IN THE UNITED STATES COURT OF APPEALS FOR THE ......Case No. 12-12119-D (consolidated with Case Nos. 12-12134, 12-12262, 12-12330, 12-12331) _____ IN THE UNITED STATES COURT OF APPEALS

Case No. 12-12119-D

(consolidated with Case Nos. 12-12134, 12-12262, 12-12330, 12-12331) ________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________

GULF RESTORATION NETWORK, INC. Appellant

v.

ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent._____________________________________________________

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

Case No. 08-00324-RH/WCS _____________________________________________________

INITIAL BRIEF OF APPELLANTS FLORIDA WATER ENVIRONMENT ASSOCIATION, INC., UTILITY COUNCIL AND THE FLORIDA

ELECTRIC POWER COORDINATING GROUP, INC.

James S. Alves, Fla. Bar No. 443750 David W. Childs, Fla. Bar No. 13354 Mohammad O. Jazil, Fla. Bar No. 72556 HOPPING GREEN & SAMS, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 850-222-7500 / 850-224-8551 (facsimile)

Counsel for the Florida Water Environment Association, Inc., Utility Council and Florida Electric Power Coordinating Group, Inc.

Case: 12-12119 Date Filed: 06/27/2012 Page: 1 of 49

C - 1 of 9

CORPORATE DISCLOSURE STATEMENT ANDCERTIFICATE OF INTERESTED PERSONS

In accordance with Rule 26.1 of the Federal Rules of Appellate Procedure

and the accompanying Eleventh Circuit Rules, Appellant, the Florida Water

Environment Association, Inc., Utility Council (Utility Council) certifies that the

Utility Council is a specifically constituted entity created by the Florida Water

Environment Association, Inc.’s (FWEA) bylaws. The FWEA is a non-

governmental corporate entity organized under Florida law. The FWEA does not

have a parent corporation. No publicly held corporation owns ten percent or more

of the FWEA’s stock. The Utility Council is authorized to litigate on behalf of and

otherwise represent the FWEA’s interests on matters that affect the FWEA’s

wastewater utility members.

Similarly, in accordance with Rule 26.1 of the Federal Rules of Appellate

Procedure and the accompanying Eleventh Circuit Rules, Appellant, the Florida

Electric Power Coordinating Group, Inc. (FCG) certifies that the FCG is a non-

governmental corporate entity organized under Florida law pursuing this appeal

through its Environmental Committee. The FCG does not have a parent

corporation. No publicly held corporation owns ten percent or more of the FCG’s

stock.


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Both the Utility Council and FCG further certify that, based on the

information available to them, the following is a complete list of all persons and

entities that have an interest in the outcome of this case:

Agricultural Retailers Association

Alves, James S.

American Farm Bureau Federation

Ard, Shirley & Rudolph, P.A.

Arnold & Porter, LLP

Baschon, Carol

Beveridge & Diamond, PC

Bondi, Pamela Jo

Borkowski, Winston K.

Brannon Brown Haley & Bullock, PA

Brennan, Amy Wells

Brown, Jeffrey

CF Industries, Inc.


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Childs, David William

Chung, David Yolun

City of Panama City, Florida

Clapp, Ben

Cole, Terry

Conservancy of Southwest Florida, Inc.

Crowell & Moring, LLP

Crowley, Kevin X.

Destin Water Users, Inc.

Earthjustice – Tallahassee, Florida

Eisenberg, Henry Charles

Emerald Coast Utilities Authority

Emmanuel Sheppard & Condon, PA

Environmental Confederation of Southwest Florida, Inc.

Ettinger, Albert F.


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Fertilizer Institute

Florida Cattlemen’s Association

Florida Department of Agriculture and Consumer Services

Florida Electric Power Coordinating Group, Inc.

Florida Farm Bureau Federation

Florida Fertilizer & Agrichemical Association

Florida Fruit and Vegetable Association

Florida League of Cities, Inc.

Florida Minerals and Chemistry Council, Inc.

Florida Pulp and Paper Association Environmental Affairs, Inc.

Florida Stormwater Association, Inc.

Florida Water Environment Association Utility Council

Florida Water Environment Association, Inc.

Florida Wildlife Federation, Inc.

Forthman, Carol Ann


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Frost, Don Joaquin Jr.

Glogau, Jonathan Alan

Green, Darby Meginniss

Guest, David G.

Gulf Restoration Network, Inc.

Gunster Yoakley & Stewart, PA

Hansen, Karen Marie

Hinkle, Honorable Robert L. – United States District Court Judge, Northern

District of Florida

Hopping Green & Sams, PA

Jackson, Lisa P.

Jazil, Mohammad O.

Karpatkin, Jeremy

Law Office of William D. Preston

Lombard, Eduardo S.

Malone, Elizabeth Ann


C - 6 of 9

Mann, Martha Collins

Marsh, Pamela C.

Matthews, Frank E.

Mitchell, Matthew Calieb

Moine, Pamela Adele

Mosaic Company, Inc.

Murphy, Julie Marie

Nalven, Heidi

National Association of Clean Water Agencies

National Cattlemen’s Beef Association

Natural Resources Defense Council

Northwest Florida Water Management District

Nutt, James Edward

Oertel Hoffman Fernandez Bryant & Atkinson, PA

Oertel Fernandez Cole & Bryant


C - 7 of 9

Oertel, Kenneth G.

Okaloosa County Board of County Commissioners

Patterson, Patrick Michael

Patterson, William Douglas

Pennington, Moore, Wilkinson, Bell & Dunbar

Pettit, Christopher Liam

Preston, William D.

Putnam, Adam H. – Florida Commissioner of Agriculture

Rave, Norman L. Jr.

Reimer, Monica K.

Rizzardi, Keith W.

Rudolph, John A. Jr.

Schwartz, Richard Edward

Sherrill, Honorable William C. Jr. – United States Magistrate Judge, Northern

District of Florida

Shirley, Michael Scott


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Sierra Club, Inc.

Skadden Arps Slate Meagher & Flom, LLP

Sotsky, Lester

South Florida Water Management District

South Walton Utility Co., Inc.

Southeast Milk, Inc.

Southwest Florida Water Management District

St. John’s Riverkeeper, Inc.

State of Florida

Stinson, Robert Del

Suwannee River Water Management District

Toth, Brian C.

United States Environmental Protection Agency

United States of America

Vezina Lawrence & Piscitelli, PA


C - 9 of 9

Vezina, W. Robert III

White Springs Agricultural Chemicals, Inc.

Wolff, Daniel W.

/s/ David W. Childs


i

TABLE OF CONTENTS

Table of Authorities………………………………………………………….. iii

Table of References in the Brief………………………………………………. vi

Statement Regarding Oral Argument………………………………………….. 1

Statement of Adoption of Briefs of Other Parties……………………………… 1

Statement of Jurisdiction………………………………………………………. 1

Statement of the Issues………………………………………………………… 2

Statement of the Case………………………………………………………….. 3

I. Nature of the Case……………………………………………….. 3

II. Statement of the Facts……………………………………………. 3

A. The Interrelation between Water Quality Criteriaand TMDLs………………………………………………… 4

1. Water Quality Criteria…………………………………. 5

2. TMDLs………………………………………………… 6

B. Florida’s Nutrient TMDL Program……………………….. 7

C. The January 2009 Determination Letter Fails to ExcludeTMDL Waters……………………………………………. 11

D. EPA’s Numeric Nutrient Criteria Rule Applies to Waters that already have Nutrient TMDLs………………. 13

Summary of the Argument……………………………………………………. 16

Standard of Review…………………………………………………………… 18

Argument …………………………………………………………………….. 19


ii

I. EPA’S DETERMINATION LETTER AND NUTRIENTRULE ARE ARBITRARY AND CAPRICIOUS, BECAUSE THEY FAIL TO EXCLUDE WATERS WITH EXISTING NUTRIENT TMDLS……………………………………………. 19

A. EPA Impermissibly Overwrites TMDLs’ Existing, Waterbody-specific Numeric Translations of Florida’s Narrative Nutrient Criterion with its Rule’s Generalized Approximations………………………………19

B. EPA has Impermissibly Changed its Position that Existing, EPA-Approved Nutrient TMDLs Properly Interpret Florida’s Narrative Criterion…………………………….. 22

II. THE OPPORTUNITY TO APPLY FOR POST-RULEMAKING RELIEF VIA A SEPARATE ADMINISTRATIVE PROCESSDOES NOT CORRECT EPA’S MISTAKES…………………. 26

Conclusion…………………………………………………………………… 28


iii

TABLE OF AUTHORITIES

Cases

Alltel Corp. v. FCC 838 F.2d 551 (D.C. Cir. 1988)……………………………….. 19, 26, 28

American Forest and Paper Ass’n v. EPA 137 F.3d 291 (5th Cir. 1998)…………………………………………….. 2

App. Power Co. v. EPA 249 F.3d 1032 (D.C. Cir. 2001)……………………………………… 20, 21, 24

Arkema Inc. v. EPA 618 F.2d 1 (D.C. Cir. 2010)…………………………………………… 22

Ass’n of Oil Pipe Lines v. FERC 281 F.2d 239 (D.C. Cir. 2002)………………………………19, 26, 27, 28

Bennett v. Spear 520 U.S. 154 (1997)…………………………………………………… 27

Chem. Mfrs. Ass’n v. EPA 28 F.3d 1259 (D.C. Cir. 1994)……………………………. 20, 21, 24, 25

Ethyl Corp. v. EPA 541 F.2d 1 (D.C. Cir. 1976)…………………………………………… 18

FCC v. Fox Television Stations 556 U.S. 502 (2009)……………………………………………….. 22, 25

Florida Wildlife Fed’n, Inc. v. Jackson ___F. Supp. 2d___, 2012 WL 537529 (N.D. Fla. Feb. 18, 2012)… 13, 16

Florida Wildlife Fed’n, Inc. v. South Florida Water Mgmt. Dist. 647 F.3d 1296 (11th Cir. 2011)……………………………………….. 12

Humane Soc. v. Locke 626 F.3d 1040 (9th Cir. 2010)…………………………………………. 22


iv

In re Surface Mining Regulation Litig. 627 F.2d 1346 (D.C. Cir. 1980)………………………………. 26, 27, 28

Motor Vehicle Ass’n v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29 (1983)…………………………………………………….. 18

SEC v. Chenery Corp. 318 U.S. 80 (1943)………………………………………………… 18, 22

Sierra Club v. Meiburg 296 F.3d 1021 (11th Cir. 2002)…………………………………………. 7

Sierra Club v. Van Antwerp 526 F.3d 1353 (11th Cir. 2008)………………………………………… 18

Tex Tin Corp. v. EPA 992 F.2d 353 (D.C. Cir. 1993)……………………………. 18, 19, 21, 25

Statutes

5 U.S.C. §§ 701- 706…………………………………………………………. 18

28 U.S.C. § 1291………………………………………………………………...2

28 U.S.C. § 1331………………………………………………………………. 1

33 U.S.C. § 1251………………………………………………………… 3, 4,27

33 U.S.C. § 1311………………………………………………………………. 5

33 U.S.C. § 1313………………………………………………………… passim

33 U.S.C. § 1342………………………………………………………………5,6

Fla. Stat. § 403.067……………………………………………………………. 8

Florida Watershed Restoration Act……………..…............................................ 8


v

Federal Register

75 Fed. Reg. 4174……………………………………………………….. 10, 13

75 Fed. Reg 4175………………………………………………………….. 10, 25

75 Fed. Reg. 4177……………………………………………………………. 14

75 Fed. Reg. 4183…………………………………………………………….. 13

75 Fed. Reg. 75,762……………………………………………………… 21, 25

75 Fed. Reg. 75,771………………………………………………………….. 25

75 Fed. Reg. 75,786………………………………………………………….. 25

Administrative Rules

40 C.F.R. § 122.44………………………………………………………….. 6, 7

40 C.F.R. § 122.45………………………………………..……………………. 6

40 C.F.R. § 130.2………………………………………………….. 4, 6, 7, 21, 23

40 C.F.R. § 130.7……………………………………………………4, 5, 6, 7, 21

Fla. Admin. Code r. 62-302.530……………………………………………….. 8

Fla. Admin. Code r. 62-303.450……………………………………………….. 8

Fla. Admin. Code r. 62-304……………………………………… 6, 7, 9, 21, 23

Fla. Admin. Code r. 62-304.145……………………………………………….. 9

Fla. Admin. Code r. 62-304.415……………………………………………….. 9

Fla. Admin. Code r. 62-304.506..……………………………………………… 9

Fla. Admin. Code r. 62-304.510………………………………………………. 9


vi

Fla. Admin. Code r. 62-304.520……………………………………………… 9

Fla. Admin. Code r. 62-650.200……………………………………………….. 6


vii

TABLE OF RECORD REFERENCES IN THE BRIEF

Docket Entries Title Brief Page No.

DE 1 2008 Environmental Advocacy Groups’ Complaint 11

DE 55 EPA’s Motion for Summary Judgment 11

DE 102 Transcript of Sept. 8, 2009 Proceedings 11

DE 152 Order Approving 2009 Consent Decree 12

DE 153 2009 Consent Decree 12

DE 161 Order Denying Motion for Reconsideration 12

DE 277 Utility Council and FCG Memo of Law 2, 23

DE 353 District Court’s Final Judgment 2

DE 372 Utility Council and FCG Notice of Appeal 2

Admin. Record Page Title Brief Page No.

AR 39633-664 FCG’s Comments 14

AR 39662 Report on the Lower St. Johns River 14

AR 41181 Clay County Utility Authority’s Comments 14

AR 48870-883 Utility Council’s Comments 14

AR 86325 JEA’s Comments 14

AR 19867 BMAP for the Lower St. Johns River, Main Stem 10

AR 10957-966 EPA’s January 2009 Determination 11

AR 24672-801 TMDL Report for Lake Jessup 10


viii

AR 29962-968 Federal Register Notice for Proposed Rule 10

AR 31525-526 Comment from Mike Kelter 12, 27

AR 36599 City of Clearwater’s Comments 14

AR 38653 Polk County’s Comments 14

AR 36905-906 Comment from Amber Jones 14

AR 39279 Orange County Utilities’ Comments 10

AR 49158 Tampa Bay Nitrogen Mgmt. Consortium’s Comments 10

AR 32377-396 Tampa Bay Estuarine Program’s Monitoring Report 10

AR 39656 – 658 JEA’s Comments 24

AR 45477 1999 Consent Decree 7

AR 49933 Gainesville Regional Utilities’ Comments 10

AR 50225 City of Casselberry’s Comments 10

AR 58736-737 Florida Cabinet Hearing on Dec. 8, 2009 13

AR 66156 BMAP Progress for Lower St. Johns River Basin 10

AR 81096-097 Gainesville Regional Utilities’ Comments 27

AR 83152 Gulf Power’s Comments 10

AR 86766 Final Rule for Florida’s Lakes and Flowing Waters 21

AR 91178 EPA’s Response to Comments 24

AR 91185-186 EPA’s Response to Comments 15, 26, 27

AR 100851-968 BMAP for Orange Creek 10


1

STATEMENT REGARDING ORAL ARGUMENT

The Florida Water Environment Association, Inc. Utility Council (Utility

Council) and Florida Electric Power Coordinating Group, Inc. Environmental

Committee (FCG) respectfully request oral argument in this case. The case raises

issues of critical importance to the Utility Council, FCG, and their respective

members who must comply with the requirements of the Clean Water Act. The

issues presented also have significant implications for the system of cooperative

federalism embodied in the Clean Water Act. Oral argument would allow the

parties to better explain these issues.

STATEMENT OF ADOPTION OF BRIEFS OF OTHER PARTIES

The Utility Council and FCG adopt the legal arguments in the brief filed on

behalf of the State of Florida and Adam A. Putnam, in his official capacity as the

Florida Commissioner of Agriculture.

STATEMENT OF JURISDICTION

The U.S. District Court for the Northern District of Florida had original

jurisdiction to review the federal agency actions at issue here. See 28 U.S.C. §

1331.1 The District Court entered a final judgment in the case on February 22,

1 This brief refers to the most recent versions of the U.S. Code, Florida Statutes, Florida Administrative Code and Code of Federal Regulations. References to docket entries before the district court’s docket below begin with “DE” followed by the relevant document number. References to the administrative record


2

2012. DE 353. The Utility Council and FCG filed a timely notice of appeal on

April 27, 2012. DE 372; see also Fed. R. App. P. 4(a)(1)(B). Thus, this Court has

jurisdiction over the District Court’s final judgment under 28 U.S.C. § 1291. See

Utility Council and FCG Response to EPA’s Motion to Dismiss filed June 13,

2012. Moreover, as detailed in their filings before the District Court, the Utility

Council and FCG have standing to pursue this appeal. DE 277 at 1-4 and

accompanying affidavits; see also American Forest and Paper Ass’n v. EPA, 137

F.3d 291, 296-97 (5th Cir. 1998) (holding that current permit holders had standing

to challenge EPA rule establishing conditions on approved state National Pollutant

Discharge Elimination System (NPDES) permit program since the need to renew

permits every five years made the permit holders’ injury imminent, vacating the

rule would redress the injury, and the issue was sufficiently ripe for review).

STATEMENT OF THE ISSUES

The Utility Council and FCG raise two issues on appeal:

1. Whether EPA’s January 2009 determination letter is arbitrary and capricious

for its failure to exclude waters with existing, waterbody-specific, numeric

nutrient total maximum daily loads (TMDLs).

compiled by EPA begin with “AR” followed by the relevant page number as it appears on bate-stamped copies of the EPA record.


3

2. Whether EPA’s nutrient criteria rule is arbitrary and capricious for its failure

to exclude waters with existing, waterbody-specific, numeric nutrient

TMDLs.

STATEMENT OF THE CASE

I. Nature of the Case

This is an appeal of a District Court order that, among other things, upheld

the U.S. Environmental Protection Agency’s (EPA’s) decision to overlay numeric

nutrient water quality criteria on Florida waters that already have EPA-approved

nutrient TMDLs. Throughout the administrative process, the FCG and the Utility

Council opposed EPA’s decision to impose the new criteria on TMDLs waters.

When the U.S. District Court for the Northern District Florida upheld EPA’s

decision, this appeal followed.

II. Statement of the Facts

Congress enacted 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). Specifically, the CWA promotes the attainment and maintenance of a

surface water’s designated uses, such as fishing and swimming, through a

regulatory scheme that requires the states and EPA to cooperate in the Act’s

implementation. Id. §§ 1251(b), 1313(c)-(d). EPA and the states are to “prevent


4

needless duplication and unnecessary delays” in implementing the CWA and

achieving its goal of attaining and maintaining designated uses. Id. § 1251(f).

This appeal arises against the backdrop of the CWA’s cooperative

federalism structure, particularly the intersection between its TMDL and water

quality criteria sections. Accordingly, this Statement of the Facts first explains

how water quality criteria and TMDLs function under the CWA. The discussion

then transitions to the implementation of Florida’s nutrient TMDL program; the

lawsuit that prompted EPA’s numeric nutrient criteria rulemaking; and the

administrative record concerning EPA’s decision to overlay numeric nutrient

criteria on Florida waters that already have EPA-approved nutrient TMDLs.

A. The Interrelation between Water Quality Criteria and TMDLs

The CWA requires each state to adopt water quality criteria and, where

necessary, TMDLs to ensure that surface waters (e.g. lakes, rivers) achieve and

maintain their designated uses (e.g. fishing, swimming). Id. §1313(c)-(d). Water

quality criteria and TMDLs both set pollutant goals to protect designated uses. Id.;

40 C.F.R. §§ 130.2(g)-(j), 130.7. A principle difference between water quality

criteria and TMDLs is the universe of waters to which they apply. Water quality

criteria may apply to healthy and impaired waters; TMDLs apply only to impaired

waters. Once in place, however, both water quality criteria and TMDLs serve a


5

shared objective: protection of designated uses. See 33 U.S.C. § 1313(c)-(d); 40

C.F.R. §§ 130.3(g)-(j), 130.7.

1. Water Quality Criteria

Water quality criteria may be expressed in narrative or numeric form. 40

C.F.R. § 130.7(c)(1). Numeric criteria provide measurable pollutant limits, often

expressed in terms of concentration (e.g. milligrams per liter). Narrative criteria

provide a qualitative statement. Both numeric and narrative criteria are set at

levels necessary for waters to achieve and maintain their designated uses. Id. §

130.3.

Utility Council and FCG members are regulated to ensure that their activities

do not cause water quality criteria violations. All community sewage treatment

systems and electric power generation facilities that discharge to surface waters

must obtain NPDES permits. 33 U.S.C. § 1342. These NPDES permits contain

technology-based effluent limitations that reflect the pollution reduction achievable

based on particular equipment or process changes. When necessary, the permits

will also include more restrictive water quality based effluent limitations to ensure

the receiving waters achieve and maintain water quality criteria that support

designated uses. Id. §1311(b); 40 C.F.R. § 130.3. In Florida, the pollutant limits

must be set at levels that ensure discharges do not cause or contribute to violations


6

of water quality criteria. 33 U.S.C. § 1311(b)(l)(C); 40 C.F.R. §§ 122.44(d),

122.45(d); Fla. Admin. Code r. 62-650.200(14), 650.400, 650.500.

Although the states have primary responsibility to establish water quality

criteria, EPA maintains an oversight role. A state must review and update its water

quality criteria every three years. 33 U.S.C. § 1313(c). Any revisions to state

water quality criteria must be approved by EPA. Id. If a state fails to adopt any

criteria or if EPA determines the state criteria are inadequate, EPA must promptly

promulgate federal criteria. Id. § 1313(c)(3)-(4).

2. TMDLs

When surface waters do not achieve their designated uses with respect to

nutrients or other parameters, states must establish TMDLs for the impaired

waters. Id. § 1313(d)(1)(A) and (C). TMDLs must ensure that waters achieve and

maintain their designated uses and applicable water quality criteria. Id. at

§1313(d); 40 C.F.R. § 130.7(c)(1). Specifically, TMDLs are established at

“levels[s] necessary to implement the applicable water quality [criterion].” 33

U.S.C. § 1313(d)(1)(C). Where the applicable water quality criterion is a narrative

criterion (such as Florida’s existing narrative nutrient criterion), a TMDL translates

the narrative statement into a precise, measurable limit. See Fla. Admin. Code r.

62-304; 40 C.F.R. § 130.2(i). The TMDL-based numeric limits establish “the

maximum amount of a particular pollutant that can pass through a waterbody each


7

day without water quality [criteria] being violated.” Sierra Club v. Meiburg, 296

F.3d 1021, 1025 (11th Cir. 2002).2 This pollutant load is allocated to NPDES

permittees and others, such as agriculture. Fla. Admin. Code r. 62-304; see also,

40 C.F.R. §§ 122.44(d) and 130.2(g)-(i).

EPA oversees state TMDL programs. A state must submit a proposed

TMDL to EPA for review and approval. 40 C.F.R. § 130.7(d). EPA’s review

includes verifying that the pollutant reduction requirements allocated to NPDES

permittees and other pollutant sources will achieve the underlying water quality

criterion and thereby protect designated uses. 40 C.F.R. §§ 130.7(c)(1) and

130.2(i). If a numeric TMDL fails to protect designated uses, EPA cannot approve

it. 40 C.F.R. § 130.7(c)(1).

B. Florida’s Nutrient TMDL Program

Florida’s current TMDL program traces its origin to a 1999 consent decree

entered by the District Court in a separate case. See AR 45477-45524. The 1999

consent decree establishes a priority schedule for the promulgation of TMDLs for

waters throughout Florida. Id. It requires that TMDLs be established to, among

other things, curb excess nutrients. Id.

2 This Court provides an exhaustive description of TMDLs and their implementation in Sierra Club v. Meiburg, 296 F.3d at 1025-27, noting in part that “TMDLs are central to the Clean Water Act’s water quality scheme.” Id. at 1025.


8

Around the same time that the District Court entered the 1999 consent

decree, the Florida Legislature established the state’s TMDL program by passing

the Florida Watershed Restoration Act (FWRA). Fla. Laws 99-223 (approved by

the Governor of Florida on May 26, 1999). The FWRA directs FDEP to set

TMDLs and load allocations “for the attainment of water quality standards and the

restoration of impaired waters;” and as deemed necessary, promulgate basin

management plans (BMAPs) to “fully integrate all the management strategies

available to the state for the purpose of achieving water quality restoration.”3 Fla.

Stat. §§ 403.067(2)-(7).

The 1999 consent decree, the FRWA, and FDEP’s implementing rules

provide the framework for FDEP’s promulgation of nutrient TMDLs. When FDEP

identifies a waterbody as impaired by nutrients, FDEP calculates the permissible

nutrient loadings that will result in the attainment of Florida’s narrative nutrient

criterion and the protection of the waterbody’s designated uses. Fla. Admin. Code.

r. 62-303.450(1). The attainment of a nutrient TMDL thus prevents “an imbalance

in natural populations of aquatic flora or fauna.” Fla. Admin. Code r. 62-

302.530(47)(b).

3 Florida’s BMAP program “assembles groups of stakeholders to develop plans in order to implement State-adopted and EPA-approved TMDLs.” AR 10961 This program addresses implementation schedules, methods for evaluating effectiveness, funding strategies, best management practices, and future pollutant loading. See Fla. Stat. § 403.067(7).


9

FDEP has adopted – and EPA has approved – 79 nutrient TMDLs for

Florida waterbodies. See Fla. Admin. Code r. 62-304. All of these nutrient

TMDLs include numeric nutrient limits designed to protect the designated uses of

the TMDL waterbodies. See, e.g., Fla. Admin. Code r. 62-304.506(5) (setting

numeric limits of 0.286 mg/L Nitrate and 0.065 mg/L Total Phosphorus for Rock

Springs Run). The numeric nutrient limits are often expressed in terms of mass

loads (e.g., pounds per year) or concentrations (e.g., milligrams per liter) and

address one or more nutrient parameter (i.e., total phosphorus (TP), total nitrogen

(TP), or nitrate-nitrogen). The TMDLs may also include specific load allocations

for particular regulated entities expressed in terms of percent reductions or mass-

loads for nutrient sources. See, e.g., Fla. Admin. Code r. 62-304.520(8)(a) (setting

waste load allocations of 12,173 lbs/yr-TN and 916 lbs/yr-TP for the Vero Beach

Wastewater Treatment Facility). Florida’s nutrient TMDLs are tailored to the

specific waters to which they apply. For some major water systems, such as the

Indian River and Lower St. Johns River, FDEP promulgated distinct nutrient

TMDLs for different segments of the waterbody. See Fla. Admin. Code r. 62-

304.145, .415, and .510.

EPA has not only approved each of these nutrient TMDLs; it lauded their

successful implementation. EPA noted that “Florida is one of the few states that

has in place a comprehensive framework of accountability that applies to both


10

point and nonpoint sources and provides the enforceable authority to address

nutrient reductions in impaired waters based upon the establishment of site-specific

total maximum daily loads (TMDLs).” 75 Fed. Reg. 4174, 4175; AR 29962. EPA

also acknowledged that Florida’s “nutrient accountability system . . . represents an

impressive synthesis of technology-based standards, point source control authority,

and authority to establish enforceable controls for nonpoint source activities.” Id.

EPA’s praise is well-founded. The nutrient reduction projects required by

the nutrient TMDLs are translating into improved water quality for the Lower St.

Johns River (AR 3964), Lake Apopka (AR 39639), Tampa Bay (AR 39640, 49158,

32377-32396), Econlockhatchee River (AR 39279), Sarasota Bay (AR 48882-

48883), Lake Jesup Watershed (AR 50225), Alachua Sink (AR 49933), Pensacola

Bay (AR 83152), and other state waters. AR 39638-39639. These improvements

do not come cheap. For instance, three local governments have spent or

appropriated $352,195,936 to achieve the numeric nutrient TMDLs set for Orange

Creek, Lake Jesup, and the main stem of the Lower St. Johns River. See AR

100851-100968 (Orange Creek nutrient TMDL BMAP), AR 24672-24801 (Lake

Jesup nutrient TMDL Report), AR 19867-20060 (Lower St. Johns River main stem

nutrient TMDL BMAP), AR 66156-66162 (documenting infrastructure

improvements to achieve the Lower St. Johns River nutrient TMDL).


11

C. The January 2009 Determination Letter Fails to Exclude TMDL Waters

In July 2008, several environmental advocacy groups filed a lawsuit against

EPA under the CWA seeking the establishment of numeric nutrient criteria for

Florida’s surface waters. DE 1. The groups asserted that EPA had determined in a

1998 national guidance document that narrative nutrient water quality criteria were

legally inadequate under the CWA. Id. They argued that EPA thus had a

nondiscretionary duty to promulgate numeric nutrient criteria for Florida waters

under the CWA. Id. EPA disagreed that the 1998 national guidance contained any

determination that Florida need numeric nutrient criteria to comply with the CWA.

DE 55. In January 2009, however, EPA determined in a letter to FDEP that water

quality criteria were necessary for Florida waters to comply with the CWA. AR

10957-10966. This “determination letter” prompted EPA’s statutory obligation to

“promptly prepare and publish proposed regulations setting forth a revised or new

water quality standard.” 33 U.S.C. § 1313(c)(4)(B). The determination letter did

not make any exception for waters that already have EPA-approved numeric

TMDLs interpreting Florida’s narrative criterion and requiring nutrient reductions.

EPA also notably produced no administrative record supporting the determination

letter, because no contemporaneous “record of decision” and “no administrative

record” exist. DE 102 at 12. The determination letter prompted a settlement of the


12

lawsuit via a 2009 consent decree, which in turn prescribed deadlines for EPA to

propose and adopt numeric nutrient water quality criteria. DE 153.

The Utility Council argued against the entry of the 2009 consent decree.

The District Court, however, entered the 2009 consent decree. DE 152, 161. This

Court dismissed appeals challenging the District Court’s approval on jurisdictional

grounds. See Florida Wildlife Fed’n, Inc. v. South Fla. Water Mgmt. Dist., 647

F.3d 1296 (11th Cir. 2011).

Outside of the court room, other individuals expressed concerns that the

determination letter’s failure to exclude TMDL waters meant that EPA would

overlay new nutrient criteria on waters with existing, EPA-approved numeric

TMDLs. For instance, a Green Cove Springs City Councilman later described his

reaction as follows:

80 days after our communities . . . committed their treasuries to the tune of 700 hundred million dollars to remove nutrients from the Lower St. Johns River pursuant to TMDL rules . . . EPA wrote a letter of determination . . . Ouch. That hurts.

AR 31525-31526. FDEP Secretary Michael Sole expressed his concerns about the

determination letter’s impact on Florida’s EPA-approved TMDLs to the Florida

Governor and Cabinet:

I will also say that our investment in the total maximum daily load program, this is the program where, where we see impairment, we jump in with both feet. We engage the public. We engage EPA. And we create, based upon the science specific to that water body, a specific criterion for them to adhere to. It's a numeric criterion for


13

that water body. Unfortunately, EPA wants to kind of look at all that again. So we basically take the millions of dollars that we've invested in TMDLs, the hundreds of millions of dollars that have been invested in the infrastructure to meet these TMDLs, and we put all that effort into question.

Now, we continue to talk with EPA, and I'm optimistic, because they are working with us to date, and that as January hopefully looms, we will see something that can be worked with here in the state of Florida.

AR 58736-58737.

D. EPA’s Numeric Nutrient Criteria Rule Applies to Waters that already have Nutrient TMDLs

Despite Secretary Sole’s optimism, when EPA proposed numeric nutrient

criteria for Florida’s freshwater systems on January 26, 2010, EPA did not exclude

waters with existing EPA-approved nutrient TMDLs, nor did EPA incorporate the

TMDLs’ waterbody-specific numeric limits into its rules. See 75 Fed. Reg. 4174

(Jan. 26, 2010). Instead, EPA overlaid generalized water quality criteria on surface

waters that already had site-specific, EPA-approved nutrient TMDLs – the same

TMDLs whose effective implementation EPA had lauded just one year prior. See

AR 10961.

EPA stated that its new generalized water quality criteria were numeric

interpretations of Florida’s narrative criterion. 75 Fed. Reg. at 4183; see also

Florida Wildlife Fed’n, Inc. v. Jackson, __F. Supp. 2d__, 2012 WL 537529, at *18

(N.D. Fla. Feb. 18, 2012). But EPA did not include any new finding that it or


14

Florida had misinterpreted the state’s narrative nutrient criterion when translating it

into the waterbody-specific numeric TMDL limits. EPA only made the passing

comment that Florida’s existing nutrient TMDLs could be repackaged and sent

again to EPA after the conclusion of the rulemaking process for reevaluation as

“site specific alternative criteria” (SSACs) for the waters to which they apply. 75

Fed. Reg. at 4177. Any EPA decision on such a request would be a final agency

action and thus subject to legal challenge.

The Utility Council, FCG, and a number of other entities provided oral and

written comments to EPA during the public rulemaking period imploring the

agency not to overlay new generalized criteria on waters that already had

waterbody-specific, EPA-approved numeric nutrient TMDLs. These detailed and

often highly technical comments typically focused on the robust (and often very

recent) scientific analyses supporting the TMDLs; the financial investments in

formulating and implementing projects designed to achieve the TMDLs; the

collaborative nature of the process used to develop the TMDLs; the environmental

improvements occurring under the TMDLs; and concerns that an overlay of EPA’s

numeric criteria would not improve water quality in the TMDL waters, but would

instead undermine the environmental progress being achieved. See, e.g., AR

36599, 36905, 38653, 39633, 39662, 41181, 48870, 86325.


15

In response, EPA declined to incorporate any of the existing, approved

waterbody-specific numeric interpretations of Florida’s narrative criterion into its

rule or otherwise exclude TMDL waters from its rulemaking. Instead, EPA again

merely pointed to the opportunity to pursue post-rulemaking relief via the rule’s

SSAC process. AR 91185. Unless or until EPA accepts a particular TMDL as an

alternative criterion, EPA stated that NPDES discharge limits would be set as the

“more stringent result of applying the TMDL [waste load allocation] or the

promulgated numeric criteria.” AR 91186. So, while the TMDLs are still

technically in place, EPA’s generalized water quality criteria supersede the

TMDLs’ waterbody-specific regulatory effect. Like the rulemaking proposal, the

rulemaking record is devoid of any scientific documentation that Florida had

misinterpreted the state’s narrative nutrient criterion when translating the narrative

statement into the numeric TMDL limits (or that EPA misinterpreted Florida’s

narrative standard in approving the TMDLs).

In the legal challenge that followed EPA’s final rule promulgation, the

Utility Council and FCG argued that EPA’s decision to overlay criteria on

Florida’s TMDL waters was arbitrary and capricious. The District Court

disagreed, reasoning that TMDLs were different than criteria and regardless, the

post-rulemaking opportunity to pursue site specific alternative criteria sufficiently


16

addressed the problem. Florida Wildlife Fed’n, Inc. v. Jackson, 2012 WL 537529

at *5, *30. This appeal followed.

SUMMARY OF THE ARGUMENT

An agency cannot turn a blind eye to the significant, real world

repercussions of a reversal in regulatory policy. Not when the public is relying

upon the prior policy. Not when the new policy ignores accepted facts. Not when

the new policy replaces specific findings with generalized summations. And an

agency cannot remedy these flaws by granting a future opportunity to attempt to

resurrect the unseated old policy. The law requires more.

In this case, EPA has spent the past decade reviewing and approving state-

promulgated numeric nutrient TMDLs. These TMDLs, by definition, interpret the

state’s narrative nutrient criterion into precise, site-specific numeric limits that

protect designated uses of water bodies. Under the CWA, these TMDLs serve a

shared goal with water quality criteria – the protection of designated uses. These

TMDLs are being relied upon across the State of Florida to plan and implement

nutrient reduction projects, to the tune of hundreds of millions of dollars. Despite

EPA’s praise for Florida’s TMDL program, EPA decided that waters that already

have EPA-approved nutrient TMDLs need an overlay of new, generalized numeric

nutrient criteria. Unlike the nutrient TMDLs that these new criteria overwrite, the

new water quality criteria are not waterbody-specific; instead, the criteria


17

purportedly established broad-brushed interpretations of Florida’s narrative

criterion that apply to general classes of waters or regions of the State of Florida.

Nothing in the record indicates that numeric nutrient criteria are “necessary” for

waters with EPA-approved TMDLs. In fact, the record shows that EPA’s new

numeric nutrient criteria are dysfunctional for waters with TMDLs.

Numerous Floridians objected to EPA’s proposal to overwrite the approved

TMDLs and submitted detailed technical comments supporting the TMDLs. The

comments explained how the overlay would endanger environmental restoration

projects and strand public assets. EPA’s response was to attempt an awkward

straddle. EPA claimed the TMDLs were still valid, despite the fact they had been

superseded. EPA then pointed Floridians to an opportunity to resurrect the

numeric TMDLs through a prospective relief mechanism, called the site specific

alternative criteria (SSAC) process. EPA never explained how its generalized

numeric translations of Florida’s narrative criterion could be superior to the site

specific numeric translations that the state had completed and EPA had approved.

EPA never squared its actions with the Clean Water Act’s clear directive to avoid

duplication and unnecessary delays in implementing the Act’s directives. EPA

never acknowledged the severe problems the agency created for those entities that

had committed serious reliance interests in implementing the nutrient TMDLs.

EPA never acknowledged that it was displacing accepted facts concerning the


18

derivation and protectiveness of the TMDLs it had only recently approved. EPA

failed to address these issues, because its actions cannot be justified. For each of

these failings, EPA’s determination letter and nutrient water quality criteria rule

are arbitrary and capricious.

STANDARD OF REVIEW

EPA’s January 2009 determination and nutrient criteria rule are final agency

actions subject to review under the Administrative Procedure Act (APA), 5 U.S.C.

§§701-706. The APA requires reviewing courts to set aside agency action that is

“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

law,” id. §706(2)(A), or “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right.” Id. §706(2)(C). The arbitrary and

capricious standard of review can be deferential to the agency. See Sierra Club v.

Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). But it is not a “rubber-

stamp.” Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976); see also Motor

Vehicle Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Among

other things, an agency runs afoul of the arbitrary and capricious standard by

relying on conclusions based on generalized data when specific data is available,

see, e.g., Tex Tin Corp. v. EPA, 992 F.2d 353, 354 (D.C. Cir. 1993), or failing to

explain its position through the administrative record. See, e.g., State Farm, 463

U.S. at 43; SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). Further, an agency


19

“cannot save an irrational rule by tacking on a [prospective relief mechanism].”

Alltel Corp. v. FCC, 838 F.2d 551, 561 (D.C. Cir. 1988); see also Ass’n of Oil Pipe

Lines v. FERC, 281 F.3d 239, 244 (D.C. Cir. 2002).

ARGUMENT

I. EPA’S DETERMINATION LETTER AND NUTRIENT RULE ARE ARBITRARY AND CAPRICIOUS, BECAUSE THEY FAIL TO EXCLUDE WATERS WITH EXISTING NUTRIENT TMDLS.

A. EPA impermissibly overwrites TMDLs’ existing, waterbody-specific numeric translations of Florida’s narrative nutrient criterion with its rule’s generalized approximations.

The difference between Florida’s waterbody-specific nutrient TMDLs and

EPA’s generalized numeric nutrient criteria is akin to the difference between a

finely tailored suit and a suit off the racks of a department store. Both serve the

same function, but the precision of one makes it preferable to the other. The same

preference applies to agency decisions. An agency cannot rely on generalized data

and assumptions when specific data and conclusions are available. In Tex Tin, for

example, the D.C. Circuit ordered EPA to remove a smelting plant from “a list of

. . . sites most in need of federal remedial attention” under the Superfund statute.

Tex Tin, 992 F.2d at 354. EPA included the smelting plant based on a generic

mathematical model. Id. at 353. But the plant provided EPA specific data about

the production of tin slag – data that contradicted the generic mathematical

model’s conclusions regarding transport of arsenic through the air. Id. at 354-55.


20

Weighing EPA’s decision based on a generic model and subsequent assumptions

“against specific scientific evidence [the plant] provided,” id. at 355, the D.C.

Circuit ordered EPA to “delete[]” the smelting plant from its Superfund list, id. at

356.

Similarly, in Chem. Mfrs. Ass’n v. EPA, 28 F.3d 1259, 1265-66 (D.C. Cir.

1994), the D.C. Circuit held that EPA’s Clean Air Act rule designating a particular

pollutant as “high risk” was arbitrary and capricious because it was based solely on

a “generic air dispersion” model, one for which affected parties presented specific,

detailed evidence of a “poor fit.” (Emphasis added.) And, in App. Power Co. v.

EPA, 249 F.3d 1032, 1053-54 (D.C. Cir. 2001), the D.C. Circuit held that EPA

action was arbitrary and capricious for its failure to account for specific data.

There, downwind states sought a determination under the Clean Air Act that

upwind states were contributing to downwind air quality problems. Id. at 1038.

EPA agreed and quantified the required reductions through a complicated model.

Id. at 1048-49. The D.C. Circuit upheld EPA’s “general reliance” on the model

but found its use of the model to assume negative growth in electric generation

arbitrary and capricious. Id. at 1052-53. The D.C. Circuit explained that such

assumptions were contrary to specific, observed data that showed the growth rate

to be well in excess of EPA’s projections. Id. at 1053-54. The App. Power court


21

thus concluded that EPA’s reliance on the model – in lieu of specific data – was in

error. Id.

In its nutrient criteria rule, as in Tex Tin, Chem. Mfrs., and App. Power, EPA

again refuses to rely on the more specific data available to it. Existing, EPA-

approved TMDLs interpret the narrative criterion into numeric values specific to

particular waterbodies or waterbody segments. See 40 C.F.R. § 130.7; Fla. Admin.

Code r. 62-304. EPA’s nutrient criteria rule interprets the narrative criterion into

generally applicable numeric values. See 75 Fed. Reg. 75,762 (Dec. 6, 2010)

available at AR 86766 (establishing criteria for types of lakes and streams within

one of five watershed regions). Both TMDLs and water quality criteria serve a

shared goal: protection of designated uses. See 33 U.S.C. §1313(c)-(d); 40 C.F.R.

130.2(g)-(j), 130.7. Accordingly, the more specific interpretation of the narrative

(the TMDL) should take precedence over the more generalized interpretation (the

criteria). Instead of deferring to specific numeric limits established through

existing nutrient TMDLs, EPA’s nutrient rule imposes overlapping, generic limits

on waters with EPA-approved nutrient TMDLs. This disregard for more specific –

and thus inherently more precise limits – renders EPA’s nutrient rule arbitrary and

capricious as applied to waters with existing nutrient TMDLs. See App. Power,

249 F.3d at 1053-54; Chem. Mfrs., 28 F.3d at 1265-66; Tex Tin, 992 F.2d at 354.


22

B. EPA has impermissibly changed its position that existing, EPA-approved nutrient TMDLs properly interpret Florida’s narrative criterion.

EPA’s determination letter and nutrient criteria rule are judged on EPA’s

administrative record. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). To the

extent the EPA determination letter and rule constitute a change in a prior EPA

position, the administrative record “must show there are good reasons for its new

policy.” FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). Importantly,

EPA must include a “reasoned explanation” of “factual findings that contradict

those which underlay its prior policy,” and it must take into account “any

engendered serious reliance interests” on EPA’s prior position. Id. at 515-16.

Otherwise, EPA’s actions are arbitrary and capricious. Id; see also Arkema Inc. v.

EPA, 618 F.3d 1, 9-10 (D.C. Cir. 2010) (holding that EPA’s change in policy from

a 2003 rule to a 2010 amended rule had an impermissible, negative retroactive

effect on some regulated entities relying on the 2003 rule); Humane Soc. v. Locke,

626 F.3d 1040, 1048-53 (9th Cir. 2010) (holding that the agency’s unexplained,

contradictory factual finding regarding the basis for its action rendered the action

arbitrary and capricious).

An examination of the record in this case demonstrates that EPA’s failed to

reconcile its reversal in agency policy with respect to nutrient limits established

through Florida’s TMDL program. EPA impermissibly ignored the repercussions


23

of its decision to overwrite the EPA-approved, waterbody-specific numeric

interpretations of Florida’s narrative criterion (as expressed in Florida’s nutrient

TMDLs) with new generally applicable numeric interpretations of Florida’s

narrative criterion (as expressed in EPA’s nutrient criteria rule). This failure

renders the determination letter and nutrient rule arbitrary and capricious.

By the date of EPA’s determination letter and nutrient rule, Florida had

promulgated 79 nutrient TMDLs. See Fla. Admin. Code r. 62-304. Each of these

nutrient TMDLs are waterbody-specific numeric translations of Florida’s narrative

criterion. See id., 303.450(1), 302.530(47)(b). EPA reviewed each of these

nutrient TMDLs and approved them as properly interpreting Florida’s narrative

nutrient criterion and as protective of the designated use. 40 C.F.R. §§ 130.7(c)-

(d), 130.2(i).

The ink is still wet on some of EPA’s TMDL approval documents. For

instance, Florida promulgated a nutrient TMDL for Alachua Sink in 2006. DE

277-1, 3. In accordance with the subsequent BMAP to this approved nutrient

TMDL, Gainesville Regional Utilities is implementing a $22 million sheetflow

restoration project to reduce nutrient loadings to Alachua Sink. Id. at 5. This

TMDL project, however, does not comport with EPA’s nutrient criteria rule. Id. at

6-8.


24

Similarly, on January 18, 2008, EPA approved the Lower St. Johns River

TMDL, and on October 10, 2008, FDEP enacted a BMAP to implement the

TMDL. See AR 39656-39658. Within the first year of the BMAP, nutrient

reduction projects in the freshwater portion of the river reduced phosphorus

loadings by 9,721 pounds and nitrogen loadings by 61,551 pounds. AR 39641-

39642. Also within the first year, EPA issued its determination letter that Florida

needed numeric nutrient criteria and made no exception for the St. Johns River,

Alachua Sink, or any other of Florida’s 79 waters with EPA-approved nutrient

TMDLs.

In its determination letter, EPA’s principle stated rationale that numeric

nutrient criteria are necessary in Florida is that using numeric targets will make

Florida’s permitting programs and TMDL program easier to administer. AR

29968. According to EPA, Florida’s existing programs require a “difficult,

resource-intensive, and time-consuming process that entails conducting case-by-

case analyses to determine the appropriate numeric target value based on . . . the

narrative criterion.” AR 29968; see also AR 91178. EPA may be correct that

scientifically accurate numeric nutrient targets for water bodies would make it

easier to set discharge limits and newly identify water bodies that exceed the

criteria. EPA’s rationale, however, falls apart with respect to waters with existing

nutrient TMDLs, where case-by-case analyses have already been completed to


25

establish numeric targets that interpret Florida’s narrative criterion and protect the

water bodies’ designated uses. See App. Power, 249 F.3d at 1053-54; Chem. Mfrs.,

28 F.3d at 1265-66; Tex Tin, 992 F.2d at 354. For such waters, the goal

reasonably should continue to be implementation of the limits established by the

TMDL program (a program EPA praises) rather than the promulgation of a new

numeric target. EPA seemingly disagrees in the determination letter without

explaining why new numeric targets are necessary for TMDL waters.

Like the determination letter, EPA’s nutrient rulemaking record praised

Florida’s TMDL program, yet in the following breath, EPA effectively cast those

TMDLs aside by overwriting new interpretations of Florida’s narrative criterion.

See 75 Fed. Reg. at 4175; 75 Fed. Reg. 75,762, 75,771, 75,786-75,787 (Dec. 6,

2010). EPA’s nutrient criteria rulemaking record contained no factual finding that

Florida’s existing, EPA-approved nutrient TMDLs had incorrectly interpreted

Florida’s narrative nutrient criterion or somehow failed to protect designated uses.

EPA’s repeated failure to provide a record explanation is directly contrary to

its obligation to provide a “reasoned explanation” of “factual findings that

contradict those which underlay its prior policy.” Fox Television Stations, 556

U.S. at 515. A reasoned explanation is particularly needed in this case because

Floridians implementing the nutrient TMDLs have engendered serious reliance

interests based on EPA’s approval of the TMDLs. Cf. id. at 515-16.


26

Unfortunately, EPA simply acknowledged that its nutrient criteria rule may indeed

impose additional requirements on TMDL waters and that those whom are

negatively affected may pursue some form of regulatory relief. AR 91186. EPA’s

unexplained change in agency position renders the determination letter and the

nutrient criteria rule arbitrary and capricious.

II. THE OPPORTUNITY TO APPLY FOR POST-RULEMAKING RELIEF VIA A SEPARATE ADMINISTRATIVE PROCESS DOES NOT CORRECT EPA’S MISTAKES

In response to objections that the determination letter and nutrient criteria

rule wrongly cast aside Florida’s 79 EPA-approved nutrient TMDLs, EPA asserted

that the opportunity to pursue post-rulemaking relief remedied the problem. AR

91185. This is incorrect. An agency “cannot save an irrational rule by tacking on

a waiver procedure.” Alltel Corp., 838 F.2d at 561 (internal citations omitted); see

also Ass’n of Oil Pipe Lines v. FERC, 281 F.3d 239, 244 (D.C. Cir. 2002) (holding

that prospective relief mechanisms “cannot rescue [an agency’s] methodology

from systemic errors, for then the exception would swallow the rule”); In re

Surface Mining Regulation Litig., 627 F.2d 1346, 1358-59 (D.C. Cir. 1980)

(holding that an agency cannot save a regulation that contravenes an express

Congressional directives by “includ[ing] a mechanism that perhaps will be used to

bring the agency’s regulations within the boundaries established by the statute”).


27

Requiring and applying generalized numeric criteria to waters with more

specific limits – without record support – makes the determination letter and

nutrient rule arbitrary and capricious. See supra I. EPA’s speculative relief

mechanism – the SSAC process – cannot cure these legal defects. See Ass’n of Oil

Pipe Lines, 281 F.3d at 244; Alltel, 838 F.2d at 561; In re Surface Mining, 627

F.2d at 1358-59. EPA cannot dispute that approval of an existing TMDL limit as

a SSAC is speculative. In fact, EPA stated in its response to comments that a

“SSAC would only become the effective criteria upon a positive determination by

the Regional Administrator.” AR 91285. Even then, EPA’s approval of a SSAC

would be final agency action, subject to potential third party challenge. See

Bennett v. Spear, 520 U.S. 154, 177 (1997). This outcome cannot be reconciled

with the CWA’s directive that EPA must “prevent needless duplication and

unnecessary delays” in the Act’s implementation. 33 U.S.C. §1251(f); cf. Ass’n of

Oil Pipelines, 281 F.3d at 244 (criticizing agency safety valve as contrary to a

Congressional directive).

Floridians warned EPA that its reliance on a post-rulemaking relief

mechanism imposed unnecessary delays, uncertainty, and negative environmental

consequences. Some noted that the SSAC process is known to be expensive and

time-consuming. AR 36906, 39645. Others cited specific projects underway to

implement existing nutrient TMDLs and their incompatibility with EPA’s Nutrient


28

Rule generally and SSAC process specifically. See, e.g., AR 81096-81097, AR

31525. EPA failed to respond to these concerns; instead, EPA merely pointed to

the rule’s after-the-fact waiver procedure – the SSAC process. AR 91185. But the

SSAC process is no substitute for a valid agency action. Ass’n of Oil Pipe Lines,

281 F.3d at 244; Alltel, 838 F.2d at 561; In re Surface Mining, 627 F.2d at 1358-

59. Accordingly, EPA’s determination letter and nutrient rule are arbitrary and

capricious.

CONCLUSION

EPA’s decision to impose numeric nutrient criteria on TMDL waters is

irrational. It is not supported by the record. It replaces site-specific calculations

with generalized approximations. It ignores accepted facts. It brushes aside the

public’s reliance on approved TMDLs. And these errors are not remedied by the

rule’s waiver procedure. Consequently, the Court should vacate EPA’s

determination letter and nutrient rule.


29

Respectfully submitted by:

_/s/ David W. Chlids__________________ James S. Alves, Fla. Bar No. 443750 [email protected] David W. Childs, Fla. Bar No. 13354 [email protected] Mohammad O. Jazil, Fla. Bar No. 72556

[email protected] HOPPING GREEN & SAMS, P.A. 119 South Monroe Street, Suite 300

Tallahassee, Florida 32301 Dated: June 27, 2012 850-222-7500 / 850-224-8551 (facsimile)

Counsel for the Florida Water Environment Association Utility Council, Inc., and Florida Electric Power Coordinating Group, Inc.


CERTIFICATE OF SERVICE

I hereby certify that, on this 27th day of June 2012, a copy of the foregoing was

served on counsel of record for all parties through the Court’s Notice of Electronic

Filing system. A copy is also being sent by first class U.S. mail to the individuals

listed below who are not registered for electronic filing.

/s/ David W. Childs____________________

Richard Edward Schwartz Crowell & Moring 1001 Penn. Ave, NW, FL 11 Washington, DC 20004-2595

Albert Ettinger Law Office of Albert Franklin Ettinger 53 W Jackson St. Suite 1664 Chicago, IL 60604

Carol Ann Forthman Darby Meginniss Green Fla. Dept. of Agriculture & Consumer Services 407 S Calhoun Street May Bldg Suite 526 Tallahassee, FL 32399

Jonathan Alan Glogau Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050


Jeremy Karpatkin Lester Stosky Arnold & Porter, LLP 555 12TH Street NW Washington, DC 20004-1206

Eduardo S. Lombard W. Robert Vezina III Vezina Lawrence & Piscitelli, PA 413 E Park Ave Tallahassee, FL 32301-1515

William Douglas Preston Law Office of William D. Preston 4832-A Kerry Forest Parkway Tallahassee, FL 32309


Documents

IN THE UNITED STATES COURT OF APPEALS FOR THE ......Case No. 12-12119-D (consolidated with Case Nos. 12-12134, 12-12262, 12-12330, 12-12331) _____ IN THE UNITED STATES COURT OF APPEALS