Fla. Wildlife Fed'n v. McCarthy, CASE NO. 8:14-cv-3204-T-23JSS

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Parties: FLORIDA WILDLIFE FEDERATION, et al., Plaintiffs, v. GINA MCCARTHY, et al., Defendants.
• Docket Number: CASE NO. 8:14-cv-3204-T-23JSS
• Decision Date: 15 February 2017

FLORIDA WILDLIFE FEDERATION, et al., Plaintiffs,
v.
GINA MCCARTHY, et al., Defendants.

CASE NO. 8:14-cv-3204-T-23JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

February 15, 2017

ORDER

Section 303(d) of the Clean Water Act imposes on the EPA a duty to approve or reject a state's list of "impaired waters." From May 2012 to April 2014, the Florida Department of Environmental Protection (FDEP) updated Florida's list of impaired waters. In September 2014, the EPA issued a "decision document," which partially approved the list.

Florida Wildlife Federation and Cindy Davis sue (Doc. 68) under Section 706(2)(A) of the Administrative Procedure Act. In Count I, the plaintiffs allege that the EPA failed to correctly evaluate Florida's antidegradation requirements. In Count III, the plaintiffs allege that the EPA erroneously denied petitions for a rulemaking to revise Florida's antidegradation policy. No other claims remain.

A May 8, 2015 order (Doc. 38) grants the intervention of FDEP, the State of Florida, and the Florida Department of Agriculture and Consumer Services

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(collectively, the intervenors). The plaintiffs, the EPA, and the intervenors move (Doc. 77, 79, 80) for summary judgment. The Fertilizer Institute files an amicus brief. (Doc. 83)

STANDARD

Section 704 of the Administrative Procedure Act authorizes judicial review of a "final agency action for which there is no other adequate remedy in a court[.]" The EPA's denial of the petitions for rulemaking represents a final agency action. Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1037 (D.C. Cir. 2002). And no party disputes that the EPA's partial approval of Florida's impaired waters list marks "the consummation of the agency's decisionmaking process . . . from which legal consequences will flow," including the development of pollution controls for the listed waters. U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (internal quotation marks omitted); e.g., Sierra Club, Inc. v. Leavitt, 488 F.3d 904 (11th Cir. 2007) (reviewing the EPA's partial approval of an impaired waters list).

Section 706(2)(A) authorizes a reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" Under this highly deferential standard, a court may not substitute its "judgment for that of the agency as long as the agency's conclusions are rational and reasonably explained." Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 833 F.3d 1274, 1285 (11th Cir. 2016). The agency's judgment prevails unless (1) "the decision does not rely on the

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factors that Congress intended the agency to consider," (2) "the agency failed entirely to consider an important aspect of the problem," (3) "the agency offers an explanation which runs counter to the evidence," or (4) "the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise."¹ Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir. 2002).

DISCUSSION Impaired Waters List (Count I)

Under 40 C.F.R. § 130.7(b)(1), a state must identify waters for which pollution controls "are not stringent enough to implement" the state's "water quality standards." Listed waters are targeted for additional pollution control. Leavitt, 488 F.3d at 908 n.1.

Subsection 130.7(b)(3) states that "water quality standards" include "numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements." In Count I, the plaintiffs allege that the decision document fails to correctly evaluate Florida's "antidegradation requirements."² Although the plaintiffs plead eleven

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issues within Count I (Doc. 68 at ¶¶ 102-181), the issues are more efficiently covered in three sections below.

1. High quality waters

Florida's antidegradation policy creates special protection for high quality waters, which are known as "Tier 2" waters. Rule 62-302.300(17), Florida Administrative Code, permits the degradation of Tier 2 waters (that is, the lowering of water quality) only if degradation is "clearly in the public interest."

The decision document explains that the public-interest test "must be applied during the permitting process for any new or expanded discharge that will reduce the quality of receiving Tier 2 waters." (Doc. 80-1 at 72-73) FDEP balances "the importance and benefits of the project against adverse impacts caused by the discharge, as well as an options review to demonstrate whether certain alternatives that would minimize lowering of water quality are technologically or economically feasible." (Doc. 80-1 at 73); see Fla. Admin. Code R. 62-4.242(1)(b)

The decision document observes that Florida affords extra protection to "Outstanding Florida Waters," which are known as "Tier 2.5" waters. (Doc. 80-1 at 72-73); see Fla. Admin. Code R. 62-302.700(1) and (9). Rule 62-4.242(2), Florida Administrative Code, states that a permit applicant must demonstrate that the "existing ambient water quality . . . will not be lowered as a result of the proposed activity or discharge[.]" The "existing ambient water quality" means the water

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quality in 1979. United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 708 n.5 (11th Cir. 1991).

The decision document finds that "any lowering of water quality associated with permits that was authorized in accordance with the State's required antidegradation process does not require section 303(d) listing." (Doc. 80-1 at 73) The decision document concludes "that the State has successfully assessed its waterbodies for attainment of the state antidegradation policy, by confirming that the state permitting program appropriately implemented Florida's antidegradation policy." (Doc. 80-1 at 73) In particular, "FDEP provided assurance to the EPA that no permits have been identified that were not subject to antidegradation review." (Doc. 80-1 at 73)

Notably, the plaintiffs raise no objection to the EPA's determination that permitted degradation of a water "does not require section 303(d) listing." The plaintiffs instead contest the EPA's finding that "no permits have been identified that were not subject to antidegradation review." Specifically, the plaintiffs argue that FDEP failed to establish the existing ambient water quality for Tier 2.5 waters and that FDEP failed to conduct antidegradation reviews for water transfers and other activities.

Existing ambient water quality

Citing Florida's regulatory scheme, the intervenors vigorously argue that a permit applicant, not FDEP, must establish existing ambient water quality.

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However, the EPA disclaims any obligation to examine the merits of permit decisions when the EPA reviews an impaired waters list. As explained below, the EPA's interpretation is reasonable.

Section 303(d)(2) allows the EPA thirty days to approve or disapprove an impaired waters list, but imposes no other restrictions on the EPA's authority. The implementing regulation, 40 C.F.R. § 130.7, introduces some additional limits. Under 40 C.F.R. § 130.7(d)(2), the EPA may only approve a list "if it meets the requirements of § 130.7(b)," which requires a state to submit, among other things, a "description" of the data on which the state relied and a "description" of the state's methodology. Because a state submits only limited information to the EPA and because the EPA promptly acts on that information, the EPA's role in reviewing an impaired waters list is properly characterized as one of "oversight." Barnum Timber Co. v. EPA, 835 F. Supp. 2d 773, 780-82 (N.D. Cal. 2011).

Of course, the EPA can request additional information, 40 C.F.R. § 130.7(b)(6)(iv), and the EPA can independently evaluate information. But Tier 2 antidegradation requirements differ from the other water quality standards (numerical criteria, narrative criteria, and waterbody uses) assessed during the listing process because Tier 2 requirements do not describe the condition of a water as a whole. Rather, Florida's Tier 2 balancing test applies only to an individual permit application. If the EPA independently evaluates Tier 2 requirements, the EPA effectively reviews FDEP's permit decisions.

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The EPA points out that Florida provides the plaintiffs with a procedure to object to permits. Rule 62-620.555, Florida Administrative Code, states that "any interested person may submit written comments on [a] draft permit or may request a public meeting," and Section 120.569, Florida Statutes, states that a person may appeal a permit decision that affects the person's "substantial interests." By demanding that the EPA review permit decisions, the plaintiffs improperly seek to expand the EPA's limited role. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001) (explaining that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.").

The plaintiffs offer no competing analysis of Section 130.7(b), and the plaintiffs fail to explain why the EPA's interpretation is not entitled to deference. Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2012). The plaintiffs instead rely on two state-court decisions, neither of which addresses the EPA's review of an impaired waters list. Save Anna Maria, Inc. v. Dep't of Transp., 700 So. 2d 113 (Fla. 2d DCA 1997); DeCarion v. Dep't of...