488 F.3d 904 (11th Cir. 2007), 05-13959, Sierra Club, Inc. v. Leavitt

Docket Nº:05-13959.
Citation:488 F.3d 904
Party Name:SIERRA CLUB, INC., Florida Public Interest Research Group Citizen Lobby, Inc., Save Our Suwannee, Inc., Plaintiffs-Appellants, v. Michael O. LEAVITT, In his Official Capacity as Administrator of the United States Environmental Protection Agency, Jimmy Palmer, In his Official Capacity as Regional Administrator of the United States Environment Protec
Case Date:June 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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488 F.3d 904 (11th Cir. 2007)

SIERRA CLUB, INC., Florida Public Interest Research Group Citizen Lobby, Inc., Save Our Suwannee, Inc., Plaintiffs-Appellants,


Michael O. LEAVITT, In his Official Capacity as Administrator of the United States Environmental Protection Agency, Jimmy Palmer, In his Official Capacity as Regional Administrator of the United States Environment Protection Agency Region 4, United States Environmental Protection Agency, Defendants-Appellees,

Florida Department of Environmental Protection, Intervenor.

No. 05-13959.

United States Court of Appeals, Eleventh Circuit.

June 8, 2007

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[Copyrighted Material Omitted]

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Jennifer A. Murphy, Mid-Atlantic Environmental Law Ctr., Wilmington, DE, Eric E. Huber, Sierra Club, Boulder, CO, for Plaintiffs-Appellants.

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Allen M. Brabender, U.S. Dept. of Justice, ENRD, Robert H. Oakley, Washington, DC, Christine E. Lamia, FDEP, OGC, Tallahassee, FL, for Defendants-Appellees.

Gregory M. Munson, FL Dept. of Env. Prot., MS 35, Tallahassee, FL, for Intervenor.

Appeal from the United States District Court for the Northern District of Florida D. C. Docket No. 04-00120-CV-4-SPM-AK

Before ANDERSON, BARKETT and BOWMAN, [*] Circuit Judges.

BOWMAN, Circuit Judge.

The Sierra Club, Inc., and two local environmental organizations (collectively, "Sierra Club") filed this lawsuit against the United States Environmental Protection Agency and its administrators (collectively, "the EPA") alleging that the EPA violated its oversight responsibility under section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d), by approving Florida's list of impaired waters. The district court, ruling on cross-motions for summary judgment, determined that the EPA's approval was not arbitrary or capricious and entered judgment in the EPA's favor. We affirm in part and reverse and remand in part.


Congress passed the Clean Water Act ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Toward that end, Congress determined that the states and the federal government should work together to combat water pollution. See Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) ("The Clean Water Act anticipates a partnership between the States and the Federal Government...."). The CWA thus divides between the federal government (via the EPA) and the states many of the duties for monitoring and regulating the nation's waters. Because an understanding of the responsibilities placed on the states and the EPA is essential to resolving this case, we include here a general discussion of the applicable CWA provisions and regulations.

First, the CWA requires states to establish "water quality standards" for waterbodies within their boundaries. 33 U.S.C. § 1313(a)-(c); see also 40 C.F.R. §§ 130.2(d), 131.4(a). To do this, a state must first designate the use (or uses) to be made of a waterbody, such as water supply, fishing, or swimming. 40 C.F.R. § 131.2. Then, the state must determine the water quality criteria necessary to safely permit the designated use. Id. §§ 131.2, 131.3(b). Those criteria become the "water quality standard" for the waterbody. IcL §§ 131.2, 131.3(i). "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." Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. EPA (" FPIRG"), 386 F.3d 1070, 1074 (11th Cir. 2004).

Next, each state must compile a list of waterbodies that are not safe enough to support their designated uses, i.e., that do not meet their water quality standards. 33 U.S.C. § 1313(d)(1)(A). This list is known as a state's "impaired waters list"

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or "303(d) list" (so called because section 303(d) of the CWA, 33 U.S.C. § 1313(d), requires the creation of the list). Each waterbody on the impaired waters list is known as a "water quality limited segment" ("WQLS"). 40 C.F.R. § 130.20'). The placement of a waterbody on a state's impaired waters list is significant because the CWA requires that states target WQLSs for pollution control.

States undertake the task of decreasing pollution in their WQLSs by establishing a "total maximum daily load" ("TMDL") for pollutants in a designated WQLS. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). "A TMDL is a specification of the maximum amount of a particular pollutant that can pass through a waterbody each day without water quality standards being violated." Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002) (citing 33 U.S.C. § 1313(d)(1)(C)). States must establish a TMDL for every pollutant that prevents or is expected to prevent a waterbody from attaining applicable water quality standards. 40 C.F.R. § 130.7(c)(l)(ii). Once a TMDL is established, the state (as well as the federal government) strives to decrease the amount of the pollutant to which that TMDL applies so that the TMDL is not exceeded.1 The CWA also requires states to "establish a priority ranking [for WQLSs needing TMDL development], taking into account the severity of the pollution and the uses to be made of such waters." 33 U.S.C. § 1313(d)(1)(A); see also 40 C.F.R. § 130.7(b)(4).

States are required to submit their lists of WQLSs, TMDLs, and priority rankings to the EPA every two years. 40 C.F.R. § 130.7(d)(1). The EPA has the duty of approving or disapproving the lists. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). If the EPA disapproves a state's impaired waters list or a TMDL, the EPA must issue its own list or TMDL. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2).

The present dispute arose out of Florida's 2002 update to its 1998 impaired waters list.2 In this update, the Florida Department of Environmental Protection ("FDEP") reexamined about twenty percent of Florida's waterbodies, 3 applying Florida's water quality standards and Florida's newly passed Impaired Waters Rule ("IWR"), Fla. Admin. Code Ann. Ch. 62-303. Florida then revised its 1998 list and submitted the new list ("Florida's 2002 List") to the EPA for review on October 1, 2002.4 The EPA conducted its review of Florida's 2002 List and published the results of the review in a "Decision Document" dated June 11, 2003. Decision Document Regarding Department of Environmental

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Protection's § 303(d) List Amendment Submitted on October 1, 2002 and Subsequently Amended on May 12, 2003, Admin. R. 2.4 ("Decision Document"). The Decision Document indicates that the EPA approved, in large part, Florida's 2002 List, but disapproved Florida's failure to identify certain waterbodies as impaired and Florida's removal (or "delisting") of certain waterbodies that were on the 1998 list. Ultimately, the EPA added eighty WQLSs to Florida's 2002 List.5

Sierra Club brought this suit against the EPA under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), alleging that the EPA's approval of Florida's 2002 List was arbitrary, capricious, and not in accordance with the law. Sierra Club's first claim challenged the EPA's approval of Florida's decision not to list waterbodies when the data showing that those waterbodies were impaired consisted solely of fish consumption advisories6 for mercury or data that was older than 7.5 years. Sierra Club's second claim challenged the EPA's approval of Florida's priority ranking of waterbodies for TMDL development, arguing that Florida did not take into account statutory standards in setting the rankings. Sierra Club's third and final claim challenged the EPA's approval of Florida's delisting of waterbodies where those waterbodies had exceeded applicable water quality standards at least once in the preceding 7.5 years or were delisted because the violations of water quality standards were due to natural conditions. Shortly after Sierra Club filed its complaint, the FDEP moved to intervene in the lawsuit as a defendant. The district court denied intervention. Sierra Club and the EPA eventually brought cross-motions for summary judgment. The district court granted summary judgment to the EPA on all counts.

The FDEP appealed the denial of intervention, and Sierra Club appealed the entry of summary judgment in favor of the EPA.7 Because we were alerted that a case on remand from the Eleventh Circuit to the District Court for the Northern District of Florida might affect our analysis of Sierra Club's summary judgment appeal, see FPIRG, 386 F.3d 1070, we held our decision in abeyance pending the outcome of that case. The District Court for the Northern District of Florida issued its opinion on remand in FPIRG on February 15, 2007. FPIRG, No. 4:02cv408-WS, slip op. (N.D. Fla. February 15, 2007). We have reviewed that decision and conclude that it does not affect our ability to rule on the present appeals.


We begin by addressing the FDEP's appeal of the district court's order denying intervention as of right under Federal Rule of Civil Procedure 24(a)(2).8Our review of the denial of a motion for

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intervention as of right is de novo. Georgia v. United States Army Corps of Eng'rs, 302 F.3d 1242, 1249 (11th Cir. 2002).

Intervention as of right under Rule 24(a)(2) must be granted when four requirements are met:

(1) the application to intervene is timely; (2) the applicant has an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that the disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) the applicant's interest will not be represented adequately by the existing parties to the...

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