Florida Public Interest Research Group v. E.P.A.

• Decision Date: 04 October 2004
• Docket Number: No. 03-13810.,03-13810.
• Citation: 386 F.3d 1070
• Parties: FLORIDA PUBLIC INTEREST RESEARCH GROUP CITIZEN LOBBY, INC., Save Our Suwannee, Inc., et al., Plaintiffs-Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, Mike Leavitt, Administrator, et al., Defendants-Appellees, Florida Department of Environmental Protection, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

386 F.3d 1070

FLORIDA PUBLIC INTEREST RESEARCH GROUP CITIZEN LOBBY, INC., Save Our Suwannee, Inc., et al., Plaintiffs-Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, Mike Leavitt, Administrator, et al., Defendants-Appellees Florida Department of Environmental Protection, Intervenor-Defendant-Appellee.

No. 03-13810.

United States Court of Appeals, Eleventh Circuit.

October 4, 2004.

COPYRIGHT MATERIAL OMITTED

James M. Stuhltrager, James R. May, Mid-Atlantic Environmental Law Center, Wilmington, DE, Eric E. Huber, Sierra Club, Boulder, CO, for Plaintiffs-Appellants.

Jeffrey Bossert Clark, U.S. Dept. of Justice Envi. & Natural Resources Div., Robert H. Oakley, ENRD Appellate Section, Washington, DC, Winston K. Borkowski, Holly Taylor Cauley, Florida Dept. of Environmental Protection, Tallahassee, FL, for Defendants-Appellees.

James S. Alves, Hopping, Green & Sams, Tallahassee, FL, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Florida.

Before BIRCH, MARCUS and BRUNETTI^*, Circuit Judges.

MARCUS, Circuit Judge:

The plaintiffs¹ appeal from the district court's order granting summary judgment in favor of the defendants, the United States Environmental Protection Agency and its administrators (collectively, "the EPA"), and the Florida Department of Environmental Protection ("the FDEP"). After thorough review of the record and careful consideration of the briefs and oral argument, we conclude that this case is justiciable and that unresolved factual issues remain. Accordingly, we vacate and remand for further proceedings consistent with this opinion.

I.

A.

Two basic issues are raised on appeal: first, whether the case is justiciable, both because the plaintiffs have standing to challenge the EPA's failure to review a state administrative rule affecting Florida's water quality standards, and because the controversy remains alive; and second, whether the Florida Department of Environmental Protection, by establishing a new rule, changed or added to the state's existing water quality standards. Inasmuch as a clear understanding of how the federal and state governments share responsibilities to regulate water pollution is essential to the resolution of this case, we set forth in some detail the relevant facts and the overall regulatory and statutory scheme embodied in the Clean Water Act.

Since 1972, the federal and state governments have worked together to restore and maintain the integrity of the nation's waters, in a partnership governed by the Federal Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816 (codified as amended at 33 U.S.C. § 1251 et seq.) ("Clean Water Act"). See Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 1054, 117 L.Ed.2d 239 (1992) (describing partnership). Many duties to monitor and regulate pollution of the nation's waters are divided between the federal and state governments.

Among other things, state governments are responsible for establishing water quality standards for all of their waterbodies. Water quality standards are designed to do two things: first, they designate the use or uses to be made of the water, such as fishing or swimming; and, second, they set the basic criteria that must be satisfied in order to safely permit those uses. 40 C.F.R. § 131.2. The second aspect of water quality standards, the water quality criteria, can be expressed in narrative form or in a numeric form, e.g. specific pollutant concentrations. Id. at § 131.3(b). We have described the second aspect of a water quality standard as setting the "level of water quality needed to safely allow[the waterbody's designated] use." Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir.2002). This level may be described as "constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use." 40 C.F.R. § 131.3(b).

While states are primarily responsible for establishing these water quality standards, the EPA, in turn, is required to undertake a review of any new or revised water quality standards adopted by the states. 33 U.S.C. § 1313(c)(2)(A). Among other things, this review involves a determination of the following:

Whether the state has adopted criteria that protect the designated water uses; [w]hether the State has followed its legal procedures for revising or adopting standards; [and w]hether the State standards which do not include the uses specified in section 101(a)(2) of the Act are based upon appropriate technical and scientific data and analyses....

40 C.F.R. § 131.5. Moreover, under the Clean Water Act, the state's water quality standards may only be revised if the change complies with the anti-degradation policy which EPA regulations mandate each state to adopt. 33 U.S.C. § 1313(d)(4)(B); see 40 C.F.R. § 131.12. Thus, any change must, at the very least, maintain the existing quality of each waterbody, preventing any further "degradation" of the waterbody's integrity. PUD No. 1 of Jefferson County and City of Tacoma v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 1905-06, 128 L.Ed.2d 716 (1994) (citing 33 U.S.C. § 1313(d)(4)(B)).

If the state's new or revised standards meet the requirements of the Clean Water Act, the EPA must approve the standards within sixty days. 33 U.S.C. § 1313(c)(3); see also Arkansas, 503 U.S. at 101, 112 S.Ct. at 1054. If, however, the EPA identifies violations of the Clean Water Act, the EPA is required to take appropriate measures to ensure that these problems are fixed. In fact, it must notify the state within ninety days and specify the changes needed to comply with the Clean Water Act. 33 U.S.C. § 1313(c)(3). The EPA also must propose new regulations that satisfy the requirements of the Clean Water Act. Id. at § 1313(c)(4). And if the state does not adopt EPA's proposed changes within ninety days of publication, the EPA itself must promulgate those standards. Id. Any existing water quality standard "remains the applicable standard until [the] EPA approves a change, deletion, or addition to that water quality standard, or until [the] EPA promulgates a more stringent water quality standard." 40 C.F.R. § 131.21(e).

Water quality standards play an important role in maintaining and improving the cleanliness and safety of the nation's waterbodies, because they are designed to determine which waterbodies are safe enough to support their designated uses. Thus, each state must compile a list identifying those bodies of water that are impaired, i.e. not safe enough to use as designated. 33 U.S.C. § 1313(d)(1)(A). This list (known as the "Impaired Waters List" or "303(d) list") is then sent to the EPA for approval. Id. at §§ 1313(d)(1)(A), (d)(2). If the EPA disapproves of the state's proposed Impaired Waters List, it must issue its own list. Meiburg, 296 F.3d at 1025-26 (citing 33 U.S.C. § 1313(d)(2)).

When a waterbody does not satisfy a water quality standard, both the state and the federal government are required to act to control and remedy the pollution of the waterbody. See Meiburg, 296 F.3d at 1025. The state and federal governments are directed to adjust the amounts of pollution that are permitted by individual, identifiable sources, and to implement more generalized programs to reduce the amount of pollution.² Id. at 1025-26 (citing 33 U.S.C. §§ 1313(e)(1), (2); 1329(b), (h)). However, this important clean-up process does not begin unless and until the waterbody is identified on the Impaired Waters List.

The Florida Department of Environmental Protection created Florida's water quality standards when it promulgated chapter 62-302 of the Florida Administrative Code, setting forth the state's "Surface Water Quality Standards" ("Florida's Surface Water Quality Standards"). See Fla. Admin. Code Ann. R. 62-302.200-.800. The Florida State Legislature instructed the FDEP to adopt a methodology to identify impaired waters, taking into account "the variability occurring in nature" and recognizing "the statistical variability inherent in sampling and testing procedures that are used to express water quality standards." Fla. Stat. § 403.021(11).

Two sentences found in Florida's Surface Water Quality Standards are relevant to this case. First, the state regulation, in providing the maximum levels of pollutants that each waterbody may contain without becoming unsafe for use, explains that "[u]nless otherwise stated, all criteria express the maximum not to be exceeded at any time." Fla. Admin. Code Ann. R. 62-302.530. Second, in setting out the nutrient levels that waterbodies could safely contain, the regulation says 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." Id. (emphasis added).

The present dispute arose when, on April 26, 2001, the FDEP adopted chapter 62-303 of the Florida Administrative Code, the so-called "Impaired Waters Rule."³ Fla. Admin. Code Ann. R. 62-303.100-.700. The stated purpose of the Impaired Waters Rule was to "interpret existing water quality criteria and evaluate attainment of established designated uses." Fla. Admin. Code Ann. R. 62-303.100(3). The Impaired Waters Rule provided that "[i]t is not the intent of this chapter to establish new water quality criteria or standards, or to determine the applicability of existing criteria under other provisions of Florida law." Id.

Despite this language, the plaintiffs contend, the Impaired Waters Rule has effectively changed Florida's water quality standards. First, they say, while the original water quality standards required their criteria "not to be exceeded at any time," the Impaired Waters Rule allows multiple exceedances to occur without triggering classification of a waterbody as impaired. In practical effect, the plaintiffs argue, this results in a more forgiving, looser water quality standard, since the Impaired Waters Rule requires...