Manasota-88, Inc. v. Tidwell, MANASOTA-88

• Decision Date: 22 March 1990
• Docket Number: MANASOTA-88,INC,No. 89-3110,89-3110
• Citation: 896 F.2d 1318
• Parties: , 20 Envtl. L. Rep. 20,626 , Plaintiff-Appellee, v. Greer C. TIDWELL, Sr., Regional Administrator for Region IV, et al., Defendants, State of Florida Department of Environmental Regulation, Intervenor-Defendant, and Florida Electric Power Coordinating Group, Inc., Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

896 F.2d 1318

16 Fed.R.Serv.3d 710, 20 Envtl. L. Rep. 20,626

MANASOTA-88, INC., Plaintiff-Appellee, v. Greer C. TIDWELL, Sr., Regional Administrator for Region IV et al., Defendants State of Florida Department of Environmental Regulation Intervenor-Defendant and Florida Electric Power Coordinating Group, Inc., Appellant.

No. 89-3110.

United States Court of Appeals, Eleventh Circuit.

March 22, 1990.

William H. Green, James S. Alves, Tallahassee, Fla., for appellant.

Thomas W. Reese, St. Petersburg, Fla., Martin W. Matzen, Dirk D. Snel, U.S. Dept. of Justice, Washington, D.C., for Federal defendants Dehigns and others.

Douglas H. MacLaughlin, State of Florida Dept. of Environmental Regulation Tallahassee, Fla., for plaintiff-appellee.

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

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal by Florida Electric Power Coordinating Group ("FCG") from an order of the trial court denying FCG's motion for intervention as of right or permissive intervention in an action brought by ManaSota-88, Inc. ("ManaSota-88"), a public interest organization, against the United States Environmental Protection Agency ("EPA"), its administrator ("Administrator"), and the regional administrator ("Regional Administrator") for an area including the State of Florida ("the State").

I. STATEMENT OF THE CASE

Plaintiff filed a citizen suit pursuant to the Clean Water Act ("the Act"), 33 U.S.C. Sec. 1251 et seq., and the Administrative Procedure Act ("the APA"), 5 U.S.C. Secs. 701-706, seeking a declaratory judgment as to whether the EPA failed promptly to prepare and publish regulations for Florida which were consistent with the Act and whether the EPA violated the Act or the APA by approving substandard water quality regulations promulgated by Florida's Department of Environmental Regulation ("DER"). In addition, plaintiff requested the court to order defendants (i) to promulgate certain revisions to Florida's water quality standards to make them consistent with federal requirements; (ii) to identify Florida waters where water quality standards are not being met; and (iii) to establish standards consistent with the Clean Water Act for those water bodies identified.

FCG filed a motion for intervention of right pursuant to Federal Rule of Civil Procedure 24(a)(2) ¹ and, in the alternative, permissive intervention, pursuant to Rule 24(b). ² FCG is a non-profit association of thirty-eight electric power generation facilities that discharge treated waste waters into Florida's surface waters. FCG contended that it had a significant, protectable interest related to the action brought by ManaSota-88 because FCG members are required to comply with water quality standards and effluent limitations promulgated pursuant to the Clean Water Act. The district court determined that FCG demonstrated neither a sufficient interest in the issues raised by the ManaSota-88 claims nor that its economic interests will be impeded by disposition of that action. The court also declined to allow permissive intervention pursuant to Rule 24(b). This appeal followed.

II. FACTS

The Clean Water Act requires each state to adopt water quality standards applicable to intrastate waters and submit them to the Administrator of the EPA for his review, to determine whether the standards are consistent with the minimum requirements of the Act. 33 U.S.C. Sec. 1313. Once a state adopts its initial water quality standards, it is required to hold hearings to review those standards at least once every three years (the triennial review) and adopt new or revised standards as necessary. 33 U.S.C. Sec. 1313(c)(1). The results of each triennial review are to be made available to the Administrator. ³ Id. Any revised or new standards must be submitted to the Administrator. Id. Sec. 1313(c)(2)(A). If the Administrator determines that the revised or new standards are not consistent with the applicable requirements of the Act, the state must be notified within ninety days of the date of submission of the standards, with necessary changes specified. Id. Sec. 1313(c)(3). If the changes are not adopted by the state within ninety days, the Administrator must "promptly prepare and publish proposed regulations setting forth a revised or new water quality standard" for the state. Id. Sec. 1313(c)(4). "The Administrator shall promulgate any revised or new standard" within ninety days of publication unless the state has adopted a standard in the interim which conforms to the Act. Id.

Each state must adopt as part of its water quality standards an "antidegradation policy" consistent with and at least as stringent as the federal antidegradation rule. 40 C.F.R. Sec. 131.12. The federal rule applies to waters of relatively high quality and prescribes the conditions, if any, under which a state may permit those waters to be degraded to a lower quality level. For outstanding national resource waters ("ONRWs"), ⁴ such as national or state parks, wildlife refuges, and waters of exceptional recreational or ecological significance, the quality of the waters must be maintained and protected under all circumstances. 40 C.F.R. Sec. 131.12(a)(3).

States also must allocate maximum amounts of pollutants which can be discharged daily into waters not meeting quality standards. ⁵ 33 U.S.C. Sec. 1313(d). The Act required Florida to submit such Total Maximum Daily Loads ("TMDLs") for all state water bodies not in compliance with water quality standards to the EPA by June 26, 1979. Plaintiff alleges that Florida still has not submitted TMDLs for these "noncompliance" water bodies. Plaintiff further alleges that Florida's water quality standards exempt significant sources of pollution discharge, such as stormwater, from the TMDL process; plaintiff seeks EPA disapproval of the Florida rules and replacement of them by the EPA with federal regulations.

Florida performed a triennial review in 1985. The standards were approved in part and disapproved in part. Plaintiff alleges that the Regional Administrator advised the DER that Florida had ninety days to comply with the requirements of the Act, until December 23, 1987. ManaSota-88 had sent defendants and the State a notice of intent to sue letter on December 11, 1987. On February 5, 1988, the Regional Administrator acknowledged in a letter to ManaSota-88 that Florida's time in which to comply with the Act had expired and informed plaintiff that he was preparing documentation for the Administrator's review to request publication of proposed regulations by the EPA. On March 30, 1988, ManaSota-88 filed this action against the EPA because no new regulations had been published.

III. DISCUSSION

A. Intervention of Right

Before intervention as a matter of right will be granted under Federal Rule of Civil Procedure 24(a), four requirements must be 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 suit. Athens Lumber Co., Inc. v. Federal Election Commission, 690 F.2d 1364, 1366 (11th Cir.1982).

The timeliness of FCG's application is not at issue. As to whether FCG has the appropriate interest in the action brought by ManaSota-88, FCG must possess a " 'direct, substantial, legally protectable interest in the proceeding' " and must be "at least a real party in interest in the transaction which is the subject of the proceeding." 690 F.2d at 1366 (citations omitted).

Appellee has represented to this Court in its written brief that two principal issues that formed the basis of its suit have been rendered moot by action by the State, relating to chronic toxicity standards and antidegradation provisions. Appellee maintains that only three issues remain which appellee will raise in the trial court: (1) Florida's rule permitting discharge of wastewaters and stormwaters in wetlands (2) allocations of maximum daily waste loads, or TMDLs, for water bodies which do not meet water quality standards; and (3) the adequacy of the DER's recent revision of the State's antidegradation policy (the revision is not effective until the Florida Legislature ratifies it and designates Everglades National Park and Biscayne Bay National Park as outstanding national resource waters (ONRWs), to which higher antidegradation protection standards apply).

One claim plaintiff will press is that the EPA erroneously approved Florida's regulations pertaining to wastewater in wetlands and stormwater in wetlands. If plaintiff is afforded the relief it seeks, the EPA will be required to disapprove the regulations as being inconsistent with the Act. Appellant has failed to allege any protectable interest in the relief sought concerning wetlands. Appellant does not allege that its members discharge into wetlands; appellant's counsel acknowledged at oral argument that FCG members' facilities do not discharge into wetlands, and there is no indication in the record to the contrary. Therefore, appellant has no interest relating to this claim.

Plaintiff further intends to object in the trial court to the EPA's approval of the State's failure to identify noncompliance water bodies and assign TMDLs to those water bodies; plaintiff seeks to compel the EPA to promulgate its own standards to fill the gap left by the State's inaction. FCG's asserted interest in this issue relates to the permits FCG members must obtain to operate their facilities. Appellant argues that since the permits require compliance with Florida's water quality standards, any new standards promulgated could cause members to...