IN THE UNITED STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISON 

FLORIDA WILDLIFE FEDERATION, INC.; 

SIERRA CLUB, INC.; CONSERVANCY OF 

SOUTHWEST FLORIDA, INC.; ENVIRONMENTAL 

CONFEDERATION OF SOUTHWEST FLORIDA, INC.; 

& ST. JOHNS RIVERKEEPER, INC., 

Plaintiffs, 

v. Case No. 4:08-cv-00324-RH-WCS 

LISA P. JACKSON, Administrator of the United States 

Environmental Protection Agency; and THE UNITED 

STATES ENVIRONMENTAL PROTECTION AGENCY, 

Defendants. 

/ 

MOTION TO INTERNVENE AND HOLD PROCEEDINGS IN ABEYANCE 

MEMORANDUM IN SUPPORT THEREOF AS SUBMITTED BY 

THE FLORIDA WATER ENVIRONMENT ASSOCIATION UTILITY COUNCIL, INC. 

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

through its undersigned counsel, respectfully submits its motion to intervene as Defendants 

pursuant to Fed. R. Civ. P. 24 (Rule 24) and hold proceedings in abeyance. In accordance with 

N.D. Fla. Loc. R. 7.1(A), a memorandum of law with citation to authorities accompanies this 

motion. 

Motion to Intervene & Hold Proceedings in Abeyance 

On August 18, 2009, the U. S. Environmental Protection Agency (EPA) executed a 

Consent Decree in the instant case. Exhibit 1. The Consent Decree has the effect of ratifying a 

January 14, 2009 "necessity determination" in which former EPA Assistant Administrator Ben 

Grumbles advised Mike Sole, Secretary of the Florida Department of Environmental Protection 

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(DEP), that: "This letter constitutes a determination under the Clean Water Act (CWA) section 

303(c)(4)(B) that new or revised water quality standards for nutrients are necessary to meet the 

requirements of the CWA for the State of Florida." 

However, the Utility Council asserts, and a document submitted by EPA in this case 

confirms, that Assistant Administrator Grumbles issued the January 14, 2009 necessity 

determination to settle this action and encourage the August 18, 2009 Consent Decree. Exhibit 

2. The necessity determination was not the product of a deliberative process by which the 

former Assistant Administrator met his burden of "marshalling conclusive evidence of 

`necessity' for Federally promulgated water quality standards." 57 Fed. Reg. 60848. 

In late December, 2008, (then) EPA Assistant Administrator Luis Luna provided a 

memorandum to former EPA Administrator Stephen Johnson in which he requested that the 

Administrator grant Mr. Grumbles a one-time delegation to sign a necessity determination for the 

State of Florida to settle or perhaps even win this case. Mr. Luna stated: 

EPA does not agree with the plaintiffs' allegation that we made a CWA determination in 

our 1998 Strategy' that numeric nutrient criteria are necessary for Florida to meet the 

requirements of the CWA. There is, however, some risk that the court could agree with 

the plaintiffs that the 1998 Strategy constitutes a CWA determination that nutrient criteria 

are necessary for Florida. Such a ruling could spur similar litigation in other states. 

Presently, 49 states have one or more 303(d) listings for waters impaired by nutrients. 

(Emphasis added). 

The litigants have highlighted that water quality in Florida is declining due to nutrient 

pollution and that numeric criteria are need to address the environmental degradation. In 

response to this lawsuit, we believe that we should collect and analyze nutrients-related 

information pertaining to Florida and decide whether to make a Section 303(c)(4)(B) 

determination that revised nutrient standards are necessary for the State of Florida to 

meet the requirements of the CWA. Making such a determination could give EPA a basis 

to propose a settlement to the plaintiffs or to request that the court dismiss the case. 

While making a determination may not resolve the litigation, we believe it is an option 

1Plaintiffs initially alleged that EPA's 1998 National Strategy for the Development of Regional Nutrient Criteria 

was the document serving as a necessity determination; in their first amended complaint, the plaintiffs alleged that it 

was a 1998 Clean Water Action Plan, coauthored with the U. S. Department of Agriculture, that was the document 

triggering EPA's mandatory duty to promulgate numeric nutrient criteria for Florida. 

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we should seriously consider and therefore are requesting delegation of authority. A 

CWA Section 303(c)(4)(B) can only be made by the Administrator or the 

Administrator's duly authorized delegate. (Emphasis added). 

Administrator Johnson approved Mr. Luna's memorandum and signed the delegation on 

Monday, December 29, 2008. With weekends and federal holidays excluded, Mr. Grumbles—

who did not heretofore have the authority to make a necessity determination for Florida—had 

only 11 working days, between December 29, 2008 and January 14, 2009, to make such a 

determination. 

The August 18, 2009 Consent Decree presumes the legitimacy of the January 14, 2009 

necessity determination. However, on August 14, 2009, the Utility Council delivered a letter to 

EPA Administrator Lisa Jackson providing the requisite 60-day notice of the Utility Council's 

intent to file a citizens' suit attacking the legitimacy of the necessity determination. Exhibit 3. 

On August 24, 2009, the Florida Minerals & Chemistry Council, Inc., also filed a 60-day letter 

with EPA also challenging the January 2009 necessity determination. Exhibit 4. 

The Utility Council seeks to intervene in this action to request that the Court place this 

action in abeyance and stay any action as to the Consent Decree, at a minimum, until the 60-day 

periods afforded EPA have expired and the Utility Council has an additional 10 days thereafter 

to file its citizens' suit. This requested stay or abeyance period would thus end on November 2, 

2009. If EPA agrees to rescind its January 14, 2009 necessity determination, the Consent Decree 

may be rendered moot. If, however, EPA fails to rescind its January 14, 2009 necessity 

determination, as requested in the 60-day letter, any citizen suit filed by the Utility Council may 

eventually be consolidated with the instant action. 

The requested stay will not prejudice any party to this action or result in undue delay. On 

July 20, 2009, the Court granted Plaintiffs' request for 60-day stay to pursue settlement 

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negotiations with EPA. The stay will not expire until September 18, 2009. As of the time of the 

filing of this motion, the Consent Decree has not been submitted to the Court by EPA or the 

plaintiffs. The Utility Council filed its 60-day notice with EPA on August 14, 2009, prior to the 

execution of the Consent Decree. 

Wherefore, the Utility Council respectfully requests that this Court grant it intervenor 

status under Fed. R. Civ. P. 24 and enter an order holding all proceedings in this matter in 

abeyance, and specifically withhold any actions that may be construed as an approval of the 

August 18, 2009, Consent Decree. At a minimum, the Utility Council requests that the abeyance 

remain in place until the EPA has exhausted its 60-day notice periods. If, after exhausting the 

60-day notice periods, the EPA takes no action on the Utility Council's notice of intent to sue, 

the Utility Council asks that it receive another 10 days within which to file its citizens' suit 

pursuant to § 505 of the Clean Water Act. 

MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE 

AND HOLD PROCEEDINGS IN ABEYANCE 

In support of its motion to intervene and hold these proceedings in abeyance, the Utility 

Council provides the following. 

I. Introduction 

The Florida Water Environment Association Utility Council, Inc. (Utility Council) is an 

association of Florida local government and private utilities which own and operate domestic 

wastewater treatment, disposal, reuse, and recycling facilities. Utility Council members serve 

over 7 million Florida residents. Many Utility Council members discharge treated domestic 

wastewater to Florida surface waters under the authority of state discharge permits issued by the 

Florida Department of Environmental Protection (DEP) consistent with the State's EPAapproved NPDES permit program. Permit conditions imposed by DEP, or EPA exercising its 

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statutory oversight authority, are derived from, based upon, and implement, the State's federally 

approved Water Quality Standards Program and Total Maximum Daily Load (TMDL) program. 

A change in policy as to any one program, the Water Quality Standards Program, NPDES 

permitting program, or TMDL program, changes the regulatory framework under which Utility 

Council members must plan projects, upgrade equipment, seek permit renewals, obtain financing 

and set utility rates. 

Wastewater treatment is costly, and unnecessarily stringent water quality criteria that are 

not based upon sound science drain resources that could be more effectively employed protecting 

Florida waters by other means. The January 2009 necessity determination was not based upon 

science or any new revelations about Florida water quality discovered between December 29, 

2008 and January 14, 2009. The Utility Council intends to test the validity of the necessity 

determination and has filed a letter indicating its intent to sue, which is a condition precedent to 

the initiation of a citizens' suit under § 505 of the Clean Water Act. If this Court approves the 

August 18, 2009, Consent Decree while the 60-day period remains pending, the Court will have 

given tacit approval as to the legitimacy of the January 14, 2009 necessity determination. The 

Utility Council seeks to intervene to ask this Court to postpone its review, and perhaps approval, 

of the Consent Decree until EPA responds, or chooses not to respond, to the Utility Council's 

notice-of-intent to sue. 

II. Argument 

A. Permissive Intervention 

This Court allowed several parties to intervene in this action (Doc. 48) under Fed Rule 

Civ. Procedure 24(b) which provides for permissive intervention at the discretion of this Court. 

The Utility Council did not seek to intervene at that time in that the only issue raised in the initial 

and first amended complaints was whether a 1998 EPA document triggered a non-discretionary 

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duty as to EPA; at that time, EPA appeared to be defending the suit. The permissive intervenors 

were also defending the suit. 

The August 18, 2009, Consent Decree has substantially changed the nature of the instant 

action. The Utility Council has submitted notice of its intent to sue EPA under the citizens' suit 

provision of the Clean Water Act to address the EPA Administrator's failure to discharge his 

non-discretionary duty to restrict his January 2009 necessity determination to Clean Water Act 

considerations. Limiting the precedential effect of this action, and trying to avoid similar suits, is 

not a legitimate basis for declaring Florida's water quality program (and narrative nutrient 

criterion) to be in violation of the Clean Water Act. The extraordinary act of EPA invading State 

primacy and stepping in to promulgate federal numeric nutrient criteria for the State of Florida 

cannot be justified to "give EPA a basis to propose a settlement to the plaintiffs or to request that 

the court dismiss the case." 

The Utility Council must allow the 60-day period to elapse before filing its own citizens' 

suit to challenge the litigation strategy-based necessity determination. The Utility Council is 

concerned that the final entry of the Consent Decree, which is premised upon the January 14, 

2009, necessity determination, will compromise the Utility Council's ability to pursue its 

citizens' suit claim as to the legitimacy of that very same necessity determination. 

A party seeking to intervene permissively under Rule 24(b) must show (1) that its 

"application to intervene is timely" and (2) that its "claim or defense and the main action have a 

question of law or fact in common." Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 

1989). According to the U.S. Supreme Court, Rule 24(b) "plainly dispenses with any 

requirement that the intervenor shall have a direct and personal or pecuniary interest in the 

subject of the litigation." Securities & Exchange Com'n v. U.S. Realty & Imp. Co., 310 U.S. 

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434, 459 (1940). Further, "[Ole words 'claim or defense' manifestly refer to the kinds of claims 

or defenses that can be raised in courts of law as part of an actual or impending law suit . . ." 

Diamond v. Charles, 476 U.S. 54, 76 (1986) (O'Connor, J., concurring) (emphasis added). The 

Utility Council satisfies the requirements of Rule 24(b), and so it respectfully requests that this 

Court grant the Utility Council leave to intervene permissively. 

(1) The Utility Council's application to intervene is timely 

The Court may consider four factors in evaluating the timeliness of a motion to intervene. 

The factors are: (1) the length of time during which the intervenor knew or reasonably should 

have know about his or her interest in the proceeding before requesting leave to intervene; (2) the 

extent of any prejudice to existing parties in the litigation due to a failure by the intervenor to 

request intervention as soon as he or she actually knew or reasonably should have known of an 

interest in the proceeding; (3) the extent of any prejudice to the intervenor if intervention is 

denied; and (4) the existence of unusual circumstances militating for or against intervention. See 

Reeves v. Wilkes, 754 F.2d 965, 968-69 (11th Cir. 1985). In considering these four factors, 

however, the Court might "keep in mind that Ttlimeliness is not a word of exactitude or of 

precisely measurable dimensions. The requirement of timeliness must have accommodating 

flexibility toward both the court and the litigants if it is to be successfully employed to regulate 

intervention in the interest of justice.'" Georgia v. U.S. Army Corp. of Engineers, 302 F.3d 1242, 

1259 (11th Cir. 2002) (quoting Chiles, 865 F.2d at 1213). Nevertheless, consideration of these 

four factors supports the conclusion that the Utility Council filed its motion in a timely fashion. 

The Plaintiffs filed their Third-Amended Complaint on July 2, 2009 and requested a 60-

day stay of these proceeding to participate in negotiations with EPA. The 60-day stay was 

granted and has not yet expired. The Utility Council acquired a copy of the proposed Consent 

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Decree in this case on August 19, 2009. After learning of the proposed consent decree, the 

Utility Council has moved with all deliberate speed to intervene in this proceeding. Since the 

60-day stay has not yet expired, and the Court has not taken action as to the Consent Decree, the 

existing parties will not be unduly prejudiced by the Utility Council's intervention. In fact, the 

Utility Council will know if EPA intends to take action as to the 60-day citizens' suit letter well 

before EPA's January 2010 deadline for proposing numeric nutrient criteria for Florida's fresh 

surface waters. As such, the Utility Council has filed this motion in a timely fashion. 

(2) The Utility Council's interests involve questions of law or fact which are 

common to the main claim in this action 

In the February 2, 2009 Order Granting Leave to Intervene, the Court noted that the "sole 

issue to be decided is whether the EPA made a determination that Florida's existing narrative 

water quality standards for nutrient pollution are inadequate." (Doc. 48). Much has changed 

since then. At the April 2, 2009, hearing of the various motions and cross-motions for summary 

judgment, EPA played its determination card by presenting the January 14, 2009, necessity 

determination to obviate the need to discuss whether the 1998 Clean Water Action plan had the 

same effect. As calculated, the January 2009 necessity determination resulted in Plaintiffs 

amending their complaint again and seeking a stay of these proceedings to negotiate a settlement 

of this matter with EPA—and only EPA. Those negotiations resulted in the August 18, 2009 

Consent Decree which was signed after the Utility Council's 60-day letter had been delivered to 

EPA—challenging the legitimacy of the January 14, 2009, necessity determination. 

The Utility Council has two separate interests that share common questions of law and 

fact with the issues in this action. First, the Utility Council has an interest in ensuring that the 

August 18, 2009 Consent Decree does not ratify the January 2009 determination as valid, i.e., 

that the Consent Decree at least provides for the possibility that the January 2009 decree is 

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invalid. Second, the Utility Council has an interest in continuing to be regulated by the current 

Florida statutory and administrative framework, substantive portions of which, if the January 14, 

2009 necessity determination is ratified, will cease to exist. 

(i) The Utility Council has an interest in ensuring that the Consent Decree in this 

case does not presume that the January 2009 determination is valid. 

According to Mr. Luna's memorandum to the EPA Administrator, the EPA did not 

consider its 1998 National Strategy for the Development of Regional Nutrient Criteria sufficient 

to trigger the EPA's duty to promulgate water quality standards. However, to avoid similar 

litigation in the other forty-nine States, the EPA, through Assistant Administrator Grumbles, 

issued a hastily drafted determination only for Florida in January 2009. The Utility Council, as 

its notice of intent to sue under the Clean Water Act citizens' suit provision makes clear, intends 

to challenge the validity of the January 2009 determination. If approved by this Court, the 

Consent Decree will end this action before the Utility Council's citizen suit may be initiated. 

Litigation such as this often ends with consent decrees that stretch into the distant future. 

See, e.g., Florida Wildlife Fed'n, Inc. v. Browner, No. 4:98CV356-WS, Consent Decree (N.D. 

Fla., Tallahassee Division, June 30, 1998); Sierra Club v. Hankinson, 296 F.3d 1021, 1026-28 

(N.D. Ga. 2002). The Consent Decree in this case is predicated on the validity of the January 

2009 determination. The original parties to this dispute have no interest in challenging the 

validity of the January 2009 determination letter. The Plaintiffs will not challenge the January 

2009 determination because it provides the trigger for the EPA's non-discretionary duty to set 

numeric standards. The Defendants, as Mr. Luna's memorandum shows, will not challenge for 

fear of focusing the present suit on the 1998 document, which if the Court finds to be a 

determination, would spawn similar suits in the other forty-nine states. Thus, the Consent 

Decree will continue to reflect the parties' belief that the January 2009 determination is valid. If 

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the Utility Council prevails in its citizens' suit against the EPA and its Administrator, the original 

parties' belief, as reflected in the August 18, 2009 Consent Decree, will prove to be false. 

However, because a consent decree is part contract and part judicial decree, see, e.g., 

Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 378 (1992), the Utility Council, if it is 

not allowed to intervene and seek a stay of this Court's review of the Consent Decree, will face 

significant challenges in undoing any decree that ratifies and codifies the validity of the January 

2009 determination, see, e.g., United States v. S. Florida Water Mgmt. Dist., 922 F.2d 704, 709 

(11th Cir. 1991); Douglas Laycock, Consent Decrees Without Consent: The Rights of 

Nonconsenting Third Parties, 1987 U. Chi. Legal F. 103, 119-121 (1987).2In S. Fla. Water 

Mgmt. Dist., farmers sought to intervene in the federal government's action against the water 

management district. S. Fla. Water Mgmt. Dist, 922 F.2d at 706. The district judge denied 

intervention. Id. at 708-09. On appeal, the Eleventh Circuit Court of Appeals reversed. Id. 

According to the court, the farmers had a legally protectable right to participate and 

comment in the action where narrative water quality standards were being translated into 

numeric standards; thus, the farmers had a right to intervene under Rule 24(a). Id. at 710. The 

court went on to discuss what would happen if the farmers were not allowed to intervene. The 

court noted that if the farmers could not intervene, they would remain free to challenge the final 

numeric standards in another forum. Id. at 709. However, the court warned, that "a subsequent 

court would likely be reluctant, as a practical matter, to issue a decision that conflict[] [ed] with 

2Professor Laycock argues that the mere existence of a consent decree may prevent or hinder third parties, i.e., 

parties that did not play a part in drafting the consent decree, from protecting their interests. Professor Laycock 

discusses the following examples involving A, B, and C where C is the third party: (1) if C objects to what A and B 

have agreed to, A and B can point to a judicial decree and tell C that it settles the issue conclusively; (2) A and B 

will be more reluctant to give in to C's demands if faced with contempt sanctions; (3) the judge will be reluctant to 

spend time on a case he or she thought was off the docket and will therefore "not be favorably disposed to plaintiffs 

who subsequently reopened the matter and sought to litigate it"; and (4) the court will likely give the consent decree 

undue weight in subsequent litigation. Professor Laycock's concerns may be particularly pronounced in an instance, 

such as this, where the Consent Decree sets a schedule for the EPA's promulgation of numeric nutrient criteria for 

the entire State of Florida. 

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the District Court's order in the present case." Id. This, according to the court, "provide[][d] a 

further basis for concluding that the Farm Interests' have shown a potential impairment of their 

rights sufficient to establish intervention." Id. As additional support of this basis for granting 

intervention, the Court cited Judge Anderson's dissenting opinion from an earlier Eleventh 

Circuit case where the Judge "agreed with the court that the plaintiffs were not parties to the 

prior [employment discrimination] litigation which resulted in the consent decree" but concluded 

that the plaintiffs could still be prejudiced by "certain practical consequences . . . from the 

consent decree." Id. at 709, fn8 (citing In re Birmingham Reverse Discrimination Employment 

Litigation, 833 F.2d 1492, 1502-03 (11th Cir. 1987) (Anderson, J., dissenting)). 

In short, the August 18, 2009 Consent Decree, if approved by this Court, would afford 

the January 2009 necessity determination a level of legitimacy that the Utility Council may be 

forced to overcome once the 60-day waiting periods have expired. The Utility Council has an 

interest in avoiding the need to overcome this judicial imprimatur; thus, the Utility Council has 

an interest in intervening in this action to ask for a stay. See S. Fla. Water Mgmt. Dist., 922 F.2d 

at 709. 

Additionally, allowing the Utility Council to intervene to ask this Court to withhold any 

actions that may be construed as an approval of the August 18, 2009 Consent Decree will further 

the public interest in sound judicial administration. The EPA cannot usurp Florida's role in 

setting its own water quality standards without a valid determination. The Utility Council's 

imminent citizens' suit has put January 2009 determination, and by extension the August 18, 

2009 Consent Decree, in question. Thus, allowing the Utility Council to intervene, and 

withholding approval of the August 18, 2009 Consent Decree while its fundamental premise is 

tested, will preserve judicial resources. Such intervention will also aid the Court when the Court 

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reviews the inevitable Consent Decree in this case to "ensure that it is 'fair, adequate, and 

reasonable; that the proposed decree [does] not violate the Constitution, a statute or other 

authority; [and] that it is consistent with the objectives of Congress.'" Conservation Law Found. 

of New England, Inc. v. Franklin, 989 F.2d 54, 58 (1st Cir. 1993) (quoting Durrett v. Hous. 

Auth., 896 F.2d 600, 604 (1stCir. 1990)). 

(ii) The Utility Council has an interest in continuing to be regulated by the current 

Florida statutory and administrative scheme, substantive portions of which, if 

Plaintiffs' succeed in this lawsuit, will be cease to exist. 

The courts have recognized that "the interests of those who are governed by [statutory] 

schemes are sufficient to support intervention." Chiles, 565 F.2d at 1213 (quoting Wright, Miller 

& Kane, Federal Practice and Procedure § 1908 at 285). In this action, the Plaintiffs are asking 

this Court to enter an "injunction against Defendants requiring them to promptly set numeric 

nutrient standards for Florida's lakes, flowing water, estuaries, and coastal waters." (Doc. 81). 

Stated differently, the Plaintiffs are asking the Court, by finding that the EPA has made a 

determination, to substitute federally devised numeric water quality criteria for the State's 

existing narrative nutrient criterion. Such a finding would not only invalidate the existing 

nutrient standards, but also dispense with the State's administrative process for developing them. 

See § 403.804, Fla. Stat. (2009) (creating the mechanism for the Florida Environmental 

Regulation Commission to develop water quality standards through administrative rulemaking). 

As the Introduction notes, many of the Utility Council's members are regulated under the 

current Florida statutory and administrative framework. See § 403.0885, Fla. Stat. (2009) 

(establishing the "state-administered NPDES program"). These members also regularly 

participate in the State development of water quality standards through the existing State 

administrative process. The right to continued participation under the State statutory and 

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regulatory framework would cease to exist if the Court grants Plaintiffs' the relief they seek—or 

approves a Consent Decree effecting that relief. 

Accordingly, for the reasons set forth above, the Utility Council respectfully requests that 

this Court allow it to intervene permissively pursuant to Rule 24(b). 

C. Intervention Under Rule 24(a) 

The Utility Council is concerned as to the possible effect of the August 18, 2009, Consent 

Decree on its ability to pursue its citizens' suit challenging the underlying January 14, 2009, 

necessity determination. To that end, the Utility Council wishes to bring the pending citizens' 

suits to this Court's attention and ask that any action by this Court that may result in the approval 

of the Consent Decree (and at least tacitly the necessity determination) be stayed. While the 

Utility Council may accomplish its goal if permitted to intervene permissively under Rule 24(b), 

the Utility Council believes that it qualifies for intervention under Rule 24(a) as well. 

Intervention under Rule 24(a) requires that: (1) the application to intervene be timely, (2) 

the applicant have an interest relating to the property or transaction which is the subject of the 

action, (3) the applicant be so situated that the disposition of the proceeding may impede or 

impair his ability to protect that interest, and (4) the existing parties to the action cannot 

adequately represent the applicant's interest. See Sierra Club, Inc. v. Leavitt, 488 F. 3d 904, 910 

(1 1 th Cir. 2007). Once a party establishes all of the prerequisites for intervention under Rule 

24(a), intervention must be allowed. See Loyd v. Alabama Dep't of Corrections, 176 F.3d 1336, 

1340-41 (11th Cir. 1999). Because the Utility Council satisfies all four parts of the Rule 24(a) 

intervention test, the Utility Council respectfully requests that this Court allow intervention 

pursuant to Rule 24(a). 

(1) The Utility Council's application to intervene is timely 

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The threshold issue is whether the Utility Council filed its motion in a timely fashion. 

See Sierra Club, 488 F.3d at 910. For the reasons discussed in Part II (A)(1), the Utility Council 

filed this motion to intervene in a timely fashion. 

(2) The Utility Council has substantial, protectable interests related to the subject 

matter of this action 

The second issue this Court must consider is whether the Utility Council has an interest 

relating to the property or transaction which is the subject of this action. See Sierra Club, 488 

F.3d at 910. In considering whether the Utility Council has an interest in the subject of this 

action, the Court may note that the Utility Council's interest need not be identical to the main 

claims in a legal sense. See Chiles, 865 F.2d at 1213-14. Instead, the judicial inquiry into 

whether the Utility Council has an interest is necessarily a flexible one that must focus on the 

particular facts and circumstances of the case. Id. The interests described in Part II (A)(2)(i), 

and (ii) are legally protectable interests sufficient to fulfill the second requirement for Rule 24(a) 

intervention. 

(3) The Utility Council's interest may be impaired by disposition of this action 

The third issue this Court may consider is whether the Utility Council's interests may be 

impaired by the Court's disposition of this action. See Sierra Club, 488 F.3d at 910. As the 

Eleventh Circuit Court of Appeals noted, "[t]he nature of the [intervenors'] interest and the effect 

that the disposition of the lawsuit will have on their ability to protect that interest are closely 

related issues." Chiles, 865 F.2d at 1214. As discussed in Part II (A)(2) of this memorandum, if 

the original parties continue in these proceedings without the Utility Council, they will settle the 

case based on the untested assumption that the January 2009 determination was valid. The 

Utility Council believes that this assumption, once tested by the courts, will prove to be false. 

Yet none of the original parties to this dispute have an interest in cautioning the Court of this 

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possibility. Thus, without the intervention of the Utility Council, the foundation of any consent 

decree in this case will be a potentially false assumption; an assumption that, once part of a 

judicial decree, may be difficult to overcome. The Utility Council's interests, as the August 18, 

2009 Consent Decree makes plain, may be impaired by the disposition of this action. 

(4) The Utility Council's interests may not be adequately represented by the 

Defendants and existing intervenors 

The fourth issue the Court must consider is whether the Utility Council's interests will be 

adequately represented by the Defendants and existing intervenors. See Sierra Club, 488 F.3d at 

910. This requirement is satisfied if the Utility Council shows that representation of its interests 

"may be" inadequate; the burden of making this showing is "minimal." Chiles, 865 F.2d at 1214 

(quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). Furthermore, even 

if the interests are identical, a difference in emphasis or strategy may be sufficient to show that 

the Utility Council will not be adequately represented. Id. at 1214-15. 

As the discussion in Part II (A)(2)(i) of this memorandum illustrates, the original parties 

to this suit have no interest in challenging the validity of the January 2009 determination which 

serves as the basis of the August 18, 2009 Consent Decree negotiated by the original parties. 

Thus, disposition of this action based only on what the original parties decide to include or 

exclude from this decree, will impair the Utility Council's interest in having only a valid 

determination trigger the EPA's non-discretionary duty. 

Additionally, none of the parties that have been allowed to intervene in this action have 

filed 60-day letters with EPA and their actions may not adequately protect the Utility Council's 

interest in maintaining its citizens' suit action once the 60-day period has expired. The South 

Florida Water Management District (SFWMD) and the agricultural associations, at least to date, 

have not challenged the validity of the January 2009 determination. Stated differently, the 

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SFWMD and agricultural associations may have a different litigation strategy. Asking these 

intervenors to become familiar with the Utility Council's concerns and then to articulate those 

concerns before the Court is impractical. As such, the Utility Council has made the "minimal" 

showing necessary to demonstrate that the Defendants and existing intervenors may not 

adequately represent the Utility Council's interests. See Chiles, 865 F.2d at 1214. 

For the reasons discussed in Part II (B), the Utility Council has met the requirements to 

intervene in this action as a matter of right pursuant to Rule 24(a). 

III. Conclusion 

For the reasons set forth above, the Utility Council respectfully requests that this Court 

grant it intervenor status under Rule 24 and enter an order holding all proceedings in this matter 

in abeyance. Specifically, the Utility Council requests that the abeyance remain in place until the 

EPA has exhausted its 60-day notice periods. If, after exhausting the 60-day notice periods, the 

EPA takes no action on Utility Council's notice of intent to sue, the Utility Council asks that it 

receive another 10 days within which to file its citizens' suit pursuant to § 505 of the Clean 

Water Act. 

The Utility Council also respectfully asks this Court to consider this motion and the 

accompanying memorandum of law as sufficient to satisfy the pleading requirement of Rule 

24(c). In this and other Circuits, a motion may satisfy the pleading requirement so long as it is 

non-prejudicial, i.e., so long as it clearly spells out the Intervenor's position in the case. See, 

e.g., Piambo v. Bailey, 757 F.2d 1112, 1121 (11th Cir. 1985) (holding that an intervenor who 

filed a motion to stay with his motion to intervene satisfied the requirements of Rule 24(c) 

"because his motion to intervene, and the accompanying papers, clearly spelled out his position," 

thus making lain additional 'pleading' which merely replicated these documents . . 

16 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 16 of 54
surplusage"); Danner Constr. Co., Inc. v. Hillsborough County, 2009 WL 2525286, *2 (M.D. 

Fla. 2009) (holding that intervenor, who attached a motion to dismiss as an attachment to its 

motion to intervene fulfilled the requirements of Rule 24(c)); Petrik v. Reliant Pharm., Inc., 2007 

WL 3283170, *2-3 (M.D. Fla. 2007) (holding that because the intervenors' "motion to intervene 

and stay clearly spell[ed] out their position in this case, the failure to attach a formal pleading 

could not have prejudiced plaintiff'); Frank M Sheesley Co. v. St. Paul Fire & Marine Ins. Co., 

239 F.R.D. 404, 411-12 (W.D. Penn. 2006) (finding that the court could consider a motion to 

intervene that did not contain a pleading, but instead, contained a motion to compel arbitration 

and stay proceedings). The Utility Council believes that this motion and the accompanying 

documents clearly articulate its position. As such, to save the Court from duplicative documents, 

the Utility Council respectfully requests this Court to consider this motion and accompanying 

documents sufficient to fulfill the requirements of Rule 24(c). 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(B) 

The undersigned, counsel for the Utility Council, certify that they have conferred with 

counsel for the existing parties in this action. Counsel for the Plaintiffs were contacted by e-mail 

correspondence and asked to confirm that Plaintiffs would oppose the Utility Council's motion 

to intervene; Plaintiffs counsel had not responded by the time of this filing. Counsel for the U. S. 

Department of Justice, representing EPA, takes no position on the Utility Council's motion. 

Counsel for the industrial and agricultural intervenors does not object to the Utility Council's 

motion to intervene; counsel for the South Florida Water Management District does not object to 

the Utility Council motion. 

Respectfully submitted by: 

17 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 17 of 54
... *De.. 

HO PING GREEN & SAMS 

Winston K. Borkowski (FBN: 0698891) 

winstonb(Ogslaw.com 

James S. Alves (FBN: 443750) 

ima(tAgslaw.com 

119 South Monroe Street, Suite 300 

Post Office Box 6526 

Tallahassee, Florida 32314 

850-222-7500 

850-224-8551 (Facsimile) 

Trial Counsel for: 

Florida Water Environment Association 

Utility Council, Inc. 

18 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 18 of 54
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing has been electronically filed 

on August 25, 2009. The following counsel are to receive notice via the U. S. District Court 

Electronic Case Filing System: 

David G. Guest Martha Collins Mann 

Monica Kidd Reimer U. S. Department of Justice 

111 South Martin Luther King, Jr., Blvd. 601 D Street, N. W., Suite 8000 

Tallahassee, Florida 32301 Washington, D. C. 20026-3986 

Counsel for Plaintiffs. Robert Del Stinson 

U. S. Department of Justice 

111 North Adams Street, 4th Floor 

Tallahassee, Florida 32301 

Counsel for EPA and Administrator Jackson. 

Terry Cole Keith W. Rizzardi 

Oertel, Fernandez Cole & Bryant South Florida Water Management District 

301 S. Bronough Street, Suite 100 3301 Gun Club Road, MSC-1410 

Post Office Box 1110 West Palm Beach, Florida 33406 

Tallahassee, Florida 32301-1110 

Counsel for Intervenor the South Florida Water 

Counsel for Intervenors the Florida Pulp and Management District. 

Paper Association Environmental Affairs, Inc., 

the Florida Farm Bureau Federation, Southeast 

Milk, Inc., Florida Citrus Mutual, Inc., Florida 

Fruit and Vegetable Association, American 

Farm Bureau Federation, Florida Stormwater 

Association, Florida Cattleman's Association 

and Florida Engineering Society. 

19 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 19 of 54
UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

CASE NO. 4:08-cv-00324-RH-WCS 

FLORIDA WILDLIFE FEDERATION, INC.; 

SIERRA CLUB, INC.; CONSERVANCY OF 

SOUTHWEST FLORIDA, INC.; 

ENVIRONMENTAL CONFEDERATION OF 

SOUTHWEST FLORIDA, INC.; and 

ST. JOHNS RIVERKEEPER, INC; 

Plaintiffs, 

VS. 

LISA P. JACKSON, Administrator of the 

United States Environmental Protection 

Agency; and the UNITED STA FES 

ENVIRONMENTAL PROTECTION 

AGENCY, 

Defendants, CONSENT DECREE 

FLORIDA PULP AND PAPER 

ASSOCIATION ENVIRONMENTAL 

AFFAIRS, INC., the FLORIDA FARM 

BUREAU FEDERATION, SOUTHEAST 

MILK, INC., FLORIDA CITRUS MUTUAL, 

INC., FLORIDA FRUIT AND VEGETABLE 

ASSOCIATION, AMERICAN FARM 

BUREAU FEDERATION, FLORIDA 

STORMWATER ASSOCIATION, FLORIDA 

CATTLEMAN'S ASSOCIATION, and 

FLORIDA ENGINEERING SOCIETY, 

Intervenor-Defendants, 

and 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 20 of 54
SOUTH FLORIDA WATER 

MANAGEMENT DISTRICT, 

Intervenor-Defendant. / 

WHEREAS, Plaintiffs Florida Wildlife Federation, Inc.; Sierra Club, Inc.; Conservancy 

of Southwest Florida, Inc.; Environmental Confederation of Southwest Florida, Inc.; and St. 

Johns Riverkeeper, Inc. ("Plaintiffs") filed their original Complaint on July 17, 2008 pursuant to 

section 505(a)(2) of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(2). 

WHEREAS, Plaintiffs filed their First Amended Complaint on August 5, 2008, and their 

Second Amended Complaint on January 6, 2009. 

WHEREAS, Plaintiffs' original and Amended Complaints each allege that Defendants 

Lisa P. Jackson and the United States Environmental Protection Agency (collectively "EPA") 

failed to perform a non-discretionary duty to set numeric nutrient criteria for the State of Florida 

as required by CWA Section 303(c)(4)(B), 33 U.S.C. § 1313(c)(4)(B). 

WHEREAS, Section 303(c)(4)(B) of the CWA, 33 U.S.C. § 1313(c)(4)(B), provides that 

EPA's Administrator shall promptly prepare and publish proposed regulations setting forth a 

revised or new water quality standard for the navigable waters involved in any case where the 

Administrator determines that a revised or new water quality standard is necessary to meet the 

requirements of the CWA. 

WHEREAS, Plaintiffs' Second Amended Complaint alleged that the 1998 Clean Water 

Action Plan constituted a determination by the Administrator that new or revised water quality 

standards for nutrients were necessary to meet the requirements of the CWA. 

WHEREAS, on January 14, 2009, EPA's Assistant Administrator, pursuant to a one-time 

2 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 21 of 54
delegation of authority by the Administrator, made a determination under Section 303(c)(4)(B) 

of the CWA, 33 U.S.C. § 1313(c)(4)(B), that new or revised water quality standards for nutrients 

are necessary in the State of Florida. 

WHEREAS, on April 9, 2009, Plaintiffs mailed EPA a notice of intent, pursuant to the 

requirements of Section 505(b)(2) of the CWA, 33 U.S.C. § 1365(b)(2), to sue EPA for failure to 

perform its nondiscretionary duty to promptly propose new water quality standards for nutrients 

in the State of Florida in connection with the January 14, 2009 determination. 

WHEREAS, the Court has granted Plaintiffs' motion to amend their Second Amended 

Complaint to add those claims set forth in their April 9, 2009 notice of intent. 

WHEREAS, Plaintiffs and EPA (collectively "the Parties") wish to effectuate a 

settlement of the above-captioned matter without continued litigation. 

WHEREAS, Plaintiffs and EPA have agreed to meet on an informal basis to discuss 

EPA's progress toward the proposal and finalization of water quality standards for nutrients in 

Florida; 

WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution 

of the claims in the above-captioned matter. 

WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable, 

in the public interest, and consistent with the CWA, 33 U.S.C. §§ 1251-1387. 

NOW THEREFORE, without trial or determination of any issue of fact or law, and upon 

the consent of the Parties, it is hereby ORDERED, ADJUDGED and DECREED that: 

I. GENERAL TERMS 

1. This Court has subject matter jurisdiction over the claims set forth in the Third 

3 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 22 of 54
Amended Complaint to order the relief contained in this Decree. Venue is proper in the United 

States District Court for the Northern District of Florida. 

2. Plaintiffs and EPA shall not challenge the terms of this Decree or this Court's 

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree. 

H. TERMS OF AGREEMENT 

3. Numeric water quality criteria for nutrients proposed pursuant to this consent 

decree will consist of numeric values that EPA determines are protective of the designated uses 

of waters addressed by the requirements in Paragraphs 4 through 11. 

4. Except as provided in Paragraph 5 below, the appropriate EPA official shall, by 

January 14, 2010, sign for publication in the Federal Register proposed regulations setting forth 

numeric water quality criteria for lakes and flowing waters in the State of Florida, pursuant to 

section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c). "Lakes and flowing waters" are 

inland surface waters that have been classified as Class I or III waterbodies pursuant to Rule 62-

302.400, F.A.C., excluding wetlands. 

5. The requirements of Paragraph 4 shall not apply to any item in Paragraph 4 for 

which, on or before January 14, 2010, the State has submitted new or revised water quality 

standards for such item and EPA has approved such standards pursuant to section 303(c)(3) of 

the Clean Water Act. Any such approval by EPA shall be in writing and signed by the EPA 

official with the authority to make such approvals. 

6. Except as provided in Paragraph 7 below, EPA shall, by October 15, 2010, sign 

for publication in the Federal Register a notice(s) of final rulemaking addressing each of the 

4 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 23 of 54
items identified in Paragraph 4 for which EPA signed a notice(s) of proposed rulemaking 

pursuant to Paragraph 4 of this Decree. 

7. The requirements of Paragraph 6 shall not apply to any item identified in 

Paragraph 6 for which on or before October 15, 2010, the State submits new or revised water 

quality standards for such item and EPA has approved such standards pursuant to section 

303(c)(3) of the Clean Water Act. Any such approval by EPA shall be in writing and signed by 

the EPA official with the authority to make such approvals. 

8. Except as provided in Paragraph 9 below, the appropriate EPA official shall, by 

January 14, 2011, sign for publication in the Federal Register proposed regulations setting forth 

numeric water quality criteria for coastal and estuarine waters in the State of Florida, pursuant to 

section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c). "Coastal waters" are waters of the 

Gulf of Mexico and Atlantic Ocean that are not classified as estuarine or open ocean, that are 

within the three-mile territorial seas of Florida (see CWA section 502(8)), and that have been 

classified as Class I, II, or III waterbodies pursuant to Rule 62-302.400, F.A.C., excluding 

wetlands. "Estuarine waters" are predominantly marine regions of interaction between rivers 

and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. 

Estuarine waters are bays, mouths of rivers, and lagoons, that are within the boundaries of the 

State of Florida, and that have been classified as Class I, II, or III waterbodies pursuant to Rule 

62-302.400, F.A.C., excluding wetlands. 

9. The requirements of Paragraph 8 shall not apply to any item in Paragraph 8 for 

which, on or before January 14, 2011, the State has submitted new or revised water quality 

standards for such item and EPA has approved such standards pursuant to section 303(c)(3) of 

5 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 24 of 54
the Clean Water Act. Any such approval by EPA shall be in writing and signed by the EPA 

official with the authority to make such approvals. 

10. Except as provided in Paragraph 11 below, EPA shall, by October 15, 2011, sign 

for publication in the Federal Register a notice(s) of final rulemaking addressing each of the 

items identified in Paragraph 8 for which EPA signed a notice(s) of proposed rulemaking 

pursuant to Paragraph 8 of this Decree. 

11. The requirements of Paragraph 10 shall not apply to any item identified in 

Paragraph 10 for which on or before October 15, 2011, the State submits new or revised water 

quality standards for such item and EPA has approved such standards pursuant to section 

303(c)(3) of the Clean Water Act. Any such approval by EPA shall be in writing and signed by 

the EPA official with the authority to make such approvals. 

HI. ATTORNEYS' FEES AND COSTS 

12. The Parties agree that Plaintiffs are entitled to reasonable attorneys' fees and costs 

accrued as of the Effective Date of this Consent Decree on all claims asserted in their Third 

Amended Complaint. The Parties will attempt to reach agreement as to the appropriate amount 

of the recovery. Plaintiffs shall file any request for attorneys' fees within sixty (60) of the 

Effective Date of this Consent Decree. EPA shall have forty-five (45) days to respond to 

Plaintiffs' fee request. 

IV. EFFECTIVE DATE 

13. This Consent Decree shall become effective upon the date of its entry by the 

Court. If for any reason the District Court does not enter this Consent Decree, the obligations set 

forth in this Consent Decree are null and void. 

6 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 25 of 54
V. REMEDY, SCOPE OF JUDICIAL REVIEW 

14. Nothing in this Consent Decree shall be construed to confer upon the Court 

jurisdiction to review any decision, either procedural or substantive, to be made by EPA pursuant 

to this Consent Decree, except for the purpose of determining EPA's compliance with this 

Consent Decree. 

15. Nothing in this Consent Decree alters or affects the standards for judicial review, 

if any, of any final EPA action. 

VI. RELEASE BY PLAINTIFFS 

16. Upon entry of this Consent Decree by the Court, this Consent Decree shall 

constitute a complete and final settlement of all claims that were asserted, or that could have 

been asserted, by Plaintiffs against Defendants relating to the allegations in the Third Amended 

Complaint. 

17. Plaintiffs hereby release, discharge, and covenant not to assert (by way of the 

commencement of an action, the joinder of the Administrator and/or EPA in an existing action, 

or in any other fashion) any and all claims, causes of action, suits or demands of any kind 

whatsoever in law or in equity that they may have had, or may now have, against Defendants 

related to the allegations in the Third Amended Complaint, expressly including any allegation 

that EPA has failed to promptly propose and to promulgate numeric nutrient standards in Florida 

for lakes, flowing waters, estuarine waters, and coastal waters under CWA section 303(c), 42 

U.S.C. § 1313(c). Plaintiffs expressly reserve the right to challenge in any forum and on any 

ground the lawfulness of any nutrient water quality criteria EPA ultimately promulgates pursuant 

to CWA § 303(c), 33 U.S.C. § 1313(c). Defendants reserve all defenses to any such challenge. 

7 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 26 of 54
VII. TERMINATION OF CONSENT DECREE AND DISMISSAL OF CLAIMS 

18. When EPA's obligations under Paragraphs 4 through 11 have been completed, 

and the Plaintiffs' claims for costs of litigation have been resolved pursuant to the process 

described in Paragraph 12, this Consent Decree shall terminate. Upon termination of the 

Consent Decree, the above-captioned matter shall be dismissed with prejudice. The Parties shall 

file the appropriate notice with the Court so that the Clerk may close the file. 

VIII. FORCE MAJEURE AND APPROPRIATED FUNDS 

19. The obligations imposed upon EPA under this Decree can only be undertaken 

using appropriated funds. No provision of this Decree shall be interpreted as or constitute a 

commitment or requirement that the Administrator obligate or pay funds in contravention of the 

Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal statute. 

20. The Parties recognize that the performance of this Consent Decree is subject to 

fiscal and procurement laws and regulations of the United States which include, but are not 

limited to, the Anti-Deficiency Act, 31 U.S.C. § 1341, et seq. The possibility exists that 

circumstances outside the reasonable control of EPA could delay compliance with the 

obligations in this Consent Decree. Such situations include, but are not limited to, a government 

shutdown; catastrophic environmental events requiring immediate and/or time-consuming 

response by EPA; and extreme weather events (including but not limited to drought and 

hurricanes). Should a delay occur due to such circumstances, any resulting failure to fulfill any 

obligation set forth herein shall not constitute a failure to comply with the terms of this Consent 

Decree, and any deadline so affected shall be extended one day for each day of the delay. EPA 

will provide Plaintiffs with reasonable notice in the event that EPA invokes this Paragraph. Any 

8 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 27 of 54
dispute regarding such invocation shall be resolved in accordance with the dispute resolution 

provision of Paragraph 21. 

IX. DISPUTE RESOLUTION 

21. In the event of a dispute between the Parties concerning the interpretation or 

implementation of any aspect of this Decree, the disputing Party shall provide the other Party 

with a written notice outlining the nature of the dispute and requesting informal negotiations. If 

the Parties cannot reach an agreed-upon resolution within thirty (30) days after receipt of the 

notice, any Party may move the Court to resolve the dispute. 

X. MODIFICATIONS AND EXTENSIONS 

22. The deadlines set forth in Paragraphs 4 through 11 above may be extended by 

written agreement of the Parties with notice to the Court. To the extent the Parties are not able to 

agree on an extension of any deadline set forth in this Consent Decree, EPA may seek 

modification of the deadline in accordance with the procedures specified below. 

A. If EPA files a motion requesting modification of any date or dates 

established by this Consent Decree totaling more than thirty (30) days for each date and provides 

notice to Plaintiffs at least thirty (30) days prior to filing such motion, and files the motion at 

least sixty (60) days prior to the date for which modification is sought, then the filing of such 

motion shall, upon request, automatically extend the date for which modification is sought. Such 

automatic extension shall remain in effect until the earlier of (i) a dispositive ruling by this Court 

on such motion, or (ii) the date sought in such motion. EPA may seek only one extension under 

this subparagraph for each date established by this Consent Decree. 

9 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 28 of 54
B. If EPA files a motion requesting modification of a date or dates 

established by this Consent Decree totaling thirty (30) days or less for each date, provides notice 

to Plaintiffs at least fifteen (15) days prior to the filing of such motion, and files the motion at 

least seven (7) days prior to the date for which modification is sought, then the filing of such 

motion shall, upon request, automatically extend the date for which modification is sought. Such 

extension shall remain in effect until the earlier of (i) a dispositive ruling by this Court on such 

motion, or (ii) the date sought in the motion. EPA may seek only one extension under this 

subparagraph for each date established by this Consent Decree. 

C. If EPA does not provide notice pursuant to Subparagraphs 22.A or 22.B 

above, EPA may move the Court for a stay of the date for which modification is sought. EPA 

shall give notice to Plaintiffs as soon as reasonably possible of its intent to seek a modification 

and/or stay of the date sought to be modified. 

D. If the Court denies a motion by EPA to modify a date established by this 

Consent Decree, then the date for performance for which modification had been requested shall 

be such date as the Court may specify. 

E. Any motion to modify the schedule established in this Consent Decree 

shall be accompanied by a motion for expedited consideration. 

XI. CONTINUING JURISDICTION 

23. The Court retains jurisdiction for the purposes of resolving any disputes arising 

under this Consent Decree, and issuing such further orders or directions as may be necessary or 

appropriate to construe, implement, modify, or enforce the terms of this Consent Decree, and for 

granting any further relief as the interests of justice may require. 

10 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 29 of 54
XII. AGENCY DISCRETION 

24. Except as provided herein, nothing in this Decree shall be construed to limit or 

modify any discretion accorded the Administrator by the CWA, the APA, or by general 

principles of administrative law in taking the actions that are the subject of this Decree. 

25. Nothing in this decree shall be construed as an admission of any issue of fact or 

law. 

XIII. NOTICE AND CORRESPONDENCE 

26. Any notices required or provided for by this Decree shall be made in writing, via 

electronic mail or other means, and sent to the following: 

For Plaintiffs: 

DAVID G. GUEST 

MONICA K. REIMER 

111 South Martin Luther King Blvd. 

P.O. Box 1329 

Tallahassee, FL 32301 

dguest@earthjustice.org 

mreimer@earthjustice.org 

For Defendants: 

MARTHA C. MANN 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 23986 

Washington, D.C. 20026-3986 

martha.mann@usdoj.gov 

BARBARA PACE 

U.S. Environmental Protection Agency 

Office of General Counsel 

Mail Code 2355A 

11 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 30 of 54
1200 Pennsylvania Ave., N.W. 

Washington, DC 20460 

pace.barbara@epa.gov 

XV. REPRESENTATIVE AUTHORITY 

27. The undersigned representatives of each Party certify that they are fully authorized 

by the Party they represent to bind that Party to the terms of this Decree. 

COUNSEL FOR PLAINTIFFS: 

Dated: 8/18/09 

DAVID G. GUEST 

MONICA K. REIMER 

111 South Martin Luther King Blvd. 

P.O. Box 1329 

Tallahassee, FL 32301 

COUNSEL FOR DEFENDANTS: 

Dated: Ict Avitt451-20oal 

JOHN C. CRUDEN 

Acting Assistant Attorney General 

Env. & Natural Resources Division 

MARTHA C. MANN 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 23986 

Washington, D.C. 20026-3986 

Phone (202)305-0897 

Fax (202) 514-2664 

martha.mann@usdoj.gov 

12 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 31 of 54
SO ORDERED. 

Dated: 

ROBERT L. HINKLE 

United States District Judge 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 32 of 54
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

DEC 2 2 

OFFICE OF 

ADMINISTRATION 

AND RESOURCES 

MANAGEMENT 

MEMORANDUM 

SUBJECT: One-time Delegation of Authority for the Purpose of Determining 

Pursuant to Section 303(c)(4)(1) of the Clean Water Act Whether 

the State of Florida Needs New or „Revised Water Quality Standards 

for Nutrients 

FROM: Luis A. Luna -; 

Assistant Administrator 

TO: Stephen L. Johnson 

Administrator 

ISSUE 

The purpose of this memorandum is to request a one-time Delegation of Authority to the 

Assistant Administrator for the Office of Water to determine pursuant to Section 303(c)(4)(B) of 

the Clean Water Act (C WA) whether the State of Florida needs new or revised water quality 

standards for nutrients. This authority may not be redelegated. 

BACKGROUND 

On July 17. 2008. plaintiffs Florida Wildlife Federation, Inc. and other environmental 

groups filed a lawsuit alleging that EPA failed to perform a nondiscretionary duty to promptly 

propose numeric nutrient criteria for Florida. Florida Wildlife Federation, et al. r. EPA. No. 

4:08cl/00324 (ND. Fla.). The plaintiffs allege that EPA made a CWA section 303(c)(4)(11) 

determination in 1998 that numeric criteria for nitrogen and phosphorus were necessary in 

Florida in order to meet the requirements of the C WA. The plaintiffs maintain that EPA made 

this determination in its 1998 -National Strategy for the DeN,elopment of Regional Nutrient 

Criteria.- The plaintiffs allege that this determination triggered EPA's nondiscretionary duty to 

promptly propose federal criteria for Florida. Because Florida has not adopted numeric nutrient 

criteria. the plaintiffs seek a declaration from the court that EPA has failed to perform its 

Internet Address (URL) • rdtpitwww epa gay 

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Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 33 of 54
Approved: 

Stephen L. Jo 

Administrator 

DEC 1C Date: 

nondiscretionary duty under Section 303(cX4) to promptly propose numeric nutrient standards 

for Florida, and they ask the court to require EPA to take this action. 

EPA does not agree with the plaintiffs' allegation that we made a CWA determination 

in our 1998 Strategy that numeric nutrient criteria are necessary for Florida to meet the 

requirements of the CWA. There is, however, some risk that the court could agree with the 

plaintiffs that the 1998 Strategy constitutes a CWA determination that nutrient criteria are 

necessary in Florida. Such a ruling could spur similar litigation in other states. Presently, 49 

states have one or more 303(d) listings for waters impaired by nutrients. 

The litigants have highlighted that water quality in Florida is declining due to nutrient 

pollution and that numeric nutrient criteria are needed to address the environmental degradation. 

In response to this lawsuit, we believe that we should collect and analyze nutrients-related 

information pertaining to Florida and decide whether to make a Section 303(cX4XB) 

determination that revised nutrient standards are necessary for the State of Florida to meet the 

requirements of the CWA. Making such a determination could give EPA a basis to propose a 

settlement to the plaintiffs or to request that the court dismiss the case. While making a 

determination may not resolve the litigation, we believe it is an option we should seriously 

consider and therefore are requesting delegation of authority. A CWA Section 303(cX4)(B) 

determination can only be made by the Administrator or the Administrator's duly authorized 

delegate. 

REVIEW AND ANALYSIS, 

The Office of Human Resources determined that the proposed Delegation is a one-time 

Temporary Delegation, and thus is not subject to an Agency-wide review via the Directives 

Clearance process. Per OHR Directive rules, proposed Temporary Delegations of Authority do 

not require Agency-wide review since these delegations are in effect for limited duration ranging 

from one day not to exceed one year, and do not automatically renew without being submitted 

for a new approval. The Office of General Counsel concurs with this request, and this authority 

may not be redelegated. 

RECOMMENDATION 

I reco end that the Administrator delegate the authority to the Assistant 

Administrator for ice at- e a CWA Section 303(c)(4)(B) determination. 

Attachment 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 34 of 54
Stephen L. on 

.IE. St U -4)x. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

ZIT 

DEC 2 

THE AWN'S fRATOR 

MEMORANDUM 

SUBJECT: One-time Delegation of Authority for the Purpose of Determining Pursuant to 

Section 303(c)(4)(B) of the Clean Water Act Whether the State of Florida Needs 

New or Revised Nutrient Standards 

TO: Benjamin H. Grumbles 

Assistant Administrator, Office of Water 

I hereby delegate to the Assistant Administrator for the Office of Water the authority to 

determine, pursuant to Section 303(c)(4)(B) of the Clean Water Act, whether the State of Florida 

needs new or revised water quality standards for nutrients. 

This delegation is limited to the purposes stated above and may be exercised only within 

the limitations of the Clean Water Act. This authority may not be re-delegated. 

nternet Address t,.1.)P,L) • trtp ?:www cps gov 

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Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 35 of 54
FVVEA UTILITY COUNCIL 

Protecting Florida's Clean Water Environment 

P.O. Box 2814 0 Windermere, FL 34786-2814 

Phone: 407-363-7751 0 Fax: 407-370-3595 

August 13, 2009 

Lisa Jackson, Administrator 

U. S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N. W. 

Ariel Rios Building, Mail Code: 1101A 

Washington, D.C. 20460 

Re: Notice of Intent to File Suit under § 505 of the Clean Water Act 

Failure to Perform Mandatory Duty – Determination of Necessity 

Florida Numeric Nutrient Criteria 

Dear Administrator Jackson: 

This correspondence is submitted on behalf of the Florida Water Environment 

Association Utility Council, Inc. (Utility Council), to give notice of its intent to file suit 

under § 505 of the Clean Water Act. 

The U. S. Environmental Protection Agency (EPA), acting through (then) 

Assistant Administrator Benjamin Grumbles, failed to perform a proper "necessity 

determination" prior to his January 14, 2009, declaration that numeric nutrient criteria 

must be developed for the State of Florida—and only the State of Florida. The Assistant 

Administrator failed to exercise his nondiscretionary duty to consider the appropriate 

criteria in performing the necessity determination; the Assistant Administrator based his 

decision upon factors beyond the scope of the Clean Water Act and failed to base the 

necessity determination upon evidence justifying the extraordinary act of EPA 

promulgating federal water quality criteria in lieu of the State. 

The Utility Council 

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

Council) is an association of Florida local government utilities in which own and operate 

domestic wastewater treatment, disposal, reuse, and recycling facilities. Utility Council 

members serve a population of over 7 million Florida residents. A significant number of 

Utility Council members discharge treated domestic wastewater to Florida surface waters 

under the authority of state discharge permits issued by the Florida Department of 

Environmental Protection (DEP) consistent with the State's EPA-approved NPDES 

permit program. Permit conditions imposed by DEP, or EPA exercising its statutory 

oversight authority, are derived from, based upon, and implement, the State's federally 

approved Water Quality Standards Program and Total Maximum Daily Load (TMDL) 

program. A change in policy as to any one program dramatically changes the regulatory 

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Lisa Jackson 

August 13, 2009 

Page 2 

framework under which Utility Council members must plan projects, upgrade equipment, 

seek permit renewals, obtain financing and set utility rates. 

The Necessity Determination as Litigation Strategy 

On January 14, 2009, Benjamin H. Grumbles, former EPA Assistant 

Administrator, forwarded a letter to Michael Sole, Secretary, Florida Department of 

Environmental Protection (DEP), which stated: "This letter constitutes a determination 

under the Clean Water Act (CWA) section 303(c)(4)(B) that new or revised water quality 

standards for nutrients are necessary to meet the requirements of the CWA for the State 

of Florida." 

The release of the January 14, 2009, determination, referred to herein as the 

"necessity determination," was not the product of careful deliberation by the Assistant 

Administrator but a litigation strategy intended to limit the precedential effect of a 

pending citizens' suit.' 

The plaintiffs in the pending suit, filed in August 2008, alleged that EPA had 

failed to perform a nondiscretionary duty to promptly promulgate numeric nutrient 

criteria for Florida after having released a 1998 Clean Water Action Plan (CWAP). The 

plaintiffs argued that the 1998 CWAP was a formal necessity determination which 

triggered EPA's mandatory duty to promulgate numeric nutrient criteria for the State of 

Florida. 

Mr. Grumbles did not receive authority to sign the January 14, 2009, necessity 

determination until two weeks before the determination was released. Assistant 

Administrator Luis Luna submitted a memorandum to Administrator Stephen Johnson 

requesting: 

[A] "one time Delegation of Authority to the Assistant Administrator for the 

Office of Water Policy to determine pursuant to Section 303(c)(4)(B) of the Clean 

Water Act (CWA) whether the State of Florida needs new or revised water quality 

standards for nutrients. This authority may not be redelegated. 

Assistant Administrator Luna explained: 

EPA does not agree with the plaintiffs' allegation that we made a CWA 

determination in our 1998 Strategy2that numeric nutrient criteria are necessary 

Florida Wildlife Federation, et. al. v. EPA, No. 4:08-CV-00324 (N. D. Fla.) 

2Plaintiffs initially alleged that EPA's 1998 National Strategy for the Development of Regional Nutrient 

Criteria was the document serving as a necessity determination; in their first amended complaint, the 

plaintiffs alleged that it was a 1998 Clean Water Action Plan, coauthored with the U. S. Department of 

Agriculture, that was the document triggering EPA's mandatory duty to promulgate numeric nutrient 

criteria for Florida. 

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Lisa Jackson 

August 13, 2009 

Page 3 

for Florida to meet the requirements of the CWA. There is, however, some risk 

that the court could agree with the plaintiffs that the 1998 Strategy constitutes a 

CWA determination that nutrient criteria are necessary for Florida. Such a ruling 

could spur similar litigation in other states. Presently, 49 states have one or more 

303(d) listings for waters impaired by nutrients. (Emphasis added). 

The litigants have highlighted that water quality in Florida is declining due to 

nutrient pollution and that numeric criteria are needed to address the 

environmental degradation. In response to this lawsuit, we believe that we should 

collect and analyze nutrients-related information pertaining to Florida and decide 

whether to make a Section 303(c)(4)(B) determination that revised nutrient 

standards are necessary for the State of Florida to meet the requirements of the 

CWA. Making such a determination could give EPA a basis to propose a 

settlement to the plaintiffs or to request that the court dismiss the case. While 

making a determination may not resolve the litigation, we believe it is an option 

we should seriously consider and therefore are requesting delegation of authority. 

A CWA Section 303(c)(4)(B) determination can only be made by the 

Administrator or the Administrator's duly authorized delegate. (Emphasis 

added). 

Administrator Johnson approved Mr. Luna's memorandum and signed the delegation on 

Monday, December 29, 2008. 

With weekends and federal holidays excluded, Mr. Grumbles—who heretofore 

did not have the authority to make a necessity determination for the State of Florida—had 

only 11 working days between December 29, 2008 and January 14, 2009, to make such a 

determination. In just 11 days, Mr. Grumbles determined that the State of Florida—and 

only the State of Florida—needed numeric nutrient criteria for the State to remain in 

compliance with the Clean Water Act and that the State's longstanding EPA-approved 

narrative nutrient criterion now violated the Clean Water Act. 

The Utility Council asserts, and EPA's own documents suggest, that a necessity 

determination is a deliberative process requiring that the Administrator provide evidence 

to support EPA's invading the State's primacy, as guaranteed under § 101(b) of the Act, 

and taking what the Act may be read to characterize as the extraordinary act of EPA 

promulgating federal water quality standards in lieu of allowing the State—with local 

knowledge of its own waters—to do so. 

This concept is expressed best by EPA in its attempt to explain why the federal 

agency did not have to go through a more detailed "determination" process prior to 

promulgating criteria for priority toxic pollutants. 57 Fed. Reg. 60848. In distinguishing 

the unique "Congressional determination of necessity" EPA relied upon to promulgate 

the criteria for toxic pollutants, EPA stated: 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 38 of 54
Lisa Jackson 

August 13, 2009 

Page 4 

In normal circumstances, it might be argued that to exercise section 303(c)(4)(B) 

the Administrator might have the burden of marshalling conclusive evidence of 

"necessity" for Federally promulgated water quality standards. 

Id. at 60858. In the instant case, EPA was faced with "normal circumstances" but failed 

to marshal any, much less conclusive, evidence that federal numeric nutrient criteria are 

necessary for Florida waters. 

In its motion for summary judgment in the pending citizens' suit, EPA states: 

Although the terms "determine" or "determination" as used in Section 

303(c)(4)(B) are not defined by the Act or its implementing regulations, EPA 

documents that lack certain minimum findings do not quality as "determinations" 

for purposes of Section 303(c)(4)(B). In particular, an EPA document is 

insufficient to constitute a "de facto" determination that new or revised water 

quality standards are necessary for a particular state if the document contains no 

evidence that the administrator reviewed the relevant existing state standard or 

determined that such standard is inadequate to meet the requirements of the 

CWA. (Emphasis added). 

In this case, the Assistant Administrator was granted limited authority to sign a necessity 

determination for the purpose of giving "EPA a basis to propose a settlement to the 

plaintiffs or to request that the court dismiss the case." (Emphasis added). 

Failure to Perform a Nondiscretionary Duty 

The Administrator, or in this case the Administrator's designee, has a 

nondiscretionary duty to consider the appropriate criteria in making a necessity 

determination under § 303(c)(4)(B). Those criteria may not exceed those intended by 

Congress in adopting the Act. Settlement of a citizens' suit is not an appropriate 

consideration. 

EPA cannot credibly argue that Mr. Grumbles, as the Administrator's designee, 

marshaled "conclusive evidence of necessity for Federally promulgated water quality 

standards" for Florida waters in the 11 working days between his one-time authorization 

to conduct a necessity determination and his signing of the January 14, 2009, letter. 

While the letter gives examples of environmental problems that may be caused by 

excessive nutrients, none of the examples is unique to Florida nor were the circumstances 

mentioned in the letter newly discovered between December 29, 2008 and January 14, 

2009. 

There is no credible evidence that any substantive scientific or technical analyses 

were conducted to support the necessity determination underscoring that the 

determination was performed as a litigation strategy. 

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Lisa Jackson 

August 13, 2009 

Page 5 

The Administrator, through his designee, failed to exercise a nondiscretionary 

duty to marshal conclusive evidence to justify federally promulgated water quality 

criteria for Florida waters. 

Failure to Consider Appropriate Criteria Supporting Necessity Determination 

The January 14, 2009, necessity determination has significant legal and practical 

consequences. The necessity determination triggers EPA's mandatory duty to promptly 

promulgate numeric nutrient criteria for Florida. At the same time, the January 14th 

determination declares Florida's water quality program—and specifically DEP's 

narrative nutrient criterion—in violation of the Clean Water Act. 

Consequently, the Assistant Administrator was compelled to assure that the 

necessity determination was the product of a deliberative process by which he carefully 

considered whether it was necessary for EPA, with no local knowledge of Florida waters, 

to step in and take control of Florida's water quality standards program. 

At a minimum, to properly exercise his duty to consider the appropriate factors in 

making his necessity determination, the Assistant Administrator should have established 

a record demonstrating that he considered whether: 

• The development of statewide numeric nutrient criteria in Florida is feasible. 

• Florida's existing water quality program was sufficiently deficient to compel 

federal intervention. 

• Numeric nutrient criteria are necessary only in Florida. 

As noted, Assistant Administrator Luna's memorandum of December 2008 establishes 

that litigation strategy, in lieu of water quality considerations, was the purpose of the 

necessity determination. Assistant Administrator Grumbles failed to consider the 

appropriate factors in making his January 14, 2009 necessity determination. 

Had the Assistant Administrator performed a careful and deliberative review of 

the salient factors, he would have considered the following factors. 

The Development of Scientifically Defensible Numeric Nutrient Criteria is Not 

Currently Feasible for Florida Waters 

EPA guidance recommends that the states develop numeric nutrient criteria 

following one of three primary means: 1) a dose-response approach; 2) a reference waters 

approach; or 3) an all-waters approach. 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 40 of 54
Lisa Jackson 

August 13, 2009 

Page 6 

Since the publication of EPA's 1998 National Strategy for the Development of 

Regional Nutrient Criteria, Florida has devoted several years and untold expert-hours to 

examining the relationship between nutrient concentrations and biological response 

variables in pursuing the dose-response approach to deriving numeric nutrient criteria. 

Beginning in 2001, DEP appointed a special Technical Advisory Committee (TAC) to 

assist the State in bringing the best minds to bear on the Department's goal of 

establishing scientifically defensible numeric nutrient criteria following EPA's preferred 

dose-response approach. To date, DEP scientists have been unable to confirm a 

sufficient relationship between nutrient concentrations and biological response variables 

from which scientifically defensible criteria may be derived. 

Additional research, and guidance from the numeric nutrient TAC, would be 

needed for DEP scientists to isolate a sufficient relationship between nutrient 

concentrations and the appropriate response variables to develop numeric nutrient criteria 

appropriate for Florida waters. Even then the diversity of Florida's surface waters would 

compel a more site specific effort whereby numeric nutrient criteria would have to be 

established for specific geologic and climatic regions if not water body by water body. 

The January 14, 2009, necessity determination compels EPA to establish numeric 

nutrient criteria for fresh waters by January 14, 2010, and for marine waters by January 

14, 2011. DEP's scientists, many of whom have decades of experience working on 

Florida waters, could not possibly complete their efforts to establish a sufficient doseresponse relationship to derive meaningful criteria within 12 to 24 months of the 

necessity determination. If Florida's water quality experts cannot establish scientifically 

defensible criteria in 12 to 24 months applying their years of experience to their own 

database, EPA staff cannot do so by desk-top analyses in Atlanta or Washington, D. C. 

EPA's recommended alternatives to the dose-response approach are not 

scientifically defensible. The reference water approach is based upon looking at a 

statistical distribution of the nutrient data from waters considered to be minimally 

impacted and representing the best of the best of the State's surface waters. The 

statistical distribution results in a bell-shaped curve when plotted out as a graph. Using 

the reference water or benchmark approach, a line is arbitrarily drawn on the curve at a 

certain "percentile." 

EPA has arbitrarily determined that the line be drawn at the 75th percentile to 

establish numeric nutrient criteria. Applying the reference stream or benchmark 

approach, 25% of the State's best waters fail to meet the applicable criterion. Waters that 

fail to meet applicable water quality criteria are considered to be impaired and, under the 

TMDL program, must be restored to meeting standards. The reference water approach 

would force the State to "restore" 25°/0 of its best waters that, by definition, do not need 

to be restored since they were literally used to set the standard. 

More fundamentally, reference waters, particularly streams, are selected based 

upon their biological health. The biological health of a reference water is measured using 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 41 of 54
Lisa Jackson 

August 13, 2009 

Page 7 

biological response variables such as chlorophyll-a, the stream condition index (SCI) or 

similar biological metric. To date, Florida scientists have been unable to confirm a 

relationship between nutrient concentration and biological response variables sufficient to 

establish a dose-response relationship in streams. If there is no relationship between 

nutrient concentrations and biological response one cannot reverse the two and develop 

criteria by locating waters demonstrating a desirable biological response and measuring 

nutrient concentrations in those waters. 

The reference water or benchmark approach is facially invalid. The method is 

based upon a presumed relationship between biology and nutrient concentrations where 

none is shown to exist and results in arbitrarily declaring a proportion of the State's best 

waters as impaired. There is no statistical or scientific validity to such an approach. 

The all-waters alternative recommended by EPA is even less defensible. 

Applying the all-waters approach, a statistical distribution of all nutrient data is examined 

(not just data from reference waters) and then a line is drawn at the 25th percentile. This 

approach results in declaring 75% of the State's surface waters as impaired and requiring 

restoration under the TMDL program. There is no relationship between the number 

derived and the nutrient concentrations necessary that would assure that Florida's surface 

waters are meeting their respective designated uses. 

The Assistant Administrator failed to exercise his nondiscretionary duty to 

consider the appropriate factors in making his necessity determination for Florida; in 

pursuing a means to address the pending citizens' suit, the Assistant Administrator failed 

to properly consider the feasibility of establishing statewide numeric nutrient criteria for 

the State of Florida especially under the time constraints imposed. 

Federally Promulgated Numeric Nutrient Criteria Are Unnecessary 

Florida has long recognized that numeric nutrient criteria, if feasible, could be a 

useful tool to supplement the State's existing narrative nutrient criterion. The State's 

attempts to derive numeric criteria predate the Clean Water Act and the establishment of 

EPA. As noted, since 1998, DEP has devoted significant resources to establishing 

scientifically valid numeric nutrient criteria. The Department's recent efforts, facilitated 

by its numeric nutrient TAC, have brought the State closer to its goal of supplementing 

its narrative nutrient criterion with numeric criteria. 

The narrative criterion is a useful tool and has been used in conjunction with the 

Department's impaired waters rule to identify and address nutrient related water quality 

issues throughout the State. The Department's efforts to develop numeric nutrient 

criteria have run parallel with its development and implementation of its impaired waters 

program. Florida's two-list approach to identifying impaired waters has been endorsed 

by a National Academy of Science committee specifically created to examine sciencebased approaches to identifying waters in need of restoration through the TMDL 

program. Nutrient enriched water bodies throughout the State of Florida have been 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 42 of 54
Lisa Jackson 

August 13, 2009 

Page 8 

identified as impaired; the development of TMDLs for many of those waters has been 

scheduled, is in progress or has been completed. 

In pursuing resolution of the law suit, the Assistant Administrator failed to 

consider whether Florida's water quality program—and existing narrative nutrient 

criterion—was so deficient as to justify federal intervention and promulgation of federal 

water quality criteria. 

Numeric Criteria Present Implementation Issues 

Had the Assistant Administrator exercised his duty to consider only those factors 

within the purview of the Clean Water Act in making his necessity determination, he 

would have considered the feasibility of implementing numeric criteria in Florida. Many 

publicly owned treatment works (POTWs) have spent millions of dollars employing 

advanced wastewater treatment (AWT) which under Florida law restricts domestic 

wastewater discharges to 3.0 mg/1 total nitrogen (TN) and 1.0 mg/I (TP). In response to 

the January 14, 2009, necessity determination, the Florida DEP proposed draft state 

criteria for flowing waters applying the reference waters approach using the 90th 

percentile (but for TP in the Bone Valley region of Florida which was set at the 75th 

percentile). The proposed criteria are fractions of the discharge limits allowed under 

AWT. 

DEP's proposed criteria are as follow: 

Geographic Area Total Phosphorus shall not 

exceed an annual 

geometric mean 

concentration of: 

Total Nitrogen shall not 

exceed an annual 

geometric mean 

concentration of: 

Panhandle Nutrient Region 0.069 mg/L 0.82 mg/L 

North Central Nutrient Region 0.322 mg/L 1.73 mg/L 

North East Nutrient Region 0.101 mg/L 1.73 mg/L 

Peninsular Nutrient Region 0.116 mg/L 1.73 mg/L 

Bone Valley Nutrient Region 0.415 mg/L 1.73 mg/L 

South Florida Nutrient Region To be determined To be determined 

It is anticipated that EPA would apply the 75th percentile for each nutrient region 

resulting in much more stringent criteria. If these criteria are applied as ambient surface 

water criteria, no domestic wastewater facility in Florida will be able to consistently meet 

them. 

Numeric Criteria Were Mandated Only for Florida 

The basis of declaring numeric nutrient criteria for Florida—and only Florida—is 

highlighted in Administrator Luna's December 2008 memorandum to Administrator 

Johnson in which he states: 

There is, however, some risk that the court could agree with the plaintiffs that the 

1998 Strategy constitutes a CWA determination that nutrient criteria are 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 43 of 54
Lisa Jackson 

August 13, 2009 

Page 9 

necessary for Florida. Such a ruling could spur similar litigation in other states. 

Presently, 49 states have one or more 303(d) listings for waters impaired by 

nutrients. (Emphasis added). 

Had Assistant Administrator Grumbles exercised his non-discretionary duty to consider 

only those factors within the scope of the Clean Water Act, in making his necessity 

determination, he would have not considered the utility of his decision in preventing 

nationwide litigation and he would not have singled out the State of Florida without due 

consideration of the impact of his decision upon a single state and the impact upon 

Florida water quality caused by nutrient loads from upstream states. 

Singling out Florida for federally promulgated numeric nutrient criteria imposes 

an unfunded mandate upon Florida—and only Florida—granting utilities and industries 

across the country an economic (and in some cases competitive) advantage over similarly 

situated entities in Florida. Florida ratepayers and tax payers will bear the financial 

burden as local government officials struggle to meet scientifically indefensible numeric 

nutrient criteria in Florida. The January 14, 2009, necessity determination—while 

perhaps strategically convenient for EPA—made the State of Florida a less desirable 

place to live or do business. The necessity determination creates a nutrient tax only 

applicable to Florida residents and businesses. 

While the plaintiffs in the citizen suit asserted that EPA's 1998 nation-wide 

guidance documents declared the need for numeric nutrient criteria, only Florida was 

subjected to such treatment. However, to properly consider the impact of additional 

states, the Administrator must perform a proper necessity determination marshaling 

conclusive evidence that EPA must impose federally promulgated numeric nutrient 

criteria in each state under consideration. As to each state, the Administrator, or 

designee, has a duty to consider only those factors squarely within the purview of the 

Clean Water Act. 

The Assistant Administrator Based the Necessity Determination on Factors 

Beyond the Scope of the Clean Water Act 

The Assistant Administrator failed to exercise a nondiscretionary duty to base his 

January 14, 2009, necessity determination on factors within the scope of the Clean Water 

Act. The prospect of settling or winning a lawsuit is not a proper consideration and 

relying upon same—as clearly established in Mr. Luna's December 2008 

memorandum—inappropriately replaced the consideration of determinative factors 

including the need and feasibility of imposing federally promulgated numeric nutrient 

criteria in the State of Florida and only the State of Florida. 

While administrative agencies like EPA are afforded deference in making 

decisions related to their areas of expertise, that deference does not allow an agency to 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 44 of 54
Lisa Jackson 

August 13, 2009 

Page 10 

base its decisions upon administrative convenience or litigation strategy in lieu of 

statutorily mandated criteria.3 

Accordingly, the Utility Council requests that the current EPA Administrator 

rescind Mr. Grumbles January 14, 2009, necessity determination. If the Administrator 

chooses to assess the need for federally promulgated numeric nutrient criteria in Florida, 

the Utility Council asserts that, at a minimum, the Administrator must marshal sufficient 

evidence to demonstrate her review of the factors detailed above. Due to the regulatory 

impact of such a decision, the Utility Council suggests that EPA publish any necessity 

determination made by the Administrator in the federal register and accept public 

comment related to the determination prior to finalizing any such action. 

Most importantly, the Utility Council requests that the precedential effect of 

pending citizens' suit be excluded from consideration should the Administrator rescind 

Mr. Grumbles January 14, 2009, determination and revisit the issue of numeric nutrient 

criteria for the State of Florida. 

HOPPING GREEN & SAMS 

Winston K. Borkowski 

James S. Alves 

David W. Childs 

On behalf of: 

Florida Water Environment Association Utility Council 

Enclosures: December 22, 2008 Delegation of Authority Request 

December 29, 2008 One-Time Delegation of Authority 

Copy to: 

The Honorable Eric Holder, Attorney General 

United States Department of Justice 

950 Pennsylvania Avenue, N. W. 

Washington, D. C. 20530-0001 

3 See, e.g., Sarasota v. E.P.A., 799 F.2d 674 (11th Cir. 1986) (while decision to award grant to City was 

within EPA's discretion, EPA improperly applied new guidelines and only the Court would be able to 

determine which guidelines were the appropriate ones to use and to direct EPA to reconsider the grant 

application based on proper standards); see also, RITE v. Costle, 650 F.2d 1312 (5thCir. 1981) (citizen suit 

standing available to contest EPA failing to review application for permit on the merits and applying 

arbitrary geographical limitations). 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 45 of 54
Lisa Jackson 

August 13, 2009 

Page 11 

Peter Silva, Assistant Administrator 

U. S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N. W. 

Ariel Rios Building, Mail Code: 1101A 

Washington, D.C. 20460 

A. Stanley Meiburg, Acting Regional Administrator 

U. S. Environmental Protection Agency, Region 4 

Sam Nunn Atlanta Federal Center 

61 Forsyth Street, S. W. 

Atlanta, Georgia 30303 

Michael W. Sole, Secretary 

Florida Department of Environmental Protection 

3900 Commonwealth Boulevard, M.S. 49 

Tallahassee, Florida 32399 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 46 of 54
Hopping Green & Sams 

Attorneys and Counselors 

August 24, 2009 

Lisa Jackson, Administrator 

U. S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N. W. 

Ariel Rios Building, Mail Code: 1101A 

Washington, D.C. 20460 

Re: Florida Minerals and Chemistry Council, Inc. 

Notice of Intent to File Suit under § 505 of the Clean Water Act 

Failure to Perform Mandatory Duty — Determination of Necessity 

Florida Numeric Nutrient Criteria 

Dear Administrator Jackson: 

This correspondence is submitted on behalf of the Florida Minerals and 

Chemistry Council, Inc., to give notice of its intent to file suit under § 505 of the Clean 

Water Act. 

The U. S. Environmental Protection Agency (EPA), acting through (then) 

Assistant Administrator Benjamin Grumbles, failed to perform a proper "necessity 

determination" prior to his January 14, 2009, declaration that numeric nutrient criteria 

must be developed for the State of Florida. The Assistant Administrator based his 

decision upon factors beyond the scope of the Clean Water Act and failed to base the 

necessity determination upon evidence justifying the extraordinary act of EPA 

promulgating federal water quality criteria in lieu of the State. 

The Florida Minerals and Chemistry Council 

The Florida Minerals and Chemistry Council, Inc. (FMCC) is an association of 

Florida mineral processors, chemical manufacturers, distributors, transporters, and 

suppliers. Established in 1983, the FMCC has been dedicated to building a greater spirit 

of cooperation and understanding among its members, government and the public. The 

FMCC leadership works closely with federal, state and local officials to address issues 

arising from legislation and regulation affecting the manufacturing community. Many 

FMCC members discharge treated wastewater to Florida surface waters under the 

authority of state discharge permits issued by Florida Department of Environmental 

Protection (DEP) consistent with the State's EPA-approved NPDES permit program. 

The permit conditions imposed by DEP, or EPA exercising its statutory oversight 

authority, are derived from, based upon, and implement, the State's federally approved 

Water Quality Standards Program and Total Maximum Daily Load (TMDL) program. 

FMCC members are affected by any change in policy within the Water Quality Standards 

Program, NPDES permitting program, or TMDL program. Such policy changes affect the 

m 

rF 

.1=• 

Post Office Box 6526 Tallahassee, Florida 32314 119 S. Monroe Street, Suite 300 (32301) 850.222.1500 850.224.8551 fax www.hgslaw,com 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 47 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 2 of 8 

regulatory framework under which FMCC members must plan projects, upgrade 

equipment, seek permit renewals and obtain financing. 

Improper Criteria Applied to Necessity Determination 

On January 14, 2009, Benjamin H. Grumbles, former EPA Assistant 

Administrator, forwarded a letter to Michael Sole, Secretary, Florida Department of 

Environmental Protection (DEP), which stated: "This letter constitutes a determination 

under the Clean Water Act (CWA) section 303(c)(4)(B) that new or revised water quality 

standards for nutrients are necessary to meet the requirements of the CWA for the State 

of Florida." 

An EPA memorandum establishes that the release of the January 14, 2009, 

determination, referred to herein as the "necessity determination," was a litigation 

strategy intended to limit the precedential effect of a pending citizens' suit.t 

The plaintiffs in the pending suit, filed in August 2008, alleged that EPA had 

failed to perform a nondiscretionary duty to promptly promulgate numeric nutrient 

criteria for Florida after having released a 1998 Clean Water Action Plan (CWAP). The 

plaintiffs argued that the 1998 CWAP was a formal necessity determination which 

triggered EPA's mandatory duty to promulgate numeric nutrient criteria for the State of 

Florida. 

Mr. Grumbles did not receive authority to sign the January 14, 2009, necessity 

determination until two weeks before the determination was released. Assistant 

Administrator Luis Luna submitted a memorandum to Administrator Stephen Johnson 

requesting "a one time Delegation of Authority to the Assistant Administrator for the 

Office of Water Policy to determine pursuant to Section 303(c)(4)(B) of the Clean Water 

Act (CWA) whether the State of Florida needs new or revised water quality standards for 

nutrients." Assistant Administrator Luna explained in his memo that: 

EPA does not agree with the plaintiffs' allegation that we made a CWA 

determination in our 1998 Strategy2 that numeric nutrient criteria are necessary 

for Florida to meet the requirements of the CWA. There is, however, some risk 

that the court could agree with the plaintiffs that the 1998 Strategy constitutes a 

CWA determination that nutrient criteria are necessary for Florida. Such a ruling 

could spur similar litigation in other states. Presently, 49 states have one or more 

303(d) listings for waters impaired by nutrients. (Emphasis added). 

' Florida Wildlife Federation, et. al. v. EPA, No. 4:08-CV-00324 (N. D. Fla.) 

2Plaintiffs initially alleged that EPA's 1998 National Strategy for the Development of Regional Nutrient 

Criteria was the document serving as a necessity determination; in their first amended complaint, the 

plaintiffs alleged that it was a 1998 Clean Water Action Plan, coauthored with the U. S. Department of 

Agriculture, that was the document triggering EPA's mandatory duty to promulgate numeric nutrient 

criteria for Florida. 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 48 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 3 of 8 

*** 

Making such a determination could give EPA a basis to propose a settlement to 

the plaintiffs or to request that the court dismiss the case. While making a 

determination may not resolve the litigation, we believe it is an option we should 

seriously consider and therefore are requesting delegation of authority. A CWA 

Section 303(c)(4)(B) determination can only be made by the Administrator or the 

Administrator's duly authorized delegate. (Emphasis added). 

Administrator Johnson approved Mr. Luna's memorandum and signed the delegation on 

Monday, December 29, 2008. With weekends and federal holidays excluded, Mr. 

Grumbles—who heretofore did not have the authority to make a necessity determination 

for the State of Florida—had only 11 working days between December 29, 2008 and 

January 14, 2009, to make such a determination. 

EPA documents establish that a necessity determination is a deliberative process 

requiring that the Administrator provide evidence to support EPA's invading the State's 

primacy, as guaranteed under § 101(b) of the Act, and taking what the Act may be read to 

characterize as the extraordinary act of EPA promulgating federal water quality standards 

in lieu of allowing the State—with local knowledge of its own waters—to do so. 

This concept is articulated by EPA in its attempt to explain why the federal 

agency did not have to go through a more detailed "determination" process prior to 

promulgating criteria for priority toxic pollutants. 57 Fed. Reg. 60848. In distinguishing 

the unique "Congressional determination of necessity" EPA relied upon to promulgate 

the criteria for toxic pollutants, EPA stated: 

In normal circumstances, in might be argued that to exercise section 303(c)(4)(B) 

the Administrator might have the burden of marshalling conclusive evidence of 

"necessity" for Federally promulgated water quality standards. 

Id. at 60858. In the instant case, EPA was faced with "normal circumstances" but failed 

to marshal any, much less conclusive, evidence that federal numeric nutrient criteria are 

necessary for Florida waters. 

In its motion for summary judgment in the pending citizens' suit, EPA states: 

Although the terms "determine" or "determination" as used in Section 

303(c)(4)(B) are not defined by the Act or its implementing regulations, EPA 

documents that lack certain minimum findings do not qualify as "determinations" 

for purposes of Section 303(c)(4)(B). In particular, an EPA document is 

insufficient to constitute a "de facto" determination that new or revised water 

quality standards are necessary for a particular state if the document contains no 

evidence that the administrator reviewed the relevant existing state standard or 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 49 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 4 of 8 

determined that such standard is inadequate to meet the requirements of the 

CWA. (Emphasis added). 

In the instant case, EPA confirms that the Assistant Administrator was granted 

limited authority to sign a necessity determination for the purpose of giving "EPA a basis 

to propose a settlement to the plaintiffs or to request that the court dismiss the case." 

(Emphasis added). 

Failure to Perform a Nondiscretionary Duty 

The Administrator, or in this case the Administrator's designee, has a 

nondiscretionary duty to consider the appropriate criteria in making a necessity 

determination under § 303(c)(4XB). Those criteria may not exceed those intended by 

Congress in adopting the Act. Settlement of a citizens' suit is not an appropriate 

consideration. 

EPA cannot establish that Mr. Grumbles, as the Administrator's designee, 

marshaled "conclusive evidence of necessity for Federally promulgated water quality 

standards" for Florida waters in the 11 working days between his one-time authorization 

to conduct a necessity determination and his signing of the January 14, 2009, letter. 

While the letter gives examples of environmental problems that may be caused by 

excessive nutrients, none of the examples is unique to Florida nor were the circumstances 

mentioned in the letter newly discovered between December 29, 2008 and January 14, 

2009. 

The Administrator, through his designee, failed to exercise a nondiscretionary 

duty to marshal conclusive evidence to justify federally promulgated water quality 

criteria for Florida waters. 

Failure to Consider Appropriate Criteria Supporting Necessity Determination 

The January 14, 2009, necessity determination has significant legal and practical 

consequences. The necessity determination triggers EPA's mandatory duty to promptly 

promulgate numeric nutrient criteria for Florida. At the same time, the January 14th 

determination declares Florida's water quality program—and specifically DEP' s 

narrative nutrient criterion—in violation of the Clean Water Act. 

Consequently, the Assistant Administrator was compelled to ensure that the 

necessity determination was the product of a deliberative process by which he carefully 

considered whether it was necessary for EPA, with no local knowledge of Florida waters, 

to step in and take control of Florida's water quality standards program. 

At a minimum, to properly exercise his duty to consider the appropriate factors in 

making his necessity determination, the Assistant Administrator should have established 

a record demonstrating that he considered whether: 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 50 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 5 of 8 

• The development of statewide numeric nutrient criteria in Florida is feasible. 

• Florida's existing water quality program was sufficiently deficient to compel 

federal intervention. 

• Numeric nutrient criteria are necessary only in Florida. 

As noted, Assistant Administrator Luna's memorandum of December 2008 establishes 

that litigation strategy, in lieu of water quality considerations, was the purpose of the 

necessity determination. Assistant Administrator Grumbles failed to consider the 

appropriate factors in making his January 14, 2009 necessity determination. 

Federal Intervention is Unnecessary 

Florida has long recognized that numeric nutrient criteria, if feasible, could be a 

useful tool to supplement the State's existing narrative nutrient criterion. The State's 

attempts to derive numeric criteria predate the Clean Water Act and the establishment of 

EPA. As noted, since 1998, DEP has devoted significant resources to establishing 

scientifically valid numeric nutrient criteria. The Department's recent efforts, facilitated 

by its numeric nutrient TAC, have brought the State closer to its goal of supplementing 

its narrative nutrient criterion with numeric criteria. 

The narrative criterion is a useful tool and has been used in conjunction with the 

Department's impaired waters rule to identify and address nutrient related water quality 

issues throughout the State. The Department's efforts to develop numeric nutrient 

criteria have run parallel with its development and implementation of its impaired waters 

program. Florida's two-list approach to identifying impaired waters has been endorsed 

by a National Academy of Science committee specifically created to examine sciencebased approaches to identifying waters in need of restoration through the TMDL 

program. Nutrient enriched water bodies throughout the State of Florida have been 

identified as impaired; the development of TMDLs for many of those waters has been 

scheduled, is in progress or has been completed. 

Significantly, by letter dated September 28, 2007, EPA approved the 

Department's September 2007 State of Florida Numeric Nutrient Criteria Development 

Plan. Under the 2007 plan, the Department would have until 2011 before EPA would 

consider the State to be untimely in its pursuit of State numeric nutrient criteria. But for 

the citizens' suit and the potential to limit its precedential effect, the necessity 

determination articulated no basis for EPA's unilateral repeal of its approval of the 

State's 2007 criteria development plan and its acceleration of the plan's timelines. 

In pursuing resolution of the law suit, the Assistant Administrator failed to 

consider whether Florida's water quality program—and existing narrative nutrient 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 51 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 6 of 8 

criterion—was so deficient as to justify federal intervention and promulgation of federal 

water quality criteria. 

Numeric Criteria Were Mandated Only for Florida 

The basis of declaring numeric nutrient criteria for Florida—and only Florida—is 

highlighted in Administrator Luna's December 2008 memorandum to Administrator 

Johnson in which he states: 

There is, however, some risk that the court could agree with the plaintiffs that the 

1998 Strategy constitutes a CWA determination that nutrient criteria are 

necessary for Florida. Such a ruling could spur similar litigation in other states. 

Presently, 49 states have one or more 303(d) listings for waters impaired by 

nutrients. (Emphasis added). 

Had Assistant Administrator Grumbles exercised his non-discretionary duty to consider 

only those factors within the scope of the Clean Water Act, in making his necessity 

determination, he would have not considered the utility of his decision in preventing 

nationwide litigation and he would not have singled out the State of Florida without due 

consideration of the impact of his decision upon a single state and the impact upon 

Florida water quality caused by nutrient loads from upstream states.3 

Singling out Florida for federally promulgated numeric nutrient criteria imposes 

an unfunded mandate upon Florida—and only Florida—granting utilities and industries 

across the country an economic (and in some cases competitive) advantage over similarly 

situated entities in Florida. Florida ratepayers and tax payers will bear the financial 

burden as local government officials struggle to meet scientific indefensible numeric 

nutrient criteria in Florida. The January 14, 2009, necessity determination—while 

perhaps strategically convenient for EPA—made the State of Florida a less desirable 

place to live or do business. The necessity determination creates a nutrient tax only 

applicable to Florida residents and businesses. 

While the plaintiffs in the citizen suit asserted that EPA's 1998 nation-wide 

guidance documents declared the need for numeric nutrient criteria, only Florida was 

subjected to such treatment. However, to properly consider the impact of additional 

states, the Administrator must perform a proper necessity determination marshaling 

conclusive evidence that EPA must impose federally promulgated in each state under 

consideration. As to each state, the Administrator, or designee, has a duty to consider 

only those factors squarely within the purview of the Clean Water Act. 

3 At an August 20, 2009 meeting of Florida's Environmental Regulation Commission, counsel for plaintiffs 

in the citizens' suit suggested that Florida was singled out because that was the only state in which he had 

filed suit; counsel noted that he had not worked directly with Department staff throughout DEP's efforts to 

establish numeric nutrient criteria but he had worked with the State "indirectly through EPA." 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 52 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 7 of 8 

The Assistant Administrator Based the Necessity Determination on Factors 

Beyond the Scope of the Clean Water Act 

The Assistant Administrator failed to exercise a nondiscretionary duty to base his 

January 14, 2009, necessity determination on factors within the scope of the Clean Water 

Act. The prospect of settling or winning a lawsuit is not a proper consideration and 

relying upon same—as clearly established in Mr. Luna's December 2008 

memorandum—inappropriately displaced the consideration of determinative factors 

including the need and feasibility of imposing federally promulgated numeric nutrient 

criteria in the State of Florida and only the State of Florida. 

While administrative agencies like EPA are afforded deference in making 

decisions related to their areas of expertise, that deference does not allow an agency to 

base its decisions upon administrative convenience or litigation strategy in lieu of 

statutorily mandated criteria.4 

The FMCC requests that the current EPA Administrator rescind Mr. Grumbles 

January 14, 2009, necessity determination. If the Administrator chooses to assess the 

need for federally promulgated numeric nutrient criteria in Florida, the FMCC suggests 

that, at a minimum, the Administrator must marshal sufficient evidence to demonstrate 

her review of the factors detailed above. Due to the regulatory impact of such a decision, 

the FMCC requests that EPA publish any necessity determination made by the 

Administrator in the federal register and accept public comment related to the 

determination prior to finalizing any such action. 

Additionally, the FMCC requests that the precedential effect of pending citizens' 

suit be excluded from consideration should the Administrator rescind Mr. Grumbles 

January 14, 2009, determination and revisit the issue of numeric nutrient criteria for the 

State of Florida. 

HOPPING GREEN & SAMS 

L.(i_.4.4.toyt.- 71( (40212,61_e_. ,

Winston K. Borkowski 

James S. Alves 

David W. Childs 

On behalf of: 

Florida Minerals and Chemistry Council, Inc. 

4 See, e.g., Sarasota v. E.P.A., 799 F.2d 674 (11th Cir. 1986) (while decision to award grant to City was 

within EPA's discretion, EPA improperly applied new guidelines and only the Court would be able to 

determine which guidelines were the appropriate ones to use and to direct EPA to reconsider the grant 

application based on proper standards); see also, RITE v. Costle, 650 F.2d 1312 (5th Cir. 1981) (citizen suit 

standing available to contest EPA failing to review application for permit on the merits and applying 

arbitrary geographical limitations). 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 53 of 54
Lisa Jackson, Administrator 

August 24, 2009 

Page 8 of 8 

Copy to: 

The Honorable Eric Holder, Attorney General 

United States Department of Justice 

950 Pennsylvania Avenue, N. W. 

Washington, D. C. 20530-0001 

Peter Silva, Assistant Administrator 

U. S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N. W. 

Ariel Rios Building, Mail Code: 1101A 

Washington, D.C. 20460 

A. Stanley Meiburg, Acting Regional Administrator 

U. S. Environmental Protection Agency, Region 4 

Sam Nunn Atlanta Federal Center 

61 Forsyth Street, S. W. 

Atlanta, Georgia 30303 

Michael W. Sole, Secretary 

Florida Department of Environmental Protection 

3900 Commonwealth Boulevard, M.S. 49 

Tallahassee, Florida 32399 

Hopping Green & Sams 

Attorneys and Counselors 

Case 4:08-cv-00324-RH-WCS Document 89 Filed 08/25/2009 Page 54 of 54