Page 1 of 86

Case No. 4:08cv324-RH/WCS

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

 

FLORIDA WILDLIFE 

FEDERATION, INC. et al., 

 Plaintiffs, 

v. CONSOLIDATED CASE 

 NO. 4:08cv324-RH/WCS 

LISA P. JACKSON, etc., et al., 

 Defendants. 

__________________________________/ 

THE FLORIDA WATER ENVIRONMENTAL 

ASSOCIATION UTILITY COUNCIL, INC., 

v. CASE NO. 4:09cv428-RH/WCS 

LISA P. JACKSON, etc., et al., 

 Defendants. 

____________________________________/ 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 1 of 86
Page 2 of 86

Case No. 4:08cv324-RH/WCS

THE FLORIDA ELECTRIC POWER 

COORDINATING GROUP, INC., 

 Plaintiff, 

v. CASE NO. 4:09cv436-RH/WCS 

LISA P. JACKSON, etc., et al., 

 Defendants. 

___________________________________/ 

FLORIDA WILDLIFE 

FEDERATION, INC., et al., 

 Plaintiffs, 

v. CASE NO. 4:10cv511-RH/WCS 

THE UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY et al., 

 Defendants. 

____________________________________/ 

THE FERTILIZER INSTITUTE et al., 

 Plaintiffs, 

v. CASE NO. 4:11cv51-RH/WCS 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, 

 Defendant. 

_________________________________/ 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 2 of 86
Page 3 of 86

Case No. 4:08cv324-RH/WCS

GULF RESTORATION NETWORK et al., 

 Plaintiffs, 

v. CASE NO. 4:11cv142-RH/WCS 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY et al., 

 Defendants. 

_________________________________/ 

THE FLORIDA CATTLEMEN’S 

ASSOCIATION et al., 

 Plaintiffs, 

v. CASE NO. 4:11cv177-RH/WCS 

LISA P. JACKSON et al., 

 Defendants. 

_________________________________/ 

STATE OF FLORIDA, etc., et al., 

 Plaintiffs, 

 CONSOLIDATED 

v. CASE NO. 4:11cv61-RH/WCS 

 

LISA P. JACKSON, etc., et al., FORMER CASES NO. 

 3:10cv503-RV/MD; 

 Defendants. 3:10cv506-RV/EMT; 

 3:10cv513-MCR/MD; 

 3:10cv532-MCR/EMT; 

 3:11cv11-MCR/MD; and 

 3:11cv47-MCR/EMT 

___________________________________/ 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 3 of 86
Page 4 of 86

Case No. 4:08cv324-RH/WCS

ORDER ON THE MERITS

 The Administrator of the Environmental Protection Agency has adopted 

numeric criteria for nutrients—primarily nitrogen and phosphorous—in Florida 

lakes, springs, and streams (including rivers). These cases, which have been 

consolidated for case-management purposes, present a series of challenges to the 

Administrator’s actions. Some parties assert the Administrator did too much; some 

assert she did too little. This order upholds the Administrator’s determination that 

numeric nutrient criteria are necessary for Florida waters to meet the Clean Water 

Act’s requirements, upholds the Administrator’s lake and spring criteria, 

invalidates the stream criteria, upholds the decision to adopt downstreamprotection criteria, upholds some but not all of the downstream-protection criteria, 

and upholds the Administrator’s decision to allow—and the procedures for 

adopting—site-specific alternative criteria. 

 This order begins with a summary of the ruling (section I). The order then 

sets out the background, addressing the most relevant Clean Water Act 

requirements (section II), the designated uses of Florida waters under the Clean 

Water Act (section III), the problem at issue—nutrient pollution (section IV), 

Florida’s existing narrative criterion for nutrients (section V), EPA’s call for 

numeric nutrient criteria (section VI), the Florida Department of Environmental 

Protection’s work on numeric nutrient criteria (section VII), the Administrator’s 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 4 of 86
Page 5 of 86

Case No. 4:08cv324-RH/WCS

2009 determination that Florida’s narrative nutrient criterion is inadequate and that 

numeric nutrient criteria are necessary to meet the Clean Water Act’s requirements 

(section VIII), and the Administrator’s adoption of a rule setting numeric criteria 

(section IX). The order then summarizes the litigation (section X), the substantive 

issues (section XI), and the standard of review (section XII), before turning to the 

merits (section XIII). 

I. Summary of the Ruling

 The grounds for the decision include these. The Clean Water Act requires a 

state—or if it fails to act, EPA—to adopt water-quality “criteria” to protect a 

state’s designated “uses” of its waters. The criteria must be based on sound 

science. The Florida Department of Environmental Protection adopted long ago a 

narrative criterion for nutrients: “nutrient concentrations of a body of water [must 

not] be altered so as to cause an imbalance in natural populations of aquatic flora 

or fauna.” Fla. Admin. Code r. 62-302.530(47)(b). 

 The narrative criterion has proved insufficient to control Florida’s 

widespread nutrient pollution. The Administrator recognized at least as early as 

1998 that the narrative criterion is insufficient and that numeric criteria should be 

adopted. The Florida Department of Environmental Protection agreed at least as 

early as 2003. In the ensuing years, neither has wavered from that view. FDEP 

worked toward the adoption of numeric criteria for many years but repeatedly 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 5 of 86
Page 6 of 86

Case No. 4:08cv324-RH/WCS

moved back the projected completion date. In 2009 the Administrator made an 

explicit “determination” under Clean Water Act § 303(c)(4), 33 U.S.C. 

§ 1313(c)(4), that new criteria—numeric criteria—are necessary to meet the Act’s 

requirements. The determination imposed on the Administrator an explicit 

statutory duty to promptly propose and adopt new criteria unless Florida did so 

first. Id. Florida did not. 

 The Administrator’s determination was not “arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 

This is the standard under which a court reviews an administrative decision of this 

kind. For convenience, this opinion uses “arbitrary or capricious” as shorthand for 

the entire standard. 

 The Administrator adopted lake and spring criteria based on modeling and 

field studies designed to determine the level at which an increase in nutrients 

ordinarily causes harmful effects. The criteria are based on sound science and are 

not arbitrary or capricious. 

 The Administrator was unable to develop acceptable stream criteria based on 

modeling and field studies and so adopted stream criteria using a different 

approach. She identified a representative sample of minimally-disturbed streams 

for which nutrient data were available, calculated annual geometric means for each 

stream and in turn for the sample set of streams, and set the criteria at the 90th 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 6 of 86
Page 7 of 86

Case No. 4:08cv324-RH/WCS

percentile. The Administrator apparently concluded only that an increase above 

this level ordinarily causes a change in flora and fauna—not that it causes a 

harmful change. If there is a basis in sound science for disapproving a nutrient 

increase that causes any increase in flora and fauna, not just a harmful increase, the 

Administrator did not cite it. And even if the Administrator’s conclusion was that 

an increase in nutrients to a level above the 90th percentile ordinarily causes a 

harmful change in flora and fauna, the Administrator again did not cite a soundscience basis for the conclusion. Without a further explanation, the stream criteria 

are arbitrary or capricious. 

 The Administrator adopted downstream-protection criteria that she referred 

to as “downstream protection values” or “DPVs.” The goal was to protect a water 

body—in this case, a lake—from nutrient pollution introduced through upstream 

waters. The decision to adopt DPVs was not arbitrary or capricious. The 

Administrator allowed DPVs to be set through modeling or, in the absence of 

modeling, at one of two “default” levels. For a lake not in compliance with the 

lake criteria—an impaired lake—the default DPVs are the same as the lake criteria. 

Neither the provision for DPVs based on modeling nor the default DPVs for an 

impaired lake are arbitrary or capricious. But the default DPVs for a lake that is in 

compliance with the lake criteria—an unimpaired lake—suffer from a flaw 

analogous to that in the stream criteria. The default DPVs for an unimpaired lake 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 7 of 86
Page 8 of 86

Case No. 4:08cv324-RH/WCS

are the ambient conditions at the “pour point”—the point at which the stream 

enters the lake. The Administrator’s theory apparently is that any increase from 

ambient conditions ordinarily causes a change in flora and fauna—not that it 

causes a harmful change. Here, as with the stream criteria, the Administrator has 

cited no basis in sound science for disapproving any nutrient increase, not just a 

nutrient increase that causes a harmful increase in flora or fauna. 

 The Administrator authorized—and established a procedure for adopting—

site-specific alternative criteria (“SSACs”) that take the place of the otherwiseapplicable criteria for a specific water body or set of water bodies (such as a 

watershed). SSACs must be based on sound science and must protect designated 

uses. The decision to authorize SSACs—and to establish this procedure for 

adopting them—was not arbitrary or capricious. Some parties assert that the 

regulation would allow SSACs for a set of water bodies so extensive that, under 

the governing law, the SSACs could properly be adopted only through rulemaking, 

not through the more-abbreviated SSAC procedures. The assertion is not ripe for 

judicial review at this time, because no such SSAC has been proposed or adopted, 

and there is no reason to believe one ever will be. 

 Finally, some parties challenge the Administrator’s actions on other grounds, 

asserting that Congress unconstitutionally delegated authority to the Administrator, 

that the Administrator unconstitutionally discriminated against Florida and Florida 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 8 of 86
Page 9 of 86

Case No. 4:08cv324-RH/WCS

residents, and that the Administrator violated the Regulatory Flexibility Act. 

These assertions are incorrect. 

II. The Clean Water Act

 Congress adopted the Clean Water Act in 1972. The objective was “to 

restore and maintain the chemical, physical, and biological integrity of the Nation’s 

waters.” 33 U.S.C. § 1251(a). The Act recognizes the primary responsibility of 

the states to prevent or reduce pollution. Id. § 1251(b). The Act thus allows a state 

to adopt its own water-quality standards, subject to the EPA Administrator’s 

approval. 

 In setting out the roles of the states and the Administrator, the Act employs 

three terms of art: “uses,” “criteria,” and “standards.” Id. § 1313(c)(2)(A). A state 

designates the “uses” for its navigable waters and sets “water quality criteria” for 

the waters “based upon such uses.” Id. A “standard” consists of the uses and 

corresponding criteria. Id. The standard must “protect the public health or 

welfare, enhance the quality of water and serve the purposes of” the Act. Id. And 

the standard must “be established taking into consideration [the waters’] use and 

value for public water supplies, propagation of fish and wildlife, recreational 

purposes, and agricultural, industrial, and other purposes, and also taking into 

consideration [the waters’] use and value for navigation.” Id. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 9 of 86
Page 10 of 86

Case No. 4:08cv324-RH/WCS

 If a state standard is not “consistent with” the Act’s requirements, or if the 

Administrator “determines that a revised or new standard is necessary” to meet the 

Act’s requirements, the Administrator must “promptly prepare and publish 

proposed regulations setting forth a revised or new” standard. Id. § 1313(c)(4). 

The Administrator must adopt the revised or new standard within 90 days after 

publication, unless by that time the state has adopted a revised or new standard that 

is approved by the Administrator. Id. Whether the 90-day limit is judicially 

enforceable is less than clear. See Miss. Comm’n on Natural Res. v. Costle, 625 

F.2d 1269, 1278 (5th Cir. 1980). 

III. The Designated Uses of Florida Waters

 These cases involve waters that Florida has designated as “class I” or “class 

III.” The numbers run from most protected (class I) to least protected (class V). 

The designated uses of class III waters are “Fish Consumption; Recreation, 

Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and 

Wildlife,” and they incorporate the additional uses of waters of a lower class: 

“Agricultural Water Supplies” and “Navigation, Utility and Industrial Use.” Fla. 

Admin. Code r. 62-302.400(1); see also id. at r. 62-302.400(6). The designated 

uses of class I waters incorporate all these uses and add “Potable Water Supplies.” 

Id. at r. 62-302.400(1); see also id. at r. 62-302.400(6). 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 10 of 86
Page 11 of 86

Case No. 4:08cv324-RH/WCS

IV. The Problem: Nutrient Pollution

 Nutrients occur naturally in surface waters. But nutrient levels often 

increase, sometimes dramatically, as a result of human activity. Among the 

industries that may contribute to increases in nutrient levels—and whose trade 

associations are participating in this litigation—are wastewater treatment, power 

generation, and cattle ranching. 

 A nutrient increase ordinarily affects a water body’s flora and fauna, that is, 

aquatic plants and animals. Among the vivid examples are algal blooms. At some 

point the effects of a nutrient increase become harmful. The effects can include 

significant changes in the ecosystem, in the health of plants and animals, in the 

recreational value of waters, and in the safety of drinking water. 

 The Clean Water Act requires each state to assess its waters at least every 

three years. In its 2008 report, FDEP recognized, as it had done in earlier reports, 

that nutrient pollution in Florida waters was widespread. FDEP concluded that 

nutrient impairment extended to 1,049 miles of rivers and streams, to 349,248 

acres of lakes, and to 902 square miles of estuaries. Div. of Envtl. Assessment & 

Restoration, Fla. Dep’t of Envtl. Prot., Integrated Water Quality Assessment for 

Florida: 2008 305(b) Report and 303(d) List Update (“2008 FDEP Report”) 67 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 11 of 86
Page 12 of 86

Case No. 4:08cv324-RH/WCS

(Oct. 2008) (AR005821).1

 This was 5% of the state’s assessed river and stream 

miles, 23% of the state’s assessed lake acreage, and 24% of the assessed estuary 

surface. Water Quality Standards for the State of Florida’s Lakes and Flowing 

Waters, 75 Fed. Reg. 75,762, 75,769 (Dec. 6, 2010) (AR086773). 

 Nutrient pollution thus was a major problem in Florida’s waters. And it was 

not getting better. FDEP noted that scientists had documented increasing nutrient 

levels in surface waters since the 1970s. FDEP said the trend was continuing in 

Florida: 

Freshwater harmful algal blooms (HABs) are increasing in frequency, 

duration, and magnitude and therefore may be a significant threat to 

surface drinking water resources and recreational areas. Abundant 

populations of blue-green algae, some of them potentially toxigenic, 

have been found statewide in numerous lakes and rivers. In addition, 

measured concentrations of cyanotoxins—a few of them of above the 

suggested guideline levels—have been reported in finished water from 

some drinking water facilities. 

2008 FDEP Report at 37 (AR005791). FDEP noted—contrary to the assertion of 

some parties in this litigation—that phosphorous levels, like other nutrient levels, 

were increasing. Id. at ix (AR005749). 

V. The Florida Narrative Nutrient Criterion

 Water-quality criteria can be numeric or narrative. Some of the parties have 

suggested a useful analogy: a state could adopt a numeric speed limit—70 miles 

 1

 Citations to pages in the administrative record are in this form: (“AR[page 

number]”). 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 12 of 86
Page 13 of 86

Case No. 4:08cv324-RH/WCS

per hour—or a narrative standard—don’t drive too fast. Or a state could adopt a 

combination of both—don’t drive over 70, and don’t drive too fast for conditions. 

 Florida’s longstanding criterion for nutrients is narrative: “In no case shall 

nutrient concentrations of a body of water be altered so as to cause an imbalance in 

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

302.530(47)(b). With limited exceptions, Florida does not have numeric nutrient 

criteria.2

VI. EPA’s Call for Numeric Nutrient Criteria

 Florida is not the only state with narrative, not numeric, nutrient criteria. By 

1998 there were good grounds to conclude that narrative nutrient criteria were not 

working—not in Florida, and not in other states. The EPA Administrator and the 

Secretary of the United States Department of Agriculture reported that about 40% 

 2

 In an earlier appeal in this case, two parties apparently challenged this 

statement. See Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 

1296, 1309 (11th Cir. 2011) (Wilson, J., dissenting). FDEP does set numeric 

nutrient limits for a specific water body when FDEP establishes a total maximum 

daily load for the water body. Recall, though, that under the Clean Water Act, 

“criteria” is a term of art. So are “standards” and “uses.” Standards consist of the 

designated uses of a state’s waters and the applicable criteria based on the uses. 33 

U.S.C. § 1313(c)(2)(A). Criteria are set in advance for all waters, impaired and 

unimpaired. One goal is to prevent a water body from becoming impaired in the 

first place. A TMDL is established for an impaired water body after it becomes 

impaired. A TMDL thus seeks to bring a water body back into compliance with 

the Act. A TMDL is not a “standard” or “criterion” and is not a substitute for one. 

Leaving aside the Everglades—for which numeric criteria are in place and will not 

be affected by this litigation—and a nitrate criterion for class I waters, see Fla. 

Admin. Code r. 62-302.530(45), Florida has only a narrative nutrient criterion; it 

does not have—and has never had—numeric criteria. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 13 of 86
Page 14 of 86

Case No. 4:08cv324-RH/WCS

of assessed waters nationwide did not meet water-quality goals. Letter from Carol 

Browner, Adm’r, U.S. Envtl. Prot. Agency and Dan Glickman, Sec’y, U.S. Dep’t 

of Agric., to Albert Gore, Jr., Vice President of the United States (Feb. 14, 1998) 

(AR000069). The Administrator and the Secretary adopted a Clean Water Action 

Plan intended to improve the situation. See U.S. Dep’t of Envtl. Prot. & U.S. 

Dep’t of Agric., Clean Water Action Plan: Restoring and Protecting America’s 

Waters 58-59 (1998) (AR000142-43). 

Later in 1998, as part of the effort to implement the Clean Water Action 

Plan, the Administrator issued a report entitled, “National Strategy for the 

Development of Regional Nutrient Criteria” (AR000001). The report recognized 

that excessive nutrients were a substantial part of the nation’s water-quality 

problem and that narrative criteria were not the solution. The report said that the 

Administrator expected all states “to adopt and implement numerical nutrient 

criteria” by December 31, 2003. Id. at 9 (emphasis added) (AR000015). This 

gave the states more than five years to adopt numeric criteria. 

VII. FDEP’s Work on Numeric Nutrient Criteria

 By 2001, if not earlier, FDEP was at work developing numeric nutrient 

criteria. Acting in conjunction with the state’s water-management districts, FDEP 

conducted detailed studies and held meetings. FDEP compiled massive amounts 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 14 of 86
Page 15 of 86

Case No. 4:08cv324-RH/WCS

of data. It spent millions of dollars. But projected completion dates came and 

went without the adoption of statewide numeric nutrient criteria. 

 Thus, for example, on December 30, 2003, FDEP submitted its first plan for 

developing numeric nutrient criteria. See Water Quality Standards & Special 

Projects Program & Watershed Assessment Section, Fla. Dep’t of Envtl. Prot., 

State of Florida Numeric Nutrient Criteria Development Plan (Dec. 2003) 

(AR000767). The plan called for numeric-criteria rulemaking to begin in October 

2004 and for a draft rule to be submitted to the Environmental Regulation 

Commission—the state body responsible for approving water-quality criteria—in 

October 2005. Id. at 9-10 (AR000776-77). FDEP said it anticipated that ERC 

activities could be completed in 12 months, barring major dissent. Id. at 4 

(AR000771). But FDEP said it had limited control over ERC’s schedule, making 

it difficult for FDEP to establish a firm completion date. Id. 

 On July 7, 2004, EPA responded to FDEP’s 2003 plan, reiterating that 

nutrient over-enrichment was a “serious problem,” acknowledging that 

determining appropriate numeric criteria was “very complex,” and concluding that 

the 2003 FDEP plan described a “reasonable process.” Letter from James D. 

Giattina, Dir., Water Mgmt. Div., U.S. Envtl. Prot. Agency, to Mimi Drew, Dir., 

Div. of Water Res. Mgmt., Fla. Dep’t of Envtl. Prot. 1 (July 7, 2004) (AR000784). 

EPA said that completing the process “by the target dates indicated in the Plan” 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 15 of 86
Page 16 of 86

Case No. 4:08cv324-RH/WCS

would increase the protection of state waters from nutrient over-enrichment. Id. 

EPA also said that failure to meet these milestones might lead to a formal 

determination under the Clean Water Act that new or revised standards were 

necessary—a determination that would require the Administrator to promptly 

propose and adopt new or revised standards, unless the state did so first. EPA said: 

If the State has not met the milestones as scheduled in the plan, EPA 

will evaluate whether a federal promulgation would be appropriate. At 

that time, the Administrator may determine that new or revised 

standards are necessary to meet the Clean Water Act (CWA), and 

choose to promulgate water quality criteria for nutrients applicable to 

surface waters within Florida in accordance with Section 303 of the 

CWA. 

Id. at 1-2 (AR000784-85). 

 FDEP missed the October 2004 milestone for initiating rulemaking. In 

December 2004, FDEP moved the schedule back 18 months, now projecting that 

rulemaking would begin in April 2006 and that FDEP would submit a draft rule to 

ERC in April 2007. See Letter from Jerry Brooks, Deputy Dir., Div. of Water Res. 

Mgmt., Fla. Dep’t of Envtl. Prot., to Andrew Bartlett, Water Mgmt. Div., U.S. 

Envtl. Prot. Agency (Dec. 14, 2004) (AR000788). FDEP continued to compile 

data and hold meetings. But still nothing came of the efforts. 

 FDEP missed the April 2006 revised milestone, too. More than a year later, 

in September 2007, FDEP submitted a revised plan with yet another revised 

schedule. See Water Quality Standards & Special Projects Program, Water Res. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 16 of 86
Page 17 of 86

Case No. 4:08cv324-RH/WCS

Div., Fla. Dep’t of Envtl. Prot., State of Florida Numeric Nutrient Criteria 

Development Plan (Sept. 2007) (AR012228). FDEP now projected that 

rulemaking would begin in January 2010—more than five years later than 

originally projected—and that FDEP would submit a draft rule to ERC between 

January 2010 and January 2011. Id. at 16 (AR012243). FDEP again said it 

anticipated that ERC activities could be completed in 12 months, barring major 

dissent. Id. at 6 (AR012233). But FDEP also reiterated that it had limited control 

over ERC’s schedule, making it difficult for FDEP to establish a firm completion 

date. Id. 

 On September 28, 2007, EPA responded to FDEP’s 2007 revised plan, 

concluding once more than the plan described a “reasonable process.” Letter from 

James D. Giattina, Dir., Water Mgmt. Div., U.S. Envtl. Prot. Agency, to Jerry 

Brooks, Dir., Div. of Envtl. Assessment & Restoration, Fla. Dep’t of Envtl. Prot. 1 

(Sept. 28, 2007) (AR000817). EPA also said—again—that a failure to meet the 

milestones might lead EPA to make a formal determination that new or revised 

standards were necessary. Id. at 2 (AR000818). 

 On December 31, 2008, FDEP submitted to EPA yet another revised plan. 

Bureau of Assessment & Restoration Support, Div. of Envtl. Assessment & 

Restoration, Fla. Dep’t of Envtl. Prot., State of Florida Numeric Nutrient Criteria 

Development Plan (Dec. 2008) (AR128698). FDEP no longer projected that 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 17 of 86
Page 18 of 86

Case No. 4:08cv324-RH/WCS

rulemaking would start by January 2010. Instead, the 2008 plan projected that 

rulemaking would start in the period from January 2010 to January 2011. Id. at 43 

(AR128741). The 2008 plan gave no reason to believe that it would take less time 

than projected in earlier plans for FDEP to move from the start of rulemaking to a 

proposed rule; the earlier plans had projected this would take a year. And the 2008 

plan gave no reason to believe the ERC process would take less time than earlier 

projected; the earlier plans had projected that the ERC process could be completed 

in a year, barring major dissent. The 2008 plan added another qualification: the 

ERC process could be completed in a year, “barring major dissent or 

administrative challenge.” Id. at 4 (emphasis added) (AR128702). And the 2008 

plan added this open-ended qualification, missing from earlier plans: “In the event 

there is an administrative challenge to the proposed criteria, the administrative 

hearing process would likely take at least another year.” Id. If rulemaking started 

in January 2011 and it took a year to propose a rule, another year for ERC to act, 

and another year for an administrative challenge, a rule would be in place by 

January 2014—more than 15 years after EPA first said narrative criteria were not 

working, and more than 10 years after the December 2003 deadline by which EPA 

initially said it expected numeric criteria to be in place. 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 18 of 86
Page 19 of 86

Case No. 4:08cv324-RH/WCS

VIII. The 2009 Necessity Determination

 On January 14, 2009, the Administrator did what she had been saying since 

2004 she might do: she exercised her explicit statutory authority to determine that a 

new standard—a standard using numeric nutrient criteria—was necessary to meet 

the Clean Water Act’s requirements. This order sometimes refers to this as the 

“2009 determination” or simply “the determination.” The Administrator set out 

the basis for the determination in a ten-page letter. 

 The letter noted that the determination obligated the Administrator to 

promptly propose and adopt a new standard, unless Florida did so first. This was 

precisely what the Clean Water Act said. The letter set out the statutory basis for 

the determination, traced the FDEP’s substantial efforts to control nutrient 

pollution and to develop numeric criteria, and continued: 

 Water quality degradation due to nutrient over-enrichment is a 

significant environmental issue in Florida. Florida’s Department of 

Environmental Protection has acknowledged and documented the 

magnitude of over-enrichment. According to Florida’s 2008 

Integrated Report, approximately 1,000 miles of rivers and streams, 

350,000 acres of lakes, and 900 square miles of estuaries are impaired 

for nutrients in the State. 

 . . . With almost 800,000 nutrient-related data points [in an 

available database], Florida has substantially more data points than 

any other State or Territory to clearly characterize the magnitude of its 

nutrient challenges. 

 . . . . 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 19 of 86
Page 20 of 86

Case No. 4:08cv324-RH/WCS

 An analysis of United States Geological Survey (USGS) 

monitoring data for nutrients in certain locations in Florida shows that 

levels of nutrient pollution have not significantly improved since 1980 

despite strong efforts to control nutrient pollution. Concentrations of 

Total Phosphorus (TP) and Total Nitrogen (TN) have remained 

relatively constant at an average of 0.15mg/L and 1.4mg/L, 

respectively. Additionally, Florida’s recurrent harmful algal blooms 

continue to pose threats to public drinking water supplies and 

recreational sites. Harmful algal blooms that occur inland and near 

shore are typically caused by excess nutrients. 

 Nutrient pollution in Florida has a predictable and widespread 

impact. The extent of this impact has been well documented and 

tracked for many years. According to Florida’s most recent EPAapproved [list of impaired waters—a list the state must compile under 

Clean Water Act § 303(d), 33 U.S.C. § 1313(d)], of the 823 waters 

listed as impaired in Florida, over 60% (over 550 waters) are impaired 

for nutrients. 

 . . . . 

 Florida’s natural physical factors, including flat topography and 

numerous wetlands, a warm and humid climate, nutrient-rich soils, 

hydrology, and erosion caused by tropical storms and hurricanes make 

controlling nutrient pollution particularly challenging because these 

conditions are especially conducive to nutrient overenrichment. In 

addition, human caused impacts such as hydrological modifications 

(i.e., canals), intensive agricultural production, population growth and 

associated urban and suburban development have had a broad and 

widespread effect. Effectively addressing current nutrient impairments 

in the State represents a significant challenge and is compounded by a 

projected population growth of almost 80 percent in Florida from 

2000 to 2030. Further development and urbanization will likely result 

in increased nutrient runoff and pressure to utilize remaining 

agricultural lands more intensively. 

 Within the continental United States, Florida possesses unique 

and nationally valued aquatic ecosystems, including shallow coral 

reefs, freshwater and salt marshes, swamps, and mangroves. These 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 20 of 86
Page 21 of 86

Case No. 4:08cv324-RH/WCS

aquatic ecosystems are particularly sensitive to the effects of 

excessive nutrients which threaten the State’s significant biological 

diversity. The number of species in Florida (3,500 native vascular 

plants and 1,500 vertebrates) is higher than in all but three other 

states. Further, Florida also has many endemic species (410 

invertebrates, 258 plants and vertebrates) that are not found anywhere 

else on Earth. Florida has many water-filled caves and sinkholes that 

serve as hotspots of biological diversity and provide homes to many 

species of aquatic life, some unique to particular Florida locations. 

Additionally, Florida is the only state in the continental United States 

to have extensive shallow coral reef formations near its coasts (i.e. 

within five miles). A recent study initiated by the United Nations 

Food and Agriculture Organization found that the single richest 

concentration of marine life in the Atlantic Ocean lies some 10 miles 

off the tip of Southern Florida within the Florida Straits. This 

biological diversity relies on sufficient quality habitat and other 

natural resources, including clear, transparent waters low in phosphate 

and nitrogen nutrients. Especially in the case of coral reefs and flora 

and fauna in natural spring environments, clear water with plenty of 

light and oxygen available is critical to the protection of the species 

that inhabit these locations. Nutrient enriched water can have reduced 

transparency and low dissolved oxygen levels that are not protective 

of the natural biology in Florida. Effectively managing nutrient levels 

in Florida’s lakes, flowing waters, estuaries and coastal waters 

through numeric nutrient criteria is important to maintaining the 

ecosystems in these waters and important ecosystems that are near 

shore. 

 The combined impacts of urban and agricultural activities along 

with Florida’s physical features and important and unique aquatic 

ecosystems make it clear that the current use of the narrative nutrient 

criterion alone is insufficient to ensure protection of applicable 

designated uses. Numeric nutrient criteria will strengthen the 

foundation for identifying impaired waters, preparing TMDLs and 

developing NPDES permits, as well as support the State’s ability to 

effectively partner to with point and nonpoint sources to control 

nutrients, thus providing the necessary protection for the State’s 

designated uses. 

 . . . . 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 21 of 86
Page 22 of 86

Case No. 4:08cv324-RH/WCS

 Nutrient pollution in Florida remains a significant and growing 

challenge. Recognizing this, Florida has invested tens of millions of 

dollars in the collection of data to establish the cause and effect 

relationship between nutrients and biological conditions in order to be 

well positioned to establish what the State, itself, believes are much 

needed numeric nutrient water quality criteria. As discussed above, 

despite Florida’s considerable data collection and analysis efforts and 

outreach with stakeholders to date, the State is relying on its narrative 

nutrient criterion, the application of which is resource intensive, time 

consuming, and less than effective in implementing programs to 

protect water quality and prevent impairments of designated uses due 

to nutrient overenrichment. The very substantial and widespread 

nature of nutrient challenges faced by the State and the barriers to 

effective implementation associated with narrative nutrient criteria in 

Florida, such as the need for numerous, highly technical site-specific 

analyses prior to the development of water quality-based effluent 

limitations in NPDES permits and TMDLs, strongly support the need 

in this case for numeric nutrient criteria to effectively protect 

designated uses and prevent impairments. In many circumstances, 

narrative criteria can be an effective tool for protecting designated 

uses, particularly when the scope and nature of the environmental 

problem is easily and clearly defined and derivation of appropriate 

control measures can be effectively and expeditiously accomplished 

(e.g., toxic pollutants and bioassessments). However, achieving faster 

and more effective progress in water quality protection with regard to 

nutrients is critical in Florida due to the significant and far-reaching 

impacts of nutrient pollution on the unique and highly valued aquatic 

ecosystems that exist in the State. In this case, numeric nutrient 

criteria are needed to protect Florida’s designated uses. 

Letter from Benjamin H. Grumbles, Assistant Adm’r, U.S. Envtl. Prot. Agency, to 

Michael Sole, Sec’y, Fla. Dep’t of Envtl. Prot. (“2009 Determination Letter”) 6-8 

(Jan. 14, 2009) (footnotes omitted) (AR010962-64). 

 The letter included numerous citations to sources supporting its factual 

statements. The letter included a single error: after accurately setting out the large 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 22 of 86
Page 23 of 86

Case No. 4:08cv324-RH/WCS

quantity of Florida waters that were impaired by nutrients, the letter gave 

percentages that were incorrect or at least incorrectly described. There is no reason 

to believe that the error affected the analysis or that the letter’s factual statements 

and analysis were incorrect in any other respect. 

IX. The Rule Establishing Numeric Criteria

 On January 14, 2010, the Administrator signed a notice of proposed 

rulemaking for numeric nutrient criteria for Florida’s lakes and flowing waters—

waters that this order refers to as lakes, springs, and streams. The notice was 

published in the Federal Register on January 26, 2010. Water Quality Standards 

for the State of Florida’s Lakes and Flowing Waters, 75 Fed. Reg. 4,174 (proposed 

Jan. 26, 2010) (AR029960). On August 3, 2010, the Administrator published a 

supplemental notice and request for comment. The Administrator received some 

22,000 comments and conducted 13 public meetings. See ECF No. 188. 

 On November 14, 2010, the Administrator signed the final rule. It was 

published in the Federal Register on December 6, 2010. See Water Quality 

Standards for the State of Florida’s Lakes and Flowing Waters, 75 Fed. Reg. 

75,762 (Dec. 6, 2010) (AR086766). The rule is scheduled to take effect on March 

6, 2012, but the Administrator has said she may seek to delay the effective date 

until June. The rule applies to lakes and flowing waters statewide, with regional 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 23 of 86
Page 24 of 86

Case No. 4:08cv324-RH/WCS

differences for flowing waters, but the rule does not apply to flowing waters in the 

area designated as the South Florida region. 

X. The Litigation

A. The Demand for a Determination

 In July 2008, before the Administrator made the 2009 determination, five 

environmental organizations—collectively referred to in this order as the Florida 

Wildlife parties—filed the first of these cases, Case No. 4:08cv324.3 They named 

as defendants EPA and its Administrator.4

 Over time, 13 entities—the Florida 

Department of Agriculture and Consumer Services,5

 the South Florida Water 

Management District, and 11 trade associations—intervened as additional 

defendants.6

 3

 The five organizations are The Florida Wildlife Federation, Inc.; Sierra 

Club, Inc.; Conservancy of Southwest Florida, Inc.; Environmental Confederation 

of Southwest Florida, Inc.; and St. Johns Riverkeeper, Inc. 

4

 For convenience, this order usually refers only to the Administrator, 

without noting each time that EPA itself is also a defendant. 

 

5

 As set out below, the head of the Department of Agriculture and Consumer 

Services—the Commissioner of Agriculture—later filed a separate lawsuit. For 

convenience, this order usually refers only to the Commissioner, without noting 

each time that the Department is also a party. 

6

 The trade associations are 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, Inc.; Florida 

Cattleman’s Association; Florida Engineering Society; the Florida Water 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 24 of 86
Page 25 of 86

Case No. 4:08cv324-RH/WCS

 The Florida Wildlife parties sought relief under the Clean Water Act’s 

citizen-suit provision. It allows a citizen to sue the Administrator to compel her to 

perform a duty that the Act makes nondiscretionary. 33 U.S.C. § 1365(a)(2). The 

Florida Wildlife parties asserted that the 1998 Clean Water Action Plan, or the 

1998 National Strategy report, constituted a “determination” that Florida’s 

narrative nutrient standard was inadequate and a new standard was necessary, thus 

imposing on the Administrator the nondiscretionary duty to “promptly” publish 

proposed new standards, and the further nondiscretionary duty to adopt new 

standards within 90 days after the publication. See 33 U.S.C. § 1313(c)(4). The 

Administrator and intervenors denied that the 1998 documents constituted a 

“determination.” 

B. The Consent Decree

 The 2009 determination did not render moot the Florida Wildlife parties’ 

claim based on the 1998 documents, because the publication of new standards 

could have been sufficiently prompt after the 2009 determination but not 

sufficiently prompt after a 1998 determination. The claim that the Administrator 

made a determination in 1998 thus could have entitled the Florida Wildlife parties 

to relief they could not have obtained based only on the 2009 determination. 

 

Environment Association Utility Council, Inc.; and the Florida Minerals and 

Chemistry Council, Inc.

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 25 of 86
Page 26 of 86

Case No. 4:08cv324-RH/WCS

 Even so, the 2009 determination rendered the 1998 issue less important. 

The Florida Wildlife parties filed an amended complaint—denominated the “third 

amended supplemental complaint” because there had been two earlier amendments 

on other grounds—that added a claim for relief based on the 2009 determination. 

The Administrator did not deny—and could not plausibly have denied—her 

nondiscretionary duty to promptly publish revised or new standards based on the 

2009 determination; that was the whole point of the determination. But at least 

some of the intervenors did deny the duty; they asserted that the 2009 

determination was invalid. 

On August 25, 2009, the Florida Wildlife parties and the Administrator 

moved for entry of a consent decree. The proposed decree required the 

Administrator to sign for publication—by January 14, 2010, one year after the 

2009 determination—a proposed rule setting numeric nutrient criteria for Florida 

lakes and flowing waters. The proposed decree required the Administrator to 

adopt such a rule by October 15, 2010. These requirements would not apply, 

however, if by the same deadlines the state proposed its own numeric criteria and 

the Administrator approved them. The proposed decree imposed analogous 

deadlines one year later—on January 14, 2011, and October 15, 2011—for 

publication and adoption of numeric nutrient criteria for coastal and estuarine 

waters. The proposed decree allowed an extension of a deadline by agreement 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 26 of 86
Page 27 of 86

Case No. 4:08cv324-RH/WCS

between the Florida Wildlife parties and the Administrator, with notice to the 

court. The decree allowed an extension on the Administrator’s motion, without the 

Florida Wildlife parties’ consent, in the court’s discretion. 

 All parties—including the intervening defendants—were allowed to file 

briefs, declarations, and other written evidence addressing the motion for entry of 

the consent decree. Three additional entities filed amicus briefs.7

 The parties 

presented extensive oral argument. The parties were fully heard. 

 On December 30, 2009, I entered the proposed consent decree. A separate 

order explained at some length that the decree met the standards governing consent 

decrees. And the order continued: 

 One final point deserves mention. The consent decree obligates 

the Administrator to do nothing more than she could voluntarily 

choose to do anyway. The Administrator has already determined that 

the Florida narrative standard fails to meet the Clean Water Act’s 

requirements. She could publish a revised or new standard for lakes 

and flowing waters by January 14, 2010, and for coastal or estuarine 

waters by January 14, 2011—and could do so earlier if she chose. 

She could adopt a revised or new standard as soon after publication as 

the administrative process would allow—and thus by October 15, 

2010, or October 15, 2011. Any revised or new standard would have 

to comply with the governing procedural and substantive law and 

would be subject to judicial review—but the same is true under the 

consent decree. The intervenors challenge the underlying 

determination that Florida’s narrative standard is inadequate, but with 

or without the consent decree, that determination will be equally 

subject to challenge—based on the same standard of review and with 

an equal level of deference to the Administrator—on judicial review 

 7

 These were the Northwest Florida, Southwest Florida, and Suwannee River 

Water Management Districts. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 27 of 86
Page 28 of 86

Case No. 4:08cv324-RH/WCS

of any revised or new standard. The consent decree has compromised 

the intervenors’ rights not at all. 

Order Approving Consent Decree, ECF No. 152 at 14-15. 

 The Administrator has complied with the consent decree. She signed the 

notice of proposed rulemaking for lakes and flowing waters on January 14, 2010, 

as scheduled. Citing the large number of comments, the Administrator moved to 

extend by 30 days the deadline for adopting a rule. I granted the motion, extending 

the deadline to November 14, 2010. See ECF No. 192. The Administrator signed 

the rule that day.8

C. The Appeal of the Consent Decree

 Two of the intervenors—the Florida Water Environment Association Utility 

Council, Inc., and the South Florida Water Management District—appealed the 

consent decree. In an opinion issued on August 2, 2011, the Eleventh Circuit 

dismissed the appeal for lack of standing, essentially agreeing with my ruling that 

the 2009 determination—not the consent decree—was the source of any harm 

 8

 On June 7, 2010, the Administrator and the Florida Wildlife parties filed a 

notice that they had agreed to extend the deadlines for the Administrator to adopt 

numeric nutrient criteria for South Florida flowing waters, essentially putting those 

waters on the same schedule as coastal and estuarine waters. ECF No. 184. The 

notice also delayed the coastal and estuarine deadlines, now requiring the 

Administrator to propose a rule by November 14, 2011, and to adopt a rule by 

August 15, 2012. Work on a rule for South Florida flowing waters and for coastal 

and estuarine waters is going forward, but a rule has not been adopted and is not 

now at issue in these consolidated cases. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 28 of 86
Page 29 of 86

Case No. 4:08cv324-RH/WCS

alleged by the appellants. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 

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

 The Eleventh Circuit did not address the validity of the 2009 determination, 

because the only order that was on appeal—the consent decree—did not address 

the determination’s validity. Indeed, until today, no ruling has been made—in this 

court or any other—on the validity of the 2009 determination. 

D. Challenges to the Determination and Rule

 Now pending in 13 separately filed but now-consolidated cases are 

challenges to the 2009 determination and to the rule adopting numeric criteria. 

The cases include the original action, in which these issues are pending on a 

crossclaim, two actions that were filed after the determination but before adoption 

of the rule, and 10 cases filed after adoption of the rule.9

 

 A total of 25 parties assert in 11 of the cases that the determination is invalid 

and that even if valid the rule goes too far. These parties include the State of 

 9

 Seven cases were originally filed in this court’s Pensacola division and, in 

accord with this court’s standard practice for handling related cases, were 

transferred to the Tallahassee division for coordinated proceedings. Without 

objection, all 13 cases have been consolidated for pretrial purposes. A broader 

consolidation order was entered for six cases in Pensacola before the transfer. 

Because of that, the clerk opened only one Tallahassee case corresponding with 

those six Pensacola cases. Thus there are eight Tallahassee case numbers for the 

total of 13 cases that were originally filed. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 29 of 86
Page 30 of 86

Case No. 4:08cv324-RH/WCS

Florida,10 the Florida Commissioner of Agriculture, the South Florida Water 

Management District, and 22 others.11 This order refers to the 25 parties 

collectively—though somewhat imprecisely—as the “state and industry parties.”12 

 The state and industry parties assert that the 2009 determination is arbitrary 

or capricious and thus should be set aside under the Administrative Procedures 

Act. Two of these parties—referred to in this order as the “Power and Utility 

 10 The state’s chief legal officer—the Attorney General—filed one of the 

cases in the name of the “State of Florida.” She did not explicitly assert a claim in 

FDEP’s name. The Agriculture Commissioner, through his own counsel, also is a 

plaintiff in that case. It makes no difference to the outcome whether the Attorney 

General intended the plaintiff “State of Florida” to mean, to include, or to omit 

FDEP. Nor does it make a difference to the outcome whether the State of Florida, 

separate from FDEP, has standing to assert a claim. No party has challenged the 

State’s standing in its own name, nor has any party challenged the Commissioner’s 

standing. I conclude that at least one plaintiff in that case has standing. 

11 The 22 are Florida Electric Power Coordinating Group, Inc.; Florida 

Water Environment Association Utility Council; Mosaic Company; CF Industries, 

Inc.; Destin Water Users, Inc.; South Walton Utility Co., Inc.; Emerald Coast 

Utilities Authority; Okaloosa County Board of County Commissioners; the City of 

Panama City; Fertilizer Institute; White Springs Agricultural Chemicals, Inc.; 

American Farm Bureau Federation; Florida Farm Bureau Federation; Florida 

Fertilizer and Agrichemical Association; Agricultural Retailers Association; 

Florida League of Cities, Inc.; Florida Stormwater Association, Inc.; Florida Pulp 

and Paper Association Environmental Affairs, Inc.; Southeast Milk, Inc.; Florida 

Fruit and Vegetable Association, Inc.; Florida Cattlemen’s Association; and 

National Cattlemen’s Beef Association. 

12 The National Association of Clean Water Agencies is not a party but filed 

an amicus brief in support of the state and industry parties. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 30 of 86
Page 31 of 86

Case No. 4:08cv324-RH/WCS

Associations”13—also challenge the determination under the Clean Water Act’s 

citizen-suit provision and on constitutional grounds. The citizen’s suit asserts that 

the Administrator made the determination only to settle the original lawsuit rather 

than on the merits. In response to the Administrator’s contention that the citizen’s 

suit cannot proceed because these issues are discretionary with the Administrator, 

the Power and Utility Associations assert that Congress’s delegation of that 

discretion is unconstitutional. The Power and Utility Associations also assert that 

treating Florida and its residents differently from other states and their residents 

violates the equal-protection component of the Fifth Amendment. Five parties—

imprecisely referred to in this order as the “Destin group” 14—assert that the 

Administrator violated the Regulatory Flexibility Act.

 A total of seven parties—all environmental organizations—assert in two of 

the cases that the rule is valid but does not go far enough and thus, to that extent, is 

arbitrary or capricious. These seven parties are the five original plaintiffs, who 

have filed a new action and are referred to in this order as the Florida Wildlife 

parties, and two plaintiffs in another new action, collectively referred to in this 

 13 The two parties are the Florida Electric Power Coordinating Group, Inc., 

and Florida Water Environment Association Utility Council. 

14 The five are Destin Water Users, Inc.; South Walton Utility Co., Inc.; the 

City of Panama City; Florida League of Cities, Inc.; and Florida Stormwater 

Association, Inc. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 31 of 86
Page 32 of 86

Case No. 4:08cv324-RH/WCS

order as the “Gulf Restoration parties.”15 This order refers to these seven parties 

collectively as the “environmental parties.” 

 The parties have filed cross-motions for summary judgment that collectively 

address all the claims in all the cases. In addition, the Administrator has moved for 

judgment on the pleadings on the citizen’s-suit claim and constitutional claims. 

The parties have filed multiple briefs and have presented extensive oral argument. 

The case is ready for a decision. 

XI. The Issues

 The state and industry parties first challenge the determination that a revised 

or new standard is necessary to meet the requirements of the Clean Water Act. 

Success on that claim would invalidate the entire rule; the Administrator cannot 

promulgate a criterion for a state unless a revised or new standard is necessary. 

Further, the state and industry parties say that even if the determination is valid, the 

lake and stream criteria and the default DPVs are not. One of the assertions is that 

the Administrator aimed at the wrong target—that a criterion must be tied to a 

designated use, but the Administrator adopted criteria without establishing a 

connection between the criteria and a designated use. A related assertion is that the 

Administrator’s criteria are not supported by sound science. The state and industry 

 15 These parties are Gulf Restoration Network and Natural Resources 

Defense Council. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 32 of 86
Page 33 of 86

Case No. 4:08cv324-RH/WCS

parties do not separately challenge the spring criterion or the provisions on sitespecific alternative criteria. 

 The environmental parties support the determination that a revised or new 

standard is necessary. They assert the new criteria are uniformly better than the 

preexisting narrative criterion and should go into effect as scheduled. But they say 

there are substantive and procedural flaws in the lake and stream criteria and 

substantive flaws in the spring criterion. And they challenge the SSAC provisions. 

The environmental parties say the Administrator should be required to correct the 

errors. The environmental parties do not separately challenge the DPVs. 

 Finally, some of the state and industry parties say the rule is unconstitutional 

or that the Administrator violated the Regulatory Flexibility Act. 

XII. The Standard of Review

 Under the Administrative Procedures Act, a court must set aside agency 

action of this kind if it is “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A). As noted above, this order 

uses “arbitrary or capricious” as a shorthand reference to the entire standard. The 

applicability of the standard to the APA challenges in this case is not subject to 

doubt. Indeed, at least one binding circuit decision applied the standard to the 

Administrator’s disapproval of a state water-quality criterion and the 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 33 of 86
Page 34 of 86

Case No. 4:08cv324-RH/WCS

Administrator’s adoption of a replacement criterion. See Miss. Comm’n on 

Natural Res., 625 F.2d at 1274-75. 

 The Eleventh Circuit has called this standard “exceedingly deferential.” 

Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). The court has 

explained: 

To determine whether an agency decision was arbitrary and 

capricious, the reviewing court “must consider whether the decision 

was based on a consideration of the relevant factors and whether there 

has been a clear error of judgment.” This inquiry must be “searching 

and careful,” but “the ultimate standard of review is a narrow one.” 

Along the standard of review continuum, the arbitrary and capricious 

standard gives [a reviewing] court the least latitude in finding grounds 

for reversal; “[a]dministrative decisions should be set aside in this 

context . . . only for substantial procedural or substantive reasons as 

mandated by statute, . . . not simply because the court is unhappy with 

the result reached.” The agency must use its best judgment in 

balancing the substantive issues. The reviewing court is not authorized 

to substitute its judgment for that of the agency concerning the 

wisdom or prudence of the proposed action. 

Id. at 541-42 (emphasis, omissions, and second brackets by the Eleventh Circuit) 

(quoting N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538-40 (11th Cir. 

1990) and citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989)). 

 More recently, the Eleventh Circuit explained it this way: 

We “may not set aside an agency rule that is rational, based on 

consideration of the relevant factors, and within the scope of the 

authority delegated to the agency by the statute.” Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 

103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Under this “narrow” 

form of review, we may find a rule arbitrary and capricious where 

“the agency has relied on factors which Congress has not intended it 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 34 of 86
Page 35 of 86

Case No. 4:08cv324-RH/WCS

to consider, entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to 

the evidence before the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product of agency 

expertise.” Id. at 43, 103 S.Ct. at 2867. The reviewing court may not 

make up for these deficiencies, which is to say that “we may not 

supply a reasoned basis for the agency’s action that the agency itself 

has not given.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 

419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). 

Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 

2007). 

 The deferential nature of the review is especially important on some of the 

issues in this case. When an issue calls for scientific judgment, “a reviewing court 

must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural 

Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). “When specialists express 

conflicting views, an agency must have discretion to rely on the reasonable 

opinions of its own qualified experts even if, as an original matter, the court might 

find contrary views more persuasive.” Marsh, 490 U.S. at 378. 

 In short, my obligation is to make a searching and careful review of the 

Administrator’s action but to be “exceedingly deferential,” especially on matters 

calling for scientific judgment. 

 The same level of deference is not appropriate on the constitutional and 

Regulatory Flexibility Act claims. On those, the familiar summary-judgment 

standard applies: when the record is viewed in the light most favorable to the state 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 35 of 86
Page 36 of 86

Case No. 4:08cv324-RH/WCS

and industry parties asserting the claims, is the Administrator entitled to judgment 

as a matter of law? 

XIII. The Merits

A. The Necessity Determination

 The Clean Water Act gives a state the primary role in setting its waterquality standards. But the Act gives the Administrator a role as well. The state 

must submit its standards to the Administrator for approval. And the 

Administrator’s approval of a state standard does not end the Administrator’s 

involvement. Under § 303(c)(4) of the Act, the Administrator must “promptly” 

propose and adopt “a revised or new” standard “in any case where the 

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

requirements of” the Act. 33 U.S.C. § 1313(c)(4). 

 The question for the Administrator thus was whether a revised or new 

standard—specifically a numeric nutrient standard—was necessary to meet the 

Act’s requirements, or whether, instead, the existing narrative criterion was 

adequate. The Act’s “requirements” include water-quality criteria that are “such as 

to protect the public health or welfare, enhance the quality of water and serve the 

purposes of [the Act].” Id. § 1313(c)(2)(A). The Administrator has explained that 

to “serve the purposes of the Act,” 

water quality standards should, wherever attainable, provide water 

quality for the protection and propagation of fish, shellfish and 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 36 of 86
Page 37 of 86

Case No. 4:08cv324-RH/WCS

wildlife and for recreation in and on the water and take into 

consideration their use and value [for] public water supplies, 

propagation of fish, shellfish and wildlife, recreation in and on the 

water, and agricultural, industrial, and other purposes including 

navigation. 

40 C.F.R. § 131.2. 

 The Administrator concluded that the narrative criterion was not getting the 

job done. The evidence supporting the conclusion was substantial, indeed 

overwhelming. A significant portion of the state’s waters was impaired by nutrient 

pollution. The situation had persisted for many years. That, without more, would 

support the conclusion that something needed to be done. And the Administrator 

noted that the projected increase in Florida’s population was likely to compound 

the problem still further. 

 The Clean Water Act allows the Administrator to conclude that when this 

level of pollution has endured, a new water-quality criterion is needed. That is 

what the Administrator concluded. The question for the court is not whether the 

Administrator’s conclusion was correct, but only whether the conclusion was 

arbitrary or capricious. It was not. 

 The contrary contention of the State of Florida and its Commissioner of 

Agriculture is especially curious. The state agency with primary responsibility in 

this field, FDEP, concluded long ago that the narrative nutrient criterion was 

inadequate and that numeric nutrient criteria were needed. See, e.g., Letter from 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 37 of 86
Page 38 of 86

Case No. 4:08cv324-RH/WCS

Jerry Brooks, Deputy Dir., Div. of Water Res. Mgmt., Fla. Dep’t of Envtl. Prot., to 

James D. Giattina, Dir., Water Mgmt. Div., U.S. Envtl. Prot. Agency (Dec. 30, 

2003) (AR000767) (“FDEP is committed to a timely establishment of numeric 

nutrient criteria” and believes they “will lead to further protection of water quality 

for Florida.”) At least as shown by this record, in the years from 2003 to 2009 and 

indeed right up to today, FDEP never wavered from that position. FDEP spent 

millions of dollars studying not whether numeric criteria were needed, but what the 

numeric criteria should be. FDEP’s work produced not a hint that the narrative 

criterion was working and should be retained. 

 The analysis to this point should end the matter. But the determination’s 

opponents mount additional attacks that deal not with whether numeric criteria 

were and are needed—the only question under the Clean Water Act—but instead 

with other issues. Six of their contentions deserve mention. 

 First, the opponents say the Administrator made the determination in just 

two or three weeks and that this was not long enough to consider the issue fully. It 

is true that an EPA Assistant Administrator formally asked the Administrator to 

delegate the authority to make a determination on December 22, 2008; the 

Administrator made the delegation on December 29, 2008; and the determination 

was made on January 14, 2009. But the suggestion that the Administrator first 

began work on this in December 2008 could not be further from the truth. The 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 38 of 86
Page 39 of 86

Case No. 4:08cv324-RH/WCS

Administrator issued formal reports in 1998 addressing the need for numeric 

nutrient criteria and directing states to have them in place by the end of 2003. EPA 

and FDEP worked on numeric nutrient criteria unabated from at least as early as 

2001. EPA said repeatedly that it would make a formal § 303(c)(4) determination 

if it became appropriate. In short, the 2009 determination was many years in the 

making—long enough by any measure. 

 Second, the opponents say the Administrator did not need to act because 

FDEP was itself working toward numeric nutrient criteria. I assume that the 

Administrator had discretion under the statute to consider the state’s progress as a 

factor in the decision whether to make a determination.16 The Administrator 

plainly considered the state’s efforts, noting in the determination letter the work 

FDEP had done. But FDEP had been working on numeric criteria since 2001 and 

 16 This may not be completely clear. By its terms, the Clean Water Act calls 

for the Administrator to determine only whether a revised or new standard is 

“necessary” to meet the requirements of the Act, not whether it is “necessary” for 

the Administrator, rather than the state, to adopt the new standard. If a new 

standard is “necessary” to restore or maintain water quality, the Act does not call 

on the Administrator to decide who should adopt it. Instead, the Act makes that 

decision: the Administrator must adopt the new standard, unless the state does so 

first. When the Administrator determined that the narrative nutrient criterion was 

inadequate, the Administrator followed the statute to the letter, proceeding to 

propose and adopt new criteria, but saying all along that the Administrator’s 

criteria would yield if the state adopted its own criteria and, as required by the Act, 

the Administrator approved them. Still, I assume that in deciding whether to make 

a “determination” at all, the Administrator may properly take into account the 

likelihood that a state will correct the problem itself. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 39 of 86
Page 40 of 86

Case No. 4:08cv324-RH/WCS

had repeatedly moved back the schedule. FDEP originally said it would begin 

rulemaking in October 2004. In the plan submitted on December 31, 2008, FDEP 

said rulemaking would begin by January 2011. There was no end in sight. Had 

the question been who should act to address the necessity, a rational conclusion 

would have been that the Administrator needed to step up.17 

 The opponents’ third contention that warrants discussion is that the 

Administrator changed positions without an adequate explanation. The first 

answer is that the Administrator did not change positions at all. The view that 

numeric nutrient criteria should be adopted dated to 1998. The Administrator had 

been saying since at least as early as July 2004 that if the state did not act, the 

Administrator would make a § 303(c)(4)(B) determination. When the 

Administrator finally did what she had long said she would do, it was not a change 

of position. Moreover, the Administrator was free to adopt a new position if she 

chose, so long as she explained the decision and it was not arbitrary or capricious. 

See FCC v. Fox, 556 U.S. 502 (2009) (holding that an agency action that is a 

change of position is subject to review under the same arbitrary-or-capricious 

 17 More recent events fully support—and certainly do not undermine—this 

conclusion. FDEP missed even the milestones in its 2008 plan. And other state 

agencies—as shown by their position in this litigation—have dug in with vigor to 

oppose even the rather obvious proposition that the narrative criterion was falling 

short. Had the Administrator not acted, there are good grounds to doubt that FDEP 

would have been able to accomplish what FDEP has long said needs to be done. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 40 of 86
Page 41 of 86

Case No. 4:08cv324-RH/WCS

standard as an original action). The Administrator explained her decision at some 

length in the determination letter. And finally, the assertion that a change of 

position somehow undermines a § 303(c)(4)(B) determination is flatly at odds with 

the statute. A § 303(c)(4)(B) determination that a revised or new standard is 

necessary is by definition a change from the Administrator’s original decision to 

approve the standard that is being superseded. As a binding circuit decision noted, 

“[i]f EPA were bound by its prior approvals, this power [to make a § 303(c)(4)(B) 

determination] would be meaningless.” Miss. Comm’n on Natural Res., 625 F.2d 

at 1277. 

 The opponents’ fourth contention is that the Administrator acted from a bad 

motive, seeking not to apply the Clean Water Act on the merits but instead only to 

settle the original lawsuit. The contention fails on the law and on the facts. The 

contention fails on the law because a reviewing court’s mission is not to divine an 

agency’s “true purpose” but instead to decide whether, in light of the 

administrative record and the agency’s explanation, the agency’s action was 

arbitrary or capricious. The contention fails on the facts because the record is 

devoid of any indication that the Administrator’s true purpose was anything other 

than to apply the Clean Water Act on the merits. The Administrator had been 

asserting for more than 10 years that numeric nutrient criteria were needed. If my 

role were to divine the Administrator’s true purpose—it is not—my conclusion 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 41 of 86
Page 42 of 86

Case No. 4:08cv324-RH/WCS

would be that the Administrator’s purpose was to apply the Clean Water Act on the 

merits based on the agency’s long and sincerely held belief that numeric nutrient 

criteria were necessary to restore and maintain Florida’s waters.18 

 The opponents’ fifth contention is that the Administrator improperly singled 

Florida out from all the other states. This contention too fails on the law and on 

the facts. The law is that in deciding to take on a major and complicated task—the 

establishment of numeric nutrient criteria—the Administrator was not obligated to 

address the problem in every state or none. The Administrator was free instead to 

take on the problem a little at a time, so long as her action was not arbitrary or 

capricious. Cf. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993) (noting 

 18 If anything, the opponents’ assertion that the Administrator was just trying 

to end the litigation and fend off a precedent that might require numeric nutrient 

criteria in other states as well as in Florida seems to have it backwards. First, the 

risk of such a ruling was not high, and the 2009 determination did not end the risk. 

A person could have filed a new lawsuit in another state at any time—and still 

could—asserting that the 1998 documents were a determination. This would 

present again precisely the same risk of an adverse precedent as existed in this case 

before the 2009 determination. Indeed, if the 2009 determination affected the risk 

of litigation in another state at all, it almost surely increased the risk; a prospective 

plaintiff would surely view the 2009 determination as a successful resolution of the 

Florida case. Second, the overall thrust of the opponents’ position on the merits is 

not that the Administrator was impermissibly lax in her efforts to protect the 

environment; their assertion instead is that she was overly zealous and adopted a 

rule that goes too far. This seems inconsistent with the assertion that the 

Administrator did not really believe numeric criteria were needed at all. Third, if, 

as the opponents contend, the Administrator’s goal was to avoid litigation, issuing 

the determination was especially obtuse; it should have been obvious that the 

determination would expand, not end, the litigation, precisely as has occurred. A 

person whose goal is to avoid snakes does not walk headfirst into a swamp. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 42 of 86
Page 43 of 86

Case No. 4:08cv324-RH/WCS

that “the legislature must be allowed leeway to approach a perceived problem 

incrementally”); Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955) 

(noting that a legislature may take on a problem “one step at a time, addressing 

itself to the phase of the problem which seems most acute to the legislative mind,” 

and “may select one phase of one field and apply a remedy there, neglecting the 

others”). The contention that the Administrator improperly singled Florida out 

fails on the facts because, as the Administrator spelled out in some detail in the 

determination letter, Florida’s climate, geography, waters, and demographics make 

the nutrient-pollution issue different in Florida than in any other state. See 2009 

Determination Letter at 7 (AR010963). Florida has some 668 endemic species 

found nowhere else on Earth, has unique water-filled caves and sinkholes and an 

abundance of springs, has the only near-coast shallow coral-reef formations in the 

continental United States, and has—10 miles off its coast—the single richest 

concentration of marine life in the Atlantic Ocean. Id. The hot, sunny, and damp 

climate promotes such undesirable outcomes as algal growth, and the 

demographics, including rapid population growth, risk further nutrient pollution. 

Id. Finally, the quantity of data available in Florida for developing numeric 

nutrient criteria far exceeded that in any other state, making it reasonable for the 

Administrator to take on Florida first, even if—contrary to fact—there were no 

other reasons to do so. Id. at 6 (AR010962); see also Fla. Dep’t of Envtl. Prot., 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 43 of 86
Page 44 of 86

Case No. 4:08cv324-RH/WCS

Nutrient Samples per State in STORET (indicating that Florida has more than four 

times as many nutrient data as the next highest state) (AR128687). 

 The opponents’ sixth contention is that numeric nutrient criteria are not 

necessary because FDEP has already established a total maximum daily load 

(“TMDL”) for many water bodies. The contention misconceives the structure put 

in place by the Clean Water Act. Criteria are set in advance for all waters, 

impaired and unimpaired. One goal is to prevent a water body from becoming 

impaired in the first place. A TMDL, on the other hand, is established for an 

impaired water body after it becomes impaired. That Florida has many TMDLs is 

evidence that it has many impaired waters—and thus that it needs new criteria to 

avoid impairment in the first place. Moreover, Florida has many impaired waters 

that do not yet have TMDLs. Establishing a TMDL is a resource-intensive process 

that takes time. As the Administrator explicitly recognized in the determination 

letter, numeric nutrient criteria will make it much easier for FDEP to develop 

TMDLs for impaired water bodies. 2009 Determination Letter at 4 (AR010960). 

In short, the existence of a substantial number of TMDLs does not mean numeric 

nutrient criteria are unnecessary. 

 The 2009 determination was not arbitrary or capricious. 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 44 of 86
Page 45 of 86

Case No. 4:08cv324-RH/WCS

B. The Rule

 The Administrator published notice of her proposed rulemaking, received 

thousands of comments, responded to them, and adopted a rule. The state and 

industry parties challenge the procedure, asserting, for example, that the 

Administrator did not adequately respond to all the comments and made changes in 

the final rule without adequate notice. The challenge is insubstantial. The 

Administrator followed the rulemaking requirements without fail. The substantial 

issue is only whether the rule’s provisions as adopted survive review on the merits 

under the arbitrary-or-capricious standard. 

 The Administrator explained the rule as an effort to translate Florida’s 

existing narrative nutrient criterion into numeric criteria. Under the narrative 

criterion, “nutrient concentrations of a body of water [must not] be altered so as to 

cause an imbalance in natural populations of aquatic flora or fauna.” Fla. Admin. 

Code r. 62-302.530(47)(b). 

 Florida interprets the narrative criterion to prohibit not any change in natural 

populations of flora and fauna, but only a harmful change—an “imbalance” in the 

pejorative sense of the word. Thus, for example, in one of FDEP’s plans for 

adopting numeric nutrient criteria, FDEP said: “The State of Florida intends to 

adopt quantitative nutrient water quality standards . . . to provide a means to 

protect state waters from the adverse effects of nutrient over-enrichment.” Water 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 45 of 86
Page 46 of 86

Case No. 4:08cv324-RH/WCS

Quality Standards & Special Projects Program, Water Res. Div., Fla. Dep’t of 

Envtl. Prot., State of Florida Numeric Nutrient Criteria Development Plan 2 (Sept. 

2007) (emphasis added) (AR012229). Similarly, in addressing a permit 

application, a Florida administrative law judge said: 

[Petitioners] also contend that [the NPDES permit applicant’s] 

effluent would permanently change the hydroperiod of the wetlands 

within the effluent distribution system, but they cite no law that 

prohibits such a change. Pollutant discharges made in compliance 

with all applicable regulations usually change the receiving waters. 

The relevant permitting question, therefore, is not whether the 

receiving waters are changed, but whether the changes are permissible 

under the law. 

Lane v. Int’l Paper Co., Cases No. 08-3922, 08-3923, 2010 WL 333011, at *14 

(DOAH Jan. 27, 2010), modified in part on other grounds by, Cases No. 08-1964, 

08-2074 (DEP March 10, 2010). In another permit case, the administrative law 

judge said: 

Even though petitioner’s evidence established that, eventually, several 

tons of nutrients would enter surface waters annually, petitioner did 

not prove that algal populations would in fact change as a result, and 

did not rebut, therefore, in any material way, . . . sworn testimony that 

this tonnage would not adversely affect the receiving waters. 

Westerman v. Escambia Cnty. Utilities Auth., Case No. 89-0035, 1990 WL 

128579, at *12 (DOAH Feb. 2, 1990), modified in part on other grounds by, Case 

No. 88-1151 (DEP March 19, 1990). As these authorities show, Florida’s narrative 

nutrient criterion addresses harmful effects, not all effects. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 46 of 86
Page 47 of 86

Case No. 4:08cv324-RH/WCS

 At least when the narrative criterion is so understood, no party has 

challenged its validity or has asserted that it is inconsistent with, or exceeds the 

scope of, the Clean Water Act. By definition, numeric criteria that accurately 

translate an admittedly valid narrative criterion are themselves valid. 

 The challenges extend to the separate criteria for lakes, springs, and streams; 

to downstream-protection values or “DPVs”; and to the provisions authorizing, and 

establishing the procedures for adopting, site-specific alternative criteria. This 

order addresses the challenges in this order. 

1. Lake Criteria

 The Administrator established numeric criteria for lakes based on models 

and field studies designed to determine the point at which an increase in nutrients 

can be expected to cause harmful effects to flora and fauna. The rule sets numeric 

criteria for chlorophyll-a, total nitrogen, and total phosphorus. The state and 

industry parties assert in effect that the Administrator botched the science, 

adopting criteria that are too exacting. The environmental parties also assert that 

the Administrator botched the science, though in different respects; they say the 

Administrator adopted criteria that are not exacting enough. They also say the 

Administrator adopted criteria that are inadequate to protect recreational and 

drinking-water uses. These are all issues of scientific judgment on which, as set 

out above, the standard of review is at its “most deferential.” Having made the 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 47 of 86
Page 48 of 86

Case No. 4:08cv324-RH/WCS

required “searching and careful review,” I conclude that the Administrator’s 

decisions were based on sound science and are not arbitrary or capricious. This 

section of this order addresses the principal challenges. 

a. The Classification Scheme: Color and Alkalinity

 The rule classifies lakes according to their color and alkalinity. The 

Administrator chose these characteristics based on substantial data showing that 

they influence a lake’s response to increased nutrients. The rule establishes three 

classes: (1) colored lakes, that is, lakes with true color greater than 40 Platinum 

Cobalt Units; (2) clear lakes with high alkalinity, that is, lakes with color less than 

or equal to 40 Platinum Cobalt Units and alkalinity of more than 20 mg/L CaCO3; 

and (3) clear lakes with low alkalinity, that is, lakes with color less than or equal to 

40 Platinum Cobalt Units and alkalinity of less than or equal to 20 mg/L CaCO3. 

 The state and industry parties challenge the Administrator’s classification 

scheme, asserting that the Administrator ignored relevant characteristics beyond 

color and alkalinity. 

 The Administrator acknowledged that other characteristics—including 

temperature—may influence biological response to nutrients in lakes. See U.S. 

Envtl. Prot. Agency, Technical Support Document for U.S. EPA’s Final Rule for 

Numeric Criteria for Nitrogen/Phosphorus Pollution in Florida’s Inland Surface 

Fresh Waters (“Technical Support Document”) 68 (AR087827). But the 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 48 of 86
Page 49 of 86

Case No. 4:08cv324-RH/WCS

Administrator chose a classification scheme based on color and alkalinity. The 

decision was based in part on prior studies that classified Florida lakes based on 

these two characteristics. See id. The Administrator performed her own analyses 

and “found strong associations of TN, TP, and chl-a with color and alkalinity.” 

See id. at 81 (AR087840). The Administrator also evaluated alternative 

classification systems and presented a rational explanation for her selection of this 

one. See id. at 81-83 (AR087840-42). The decision was not arbitrary or 

capricious. 

 The state and industry parties also challenge the criteria’s applicability to 

highly colored lakes. They say total-nitrogen and total-phosphorus concentrations 

in those lakes do not matter because the lake color inhibits algal growth. And they 

note the weak relationship in highly colored lakes between chlorophyll-a and 

nutrients. See id. at 75 (AR087834) (indicating that the association between color, 

on the one hand, and nutrients or chlorophyll-a, on the other, weakens as color 

increases). The state and industry parties conclude that highly colored lakes should 

be exempt from the criteria. 

 The Administrator originally considered establishing a separate class for 

highly colored lakes, but the Administrator ultimately chose to include highly 

colored lakes in the same class with intermediately colored lakes. See id. at 83 

(AR087842). The Administrator concluded that while algal growth in colored 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 49 of 86
Page 50 of 86

Case No. 4:08cv324-RH/WCS

lakes is limited, it does occur. And the Administrator concluded that even without 

algal growth, nutrient criteria are needed to protect colored lakes’ designated uses. 

The Administrator also cited evidence that highly colored lakes have expected 

nutrient concentrations that are statistically similar to other colored lakes. See id.

at 103-04 (AR087862-63); Chapter 2 Issue Category: Proposed Numeric Nutrient 

Criteria for the State of Florida’s Lakes, Response to Public Comments (“Response 

to Public Comments - Lakes”) 2-2681 (Nov. 14, 2010) (AR092027). The decision 

to apply to highly colored lakes the same criteria that apply to other colored lakes 

was not arbitrary or capricious. 

 The state and industry parties also complain that the classification scheme 

fails to account for the naturally high phosphorous levels in West Central Region 

lakes and the naturally high chlorophyll-a levels in reclaimed mining lakes. The 

state and industry parties say these levels naturally exceed the rule’s criteria but 

that the lakes support their designated uses. And the state and industry parties note 

that the Administrator cannot properly require an alteration of natural conditions. 

See, e.g., Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 920-21 (11th Cir. 2007) (“The 

phrase ‘restore and maintain’ [in 33 U.S.C. § 1251(a)] indicates that Congress 

sought to return waterbodies to their natural conditions, not modify waterbodies’ 

natural conditions.”); see also Fla. Stat. § 403.021(11) (directing FDEP to 

“recognize that some deviations from water quality standards occur as the result of 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 50 of 86
Page 51 of 86

Case No. 4:08cv324-RH/WCS

natural background conditions” and thus directing FDEP not to “consider 

deviations from water quality standards to be violations when the discharger can 

demonstrate that the deviations would occur in the absence of any human-induced 

discharges or alterations to the water body”). 

 The Administrator considered classifying lakes by region but decided not to 

do so. The Administrator concluded that a rule with regional classifications would 

not differ significantly from the rule with classifications based on color and 

alkalinity. See Technical Support Document at 82-83 (AR087841-42). For 

example, alkalinity responds to carbonate rocks, such as limestone, associated 

“with natural elevated phosphorus levels.” Id. at 79-80 (AR087838-39). Regional 

differences thus correlate with alkalinity differences that the rule takes into 

account. See id. at 68 (AR087827). 

 Further, the Administrator found that chlorophyll-a correlates with total 

phosphorus and total nitrogen in West Central Region lakes, supporting the 

decision to apply the same criteria to West Central Region lakes as to others. U.S. 

Envtl. Prot. Agency, Technical Support Document for EPA’s Proposed Numeric 

Nutrient Criteria for FL Inland Surface Fresh Waters 1-24 to 1-25 (AR006454-55) 

(noting a positive relationship between chlorophyll-a and nitrogen and between 

chlorophyll-a and phosphorus in the Bone Valley Region—the earlier name for the 

West Central Region). The West Central Region may have a “unique geology,” 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 51 of 86
Page 52 of 86

Case No. 4:08cv324-RH/WCS

but the Administrator’s decision to apply the same criteria to its lakes was not 

arbitrary or capricious. 

 That reclaimed mining lakes may be meeting their designated uses does not 

mean that the rule must carve out for them a separate classification or an express 

exemption. The authority to adopt water-quality criteria does not depend on a 

showing that a water body or group of water bodies is not meeting the designated 

uses. Indeed, under the Clean Water Act, a state could and properly would adopt 

criteria even if all its waters were meeting their designated uses; the point is not 

just to identify existing impairment but also to measure for and thus help prevent 

future impairment. And a criterion is not rendered invalid just because an example 

can be found of a water body that exceeds the criterion but still meets its 

designated uses. If, as the state and industry parties assert, there is a reclaimed 

mining lake with natural levels in excess of the criteria, the answer is not to change 

the criteria, but to apply to the lake the settled principle that the Clean Water Act 

does not require a change from natural conditions. That can be done through sitespecific alternative criteria or through the TMDL process; it need not be done as 

part of the rule. The Administrator’s decision not to include in the rule a separate 

classification or express exemption for reclaimed mining lakes was not arbitrary or 

capricious. 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 52 of 86
Page 53 of 86

Case No. 4:08cv324-RH/WCS

b. Three Criteria, Not Just One or Two

 For each class the rule sets numeric criteria for three parameters: 

chlorophyll-a, total nitrogen, and total phosphorus. Chlorophyll-a is a response 

variable that measures algal growth and serves as an indicator of a lake’s biological 

health. In setting the chlorophyll-a criterion, the Administrator’s stated goal was to 

maintain the trophic state of the lake. A lake’s trophic state reflects its nutrient 

conditions and algal productivity. The Administrator decided that colored lakes 

and clear, high-alkalinity lakes should maintain a mesotrophic state, as these lakes 

receive natural nitrogen and phosphorus input but still support a healthy diversity 

of aquatic life. For these two classes, then, the rule sets the allowable chlorophylla concentration at 0.020 mg/L. In contrast, clear, low-alkalinity lakes do not 

receive natural nitrogen and phosphorus input from underlying geological 

formations, support less algal growth, and have lower chlorophyll-a levels than the 

other two lake classes. The rule sets the chlorophyll-a criterion for these lakes at 

0.006 mg/L. 

 The Administrator developed the criteria for total nitrogen and total 

phosphorus by examining predictive relationships between these nutrients and the 

chlorophyll-a response. The Administrator quantitatively estimated chlorophyll-a 

responses with linear regressions. The Administrator used the regressions to 

establish baseline total-nitrogen and total-phosphorus criteria at the 75th percentile 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 53 of 86
Page 54 of 86

Case No. 4:08cv324-RH/WCS

of the predicted distribution of chlorophyll-a concentrations, given a total-nitrogen 

or total-phosphorus concentration. The Administrator concluded that the resulting 

total-nitrogen or total-phosphorus criterion should maintain a lake’s chlorophyll-a 

concentration at a level supporting designated uses. 

 The state and industry parties challenge the rule’s requirement that to be 

deemed unimpaired, a lake must meet all three criteria—that a lake must meet the 

nitrogen and phosphorous criteria even if it meets the chlorophyll-a criterion. 

Chlorophyll-a measures algal growth. Excess algal growth is associated with 

degradation in aquatic life. The Administrator adopted the chlorophyll-a criterion 

as an indicator of whether a lake is supporting a balanced population of flora and 

fauna. See Technical Support Document at 85 (AR087844). The state and 

industry parties say that this is enough—that if a lake meets the chlorophyll-a 

criterion, it does not matter whether it also meets the nitrogen and phosphorous 

criteria. 

 The Administrator disagreed, explaining that while chlorophyll-a is one 

indicator of a lake’s biological health, it is not the only indicator. And chlorophylla is sometimes a lagging indicator. Gale-force winds, heavy rain, and a storm 

surge are reliable indicators of bad weather, but a prudent sailor checks the 

barometer in advance. Just so with nutrient levels: a prudent regulator checks them 

in advance of an algal bloom or spike in chlorophyll-a levels. See Response to 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 54 of 86
Page 55 of 86

Case No. 4:08cv324-RH/WCS

Public Comments – Lakes at 2-2693 (AR092039). Also, criteria are useful not just 

to identify impaired lakes but to assess how to bring them back into compliance; 

the chlorophyll-a criterion, standing alone, does not serve that purpose as reliably 

as separate criteria for nitrogen and phosphorous. See id. 

 The Administrator’s decision to adopt all three criteria and to make them 

independently applicable, so that to be deemed unimpaired a lake must meet them 

all, was not arbitrary or capricious. 

c. Modified Criteria

 In addition to the baseline criteria, the rule provides that the state may derive 

a modified total-nitrogen or total-phosphorus criterion for a lake if, in each of the 

three immediately preceding years, the lake’s properly-monitored annual 

geometric-mean chlorophyll-a concentration was less than the baseline criterion. 

The rule allows the state to do this for a given lake only once. A modified criterion 

must be the lower of ambient conditions, on the one hand, or an upper limit 

specified in the rule, on the other hand. 

 The Gulf Restoration parties challenge the provision for modified criteria, 

contending that it will allow the state to adopt new water-quality criteria without 

the Administrator’s oversight or approval, and that in any event the rule does not 

adequately spell out how the state must determine annual geometric-mean 

chlorophyll-a concentrations. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 55 of 86
Page 56 of 86

Case No. 4:08cv324-RH/WCS

 The challenge is unfounded. The rule sets out specific conditions that must 

be met before modified criteria can be adopted, and the rule sets out an objective 

basis for calculating the modified criteria. The Administrator adopted this 

approach to provide appropriate flexibility. Indeed, the availability of modified 

criteria blunts the force of some of the state and industry parties’ complaints about 

the rule. 

 The Administrator may adopt a rule with conditions—a rule that applies if a 

lake is 10 feet deep or its alkalinity is at a specified level or if a spill at a gas 

station exceeds a specified amount or, as here, if a lake meets chlorophyll-a limits 

for three successive years. And the Administrator may adopt a rule that will be 

applied based on a site-specific analysis, even without setting out every detail of 

how the site-specific analysis will be conducted. That is all the Administrator did 

here. Nothing in the Clean Water Act or Administrative Procedures Act prohibits 

the practice. 

 The modified-criteria provision survives arbitrary-or-capricious review. 

d. Duration and Frequency

 The lake criteria include duration and frequency components: a lake is 

deemed impaired only if the annual geometric mean of a parameter exceeds the 

limit in more than one year out of any consecutive three. The Gulf Restoration 

parties argue with considerable force that this does not sufficiently protect at least 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 56 of 86
Page 57 of 86

Case No. 4:08cv324-RH/WCS

one designated use—recreation—if not also the designated use of class I waters for 

drinking water. 

 The Administrator says that under her preexisting rule, criteria for a water 

body with multiple uses must be set to “support the most sensitive use.” See 40 

C.F.R. § 131.11(a). The Administrator says the most-sensitive use for a Florida 

lake is aquatic life, not recreation. But almost by definition, if a criterion is 

sufficient to protect one use (aquatic life) but not another (recreation), the latter is 

the more-sensitive use, at least for purposes of that criterion. What else could 

“more sensitive” mean? In any event, this view comports with the most natural 

reading of § 131.11(a): criteria must be set to support all uses, including the most 

sensitive. 

 The question, then, is whether the Administrator considered all uses, 

including recreation, and reasonably decided that these criteria are sufficient to 

support the uses. While the issue is not free of doubt, I resolve the question in the 

Administrator’s favor, giving substantial weight to the standard of review. 

 Three considerations support the duration and frequency provisions. First, 

the Administrator cited a lake’s ability to recover from nutrient spikes without 

lasting harm to flora or fauna and noted that harmful effects usually result from 

chronic exposure to elevated nutrient levels, not from isolated elevations. See, e.g., 

Technical Support Document at 109 (AR087868). Second, the provisions have a 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 57 of 86
Page 58 of 86

Case No. 4:08cv324-RH/WCS

practical component; the Administrator said “the 3-year evaluation period provides 

a sufficient representation of average lake characteristics in the majority of cases, 

because it balances both short-term and long-term variation, while not imposing 

undue monitoring expectations.” Response to Public Comments – Lakes at 2-2935 

(AR092281). Third, the Administrator noted that the criteria were developed from 

underlying data compiled into annual geometric means. An observed relationship 

between a nutrient’s annual mean level and a resulting harm may say little about 

whether the same nutrient level, maintained only for a shorter period, would cause 

the same harm. This of course means only that the Administrator could not use the 

unadjusted annual data to determine criteria for a shorter period; it does not mean 

the Administrator could not make appropriate adjustments or develop other data 

addressing shorter periods. 

 It is clear that the Administrator did consider recreational use, citing and 

analyzing the same study on which the Gulf Restoration parties now rely. The 

study is anything but compelling, sometimes relying on as little as a single user’s 

subjective assessment of the effect of lake conditions on recreation. See Mark V. 

Hoyer, et al., Relations Between Water Chemistry and Water Quality as Defined by 

Lake Users in Florida, 20 Lake & Reservoir Mgmt. 240, 248 (2004) (AR116592). 

The Administrator concluded that nutrient and chlorophyll-a levels that are not 

high enough for long enough to adversely affect aquatic life also are not high 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 58 of 86
Page 59 of 86

Case No. 4:08cv324-RH/WCS

enough for long enough to have a substantial adverse effect on recreation. The 

conclusion survives arbitrary-or-capricious review. 

 A word also is in order about another use. The criteria apply not only to 

class III waters but also to class I waters. A designated use of class I waters is for 

drinking water. It is by no means obvious that criteria that are sufficient to protect 

aquatic life are sufficient to protect use for drinking water. Still, the Gulf 

Restoration parties mention this issue only in passing. And the Administrator 

offers two explanations. First, she says the criteria are indeed sufficient to protect 

the use of class I waters for drinking water. Second, she notes that the state has 

adopted an additional nitrate limit for class I waters in order to protect drinkingwater uses. See Fla. Admin. Code r. 62-302.530(45). This criterion will continue 

to apply. See 75 Fed. Reg. at 75,807 (to be codified at 40 C.F.R. § 131.43(d)(1)(i))

(stating that the federal criteria will apply except when state water-quality 

standards “contain criteria that are more stringent for a particular parameter and 

use”) (AR086811). The Administrator adequately considered the protection of the 

drinking-water use of class I waters. 

 In sum, the rule’s lake criteria are based on sound science and are not 

arbitrary or capricious. 

 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 59 of 86
Page 60 of 86

Case No. 4:08cv324-RH/WCS

2. Spring Criterion

 The spring criterion addresses nitrate nitrogen (NO3) and nitrite nitrogen 

(NO2), often expressed as nitrate+nitrite. Nitrate+nitrite is the predominant form 

of nutrient pollution in springs. It stimulates the growth of excess algae, 

particularly the most common types of nuisance algae in springs, Lyngbya wollei 

and Vaucheria. In deriving the nitrate+nitrite criterion, the Administrator reviewed 

multiple lines of evidence, including stressor-response analyses from controlled 

laboratory experiments and field studies. 

a. The Nitrate+Nitrate Level

 The rule sets the nitrate+nitrite criterion at 0.35 mg/L. The Gulf Restoration 

parties say this is too high. It is higher than laboratory experiments suggested was 

necessary to prevent excess algal growth, but lower than field studies suggested. 

The Administrator said the 0.35 level balanced the uncertainty inherent in 

translating controlled laboratory conditions to the field, on the one hand, with the 

uncertainty inherent in estimating stressor-response relationships from field data, 

on the other hand. Technical Support Document at 137 (AR087896). 

 The Gulf Restoration parties disagree. They say the 0.35 level might protect 

against Vaucheria, but they point to a laboratory study indicating that the 

maximum growth rates of Lyngbya wollei—a toxic cyanobacterium—occur at 

nitrate+nitrite levels below 0.35 mg/L. See id. at 132 (AR087891). They also say 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 60 of 86
Page 61 of 86

Case No. 4:08cv324-RH/WCS

the field studies relied on by the Administrator provided no reliable data on the 

nitrate+nitrite level necessary to control Lyngbya wollei. They say the 

Administrator just split the difference between the laboratory and field-study 

results and that this does not adequately protect against Lyngbya wollei. 

 This is a classic issue for scientific judgment of the kind Congress entrusted 

to the Administrator and to which a reviewing court should defer. The evidence is 

not so one-sided as the Gulf Restoration parties suggest. The Administrator 

reasonably considered field data showing a spring’s response to nutrients outside a 

highly-controlled laboratory. The field data addressed not only Lyngbya wollei but 

22 other macroalgal taxa. See id. at 133 (AR087892). Based on all the evidence, 

the Administrator concluded that 0.23 to 0.26 mg/L was a lower boundary for a 

spring criterion, as supported by laboratory studies, and 0.45 mg/L was a higher 

boundary, as supported by field studies and change-point analyses. Id. at 137 

(AR087896). The Administrator noted the uncertainties inherent in both types of 

data and selected a criterion of 0.35 mg/L. This scientific judgment was not 

arbitrary or capricious. 

b. Duration and Frequency

 The spring criterion includes the same duration and frequency components 

as the stream and lake criteria: a spring is impaired only if the annual geometric 

mean for nitrate+nitrite exceeds the limit in more than one of any three consecutive 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 61 of 86
Page 62 of 86

Case No. 4:08cv324-RH/WCS

years. The Gulf Restoration parties mount the same challenge. The analysis set 

out above for the lake criteria applies here as well. The Administrator reviewed 

the data and concluded that intra-annual variability was not necessarily associated 

with impairment in designated uses. See 75 Fed. Reg. at 75,785 (AR086789). The 

Administrator’s scientific judgment was not arbitrary or capricious. 

3. Stream Criteria

 The Administrator started her work on streams by trying to develop criteria 

based on models and field studies. But the effort did not succeed. The observed 

correlation between nutrients and results did not produce a consistent pattern. 

The Administrator came to doubt that this approach would yield reliable criteria. 

 So the Administrator took a different approach. The Administrator divided 

the state into five regions based on geography and, for each region, identified a 

representative sample of minimally-disturbed streams for which nitrogen and 

phosphorous data were available. She calculated annual geometric means for each 

nutrient for each stream and in turn for the sample set of streams. The rule sets 

nitrogen and phosphorous criteria at the 90th percentile for four of the regions and 

at the 75th percentile for the last; the difference turns on the parameters used to 

select the sample streams. The criteria include duration and frequency 

components: a stream is impaired only if the annual geometric mean for a nutrient 

exceeds the limit in more than one of any three consecutive years. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 62 of 86
Page 63 of 86

Case No. 4:08cv324-RH/WCS

 Each side criticizes the Administrator’s implementation of this approach. 

Thus, for example, each side criticizes the Administrator’s selection of sample 

streams. The environmental parties criticize the duration and frequency 

components. These are matters of scientific judgment on which the rule would 

survive arbitrary-or-capricious review. 

 But the state and industry parties point to a more fundamental problem—one 

that turns not on scientific judgment but on the substantive law and the requirement 

for an agency to provide a reasoned explanation of its action. The state and 

industry parties say the Administrator aimed at the wrong target. 

 Identifying the actual target at which the Administrator was aiming is 

difficult. The Administrator says that here, as with the rest of the rule, the goal 

was to translate Florida’s existing narrative criterion: “nutrient concentrations of a 

body of water [must not] be altered so as to cause an imbalance in natural 

populations of aquatic flora or fauna.” Fla. Admin. Code r. 62-302.530(47)(b). 

This was an appropriate goal. In order to pursue this goal, the right target was a 

criterion that would identify a harmful increase in a nutrient level—an increase 

that, in the language of Florida’s narrative criterion, would create an “imbalance” 

in flora or fauna. This is the target the Administrator was shooting at in her initial 

approach using models and field studies. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 63 of 86
Page 64 of 86

Case No. 4:08cv324-RH/WCS

 But when she turned to the sample-set approach, the Administrator 

apparently changed the target, shooting not for a criterion that would identify a 

harmful increase in a nutrient level, but a criterion that would identify any increase 

in a nutrient level. As all parties seem to agree, any increase in nutrients causes a 

change in flora and fauna, but not every increase in nutrients causes a harmful 

change in flora and fauna. There is a substantial difference, then, between a 

criterion designed to identify a harmful increase in a nutrient level, on the one 

hand, and a criterion designed to identify any increase in a nutrient level, on the 

other hand. 

 The conclusion that the Administrator aimed at the wrong target draws 

support from three sources. First, the Administrator asserted at oral argument that 

the Florida narrative criterion applies to any change in flora and fauna and that 

Florida so interprets the criterion. That is incorrect. But if, in devising the stream 

criteria, the Administrator’s understanding was the same as asserted at oral 

argument, that is, if the Administrator set out to translate the wrong thing, she 

aimed at the wrong target. 

 Second, as discussed in more detail later in this opinion, for a stream 

entering a lake that is in compliance with the lake criteria and for which a model 

has not been constructed, the Administrator set the downstream-protection criteria 

or DPVs at ambient conditions at the point where the stream enters the lake. The 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 64 of 86
Page 65 of 86

Case No. 4:08cv324-RH/WCS

use of unadjusted ambient conditions makes clear that at least for that purpose, the 

Administrator was shooting at a target intended to identify any change in nutrient 

levels, not just a harmful change. That this was the Administrator’s target there—

the only other part of the rule not based on modeling or field studies—suggests that 

this was also the Administrator’s target for the stream criteria. 

 Third, and most important, the Administrator set the stream criteria based on 

naturally occurring ambient conditions—those that exist now, on average, in 

unimpaired streams—without building in an adjustment for increases in nutrients 

that are not harmful. Instead, a stream is deemed impaired—in four of the 

regions—if a nutrient level exceeds that of 90% of the sample set. This is the 

criterion even though the other 10% are apparently unimpaired at a higher nutrient 

level. The Administrator explained the 90% mark in terms that make sense if the 

target is a criterion that identifies any increase in nutrients and thus any change in 

flora and fauna: one can say with some confidence that a stream with a nutrient 

level that exceeds that of 90% of the sample set probably has suffered an increase 

in nutrients and a resulting change in flora and fauna. But if the target is a criterion 

that identifies a harmful increase in nutrients, there is an unexplained disconnect. 

The Administrator has not explained how the 90% mark correlates with a harmful

increase in nutrients. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 65 of 86
Page 66 of 86

Case No. 4:08cv324-RH/WCS

 It may well be that there is a sufficient correlation. An experienced 

environmental scientist might be able to conclude, as a matter of sound scientific 

judgment, that above the 90th percentile, harmful change is likely. But a 

reviewing court cannot properly make its own analysis of an issue that the agency 

did not address. Nor can a court “supply a reasoned basis for the agency’s action 

that the agency itself has not given.” Bowman Transp., Inc. v. Ark.-Best Freight 

Sys., Inc., 419 U.S. 281, 285-86 (1974). The stream criteria thus cannot be upheld 

as an appropriate means of identifying nutrient levels that will cause harmful 

effects. 

 To be sure, the Administrator was not required to aim for the same target as 

the state. Instead, the Administrator’s job was to adopt a “revised or new 

standard” meeting the Clean Water Act’s requirements. If the Administrator had 

concluded that nutrient criteria should be designed to block any change in flora or 

fauna, not just an “imbalance” as the state defines it, the conclusion would be 

subject to arbitrary-or-capricious review, but the fact that the Administrator 

disagreed with the state would not be fatal. 

 This does not, however, save the stream criteria. The Administrator did not 

purport to exercise her judgment in deciding that criteria should be designed to 

block any increase in flora and fauna. She purported instead only to defer to the 

state’s judgment—and the state never concluded that any increase in flora and 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 66 of 86
Page 67 of 86

Case No. 4:08cv324-RH/WCS

fauna is harmful or that water-quality criteria should be designed on this basis. 

And even if the Administrator in fact concluded that criteria should be designed to 

block any increase in flora and fauna, the rule still would fall, because the 

Administrator did not adequately explain the decision. If there is a basis in sound 

science for disapproving any change in flora and fauna—and thus any increase in 

nutrients—the Administrator did not cite it. 

 The Administrator’s adoption of the stream criteria, with no further 

explanation than given, was arbitrary or capricious. 

4. Downstream-Protection Values

 The rule includes provisions for downstream-protection criteria that the 

Administrator has referred to as “downstream-protection values” or “DPVs.” The 

goal was to protect a water body—in this case a lake—from nutrient pollution 

introduced through upstream waters. DPVs are limits on nutrients—total 

phosphorus and total nitrogen—at a stream’s point of entry into a lake, 

denominated the “pour point.” If a nutrient level exceeds the criterion at the pour 

point, the entire upstream watershed is deemed impaired. 

 The rule does not set the actual DPVs for a given lake. Instead, the rule 

specifies the process for setting the DPVs. The first option is to set a lake’s DPVs 

through a “scientifically defensible model” or based on an approved TMDL. If 

DPVs are not set on that basis, the “default” DPVs for a lake not in compliance 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 67 of 86
Page 68 of 86

Case No. 4:08cv324-RH/WCS

with the lake criteria—an impaired lake—are the same as the lake criteria. The 

default DPVs for a lake that is in compliance with the lake criteria—an unimpaired 

lake—are the ambient conditions at the pour point. 

a. Having DPVs At All

 The state and industry parties challenge the decision to enact DPVs at all. 

The state and industry parties say that DPVs are unprecedented, and they say 

DPVs are unnecessary because there are already criteria that govern streams; 

complying with those criteria, they say, should be enough. This order invalidates 

the stream criteria, temporarily leaving in place only the narrative criterion for 

streams. But even when numeric criteria take effect for streams, they will not 

supplant the usefulness of DPVs. 

 That DPVs are unprecedented of course does not mean they should not be 

adopted. A better mousetrap is by definition unprecedented, but it is an 

improvement nonetheless. Moreover, the concept of protecting downstream waters 

is not unprecedented. To the contrary, a preexisting rule has long required that in 

“designating uses of a water body and the appropriate criteria for those uses,” a 

state—or the Administrator in its stead—“shall ensure that its water quality 

standards provide for the attainment and maintenance of the water quality 

standards of downstream waters.” 40 C.F.R. § 131.10(b). 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 68 of 86
Page 69 of 86

Case No. 4:08cv324-RH/WCS

 Nor do DPVs conflict with stream criteria. DPVs impose an additional 

requirement, not a conflicting one. The reason for imposing the additional 

requirement makes sense: if a stream is contributing to the impairment of a lake, 

the stream is part of the problem, whether or not it is meeting the separate criteria 

applicable to a stream that is not contributing to a lake’s impairment. 

 The decision to adopt DPVs was not arbitrary or capricious. 

b. The DPV Levels

 The state and industry parties say that in establishing DPVs, the 

Administrator ignored factors other than stream inputs that contribute to a lake’s 

nutrient levels. The state and industry parties thus say that DPVs take no account 

of such things as natural conditions, direct point-source discharges into a lake, and 

runoff. And they say DPVs take no account of the relative significance of a 

stream—whether it is a large or only small contributor to the lake and indeed 

whether the stream will make any real difference at all. 

 The answer for DPVs based on modeling or TMDLs is that models and 

TMDLs do take account of relevant factors. If such a DPV fails to take account of 

relevant factors properly, the DPV will be subject to challenge, but the possibility 

that an error will be made is not a basis for disapproving the rule. 

 For default DPVs for a lake that does not comply with the lake criteria—an 

impaired lake—the answer is that a small contribution to an impairment is still a 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 69 of 86
Page 70 of 86

Case No. 4:08cv324-RH/WCS

contribution. Someone once said that a person in a hole should stop digging. It is 

good advice, and it applies as well to a lake with excessive nutrients. It makes 

sense to stop putting in more water with excessive nutrients. 

 For default DPVs for an unimpaired lake, in contrast, the challenge is well 

founded. By setting the default DPVs equal to ambient conditions at the pour 

point, the rule in effect disapproves any change in nutrients, even a change that 

will have no harmful effect. The result is that upon an increase in a nutrient level 

at the pour point, an entire stream system is deemed impaired, even if the increase 

is to a level well below the lake or stream criterion, and even if the change has no 

harmful effect on the lake’s flora or fauna. Here, as with the stream criteria, the 

Administrator shot at the wrong target, seeking to identify not just a harmful effect 

on downstream waters, but any change in nutrients at all. As with the stream 

criteria, this portion of the rule is arbitrary or capricious. 

c. Canals 

 The South Florida Water Management District challenges the 

Administrator’s decision to establish DPVs for canals entering lakes. The District 

notes, correctly, that a canal that merely transports water from one water body to 

another is not subject to effluent limitations; the canal does not increase the 

quantity of pollutants in the system as a whole. See Friends of Everglades v. S. 

Fla. Water Mgmt. Dist., 570 F.3d 1210, 1227-28 (11th Cir. 2009). 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 70 of 86
Page 71 of 86

Case No. 4:08cv324-RH/WCS

 This does not mean, though, that a canal is exempt from water-quality 

criteria. Effluent limitations and water-quality criteria are different constructs that 

serve different roles under the Clean Water Act. See, e.g., Am. Paper Inst., Inc. v. 

EPA, 996 F.2d 346, 350 (D.C. Cir. 1993) (“[W]ater quality standards by 

themselves have no effect on pollution; the rubber hits the road when the statecreated standards are used as the basis for specific effluent limitations in NPDES 

permits.”); Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 515 (2d Cir. 1976) 

(“Thus, although water quality standards and effluent limitations are related . . . the 

two are entirely different concepts and the difference is at the heart of the 1972 

Amendments.”). 

 The Administrator has recognized the difference. In Friends of Everglades, 

the Administrator’s position, like the Water Management District’s, was that 

canals are not subject to effluent limitations. The Eleventh Circuit deferred to the 

Administrator’s judgment. Here, though, the Administrator has adopted the 

equally reasonable view that canals are subject to water-quality criteria. The level 

of deference applied in Friends of Everglades supports the same result—upholding 

the Administrator’s decision. 

 It bears noting, too, that exempting a canal from the DPV provision would 

have the effect of exempting not only the canal but also any upstream water that 

flows into the canal and thus indirectly into the lake. The District has suggested no 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 71 of 86
Page 72 of 86

Case No. 4:08cv324-RH/WCS

persuasive reason why a stream that causes nutrient pollution of a lake should be 

treated differently based on whether the stream’s waters do or do not flow through 

a canal on the way to the lake. 

 In short, canals that the State of Florida has denominated as class III waters 

must meet the water-quality criteria that apply to class III waters. That is true for 

stream criteria, and it is true for DPVs. The Administrator’s decision to apply 

water-quality criteria, including DPVs, to canals that are class III waters was not 

arbitrary or capricious. 

5. Site-Specific Alternative Criteria

 The Administrator recognized that specific conditions may make it 

appropriate to raise or lower the nutrient criteria for a specific water body or set of 

water bodies. The rule thus authorizes, and establishes a specific procedure for 

adopting, site-specific alternative criteria (“SSACs”). Any person, including the 

state, may submit an SSAC application to the EPA’s Regional Administrator. The 

applicant bears the burden of demonstrating, including with appropriate supporting 

documentation, that the proposed SSAC is based on sound science and meets the 

requirements of the Clean Water Act and its implementing regulations. If the 

applicant is not the state, the applicant must give the state notice of the application, 

and the state may submit comments. After a public-comment period, the Regional 

Administrator may establish appropriate SSACs for the site. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 72 of 86
Page 73 of 86

Case No. 4:08cv324-RH/WCS

The availability of SSACs is an important component of the rule. The state 

and industry parties correctly note that the availability of SSACs would not save 

general criteria not supported by sound science. But properly implemented, 

SSACs will blunt the force of many of the other criticisms of the rule. Thus, for 

example, the state and industry parties say that FDEP did much good work to 

establish TMDLs for many sites and that the decisions made in that process should 

not be overridden by general criteria that are not as sensitive to the actual 

conditions at a site. If indeed FDEP has accurately assessed a site’s conditions and 

dealt with nutrient levels through the TMDL process, the work can be carried 

forward through the adoption of SSACs for the site. 

 Moreover, SSACs are not a one-way tool. They may raise as well as lower 

the criteria for a specific site. The SSAC provision thus may blunt the force of not 

only some of the state and industry parties’ criticisms of the rule but also some of 

the environmental parties’ criticisms. 

 Nonetheless, the environmental parties challenge the SSAC provision on the 

ground that it will allow broadly applicable changes in criteria without the 

safeguards of rulemaking. The answer is that nothing in the Clean Water Act or 

Administrative Procedures Act requires rulemaking for a decision of this kind 

affecting a specific site. Perhaps recognizing this, the environmental parties say 

that the rule would allow the adoption of an SSAC for a broad area—an entire 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 73 of 86
Page 74 of 86

Case No. 4:08cv324-RH/WCS

watershed, for example—and that a broad-enough SSAC would in effect amend 

the rule. 

 I assume without deciding that at some point an SSAC could apply to an 

area so broad that rulemaking would be required. Still, the possibility that the 

Regional Administrator will in fact adopt an SSAC that broad seems remote. It 

will be time enough to address the validity of such an SSAC when one is approved. 

Until then, the environmental parties’ challenge to such an SSAC is not ripe for 

judicial review. See, e.g., Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 

U.S. 803, 807-08 (2003); Abbott Laboratories v. Gardner, 387 U.S. 136, 149 

(1967). 

 In asserting the contrary, the environmental parties cite EPA v. National 

Crushed Stone Ass’n, 449 U.S. 64, 72 n.12 (1980). There the Court held ripe a 

challenge to a provision governing Federal Water Pollution Control Act variances, 

noting that EPA had taken a definitive position on the substantive issue before the 

Court. EPA had not yet applied the provision to a specific application for a 

variance, but it was clear that there would be applications and that the provision 

would be applied and would make a difference; the substantive issue before the 

Court was going to be presented, and soon. Under those circumstances, the 

substantive issue was ripe. Here, in contrast, the substantive issue of whether an 

SSAC is so broad that it requires rulemaking may not—indeed probably will not—

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 74 of 86
Page 75 of 86

Case No. 4:08cv324-RH/WCS

ever be presented at all. And while the Administrator has taken the definitive 

position that an SSAC can apply beyond a specific water body—a position that as 

set out above is unobjectionable—the Administrator has taken no definitive 

position on just how broad any actual SSAC should in fact be. The ripeness 

doctrine exists to prevent a court from being drawn into just such hypothetical 

issues as this. 

 The rule’s SSAC provisions are not arbitrary or capricious. 

C. The Citizen’s Suit and the Administrator’s Discretion

 The Clean Water Act authorizes “any citizen” to sue “the Administrator 

where there is alleged a failure of the Administrator to perform any act or duty 

under this chapter which is not discretionary with the Administrator.” 33 U.S.C. 

§ 1365(a)(2). The Power and Utility Associations challenge the necessity 

determination not only under the Administrative Procedures Act but also under this 

citizen’s-suit provision. 

 The claim fails because the decision whether to make a necessity 

determination is “discretionary with the Administrator.” Id. This conclusion is 

obvious from the Clean Water Act itself and is supported by the cases that address 

the issue. See, e.g., Nat’l Wildlife Fed’n v. Browner, 127 F.3d 1126, 1131 (D.C. 

Cir. 1997) (dismissing a citizen’s suit against the Administrator for lack of a 

nondiscretionary duty and noting that the Administrator’s decision whether to 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 75 of 86
Page 76 of 86

Case No. 4:08cv324-RH/WCS

adopt a revised or new standard for a state is subject to review under the APA, not 

in a citizen’s suit); Nw. Envtl. Advocates v. EPA, 268 F. Supp. 2d 1255, 1261 (D. 

Or. 2003) (characterizing as discretionary the Administrator’s authority to 

determine whether a revised or new criterion is necessary). The Power and Utility 

Associations have cited no case to the contrary, and I am aware of none. 

 This conclusion also comports with the law of the circuit. Thus, for 

example, in Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army 

Corps of Engineers, 87 F.3d 1242, 1249-50 (11th Cir. 1996), the Eleventh Circuit 

upheld the dismissal of citizen’s-suit claims challenging the Administrator’s 

discretionary decision not to overrule the Army Corps of Engineers’ issuance of a 

wetlands permit. Here, as there, the citizen’s-suit challenge to the Administrator’s 

discretionary decision cannot go forward. 

 The Power and Utility Associations assert, though, that the Administrator 

improperly exercised her discretion, making the necessity determination not on the 

merits but instead for the purpose of settling the earlier lawsuit. The Power and 

Utility Associations say the Administrator had a nondiscretionary duty to consider 

only proper factors, not improper ones. 

 This is nothing more than an abuse-of-discretion claim cast in other terms. 

It is an effort to avoid Congress’s decision to authorize a citizen’s suit only to 

enforce a nondiscretionary duty, not a discretionary one. Courts have repeatedly 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 76 of 86
Page 77 of 86

Case No. 4:08cv324-RH/WCS

rejected similar efforts. See, e.g., Maier v. EPA, 114 F.3d 1032, 1039 n.12 (10th 

Cir. 1997) (“[T]he limited jurisdiction granted to the district court [to entertain a 

Clean Water Act citizen’s suit] would be rendered boundless if an abuse of 

discretion were considered to be a ‘failure to perform a nondiscretionary act.’ ” 

(citation omitted) (emphasis added by the court in Maier)); Sun Enters., Ltd. v. 

Train, 532 F.2d 280, 288 (2d Cir. 1976) (holding that a citizen’s suit is unavailable 

when the plaintiff does not challenge the failure to perform a nondiscretionary 

duty, but instead challenges the manner in which a duty was performed); Nat’l 

Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 404 F. Supp. 2d 1015, 1022 (M.D. 

Tenn. 2005); Nat’l Wildlife Fed’n v. Browner, No. 95-1811 (JHG), 1996 WL 

601451, at *5 (D.D.C. Oct. 11, 1996) (concluding the discretionary nature of a 

necessity determination “places it beyond the reach of the citizen suit provisions” 

of the Clean Water Act), aff’d, 127 F.3d 1126 (D.C. Cir. 1997). 

 In asserting the contrary, the Power and Utility Associations cite RITE 

Research Improves the Environment, Inc. v. Costle, 650 F.2d 1312 (5th Cir. 1981). 

In that rather unique case, the Administrator refused even to consider the merits of 

a grant application, explicitly resting the decision on a geographic limitation that 

had no support in the statute and instead was precisely contrary to a recent 

statutory amendment that Congress adopted to allow projects of this very kind to 

proceed. Under those extraordinary circumstances, the court allowed a citizen’sCase 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 77 of 86
Page 78 of 86

Case No. 4:08cv324-RH/WCS

suit challenge to the Administrator’s action. The case has no application here, 

where the Administrator did not explicitly rest her decision on an improper factor; 

to the contrary, the Administrator said she considered—and the record makes clear 

she did consider—factors properly within the scope of her discretion under the 

statute. The challengers in RITE said the explanation given by the Administrator 

violated the statute. The challengers here, in contrast, do not say the 

Administrator’s explanation violated the statute; they say that it was not the true 

explanation and that instead the Administrator made the decision for a secret, 

unacknowledged reason. They say the secret reason violated the statute. Nothing 

in RITE authorizes a claim of this kind. And allowing such a claim would 

effectively repeal the statute’s ban on a challenge to a decision that is discretionary 

with the Administrator. Rare or nonexistent would be a case in which an artful 

pleader could not assert that the Administrator actually considered factors other 

than those she explicitly identified. 

 Finally, the Power and Utility Associations say that if the statute indeed 

makes a decision of this kind discretionary with the Administrator, then the statute 

violates the constitutional ban on unconstrained delegation of Congress’s 

legislative authority. The contention is plainly wrong. Congress may delegate 

authority so long as it provides an “intelligible principle” governing the exercise of 

the delegated authority. See Mistretta v. United States, 488 U.S. 361, 372 (1989) 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 78 of 86
Page 79 of 86

Case No. 4:08cv324-RH/WCS

(quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). 

The Clean Water Act provision governing a necessity determination easily meets 

this standard. It allows the Administrator to make a determination only when “a 

revised or new [water-quality] standard is necessary to meet the requirements of” 

the Clean Water Act. 33 U.S.C. §1313(c)(4)(B). This is an “intelligible principle.” 

See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474-76 (2001) 

(upholding a statute requiring the Administrator to set air-quality standards at the 

level that is “requisite”); Touby v. United States, 500 U.S. 160, 166-67 (1991) 

(upholding a statute authorizing action when “necessary to avoid an imminent 

hazard to public safety”). 

 In asserting the contrary, the Power and Utility Associations point to the 

Administrator’s assertion in this litigation that her authority is “unfettered.” See, 

e.g., Case No. 4:09cv428, ECF No. 13 at 15; Case No. 4:09cv436, ECF No. 11 at 

15. By this the Administrator plainly did not mean that her authority is 

unconstrained by the intelligible principle under which Congress delegated the 

authority. And in any event, the constitutionality of a congressional delegation of 

authority is determined by the terms of the statute that makes the delegation, not by 

the adjectives that an agency’s lawyers use in a legal brief. The assertion that the 

statute makes an unconstitutional delegation of congressional authority is wrong. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 79 of 86
Page 80 of 86

Case No. 4:08cv324-RH/WCS

 In sum, the Power and Utility Associations may challenge the necessity 

determination under the APA, and indeed they have done so. They may not, 

however, challenge the determination under the statute’s citizen’s-suit provision, 

which applies only to nondiscretionary duties. And the Administrator’s authority, 

while discretionary, is constrained by an intelligible principle and thus does not run 

afoul of the nondelegation doctrine. 

D. Equal Protection

 The Power and Utility Associations assert that the necessity determination 

and resulting rule violate the Fifth Amendment’s equal-protection component 

because they treat Florida and Florida residents differently from similarly situated 

states and their similarly situated citizens. The claim fails on the law and on the 

facts. 

 First, it is not at all clear that a decision by the federal government to adopt 

different rules for different states—even if the states are indeed similarly 

situated—is an equal-protection violation. A ruling that treating similarly situated 

states differently is an equal-protection violation would call into question a wide 

array of statutes and rules that have long been enforced without controversy. 

Indeed, the Power and Utility Associations themselves—and all the other state and 

industry parties—seem to insist on different treatment in different states; they say 

the Clean Water Act criteria should be those adopted by the State of Florida, not 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 80 of 86
Page 81 of 86

Case No. 4:08cv324-RH/WCS

the Administrator. Almost by definition, if each state adopts its own standards, 

the standards will be different—and similarly situated citizens of different states 

will be treated differently. But under the Power and Utility Associations’ equalprotection theory, allowing each state to adopt its own water-quality standards—

and enforcing the standards as a matter of federal law—would be unconstitutional. 

This is plainly not the law. 19 

 Moreover, to survive equal-protection review, government action of this 

kind need only have a rational basis. The question—at most—is whether the 

Administrator could rationally choose to make a necessity determination and adopt 

this rule for Florida while not taking the same action for other states. As set out in 

section XIII.A. above, Florida’s climate, geography, waters, and demographics 

make the nutrient-pollution issue different in Florida than in any other state. See

2009 Determination Letter at 7 (AR010963). As also set out above, the 

Administrator, like other units of government, need not take on all phases of a 

problem at once; the Administrator may instead proceed incrementally, starting in 

one state before proceeding to others. Cf. Beach Commc’ns, Inc., 508 U.S. at 316;

 19 There must be hundreds if not thousands of instances where federal law 

treats similarly situated citizens of different states differently. Examples can be 

found in tax and regulatory statutes, spending statutes, criminal statutes, and 

others. Just one minor example from a case that went to trial in this court almost 

simultaneously with the submission of the Power and Utility Associations’ equalprotection theory: under 18 U.S.C. § 2422, the very same sexual conduct may be a 

federal crime in one state but not another. This is not unconstitutional. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 81 of 86
Page 82 of 86

Case No. 4:08cv324-RH/WCS

Williamson, 348 U.S. at 489. Finally, even if the Administrator needed a further 

rational basis for starting in Florida rather than elsewhere, she had one: Florida has 

far more available nutrient data than any other state, making it reasonable for the 

Administrator to start in Florida. 

 The necessity determination and rule do not violate the Fifth Amendment’s 

equal-protection component. 

E. The Regulatory Flexibility Act

 The Regulatory Flexibility Act (“RFA”) requires an agency promulgating a 

rule that will have a “significant economic impact on a substantial number of small 

entities” to “prepare and make available for public comment an initial regulatory 

flexibility analysis . . . [that] describe[s] the impact of the proposed rule” on those 

entities, and to publish a “final regulatory analysis” with the final rule. See 5 

U.S.C. §§ 603, 604, & 605(b). A small entity may be a small for-profit or not-forprofit enterprise or local government. See id. § 601(6). 

 But an agency need not make an initial or final regulatory-flexibility analysis 

if the agency “certifies that the rule will not, if promulgated, have a significant 

economic impact on a substantial number of small entities.” Id. § 605(b). A rule 

will have a “significant impact” on a small entity only when the rule will directly 

apply to the small entity. See Mid-Tex Elec. Coop. v. FERC, 773 F.2d 327, 342-43 

(D.C. Cir. 1985) (citing 5 U.S.C. § 603(b)(3) & (b)(4)). 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 82 of 86
Page 83 of 86

Case No. 4:08cv324-RH/WCS

 The Administrator certified that the numeric nutrient rule will not have a 

significant economic impact on a substantial number of small entities. She 

therefore did not issue an initial or final regulatory-flexibility analysis. Some of 

the state and industry parties say that this violated the RFA and that 

implementation of the rule should be stayed until the Administrator makes the 

required analysis. 

 The Administrator’s certification is unassailable. The rule and its numeric 

nutrient criteria only indirectly impact small entities. The direct effect is on the 

State of Florida. See 75 Fed. Reg. at 75,803 (AR086807). It will fall to the state to 

implement the criteria. The state may do so, for example, through limits in 

National Pollutant Discharge Elimination System (“NPDES”) permits, and the 

limits may exactly match the criteria. But nothing mandates that result. When, as 

here, a rule’s only effect on small entities will be indirect, an agency may properly 

make a no-impact certification. See, e.g., Michigan v. EPA, 213 F.3d 663, 688-89 

(D.C. Cir. 2000) (per curiam) (upholding a no-impact certification because the 

Administrator’s requirement that a state revise its state implementation plan to 

reduce nitrous-oxide emissions did not directly regulate small entities; it was left to 

the state to determine which entities it would regulate in order to obtain the 

required reduction). 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 83 of 86
Page 84 of 86

Case No. 4:08cv324-RH/WCS

 This conclusion makes it unnecessary to reach the Administrator’s 

alternative contention that even if her certification was improper, the rule would 

still be valid, because she performed the very analysis the RFA would have 

required. See, e.g., Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 879 (9th Cir. 2003) 

(“Any hypothetical noncompliance [with the RFA] would thus have been harmless, 

since the available remedy would simply require performance of the economic 

assessments that EPA actually made.”) 

Conclusion

 The Administrator’s determination that Florida’s narrative nutrient criterion 

is inadequate and that a revised or new standard is necessary for Florida waters to 

meet the Clean Water Act’s requirements is not arbitrary or capricious. The 

Administrator’s rule setting numeric nutrient criteria also is not arbitrary or 

capricious except in two respects. The stream criteria—at least without a further 

explanation—are arbitrary or capricious. And so are the default downstreamprotection values for unimpaired lakes. For these reasons, 

 IT IS ORDERED: 

1. It is declared that the Administrator validly determined that revised or 

new standards for nutrients are necessary for Florida’s waters to meet the Clean 

Water Act requirements. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 84 of 86
Page 85 of 86

Case No. 4:08cv324-RH/WCS

2. It is declared that the Administrator’s rule setting numeric nutrient 

criteria, to be codified at 40 C.F.R. § 131.43, is valid in all respects except these: 

the stream criteria and the default downstream-protection criteria for unimpaired 

lakes are invalid. Each valid provision of the rule will take effect on March 6, 

2012—or an extended date approved by the court under section X of the consent 

decree—unless by that date the provision has been superseded by a Florida rule 

that the Administrator has approved. 

3. The consent decree remains in effect and is modified to include these 

additional requirements. By May 21, 2012, the Administrator must sign for 

publication a proposed rule, or sign for publication a final rule, that sets numeric 

nutrient criteria for Florida streams that are not in the South Florida region. By 

May 21, 2012, the Administrator must sign for publication a proposed rule, or sign 

for publication a final rule, that sets default downstream-protection criteria for 

unimpaired lakes, unless by that date the Administrator has filed a notice that she 

has decided not to propose or adopt such criteria, together with an explanation of 

the decision. The May 21 deadline may be extended only as provided in section X 

of the consent decree. 

4. The summary-judgment motions, ECF Nos. 272, 277, 278, 280, 282, 

283, 284, 285, 299, and 303, are granted in part and denied in part, as set out in this 

order. 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 85 of 86
Page 86 of 86

Case No. 4:08cv324-RH/WCS

5. The Administrator’s motion for judgment on the pleadings, ECF No. 

214, is granted. 

6. In each of these cases, the clerk must enter a Federal Rule of Civil 

Procedure 58 final judgment based on this order. 

7. The court retains jurisdiction to enforce the consent decree, as 

modified, and to tax costs and attorney’s fees. The deadline for a motion to tax 

costs, see Local Rule 54.2, or a motion for a determination of entitlement to a fee 

award, see Local Rule 54.1, is extended to 30 days after (a) the deadline for filing a 

notice of appeal from the judgment on the merits, if no appeal is filed in any case, 

or (b) if an appeal is filed, the date of issuance of the last mandate of the United 

States Court of Appeals for the Eleventh Circuit affirming the judgment or 

dismissing an appeal. No motion to tax costs or for the determination of 

entitlement to a fee award may be filed prior to the resolution all appeals (or, if no 

notice of appeal is filed, prior to the expiration of the deadline for filing a notice of 

appeal). 

 SO ORDERED on February 18, 2012. 

 s/Robert L. Hinkle 

 United States District Judge 

Case 4:08-cv-00324-RH-WCS Document 351 Filed 02/18/12 Page 86 of 86