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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. CASE NO. 4:08cv324-RH/CAS 

GINA McCARTHY, Administrator 

of the United States Environmental 

Protection Agency, et al., 

 Defendants. 

__________________________________/ 

ORDER MODIFYING THE CONSENT DECREE

 This is the latest chapter in a long-running dispute over nutrient 

criteria for Florida waters. A consent decree requires the Environmental 

Protection Agency to adopt numeric nutrient criteria for Florida’s waters 

unless the state does so first. The state has adopted new nutrient criteria, but 

for some waters, the criteria are not numeric. The EPA has moved to 

modify the consent decree so that the state criteria can control across the 

board. The plaintiff environmental organizations, who are parties to the 

consent decree, oppose the modification and have moved instead to enforce 

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the decree; they say the requirement for numeric criteria should be retained 

and that even some of the criteria that the state and the EPA label “numeric” 

are not. This order modifies the consent decree and denies the motion to 

enforce. 

I 

 The background of this litigation is set out at length in the order of 

February 18, 2012, ECF No. 351. The basis for the consent decree is set out 

in the order of December 30, 2009, ECF No. 152. This order does not repeat 

all that was said there. 

II 

 The plaintiffs 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. They are referred 

to in this order as “the Florida Wildlife parties.” 

 The defendants are the Environmental Protection Agency and its 

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

without drawing a distinction between the EPA and its Administrator and 

without noting each time that the Administrator is also a defendant. 

 There are numerous intervenors. Some are political subdivisions or 

agencies of the State of Florida. Some are firms or individuals—or trade 

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associations whose members include firms or individuals—who introduce 

nutrients into Florida waters. For convenience, this order refers to those 

intervenors somewhat imprecisely as “state and industry parties.” 

III 

 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’s approval. 

 In setting out the roles of the states and the EPA, 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, 

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industrial, and other purposes, and also taking into consideration [the 

waters’] use and value for navigation.” Id. 

 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). 

 This case involves 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) (2013); see 

also id. r. 62-302.400(6). The designated uses of class I waters incorporate 

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all these uses and add “Potable Water Supplies.” Id. r. 62-302.400(1); see 

also id. r. 62-302.400(6). 

IV 

 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 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, as in effect when the 

consent decree was entered, was 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) (2006). With limited exceptions, Florida did not have 

numeric nutrient criteria. See Order of February 18, 2012, ECF No. 351 at 

13 & n.2. 

V 

 The Florida Wildlife parties filed this action in 2008. They asserted 

that documents issued by the EPA ten years earlier, in 1998, constituted a 

determination that Florida’s narrative nutrient standard was inadequate, thus 

imposing on the EPA the nondiscretionary duty to adopt new standards. The 

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EPA, together with the intervening state and industry parties, denied that the 

1998 documents constituted such a determination. 

 On January 14, 2009, the EPA exercised its explicit statutory authority 

to determine that a new standard—a standard using numeric nutrient 

criteria—was necessary for Florida to meet the Clean Water Act’s 

requirements. This order sometimes refers to this as the “2009 

determination” or simply “the determination.” The EPA set out the basis for 

the determination in a ten-page letter. The letter noted that the determination 

obligated the EPA to promptly propose and adopt a new standard, unless 

Florida did so first. 

 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 EPA did not deny—and could not 

plausibly have denied—the 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 state and industry 

parties did deny the duty; they asserted that the 2009 determination was 

invalid. 

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 On August 25, 2009, the Florida Wildlife parties and the EPA moved 

for entry of a consent decree. The decree required the EPA to propose and 

adopt, in two phases, numeric nutrient criteria for Florida waters. In phase 

one, the decree required the EPA to sign for publication—by January 14, 

2010, one year after the 2009 determination—a proposed rule setting 

numeric nutrient criteria for “lakes” (a term used there to include springs) 

and “flowing waters” (a term synonymous with “streams,” the term most 

often used in this order). The proposed decree required the EPA to adopt

such a rule by October 15, 2010. In phase two, 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 consent decree explicitly provided that the EPA would not be 

required to propose or adopt standards if the state proposed its own numeric 

criteria and the EPA approved them. The decree thus recognized the Clean 

Water Act’s allocation of responsibilities between the state and federal 

governments: establishing standards is the state’s job, in the first instance, 

subject to EPA approval; the EPA takes over only if the state fails to adopt 

appropriate standards. 

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 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 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. 

Two intervenors 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 allegedly suffered by 

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the state and industry parties. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water 

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

VI 

 The EPA went forward as required by the consent decree, sometimes 

with extensions of the deadlines. The decree allowed extensions by 

agreement between the Florida Wildlife parties and the EPA, with notice to 

the court. And the decree allowed extensions on the EPA’s motion, without 

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

 One extension was this. In June 2010, the Florida Wildlife parties and 

the EPA agreed to extend the deadlines for streams in the South Florida 

region, in effect moving those waters from phase one to phase two. 

 On November 14, 2010, the EPA adopted a phase-one rule setting 

numeric nutrient criteria for lakes and springs and for streams outside the 

South Florida region. The rule was challenged from both sides under the 

APA and on other grounds. Some parties asserted the EPA did too much; 

some asserted the EPA did too little. The challenges came in the original 

case and in a series of new cases that eventually were consolidated with the 

original case. 

 The order of February 18, 2012, upheld the EPA’s 2009 determination 

that numeric nutrient criteria were necessary. The order upheld the phaseCase 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 9 of 23
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one rule except for the stream criteria and the downstream-protection criteria 

for unimpaired lakes. With those exceptions, the phase-one rule took effect 

on January 6, 2013. The invalidated provisions were remanded to the EPA. 

On November 4, 2013, the Eleventh Circuit dismissed an appeal for lack of 

jurisdiction—that is, for lack of a final judgment on all issues among all 

parties. 

 After extensions, the deadline for the EPA to adopt a rule replacing 

the invalidated phase-one criteria was August 31, 2013. The deadline for the 

EPA to adopt a phase-two rule was September 30, 2013. But before those 

deadlines, the EPA approved rules adopted by the Florida Department of 

Environmental Protection (“FDEP”) setting nutrient criteria for the affected 

waters. The criteria for some waters were plainly numeric; for those waters, 

the approval of the state criteria abrogated the EPA’s obligation under the 

consent decree to adopt its own rules. The deadline for the EPA to adopt 

criteria for the remaining waters has been stayed pending issuance of this 

order. 

VII 

 On June 13, 2012, the FDEP submitted to the EPA for approval a set 

of nutrient criteria for all Florida waters. See Fla. Admin. Code Ann. ch. 62-

302 & 62-303 (2013). The FDEP’s proposal included numeric criteria for 

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only some waters; the FDEP proposed to govern other waters with narrative

criteria, albeit criteria that incorporated a quantitative approach. The 

FDEP’s proposal included numeric criteria for lakes and springs that 

mirrored the EPA’s criteria. The FDEP’s proposal used nonnumeric criteria 

for downstream protection, jettisoning the EPA’s numeric downstreamprotection criteria. The FDEP’s proposal used narrative criteria for South 

Florida streams and for marine lakes, tidally influenced streams, and 

conveyances primarily used for water-management purposes with marginal 

or poor stream habitat components. And the FDEP’s proposal included 

numeric components that it said constituted numeric nutrient criteria for 

other streams, estuaries, and coastal waters. 

 The EPA reviewed the FDEP’s proposed criteria and concluded that 

they met the requirements of the Clean Water Act. The EPA’s approval of a 

state water-quality standard is judicially reviewable under the 

Administrative Procedure Act, but the Florida Wildlife parties have not filed 

an APA challenge. Nothing in this record indicates that the EPA’s decision 

was “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 administrative actions of this kind. 

 

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VIII 

 In response to the FDEP’s actions, the EPA has twice amended the 

2009 determination. 

 First, on November 30, 2012, the EPA concluded that Florida’s 

approach to the protection of downstream waters—an approach that does not 

use numeric downstream-protection criteria—meets the Clean Water Act’s 

requirements. 

 Second, on June 28, 2013, the EPA concluded that, in light of 

developments since the 2009 determination, numeric nutrient criteria are not 

necessary to meet the Clean Water Act’s requirements for the waters for 

which the FDEP did not adopt criteria it said were numeric—that is, for 

South Florida streams and for marine lakes, tidally influenced flowing 

waters, and conveyances primarily used for water-management purposes 

with marginal or poor stream habitat components. 

 The amendments to the 2009 determination are administrative actions 

that are subject to challenge under the APA. But the Florida Wildlife parties 

have not filed an APA challenge. The record in this litigation does not 

include the entire administrative record that led to the amendments. But 

nothing in this record suggests that the EPA’s actions were “arbitrary, 

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capricious, an abuse of discretion, or otherwise not in accordance with law.” 

5 U.S.C. § 706(2)(A). 

IX 

 The amendments to the 2009 determination do not, standing alone, 

affect the EPA’s obligations under the consent decree. The consent decree is 

a binding injunction. Unless the decree is modified, the EPA must adopt 

numeric nutrient criteria for all affected waters for which the FDEP did not 

adopt numeric criteria. Recognizing this, the EPA has moved to modify the 

consent decree to conform with the amendments to the 2009 

determination—that is, to eliminate the requirement for numeric nutrient 

criteria that, as recognized by the amendments, are not necessary to meet the 

Clean Water Act’s requirements. 

 Federal Rule of Civil Procedure 60(b) allows modification of a 

judgment or order for specified reasons: 

 On motion and just terms, the court may relieve a party 

or its legal representative from a final judgment, order, or 

proceeding for the following reasons: 

 . . . . 

 

 (5) . . . applying [the judgment] prospectively is no 

longer equitable; or 

 (6) any other reason that justifies relief. 

 

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The rule applies to consent decrees, even those requiring action by a 

governmental entity to comply with standards affecting the public interest. 

See, e.g., Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367 (1992). 

Rufo addressed a decree setting pretrial-detention standards for a local 

jail. The Supreme Court referred to this as “institutional reform litigation” 

and cited Brown v. Board of Education, 347 U.S. 483 (1954), as another 

example of such litigation. The Florida Wildlife parties say the case at bar 

also is “institutional reform litigation.” The description may not accurately 

describe this case, but the Rufo analysis of Rule 60(b) plainly applies here. 

No party contends otherwise. 

 The Florida Wildlife parties say Rufo set an exacting standard 

inconsistent with modification of the consent decree in this case. But Rufo

did nothing of the kind. To the contrary, Rufo rejected the assertion that a 

consent decree can be modified only on “a clear showing of grievous wrong 

evoked by new and unforeseen conditions.” Rufo, 502 U.S. at 379 (quoting 

United States v. Swift & Co., 286 U.S. 106, 119 (1932)). Instead of 

embracing this “grievous wrong” standard, Rufo noted the “traditional 

flexible standard for modification of consent decrees,” noted that a postSwift decision, Railway Employes v. Wright, 364 U.S. 642 (1961), had 

“emphasized the need for flexibility in administering consent decrees,” and 

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said the upsurge in institutional-reform litigation had “made the ability of a 

district court to modify a decree in response to changed circumstances all the 

more important.” Rufo, 502 U.S. at 379-80. 

 The Eleventh Circuit has said that, under Rufo, a party seeking to 

modify a consent decree “must show, first, ‘a significant change either in 

factual conditions or in law,’ id. at 384, 112 S.Ct. at 760, and, second, that 

‘the proposed modification is suitably tailored to the changed circumstance.’ 

Id. at 391, 112 S.Ct. at 763.” Sierra Club v. Meiburg, 296 F.3d 1021, 1033 

(11th Cir. 2002). “A party seeking to modify a consent decree has a high 

hurdle to clear and the wind in its face.” Id. at 1034. “Long standing 

precedent evinces a strong public policy against judicial rewriting of consent 

decrees.” Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000). 

 Based on these standards, modification is appropriate here. The 

FDEP’s adoption of comprehensive new nutrient criteria is a significant 

change in the factual conditions and law. The studies and analysis that led to 

the FDEP’s adoption of its approach are a significant change in the factual 

conditions. Indeed, appropriate numeric nutrient criteria for streams had 

proven elusive, as shown by the invalidation of the EPA’s initial rule 

adopting such criteria. Both the FDEP and EPA now agree that Florida’s 

approach meets the requirements of the Clean Water Act. 

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 The EPA’s proposed modification of the consent decree is suitably 

tailored to—indeed, a perfect match with—the changed circumstances. Both 

the 2009 determination and the consent decree will remain in force except to 

the extent inconsistent with approval of the FDEP’s alternative approach. 

 So the proposed modification meets the requirements of Rufo and 

Meiburg. In the language of Rule 60(b), applying the affected provisions of 

the consent decree prospectively is no longer equitable. 

 And the modification makes sense on a broader view as well. Had the 

FDEP adopted the new criteria before the EPA’s 2009 determination, the 

determination would have been modified—as now has occurred—to 

eliminate any inconsistent requirement. Neither the 2009 determination nor 

the consent decree was intended to change the Clean Water Act’s allocation 

to the state of primary responsibility for setting water-quality criteria. Nor 

were they intended to foreclose an approach based on further study and 

analysis, so long as the approach was consistent with sound science. 

 In opposing the modification, the Florida Wildlife parties assert that 

modification of a consent decree is never appropriate based on a change in 

circumstances wholly within the defendant’s own control. The assertion is 

wrong on both the law and the facts. 

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 First, the law. Nothing in Rule 60(b) or in such cases as Rufo and 

Meiburg forecloses a modification based on circumstances within a party’s 

own control. Indeed, circumstances within a party’s own control may 

present the very paradigm of a proper case for modification. Examples 

include a school district that, through its own good efforts, has become 

unitary, or a public employer that, through its own good efforts, has 

eliminated racial discrimination. If modification were not allowed in these 

circumstances, injunctions or consent decrees would remain in effect long 

after they were needed. 

 Second, the facts. The changed circumstances that make modification 

appropriate here include the FDEP’s further study and analysis and its 

adoption of comprehensive nutrient criteria. The EPA’s amendments to the 

2009 determination are also changed circumstances, but the amendments 

standing alone, without the FDEP’s adoption of its own criteria, would not 

have led to modification of the consent decree. In short, this modification is 

not being granted based on circumstances wholly within the EPA’s own 

control. 

 The Florida Wildlife parties base their “own control” argument on 

language in Rufo taken completely out of context. See Pls.’ Resp. to Mot. 

To Modify the Consent Decree, ECF No. 440 at 7. Rufo cited a lower-court 

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case in which a consent decree was properly modified “in light of changes in 

circumstances that were beyond the defendants’ control and were not 

contemplated by the court or the parties when the decree was entered.” 

Rufo, 502 U.S. at 380-81 (describing Phila. Welfare Rights Org. v. Shapp, 

602 F.2d 1114, 1119-21 (3d Cir. 1979)). But citing a case in which there 

were changed circumstances beyond a defendant’s control comes nowhere 

close to a holding that a decree can be modified only when there are changed 

circumstances beyond the defendant’s control. The Florida Wildlife parties’ 

argument confuses a sufficient condition with a necessary one. 

Rufo explicitly embraced Rule 60(b) and mandated a flexible 

approach. Rufo did not impose a rigid requirement for changed 

circumstances beyond a defendant’s control. Modification is proper here. 

X 

 Modification of the consent decree to conform with the amendments 

to the 2009 determination only partially moots the Florida Wildlife parties’ 

motion to enforce the decree. The Florida Wildlife parties assert that the 

EPA has failed to comply with the consent decree in two additional respects. 

A 

 First, the Florida Wildlife parties assert that for streams that remain 

subject to the consent decree’s requirement for numeric nutrient criteria, the 

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FDEP has adopted only numeric thresholds, not numeric criteria that meet 

the requirements of the consent decree. The consent decree requires 

“[n]umeric water quality criteria for nutrients” that “consist of numeric 

values that EPA determines are protective of the designated uses of waters.” 

Consent Decree, ECF No. 153 at 4 ¶ 3. The FDEP’s numeric nutrient 

thresholds for streams meet this definition. 

 In arguing the contrary, the Florida Wildlife parties mistakenly assert 

that a stream’s failure to meet the FDEP’s numeric thresholds will not render 

the stream impaired unless a site-specific study shows that the stream is in 

fact impaired. Not so. The FDEP’s approach allows site-specific studies, 

but a stream that fails to meet the numeric thresholds must be treated as 

impaired until a site-specific study shows otherwise. See Fla. Admin. Code 

r. 62-303.390(2)(e) (requiring the placement of such a stream on the 

impaired-waters study list). 

 Allowing site-specific studies is not inconsistent with the consent 

decree. The point of the endeavor is to protect against adverse effects on 

flora or fauna. Under the EPA’s original approach, a water body that 

exceeds the prescribed nitrogen or phosphorous levels is deemed impaired, 

while a water body that complies with the prescribed levels is deemed 

unimpaired. But when judged by the effects on flora and fauna, sometimes a 

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water body that exceeds the prescribed levels is in fact unimpaired. 

Sometimes a water body that complies with the prescribed levels is in fact 

impaired. The FDEP rule uses as its starting point nitrogen and phosphorous 

levels like those the EPA incorporated into its own proposed rule. But the 

FDEP rule allows a site-specific analysis to properly classify a water body 

based on the actual effects on flora and fauna. If properly and honestly 

implemented, this is an improvement. And in any event, nothing in this 

approach is inconsistent with the consent decree. 

B 

 Second, the Florida Wildlife parties assert that the FDEP rules 

improperly exclude intermittent streams from their coverage. That is not so. 

The FDEP rule, like the 2009 determination and the EPA’s own stream rule 

as originally proposed, applies to intermittent streams with taxa 

characteristic of streams. The FDEP rule, like the 2009 determination and 

the EPA’s own stream rule as originally proposed, does not apply to streams 

with taxa characteristic of wetlands. This is entirely proper; the consent 

decree does not apply to wetlands. See Consent Decree, ECF No. 153 at 

¶¶ 4, 8. 

 To be sure, the FDEP rule also excludes intermittent streams with taxa 

characteristic of uplands. The EPA has explained that this accounts for very 

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dry periods when terrestrial taxa may come to dominate wetlands. In any 

event, the Florida Wildlife parties failed to raise this dispute with the EPA 

under the procedures required by the consent decree. The issue provides no 

basis for entry of an order enforcing the decree. 

XI 

 For the reasons set out to this point, this order grants the EPA’s 

motion to modify the consent decree and denies the Florida Wildlife parties’ 

motion to enforce the decree. The decision is further supported by—but 

would be entered separate and apart from—the discussion that follows. 

 A consent decree cannot be entered without the consent of a party 

whose rights would be affected. See United States v. City of Hialeah, 140 

F.3d 968, 978-81 (11th Cir. 1998); White v. Alabama, 74 F.3d 1058, 1073 

(11th Cir. 1996). Over the objection of numerous intervenors, I entered the 

consent decree, concluding that their rights would not be affected. See ECF 

No. 152. The Eleventh Circuit agreed and dismissed for lack of standing the 

attempt of some of the intervenors to appeal the consent decree. 

 Had the FDEP adopted its new rules and had the EPA approved them 

and amended the 2009 determination before entry of the consent decree, the 

Florida Wildlife parties would have had, at most, a right to challenge the 

approval under the APA; the Florida Wildlife parties would have had no 

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right to relief in this citizen’s suit. The Florida Wildlife parties’ position on 

the pending motions thus rests on the proposition that the consent decree put 

the state and industry parties in substantially worse position than they 

occupied before the decree was entered. That proposition is squarely at odds 

with the position the Florida Wildlife parties successfully advocated in 

support of the consent decree. If, as the Florida Wildlife parties now 

apparently assert, the consent decree affected the state and industry parties’ 

substantial rights, the consent decree should not have been entered, and the 

appeal from the decree should not have been dismissed. 

 The answer is that the consent decree did not affect the state and 

industry parties’ substantial rights. The decree was properly entered, and the 

appeal was properly dismissed. The Florida Wildlife parties may not be 

judicially estopped from asserting the contrary. But they are asserting in the 

district court a position inconsistent with the prior ruling of the Eleventh 

Circuit. That is a losing proposition. 

 The prior rulings of this court and the Eleventh Circuit were correct 

because the consent decree required administrative action that the EPA was 

free to take if it chose, with or without the consent decree. And if 

circumstances changed, as they have, the consent decree could be modified, 

as Rule 60(b) provides. Now, as then, the primary responsibility for 

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adopting standards meeting the Clean Water Act’s requirements rests with 

the State of Florida, subject to the EPA’s approval. Now, as then, the Clean 

Water Act depends in part on honest administrative enforcement of duly 

adopted standards. At least as shown by this record, the FDEP’s new 

standards have been duly adopted. 

XII 

 For these reasons, 

 IT IS ORDERED: 

1. The EPA’s motion, ECF No. 424, to modify the consent decree, 

ECF No. 153, is GRANTED. The decree is amended to exclude any 

requirement to adopt numeric downstream-protection criteria or numeric 

nutrient criteria for South Florida streams or for marine lakes, tidally 

influenced streams, or conveyances primarily used for water-management 

purposes with marginal or poor stream habitat components. 

2. The Florida Wildlife parties’ motion, ECF No. 438, to enforce 

the consent decree is DENIED. 

 SO ORDERED on January 7, 2014. 

 s/Robert L. Hinkle 

 United States District Judge 

Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 23 of 23