorized to substitute [its] judgment for the agency’s as long as [the
agency’s] conclusions are rational.” Miccosukee Tribe of Indians of Fla. v. U.S., 566 F.3d
1257, 1264-65 (11th Cir. 2009) (internal marks omitted); see Leal v. Sec’y, U.S. Dep’t of
Health and Human Servs., 620 F.3d 1280, 1282 (11th Cir. 2010) (noting that the court has
“very limited discretion to reverse an agency decision”) (internal marks omitted). However,
the court must not accept an agency’s “post hoc rationalizations” for its action; indeed, “[i]t
is well-established that an agency’s action must be upheld, if at all, on the basis articulated
by the agency itself.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50. In considering an
agency’s action, “the court must . . . look beyond the scope of the decision itself to the
relevant factors that the agency considered. Its duty is to ensure that the agency took a
‘hard look’ at the environmental consequences of the proposed action.” Sierra Club v. U.S.
Army Corps of Engineers, 295 F.3d 1209, 1216 (11th Cir. 2002) (quoting Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43 (internal citation omitted). “An agency has met its ‘hard look’
requirement if it has ‘examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a ‘rational connection between the facts found and the
choice made.’” Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). “If the court finds
deficiencies in the agency's reasoning, it may not rectify them or provide a reasoned basis
for the agency decision which the agency itself has not articulated. Instead, it must remand
to the agency so that it may reconsider its own reasoning and decision.” Id. (internal
citation omitted).
B.

The Plaintiffs’ Challenges16

1.

Counts I through V: EPA’s Failure to Apply the “Effects Test”

In Counts I through V of their Complaint, the plaintiffs challenge the EPA’s
determination that certain provisions of the amended IWR do not constitute new or revised

16

Although the plaintiffs have devoted a portion of their m em orandum to the issue of standing, the
defendants have not challenged their standing to bring this action, and it is clear to the court, based on the
allegations in the plaintiffs’ com plaint, that the plaintiffs have standing to m aintain the claim s they have
asserted in this m atter. See FPIRG II, 386 F.3d at 1083-87.
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water quality standards because, in so finding, the EPA failed to apply the Eleventh
Circuit’s “effects test.” Although the EPA argues convincingly that application of the
“effects test” in the context of this matter is impractical and even ill-advised, the court is
bound by the Eleventh’s Circuit’s decision in FPIRG II. See, e.g., Cornett v. Carrithers, No.
11-14242, 2012 WL 687011, at *2 (11th Cir. March 2, 2012) (noting that district courts in
the Eleventh Circuit are bound by the Eleventh Circuit’s decisions) (unpublished op.).17
Accordingly, in order to determine whether the EPA acted arbitrarily or capriciously or
otherwise not in accordance with the law in finding that the provisions at issue do not
constitute new or revised water quality standards, the court must determine whether
application of those provisions resulted in waterbodies being left off of or removed from the
state’s section 303(d) list. Because the EPA failed to consider the effect of the amended
IWR on the state’s listing decisions, there is insufficient evidence in the record from which
the court can make such a determination. The court therefore finds that this matter should
be remanded to the EPA for further development of the administrative record so the court
can determine whether there were waterbodies that were equally polluted before and after
the amended IWR but that were classified differently based on application of the provisions
at issue in Counts I through V of the plaintiffs’ complaint. The court notes, however, that
when it espoused the “effects test,” the Eleventh Circuit did not have the benefit of the
EPA’s position with regard to its applicability to water quality standards. The undersigned
agrees with Judge Stafford that focusing solely on whether or not the amended IWR
resulted in changes to the state’s listing decisions conflates the amended IWR’s effect on
listing decisions, which are not at issue in this case, with its effect on water quality
standards, which serve as the sole basis of this action. Nevertheless, given the breadth
of the decision in FPIRG II, the court is constrained to apply the “effects test” in this case,
but it looks to the Eleventh Circuit in the event of an appeal for clarification as to the
circumstances and manner in which it should be applied henceforth.

17

W hile unpublished opinions are not considered binding, they m ay be considered as persuasive
authority. See 11th Cir. R. 36-2; see also United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000).
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2.

Count VI - Approval of the Binomial Distribution Method

The plaintiffs contend in Count VI of their complaint that, by approving Fla. Admin.
Code r. 62-303.420(6) as a new or revised water quality standard, the EPA approved the
binomial distribution method set forth in Fla. Admin. Code r. 62-303.420(2) yet provided
no explanation for its decision in that regard.18 As the plaintiffs point out, the EPA identified
Fla. Admin. Code r. 62-303.420(6) as a revision of Florida’s existing water quality
standards “because it changes or further defines the frequency of exceedance of Florida’s
currently approved water quality criteria.” AR EPA001267. The EPA approved the
provision on the same basis upon which it approved Fla. Admin. Code r. 62-303.320(6)(b),
which relates to the frequency for acute toxicity-based criteria exceedances.
EPA001191.27-.28.

AR

Although the plaintiffs acknowledge that the EPA may have

considered only Fla. Admin. Code r. 62-303.320(6)(b) as constituting a revision to Florida’s
existing water quality standards, they argue that the EPA’s determination is ambiguous in
that regard and needs to be clarified. The plaintiffs thus request that the court set aside
the EPA’s approval of Fla. Admin. Code r. 62-303.420(6) and remand the matter to the
EPA for further development of the administrative record. The court finds no ambiguity
with regard to the provision at issue in Count VI and thus declines to remand the matter
to the EPA on that basis.
As the EPA points out, although Fla. Admin. Code r. 62-303.420(6) references Fla.
Admin. Code r. 62-303.420(2), it does not incorporate Fla. Admin. Code r. 62-303.420(2)
or express approval of it. To the contrary, in its 2008 Determination, the EPA stated that
it was approving only those provisions of chapter 62-303 of the Florida Administrative Code
that it determined were new or revised water quality standards. AR EPA001191.01. The
EPA identified all such provisions, as well as those it found not to constitute new or revised
water quality standards.

While Fla. Admin. Code r. 62-303.420(6) is identified as a new

or revised water quality standard, Fla. Admin. Code r. 62-303.420(2) is not; in fact, Fla.

18

Fla. Adm in. Code. r. 62-303.420(6) provides that “[o]nce the additional data review is com pleted
pursuant to subsections (1) through (5), the [FDEP] shall re-evaluate the data and shall include waters on the
verified list that m eet the criteria in subsection 62-303.420(2) or paragraph 62-303.320(6)(b), F.A.C.”
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Admin. Code r. 62-303.420(2) is expressly identified as a provision that does not constitute
a new or revised water quality standard. AR EPA001191.17-.18. Moreover, Appendix D
sets forth the EPA’s analysis and conclusion with regard to Fla. Admin. Code r. 62303.420(6) and makes it plain that the EPA’s decision to approve the rule was based on
its analysis of the planning list provision set forth therein, which the EPA found constituted
a new or revised water quality standard, and not the binomial distribution method. AR
EPA001266-67. Because it is clear from the record that the EPA did not approve Fla.
Admin. Code r. 62-303.420(2) as a new or revised water quality standard, there is no need
to remand the matter to the EPA for further development of the administrative record in that
regard.
3.

Count VII - Numeric Nutrient Thresholds

In Count VII of their complaint, the plaintiffs challenge the EPA’s approval of
numeric nutrient thresholds as new or revised water quality standards. Florida’s existing
water quality criterion for nutrients is narrative and provides that “[i]n 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. 62-302.530(47)(b). The
amended IWR incorporates numeric nutrient thresholds, which establish quantitative levels
of impairment above which a waterbody is considered impaired for purposes of the CWA.
See Fla. Admin. Code rs. 62-303.350-.353, 62-303.450, 62-303.720(2)(j). Because the
numeric nutrient thresholds include magnitude and duration components, the EPA
concluded that they constitute new or revised water quality standards. AR EPA001191.35.41; EPA001207-12; EPA001246-52; EPA001289-90. In order to approve a new or revised
water quality standard, the EPA must find that it is consistent with federal regulations and
the CWA; in making such a determination, the EPA must consider whether the new or
revised standard adequately protects the designated uses of the state’s waterbodies and
is based on a sound scientific rationale. See 40 C.F.R. §§ 131.5, 131.11(a). The EPA
concluded that the numeric nutrient thresholds set forth in the amended IWR are
consistent with federal regulations and the CWA, are scientifically supported, and, when
considered along with other provisions of the IWR, enhance the function of the narrative
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criteria in protecting the designated uses of the state’s waterbodies. It thus approved them.
In Count VII of their complaint, the plaintiffs challenge the EPA’s action in that regard,
arguing that it is arbitrary and capricious because the FDEP established numeric nutrient
thresholds only for chlorophyll-a – and not for total nitrogen or total phosphorus, which the
plaintiffs maintain are essential aspects of numeric nutrient criteria – and based the
numeric thresholds on annual, rather than seasonal, averaging, thereby failing to
adequately protect the state’s water bodies.19 For the reasons set forth below, the court
finds that the EPA acted neither arbitrarily nor capriciously in approving the state’s adoption
of numeric nutrient thresholds.
As the EPA explained, the quantitative thresholds adopted by the FDEP “represent
a ‘translator’ of the narrative criterion for certain applications of the state’s water quality
standards . . . .”20 Id. If a state decides to supplement its narrative criteria with quantitative
translators, the EPA expects the translators “to adequately perform the tasks expressed

19

In particular, the plaintiffs allege that the num eric thresholds are inadequate to protect the
designated uses of fish consum ption; recreation, propagation, and m aintenance of a healthy, well-balanced
population of fish and wildlife, see Fla. Adm in. Code r. 62-302.400(1), and prevent an im balance in natural
populations of aquatic flora or fauna, see Fla. Adm in. Code r. 62-302.530(47)(b).
The plaintiffs also em phasize that the EPA concluded in January 2009 that the State of Florida is
required to adopt num eric nutrient criteria. However, the fact that the EPA subsequently m ade such a
determ ination does not render its in decision in February 2008 arbitrary and capricious. And, even though the
EPA found that Florida is required to adopt num eric nutrient criteria, it did not disapprove the state’s num eric
nutrient thresholds for chlorophyll-a.
20

The EPA further explained that,
[i]n water quality standards, a translator identifies a process, m ethodology,
or guidance that states or tribes will use to quantitatively interpret narrative
criteria statem ents. Different translators m ay serve to quantitatively interpret
narrative criteria as they are applied for different purposes as long as they
share the sam e intended level of protection. In addition, translator
m echanism s can be used to m ake appropriate interpretations of narrative
criteria where there is uncertainty in determ ining a specific threshold of
protection. Translators m ay consist of biological assessm ent m ethods (e.g.,
field m easures of the biological com m unity), biological m onitoring m ethods
(e.g., laboratory toxicity tests), m odels or form ulae that use input of sitespecific inform ation/data, or other scientifically defensible m ethods.

AR EPA001207.
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by the words of the narrative for the specific functions identified.” AR EPA001210.
Moreover, if one-sided thresholds are implemented for assessment purposes, the
translator must
(1)

(2)

(3)

[h]ave a basis in science that relates the measurements
specified by the procedure to the desired condition or
adverse condition to be avoided, as described by the
narrative;
[e]ffectively separate waters into groups where (a)
protection of the use is clearly threatened or impaired
and (b) where protection of the use is uncertain . . . ;21
[and]
[u]tilize the proper parameters and constituents to
achieve the objectives set forth above.

Id. The numeric thresholds in the amended IWR are expressed as an increasing annual
trend in trophic state index (“TSI”) for lakes and chlorophyll-a mean values for streams,
estuaries, and open coastal waters which demonstrate imbalances in flora and fauna
causing waterbodies not to attain the narrative nutrient criterion.22 AR EPA001207-08. As
an example of the manner in which the numeric nutrient thresholds are applied, the EPA
described a waterbody whose chlorophyll-a concentration or TSI value clearly indicates an
imbalance in the natural populations of aquatic flora and fauna. The numeric nutrient
thresholds allow the FDEP to place such a waterbody on the state’s section 303(d) list
without further site-specific analysis. See Fla. Admin. Code r. 62-303.350-.353. According
to the EPA, the numeric nutrient thresholds therefore supplement the state’s existing

21

According to the EPA, “thresholds set too high m ay not be effective because they exclude waters
that are clearly threatened or im paired and call into question the rem aining applicability of the narrative. AR
EPA001210. “[O]n the other hand, thresholds set too low m ay ultim ately be deem ed protective, yet serve no
useful purpose in discrim inating data or waters into appropriate categories in the State/Tribal Integrated
Report.” Id.
22
The trophic state of lakes is indicative of their biological productivity – that is, the am ount of living
m aterial support within them , prim arily in the form of algae. Chlorophyll-a concentrations are a m easurem ent
of algal biom ass. See http://www.epa.gov/bioiweb1/aquatic/carlson.htm l. As the EPA noted, in the am ended
IW R, “Florida . . . established a threshold of im pairm ent based on an increasing trend in TSI” for identification
of clearly im paired lakes; “[f]or nutrients in stream s, Florida . . . establish[ed] a com bination of a narrative
threshold . . . and two chlorophyll-a thresholds;” and, for estuarine and open coalsal waters, Florida used a
chlorophyll-a threshold. AR EPA001210-12.

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narrative nutrient criterion rather than supplant it, as the plaintiffs allege, and the FDEP’s
failure to establish numeric thresholds for total nitrogen and total phosphorus does not
lessen the state’s ability to protect designated uses because the narrative nutrient criteria
remain in tact. Moreover, although Fla. Admin. Code r. 62-303.350(1) provides that TSI
and annual mean chlorophyll-a values are to be the primary means through which to
determine whether a waterbody should be assessed further for nutrient impairment, it
allows for consideration of “[o]ther information indicating an imbalance in flora or fauna due
to nutrient enrichment, including, but not limited to, algal blooms, excessive macrophyte
growth, decrease in the distribution (either in density or areal coverage) of seagrasses or
other submerged aquatic vegetation, changes in algal species richness, and excessive diel
oxygen swings.” Id. Also noted by the EPA was the fact that the IWR’s verified list
methodology allows for the development of site-specific thresholds that better represent
the levels at which nutrient impairments occur.23 According to the EPA, taken together, the
numeric nutrients thresholds and the provisions allowing for other information and sitespecific thresholds provide the state “sufficient flexibility to utilize additional information
where available, maintain the flexibility inherent in the narrative criterion statement, and
ensure that water bodies not meeting their water quality standards for nutrients are
properly identified, regardless of whether or not the impairment threshold is exceeded,”

23

According to Fla. Adm in. Code r. 62-303.450,
A water shall be placed on the verified list for im pairm ent due to nutrients if
there are sufficient data from the last five years preceding the planning list
assessm ent, com bined with historical data (if needed to establish historical
chlorophyll a levels or historical TSIs), to m eet the data sufficiency
requirem ents of subsection 62-303.350(2), F.A.C. If there are insufficient
data, additional data shall be collected as needed to m eet the requirem ents.
Once these additional data are collected, the Departm ent shall determ ine
if there is sufficient inform ation to develop a site-specific threshold that
better reflects conditions beyond which an im balance in flora or fauna
occurs in the water segm ent. If there is sufficient inform ation, the
Departm ent shall re-evaluate the data using the site-specific thresholds. If
there is insufficient inform ation, the Departm ent shall re-evaluate the data
using the thresholds provided in Rules 62-303.351-.353, F.A.C., for stream s,
lakes, and estuaries, respectively. . . .

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thereby better protecting the designated uses of the state’s waterbodies.24
EPA001209.

AR

It is clear from the record that, in approving provisions of the IWR

establishing numeric nutrient thresholds only for chlorophyll-a, the EPA considered the
relevant factors and data and provided a rational basis for its decision. As a result, even
if the EPA subsequently determined that the state must develop numeric nutrient criteria
that include total nitrogen and total phosphorus, the court cannot say that the EPA acted
arbitrarily or capriciously in approving the adoption of numeric nutrient thresholds for
chlorophyll-a.
The fact that the numeric nutrient thresholds are based on an annual average also
does not render the EPA’s approval of the provisions arbitrary or capricious. The amended
IWR provides that where there are multiple chlorophyll-a or TSI values within a season for
a given year, “the average value for that season shall be calculated from the individual
values and the four (4) quarterly values shall be averaged to calculate the annual mean for
that calendar year . . . .”25 Fla. Admin. Code r. 62-303.350(2)(c). As the EPA explained,
this rule works in conjunction with the nutrient thresholds for lakes, streams, and estuarine
and coastal waters that establish “annual mean” magnitude and duration values to interpret
the narrative nutrient criterion. See Fla. Admin. Code rs. 62-303.351-.353. The plaintiffs
argue that annual averaging disguises seasonal variations in nutrients and can result in
continuing imbalance in aquatic flora and fauna and that it is best to either use an index
period sample or estimate a composite from several determinations during the growing
season. According to the EPA, in so arguing, the plaintiffs overlook the fact that rule 62-

24

The EPA further noted that, because the thresholds are one-sided, other inform ation m ay provide
the basis for listing a waterbody as im paired and a waterbody is not autom atically deem ed to be attaining the
narrative water quality criterion sim ply because conditions are below the thresholds. AR EPA001208-09.
Such a waterbody is considered unassessed unless and until a site-specific analysis is conducted or num eric
water quality criteria are prom ulgated for that waterbody. AR EPA001191.35, EPA001208. The EPA found
the one-sided num eric thresholds acceptable because they were based on sound scientific rationale and
contained sufficient param eters or constituents to protect designated uses and thus com plied with the
requirem ents set forth at 40 C.F.R. § 131.11. AR EPA001210, EPA001212.
25

Under the rule, the seasons are January 1 through March 31, April 1 through June 30, July 1
through Septem ber 30, and October 1 through Decem ber 31. See Fla. Adm in. Code r. 62-303.350(2)(b).
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303.350(2)(c) translated the narrative criterion by including a duration value or period of
time over which the in-stream concentration is averaged. Indeed, in approving rule 62303.350(2)(c), the EPA specifically noted that the provision “specifies how seasonal
representation shall be determined independently for purposes of comparison to the
established thresholds” so that each of the four seasons will be represented in the annual
average and testing results will not be skewed if, for example, there are more water
samples for the drier parts of the year than the wetter parts of the year.

AR

EPA001191.36. Moreover, according to the EPA, “[t]he thresholds themselves represent
conditions across all seasons in a comparable manner and this rule ensures appropriate
comparison with measured data.”26 AR EPA001191.36. Even if the plaintiffs are correct
that an annual average is not the best method of ensuring that there are no imbalances in
natural populations of flora or fauna, that fact alone does not render the EPA’s approval
of the numeric nutrient thresholds arbitrary and capricious, particularly considering that the
plaintiffs have adduced no scientific evidence that using an annual average results in a
failure to adequately protect the designated uses of the state’s waterbodies.

See

Miccosukee Tribe of Indians of Fla. v. U.S., No. 04-21448, 2008 WL 2967654, at *34-35
(S.D. Fla. July 29, 2008) (upholding the use of an annual geometric mean in the absence
of “compelling scientific evidence that use of a geometric mean is not protective of the
designated use” and finding it “a conventional way of determining numeric criteria and
elements in water quality standards that govern ambient water quality”).
CONCLUSION
For the foregoing reasons, the plaintiffs’ motion for summary judgment (doc. 73) is
GRANTED with respect to Counts I through V of their complaint and DENIED with respect
to Counts VI and VII and the defendants’ motion for summary judgment (doc. 88) is
DENIED with respect to Counts I through V of the plaintiffs’ complaint and GRANTED with
respect to Counts VI and VII. This matter is remanded to the EPA for 120 days for further

26

The EPA also found that, by establishing thresholds for estuaries and open waters based on an
annual m ean rather than a m edian, the FDEP ensured that the thresholds will be m ore environm entally
protective because an average is m ore sensitive to algal bloom s than a m edian. AR EPA001212.
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development of the administrative record with regard to the effect of the provisions of the
amended IWR at issue in Counts I through V of the plaintiffs’ complaint on the state’s
listing decisions according to the test prescribed by the Eleventh Circuit in FPIRG II. The
Clerk of Court is directed to enter summary final judgment consistent with this order. The
parties shall have fourteen (14) days in which to submit requests for attorneys’ fees and
costs.
DONE AND ORDERED this 30th day of March, 2012.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No. 4:09cv165/MCR/W CS