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Case No. 4:08cv324-RH/WCS IN THE UNITED STATES DI STRICT 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 cons ent decree requires the Environmental Protection Agency to adopt numeric nutrient criteria for Florida’s waters unless the state does so first. The stat e 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 th e 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 1 of 23Page 2 of 23

Case No. 4:08cv324-RH/WCS the decree; they say the requirement fo r 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 cons ent 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 basi s 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 Wild life Federation, Inc.; Sierra Club, Inc.; Conservancy of Southwest Florid a, 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 Environm ental Protection Agency and its Administrator. For convenience, this order usually refers only to the EPA, without drawing a distinction betwee n 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 2 of 23Page 3 of 23

Case No. 4:08cv324-RH/WCS associations whose members include firms or individuals—who introduce nutrients into Florida waters. For c onvenience, this order refers to those intervenors somewhat imprecisely as “state and indus try parties.” III Congress adopted the Clean Wate r Act in 1972. The objective was “to restore and maintain the chemical, physi cal, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251( a). The Act rec ognizes 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 st ates and the EPA, the Act employs three terms of art: “uses,” “c riteria,” and “standards.” Id . § 1313(c)(2)(A). A state designates the “uses” for its navi gable waters and sets “water quality criteria” for the waters “b ased 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 a nd value for public water supplies, propagation of fish and wildlife, r ecreational purposes, and agricultural, Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 3 of 23Page 4 of 23

Case No. 4:08cv324-RH/WCS industrial, and other purposes, and al so 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 re vised or new standard is necessary” to meet the Act’s requirements, the Administrator must “promptly prepare and publish proposed regula tions setting forth a revise d or new” standard. Id. § 1313(c)(4). The Administrator must adopt the revised or new standard within 90 days after publication, unle ss 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 enfo rceable 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 Flor ida 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 cl ass III waters are “Fish Consumption; Recreation, Propagation and Maintena nce of a Healthy, Well-Balanced Population of Fish and Wildlife,” and th ey incorporate the additional uses of waters of a lower class: “Agricultu ral Water Supplies” and “Navigation, Utility and Industrial Use.” Fla. Ad min. Code r. 62- 302.400(1) (2013); see also id. r. 62-302.400(6). The designated us es of class I waters incorporate Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 4 of 23Page 5 of 23

Case No. 4:08cv324-RH/WCS 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 numer ic 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 alte red so as to cause an imbalance in natural populations of a quatic 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 th is action in 2008. They asserted that documents issued by the EPA te n 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 5 of 23Page 6 of 23

Case No. 4:08cv324-RH/WCS EPA, together with the intervening state and industry parties, denied that the 1998 documents constituted such a determination. On January 14, 2009, the EPA exerci sed its explicit statutory authority to determine that a new st andard—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 prop ose and adopt a new standard, unless Florida did so first. The Florida Wildlife parties filed an amended complaint— denominated the “third amended supplem ental complaint” because there had been two earlier amendments on othe r grounds—that added a claim for relief based on the 2009 determination. Th e EPA did not deny—and could not plausibly have denied—the nondiscre tionary duty to promptly publish revised or new standards based on th e 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 asse rted that the 2009 determination was invalid. Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 6 of 23Page 7 of 23

Case No. 4:08cv324-RH/WCS On August 25, 2009, the Florida W ildlife 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 cr iteria 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 pha se two, the proposed decree imposed analogous deadlines one year later— on January 14, 2011, and October 15, 2011—for publication and adoption of nu meric nutrient criteria for coastal and estuarine waters. The consent decree explicitly provided that the EPA would not be required to propose or a dopt standards if the state proposed its own numeric criteria and the EPA approved them. Th e 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 ov er only if the state fails to adopt appropriate standards. Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 7 of 23Page 8 of 23

Case No. 4:08cv324-RH/WCS On December 30, 2009, I entered the proposed consent decree. A separate order explained at some le ngth that the decree met the standards governing consent decrees. And the order continued: One final point deserves me ntion. The consent decree obligates the Administrator to do nothing more than she could voluntarily choose to do anyw ay. The Administrator has already determined that the Florida narrative standard fails to meet the Clean Water Act’s requ irements. 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 a llow—and thus by October 15, 2010, or October 15, 2011. Any re vised or new standard would have to comply with the govern ing procedural and substantive law and would be subject to judi cial 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 wit hout 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 Administrato r—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 consen t 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 8 of 23Page 9 of 23

Case No. 4:08cv324-RH/WCS the state and industry parties. Fla. Wildlife Fed’n, In c. 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 ex tensions on the EPA’s motion, without the Florida Wildlife parties’ consen t, 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 a nd springs and for streams outside the South Florida region. The rule wa s challenged from both sides under the APA and on other grounds. Some par ties 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 ne cessary. The order upheld the phaseCase 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 9 of 23Page 10 of 23

Case No. 4:08cv324-RH/WCS one rule except for the stream criteri a and the downstream-protection criteria for unimpaired lakes. With those exce ptions, the phase-one rule took effect on January 6, 2013. The invalidated pr ovisions were remanded to the EPA. On November 4, 2013, the Eleventh Circ uit 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 Se ptember 30, 2013. But before those deadlines, the EPA approv ed rules adopted by the Florida Department of Environmental Protection (“FDEP”) setti ng nutrient criteria for the affected waters. The criteria for some waters were plainly numeric; for those waters, the approval of the state criteria ab rogated 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 subm itted 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 10 of 23Page 11 of 23

Case No. 4:08cv324-RH/WCS only some waters; the FDEP proposed to govern other waters with narrative criteria, albeit criteria that incor porated a quantitative approach. The FDEP’s proposal included numeric cr iteria for lakes and springs that mirrored the EPA’s criteria. The FDE P’s proposal used nonnumeric criteria for downstream protection, jettisoni ng the EPA’s numeric downstreamprotection criteria. The FDEP’s propo sal used narrative criteria for South Florida streams and for ma rine lakes, tidally in fluenced 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 prop osed 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 Fl orida Wildlife parties have not filed an APA challenge. Nothing in this r ecord 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 administra tive actions of this kind. Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 11 of 23Page 12 of 23

Case No. 4:08cv324-RH/WCS VIII In response to the FDEP’s acti ons, the EPA has twice amended the 2009 determination. First, on November 30, 2012, th e EPA concluded that Florida’s approach to the protection of downstre am waters—an approach that does not

use numeric downstream-protection criteria— meets the Clean Water Act’s requirements. Second, on June 28, 2013, the EP A concluded that, in light of developments since the 2009 determinati on, numeric nutrient criteria are not necessary to meet the Clean Water Ac t’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 us ed for water-management purposes with marginal or poor st ream habitat components. The amendments to the 2009 determ ination are administrative actions that are subject to challenge under the APA. But the Florida Wildlife parties have not filed an APA challenge. Th e 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, Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 12 of 23Page 13 of 23

Case No. 4:08cv324-RH/WCS capricious, an abuse of discretion, or ot herwise not in acco rdance with law.” 5 U.S.C. § 706(2)(A). IX The amendments to the 2009 dete rmination do not, standing alone, affect the EPA’s obligations under the consent decree. Th e consent decree is a binding injunction. Unless the decree is modified, the EPA must adopt numeric nutrient criteria for all affect ed waters for which the FDEP did not adopt numeric criteria. Recognizing th is, the EPA has moved to modify the consent decree to conform w ith the amendments to the 2009 determination—that is, to eliminate the requirement for numeric nutrient criteria that, as recognized by the amendm ents, 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 th at justifies relief. Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 13 of 23Page 14 of 23

Case No. 4:08cv324-RH/WCS The rule applies to consent decrees , even those requiring action by a governmental entity to comply with sta ndards 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 “ins titutional reform litigation” and cited Brown v. Board of Education , 347 U.S. 483 (1954), as another example of such litigation. The Florid a 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 onl y on “a clear showing of grievous wrong evoked by new and unfor eseen 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 ofconsent 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 14 of 23Page 15 of 23

Case No. 4:08cv324-RH/WCS said the upsurge in institutional-refo rm 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, firs t, ‘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 ch anged 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, modifi cation is appropriate here. The FDEP’s adoption of comprehensive new nutrient criteria is a significant change in the factual conditio ns and law. The studies and analysis that led to the FDEP’s adoption of its approach ar e a significant change in the factual conditions. Indeed, appr opriate numeric nutrient criteria for streams had proven elusive, as shown by the invalidation of the EPA’s initial rule adopting such criteria. Both the FD EP and EPA now agree that Florida’s approach meets the requirements of the Clean Water Act. Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 15 of 23Page 16 of 23

Case No. 4:08cv324-RH/WCS 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 d ecree 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 prospectivel y 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 requiremen t. Neither the 2009 determination nor the consent decree was intended to ch ange the Clean Wate r 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 Fl orida Wildlife parties assert that modification of a consent decree is neve r appropriate based on a change in circumstances wholly within the defenda nt’s own control. The assertion is wrong on both the law and the facts. Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 16 of 23Page 17 of 23

Case No. 4:08cv324-RH/WCS First, the law. Nothing in Ru le 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 prope r case for modifica tion. 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 ci rcumstances that make modification appropriate here include the FDEP’s further study and analysis and its adoption of comprehensive nutrient crite ria. The EPA’s amendments to the 2009 determination are also changed circumstances, but the amendments standing alone, without the FDEP’s adopt ion of its own criteria, would not have led to modification of the consent d ecree. In short, this modification is not being granted based on circumstan ces 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 Decr ee, ECF No. 440 at 7. Rufo cited a lower-court Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 17 of 23Page 18 of 23

Case No. 4:08cv324-RH/WCS case in which a consent decree was prope rly modified “in light of changes in circumstances that were beyond the defendants’ control and were not contemplated by the court or the par ties 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 circumstan ces 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 cont rol. The Florida Wildlife parties’ argument confuses a sufficient c ondition 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 cont rol. Modification is proper here. X Modification of the consent decree to conform with the amendments to the 2009 determination only partially moots the Fl orida Wildlife parties’ motion to enforce the decr ee. The Florida Wildlife parties assert that the EPA has failed to comply with the cons ent decree in two additional respects. A First, the Florida Wildlife parties assert that for streams that remain subject to the consent decree’s require ment for numeric nutrient criteria, the Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 18 of 23Page 19 of 23

Case No. 4:08cv324-RH/WCS FDEP has adopted only numeric threshol ds, 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 protectiv e 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 FD EP’s numeric thresholds will not render the stream impaired unless a site-speci fic 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 num eric 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 pl acement 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 or iginal approach, a water body that exceeds the prescribed nitrogen or pho sphorous levels is deemed impaired, while a water body that complies with the prescribed levels is deemed unimpaired. But when judged by the e ffects on flora and fauna, sometimes a Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 19 of 23Page 20 of 23

Case No. 4:08cv324-RH/WCS water body that exceeds the prescribed levels is in fact unimpaired. Sometimes a water body that complies with the prescrib ed levels is in fact impaired. The FDEP rule uses as its starting point nitrogen and phosphorous levels like those the EPA in corporated 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 par ties assert that the FDEP rules improperly exclude intermittent streams fro m their coverage. That is not so. The FDEP rule, like the 2009 determinat ion and the EPA’s own stream rule as originally proposed, applies to intermittent streams with taxa characteristic of streams. The FD EP rule, like the 2009 determination and the EPA’s own stream rule as origina lly 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 ex cludes intermittent st reams with taxa characteristic of uplands. The EPA has explained that this accounts for very Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 20 of 23Page 21 of 23

Case No. 4:08cv324-RH/WCS dry periods when terrestrial taxa may come to dominate wetlands. In any event, the Florida Wildlife parties faile d to raise this dispute with the EPA under the procedures required by the c onsent decree. The issue provides no basis for entry of an order enforcing the decree. XI For the reasons set out to this po int, this order grants the EPA’s motion to modify the consent decree a nd 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 ente red 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 th eir rights would not be affected. See ECF No. 152. The Eleventh Circ uit agreed and dismissed fo r lack of standing the attempt of some of the intervenors to appeal the consent decree. Had the FDEP adopted its new ru les and had the EPA approved them and amended the 2009 determin ation 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 21 of 23Page 22 of 23

Case No. 4:08cv324-RH/WCS right to relief in this citizen’s suit. The Florida Wildlife parties’ position on the pending motions thus rests on the pr oposition that the consent decree put the state and industry parties in s ubstantially worse position than they occupied before the decree was entered. That propos ition 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 cons ent 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 d ecree did not affect the state and industry parties’ substantial rights. Th e decree was properl y entered, and the appeal was properly dismissed. The Florida Wildlife parties may not be judicially estopped from asserting the c ontrary. But they are asserting in the district court a position inconsistent w ith the prior ruling of the Eleventh Circuit. That is a losing proposition. The prior rulings of this court a nd 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 Case 4:08-cv-00324-RH-WCS Document 463 Filed 01/07/14 Page 22 of 23Page 23 of 23

Case No. 4:08cv324-RH/WCS adopting standards meeting the Clean Water Act’s require ments rests with the State of Florida, subject to the EP A’s approval. Now, as then, the Clean Water Act depends in pa rt on honest administrative enforcement of duly adopted standards. At least as s hown 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 de cree is amended to exclude any requirement to adopt numeric downst ream-protection criteria or numeric nutrient criteria for South Florida stre ams 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’ mo tion, 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