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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.

Background

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.)

Conclusion

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.

Author

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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.