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A State Retains the Discretion to Enact and Enforce a Method of Identifying Impaired Waters (“IWR”) and an Antidegradation Policy

Jerry Rice

Florida Wildlife Federation v. Gina McCarthy

(Case No. 8:13-cv-2084-T-23, M.D.FL. Mar. 16, 2015)

Plaintiffs sued the EPA alleging that in reviewing Florida Department of Environmental Protection (FDEP), EPA violated Clean Water Act (CWA) Section 303(c) by only reviewing a portion of the IWR that constituted a new or revised water quality standard instead of the entire IWR. Plaintiff alleged EPAs statutory authority to review a new or revised water quality standard implied the authority to review other provisions as well including otherwise unreviewable antidegradation policy. The court held that Plaintiffs arguments lacked support under the CWA and granted EPAs motion for summary judgment.


FDEP adopted the IWR in 2001, establishing a methodology to identifyimpaired surface waters. (Id.) On remand from the Eleventh Circuit, the Court ordered EPA to determine whether the IWR, or any [portion] thereof, constitutes a new or revised water quality standard. (Id.) On review, EPA determined that a portion of the IWR as a new or revised water quality standard thereby requiring EPAs review. CWA section 303 grants the EPA authority to review and to approve or reject a states new or revised water quality standard and the states list of impaired waters. But a state retains discretion to enact and to enforce without EPAs review and approval both a method of identifying impaired waters and an antidegradation policy.(Id.) After reviewing the new or revised portion of FDEPs IWR in 2005, EPA disapproved the reviewed portion on procedural grounds.

After correcting the procedural fault and amending its IWR, FDEP submitted its Amended IWR to the EPA for review in 2008. On review, EPA confirmed that FDEP corrected the procedural fault. Discussing the 2008 IWR substantively, EPA stated that it was not revisited [the portion] of the [IWR] that had not changed since EPAs 2005 review of the Rule,and that EPA reviewed the Amended IWR portion to determine whether ... [the] amended [portion] effected a changeto the States water quality standard. (Id.) EPA approved the amended IWR constituting a new or revised water quality standard.

Courts Rationale

Plaintiffs argue that under CWA Section 303(c), the EPA had an obligation to review the entirety of the amended IWR. Plaintiffs failed, however, to argue that the entire amended IWR was a new or revised water quality standard. In a previous ruling in this case, the Eleventh Circuit ordered the EPA to review the IWR to the extent that the entire rule would in effect...create [a] new or revised water quality standard.(Id., citing to Florida Public Interest, No. 4L02-cv-408, Doc. 185 at 22. The Eleventh Circuit further held that as to the portions of the IWR that would not have any effect on the States water quality standard, EPA review was not required. Therefore, the EPA correctly reviewed only the portion of the amended IWR that constitutes a new or revised water quality standard.(Id.)

In arguing that EPA must review the entire IWR, Plaintiffs cited to a letter in which the FDEP [allegedly] formally and officially requested [that] the EPA review and approve FDEPs entire [amended] IWR...” (Id., citation omitted.) On closer examination, this letter confirmed that the FDEP submitted three sets of rule amendments to the EPA for review, and the letter contained a version of the amended IWR for ease of review. The court held, therefore, that PlaintiffsSection 303(c) arguments were baseless.(Id.)

Plaintiffs also alleged that the EPA was obligated to review the entire amended IWR under section 303(d). Section 303(d)(2) requires the FDEP to create a list of impaired waters that cannot reach any water quality standard applicable to such waters....[even after applying] technology-based effluent limitations....For the purposes of listing waters...., the term water quality standard applicable to such waters’...refer[s] to those water quality standards established under section 303 of the Act, including ...antidegradation requirements.(Id.) The State must, therefore, consider antidegradation requirements when preparing its list of impaired waters.

The Plaintiffs argued that under this section, the impaired waters list must include the assessment and evaluation of whether ambient waters are attaining applicable state antidegradation [water quality standards].(Id.) Based on this section, Plaintiffs argued that the IWR must comply with the same requirement. However, Plaintiffs did not argue that any portion of the IWR constituted the impaired waters list. The courts own review of the IWR reveals no portion that is the impaired waters list or in effectconstitutes the impaired waters list.(Id.) Section 303(d)(2) requires the EPA to review the waters that comprise the impaired waters list, not a methodology to identify impaired waters.(Id., citation omitted.)


Plaintiffs failed to prove that the EPAs decision was arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law.

Plaintiffs have long been fighting over the implementation of Floridas antidegradation policy seeking to invalidate Floridas impaired waters assessments going back to 2009, the point being t to force the State to add more restrictive TMDLs, and to add increased baselines for antidegradation analysis. This particular case failed in that regard.




Thierry R. Montoya is a Shareholder in the Firm’s Santa Ana office and the Chair of the Construction Law Department. He represents clients in environmental, land use, construction, and eminent domain matters across the state, and in federal jurisdictions throughout the United States.


Court of Federal Claims Lacked Jurisdiction Over Plaintiff’s Regulatory Takings Action

Jerry Rice

Resource Investments, Inc. v. United States

(Case No. 2014-5069, Fed.Cir. May 12, 2015)

Resource Investments Inc. (“Plaintiff”) applied for state permits to build a landfill. Plaintiff applied for a Clean Water Act (“CWA”) permit from the Army Corps of Engineers (“Corps”) because the landfill project affected wetland areas. After the Corps rejected Plaintiff’s CWA permit on September 30, 1996, Plaintiff filed suit under the Administrative Procedures Act (“APA”) challenging the Corps’ denial of the CWA permit. The district court upheld the permit denial, but the Ninth Circuit reversed. On May 4, 1998, with a Ninth Circuit appeal pending, Plaintiff filed a complaint in the Claims Court alleging that the Corps’ denial of the CWA permit as a taking in violation of the Fifth Amendment. The Claims Court dismissed the action, citing 28 USCA § 1500, which provides that the Claims Court “shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States.” (Id.) The Court of Appeals affirmed.


In March 1994, the Corps required a federal environmental impact statement for the landfill site. After the Corps' draft statement preliminarily concluded that Resource Investments had not ruled out alternatives to the landfill, Resource Investments asked the Corps to terminate the environmental impact review process, which the Corps did in June 1996.The Corps denied Resource Investments' CWA permit in September 1996. The next month, Resource Investments filed an APA action in U.S. district court, challenging the denial of the permit.

While Plaintiff’s Claims Court action was pending, the Supreme Court decided United States v. Tohono O’Odham Nation, 131 S.Ct. 1723, holding that “[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the [Claims Court], if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” (Id. at

1731.) On June 10, 2011, the government filed a motion to dismiss the takings action in light of Tohono.

Court’s Rationale

Dismissal under 28 U.S.C. § 1500 requires (1) an earlier-filed suit or process pending in another court, and (2) claims in the earlier-filed case that are for or in respect to the same claims asserted in the later-filed COFC action. (Brandt v. U.S., 710 F.3d 1369 (Fed. Cir. 2013).) Plaintiff did not dispute that the district court permit action constituted an earlier- suit under section 1500.

The second inquiry required the Court to compare court IV of the district court action with the Claims Court action to determine whether they are “for or in respect” each other. (28 U.S.C. section 1500.) In Keene Corp. v. United States, 508 U.S. 200 (1993) the Supreme Court held the relevant comparison under section 1500 considers whether the two suits were “based on substantially the same operative facts.” (Id. at 212.) The Tohono case addressed an issue unresolved in Keene, whether the section 1500 bar “applied to two actions based on the same operative facts that sought completely different relief.” (Tohono, at 1727-28.)

Here, the Claims Court held that the same operative facts test was satisfied because both suits were based on the denial of the CWA permit and the resulting economic injury to Resource Investments. Plaintiff argued that the denial of the permit was merely a background fact and not an operative fact in the Claims Court. The Court rejected this argument holding the CWA permit denial was not a mere background fact but the basis for both actionsas both actions addressed the Corps action.

In determining whether the two cases were “based on substantially the same operative facts...the Supreme Court analogized section 1500 to res judicata...” the test approved by Tohono. (Id.) Under Tonono “the question is whether the second Claims Court takings suit would have been barred by res judicata if it had been brought in a district court.” (Id.) In Tohono, the Supreme Court articulated the nineteenth century “act or contract” test as: “The true distinction between demands or rights of action which are single and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contract.” (Tohono at 1730.)

The Court applied the act-or-contract test to conclude that § 1500 applied because a district court complaint and a Claims Court complaint both alleged that the Government failed to promote the plaintiff's product and replaced that product with a Government-developed alternative. In the Claims Court, Plaintiff alleged a breach of an implied agreement. In the district court, Plaintiff alleged a breach of fiduciary duty. The Court concluded that both actions were based on the same conduct. The appellant “was, therefore, alleging that the same conduct gave rise to different claims based upon purportedly distinct legal theories.” (Id.)

In response, Plaintiff alleged that even if its permanent takings claim was barred, its temporary takings claim would survive section 1500. Plaintiff claimed the CWA permit denial was not an operative fact with respect to its temporary takings claim “because that claim was based on the delay in the permitting process rather than the ultimate denial of the permit.

Plaintiff’s claim failed for two reasons.

First, Plaintiff did not sufficiently allege a temporary takings claim its original complaint. “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (Bell Atl. Corp. v Twombly, 550 U.S. 544 (2007).)

Second, the Court could not consider the more extensive temporary takings allegations in Plaintiff’s amended Claims Court complaint. “The amended Claims Court complaint is irrelevant because of ‘the longstanding principle that the jurisdiction of the Court depends upon the state of things at the time of the action brought.’” (Keene, supra, 508 U.S. at 207.)


Underlying this case is the argument as to whether a CWA permit was ever required. The Ninth Circuit overturned the district court’s ruling upholding the Corps’ permit denial. In reversal, the Ninth Circuit held the district court lacked authority to require a CWA permit because, under the Resource Conservation and Recovery Act, 42 U.S.C. sections 6941- 6949, the regulation of municipal solid waste in landfills constructed on wetland areas lies solely with the EPA. Seems Plaintiff could have argued the taking resulted from the Corps’ assertion a CWA permit was required when, in fact, it was not.


Thierry R. Montoya is a Shareholder in the Firm’s Santa Ana office and the Chair of the Construction Law Department. He represents clients in environmental, land use, construction, and eminent domain matters across the state, and in federal jurisdictions throughout the United States.

Rayonier, Inc.’s NPDES Permit Does Not Require Compliance With Georgia’s Water Quality Standards For Color, Odor, And Turbidity

Jerry Rice

Altamaha Riverkeeper, Inc. v. Rayonier, Inc.

(Case No. CV 214-44, S.D. Ga. March 31, 2015)

Altamaha Riverkeeper, Inc. (“Plaintiff”) is a nonprofit organization whose goal is to protect and restore the habitat and water quality of the Altamaha River. In that regard, Plaintiff monitors wastewater discharges to ensure compliance with permits and water quality. Rayonier, Inc. (“Defendant”) operates a pulp mill that produces cellulose products from wood chips; the mill discharges some 50 to 60 million gallons of wastewater into the Altamaha River under permit. Plaintiff sued Defendant alleging that Defendant’s wastewater was so much darker than Altamaha’s waters, and that its wastewater “was so malodorous,” that its discharges violated Georgia’s water quality standards for color, odor, and turbidity. Plaintiff alleged that Defendant’s discharges had such an impact on Altamaha’s water quality that its discharges violated Georgia’s narrative water quality standards. Defendant filed a Motion for Summary Judgment, which the district court granted. Interpreting the NPDES permit the Georgia Environmental Protection Division (“GEPD”) granted to Defendant, the district court held that there was no evidence suggesting that GEPD “intended to make [Defendant’s] permit conditions coextensive with the water quality standards found in the [Clean Water Act] and Georgia’s Rules,...requires GEPD to use sufficient arrive at that intention in the permit itself.” (Id., internal citations omitted.)


The Clean Water Act (“CWA”), in intended to restore and maintain the “integrity of the Nation’s waters.” (33 U.S.C. section 1251(a).) CWA directs that no one is entitled to discharge any pollutant from any point source into waters of the United States. (33 U.S.C. sections 1311(a), 1362(12).) Discharges are privileged conditioned on compliance with the requirements of an NPDES permit. (Id. Sections 1311(a), 1342.) One of the hallmarks of

an NPDES is its requirement that the permittee conduct monitoring adequate to demonstrate compliance or non-compliance with the permit’s terms, requiring the certification of the results under threat of criminal sanction. (Id. Sections 1342(a)(2), 1318(a)(A); 40 C.F.R section 122.44(i)(1). As the Fifth Circuit held, the CWA is “strong medicine.” Tex. Mun. Power Agency v. EPA, 836 F.2d 1482, 1488 (5th. Cir. 1988).)

Citizens may file suit on their own behalf alleging violations of an NPDES permit. (33 U.S.C. section 1365(a), (f)(6).) “However, where a permittee discharges pollutants in compliance with the terms of an NPDES permit, the permit “shields” the permittee from liability under the CWA... Section 1342(k)’s permit shield “affords an absolute defense to a permit holder that complies with the conditions of its permit against citizen suits” seeking to enforce certain provisions of the CWA.” (Id., citing to 33 U.S.C. section 1342(k) and Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734 F.3d 1297, 1303 (11th Cir. 2013).)

To resolve this matter, the district court would have to examine the language of Defendant’s GEPD issued NPDES permit. “While NPDES permits themselves are not contract, they are interpreted as if they were.” (Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013).) If the language of the permit, taken as a whole, is plain and capable of construction, then the court must determine the permit’s meaning.

However, if the permit language is ambiguous, courts may take extrinsic evidence into consideration to interpret the permit. (Citations omitted.) “However, under Georgia law and Eleventh Circuit precedent, courts turn to extrinsic evidence to explain ambiguity in a contract ‘only when a contract remains ambiguous after the pertinent rules of construction have been applied.’” (Id., quoting from Claussen v. Aetna Cas. & Sur. Co. 888 F.2d 747, 749 (11th Cir.1989.)

Court’s Rationale

A. Ambiguity

A contract is ambiguous under federal common law if it contains “a duplicity, indistinctness [or] an uncertainty of meaning or expression that makes it susceptible to several reasonable interpretations.” (Id., quoting from Begner v. United States, 428 F.3d 998, 1004-5 (11th Cir. 2005).) At issues is whether Defendant’s NPDES permit incorporates Georgia’s water quality standards set forth in Rule 391-3-6-.03(5)(c). The district court found two occurrences where this occurred.

The first page of Defendant’s NPDES permit states, in pertinent part, that “in compliance with the CWA, the State Act, and their respective rules and regulations,” Defendant is authorized to discharge into the Altamaha River “in accordance with the conditions set forth [in respective parts] of the Permit.” (Id.) This language means that GEPD authorized Defendant’s NPDES permit “in compliance” with Federal and State Acts and their implementing rules, but did not mean that Defendant “may only discharge in compliance with Federal and State acts and their attendant rules and regulations.” (Id.)

  1. Plaintiff argued that Culbertson v. Coats American, Inc., 913 F.Supp. 1572 (N.D. Ga. 1995) held that this language in an NPDES permit does, in fact, incorporate Georgia’s water quality standards as an NPDES permit condition. However, the district court refused to apply Culberson as that case concerned a defendant that conceded to the seminal fact that this provision did indeed intend to make compliance with Georgia water quality law a permit requirement; Defendant, here, was challenging this point. Moreover, the Culbertson court did not undertake the same procedures for interpreting the permit as this court had.

The NPDES permit’s second reference to Georgia’s water quality standards was ambiguous. The permit states, “The Permittee shall comply with effluent standards or prohibitions established by section 307(a) of the Federal Act and with chapter 391-3-6-.03(5) of the State Rules and may not discharge toxic pollutants in concentrations or combinations that are harmful to human, animals, or aquatic life.” This section is ambiguous because its use suggests that it is strictly concerned with toxic pollutants, whereas the actual rule lists a host of water quality standards having nothing to do with toxicity. Because of this ambiguity, the district court had to turn to rules of contract construction to ascertain its meaning.

B. Intent of the Parties

Here, the district court could not ascertain the parties’ intent regarding Georgia’s water quality standards. Plaintiff alleged that GEPD’s intent in drafting the permit “necessarily was to meet the requirements of the Clean Water Act.” (Id.) However, that supposed intent was undermined by another portion of the permit stating “[n]othing in this permit shall be construed to preclude the modification of any condition of this permit when it is determined that the effluent limitations specified herein fail to achieve the applicable State water quality standards.” (Id.) This provision could only “...contemplate the possibility that the Permit’s conditions do not, in fact, incorporate all of Georgia’s water quality standards as conditions of the permit.” (Id.)

Looking beyond canons of contract interpretation, Plaintiff argued that courts should favor a construction in the public interest where a contract dispute is of public concern. This is “a rule of construction rather than one of interpretation, one that for reasons of public policy requires the court to give to a contract that legal operation that is of public advantage, when a choice between that and a less advantageous operation is reasonably open.” (Id.) The district court agreed with the notion that the public does have an interest in protecting the Altamaha River, however, the public would also have an interest in ensuring “that businesses and industries are given explicit notice of what kinds of discharges will violate their NPDES permits before subjecting them to onerous civil penalties.” (Id.) That interest wins out in this matter.


This decision did not intent to suggest that Defendant’s discharges did not have a harmful effect on the Altamaha River, or to minimize Plaintiff’s alleged injuries. This case stands for the proposition Plaintiff failed to show a violation of Defendant’s NPDES permit--i.e. failing to show that Defendant’s permit required it to comply with relevant water quality standards.




Thierry R. Montoya is a Shareholder in the Firm’s Santa Ana office and the Chair of the Construction Law Department. He represents clients in environmental, land use, construction, and eminent domain matters across the state, and in federal jurisdictions throughout the United States.