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IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

Case No. 

THE STATE OF FLORIDA and CHARLES H. 

BRONSON, Florida Commissioner of Agriculture,

Plaintiffs,

v. 

LISA P. JACKSON, as Administrator of the United States

Environmental Protection Agency; and THE UNITED 

STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendants.

________________________________________________/

COMPLAINT 

THE STATE OF FLORIDA and CHARLES H. BRONSON, Florida Commissioner 

of Agriculture, sue the U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) and its 

Administrator, LISA JACKSON, acting in her official capacity, and assert: 

JURISDICTION AND VENUE

1. This is an action for declaratory and injunctive relief brought pursuant to the federal 

Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706. The court has jurisdiction under 28 

USC § 1331.

2. The Pensacola Division of the U. S. District Court, Northern District of Florida, located 

in Pensacola, Escambia County, Florida is an appropriate venue.

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THE PARTIES

3. Plaintiff is the sovereign State of Florida. Control of nutrient loading from predominately 

non-point sources involves traditional States‘ rights and responsibilities for water and land 

resource management which Congress expressly intended to preserve in the Clean Water Act, 33 

U.S.C. §1251(b) & (g). EPA‘s usurpation of the responsibility for nutrient criteria violates the 

premise of cooperative federalism which Congress intended to be the underpinning of the CWA. 

EPA‘s actions here are inconsistent with the federal-state balance that Congress so carefully 

struck in creating the CWA. Florida has embarked on an ambitious Total Maximum Daily Load 

(TMDL) program and has been working diligently to maintain compliance with the CWA 

through a program designed to adopt TMDL‘s for impaired waterways and numeric nutrient 

criteria where possible. These model programs have improved the quality of Florida‘s waters. 

These sovereign interests give Florida standing to challenge the arbitrary and capricious 

interference by EPA in Florida‘s ongoing successful EPA approved nutrient pollution abatement 

programs.

4. Plaintiff, the Florida Commissioner of Agriculture,Charles H. Bronson, supervises all 

matters pertaining to agriculture in the State of Florida, pursuant to Article IV, Section 4(f), of 

the Florida Constitution, except as otherwise provided by law. The Commissioner of Agriculture 

is also the head of the Florida Department of Agriculture and Consumer Services under Section 

20.14(1) Florida Statutes, and is statutorily charged with the duty to ―protect the agricultural and 

horticultural interests of the state‖ under Section 570.07(13), Florida Statutes. The Florida 

legislature has declared in Section 604.001(2) & (5), Florida Statutes that ―[t]he production of 

agricultural commodities in this state is a large and basic industry that is important to the health 

and welfare of the people and to the economy of the state‖ [and] ―that additional problems are 

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not created for growers and ranchers engaged in the Florida agricultural industry by laws and 

regulations that cause, or tend to cause, agricultural production to become inefficient or 

unprofitable.‖ Under Sections 570.074 and 570.085, Florida Statutes, the Commissioner has 

created and oversees an office of water coordination for the purpose of engaging in any matter 

―relating to water policy affecting agriculture, application of such policies, and coordination of 

such matters with state and federal agencies.‖

The Department of Agriculture and Consumer Services has a statutory duty, pursuant to 

section 403.067, Florida Statutes, to adopt by rule Best Management Practices that ensure that 

agricultural impacts on impaired waters meet the requirements of the TMDLs that are adopted by 

the state and approved by EPA. The arbitrary and capricious nature of the EPA rule will affect 

this regulatory responsibility. Therefore the Commissioner has standing to challenge EPA‘s 

Rule. 

5. Defendant EPA is the principal federal agency responsible for implementing the Clean 

Water Act (CWA). EPA has oversight authority as to the Florida National Pollutant Discharge 

Elimination System (NPDES) Permit Program, Water Quality Standards Program, and TMDL 

Program.

6. Defendant Lisa Jackson is the current Administrator of the EPA. Administrator Jackson 

is named in this action in her official capacity only.

ALLEGATIONS APPLICABLE TO ALL COUNTS

7. On July 17, 2008, a citizen‘s suit was filed against EPA and former EPA Administrator 

Stephen Johnson alleging that the Administrator had failed to exercise a nondiscretionary duty to 

promulgate numeric nutrient criteria for surface waters within the State of Florida because the 

State had allegedly failed to do so. The suit was filed in the U. S. District Court, Northern 

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District of Florida. Florida Wildlife Federation, Inc., Sierra Club, Inc., Conservancy of 

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

Johns Riverkeeper, Inc. v. Johnson, Case No.: 4:08-cv-00324-RH-WCS. 

8. The plaintiffs in the citizen‘s suit asserted that a non-discretionary duty to adopt numeric 

nutrient criteria for Florida was triggered by publication of EPA‘s 1998 Clean Water Action 

Plan, which EPA co-authored with the U. S. Department of Agriculture. Section 303(c)(4) of 

the Clean Water Act states in relevant part: 

(4) The Administrator shall promptly prepare and publish proposed regulations setting

forth a revised or new water quality standard for the navigable waters involved

(A) if a revised or new water quality standard submitted by such State under paragraph 

(3) of this subsection for such waters is determined by the Administrator not to be 

consistent with the applicable requirements of this Act, or

(B) in any case where the Administrator determines that a revised or new standard is

necessary to meet the requirements of this Act. The Administrator shall promulgate any 

revised or new standard under this paragraph not later than ninety days after he publishes 

such proposed standards, unless prior to such promulgation, such State has adopted a

revised or new water quality standard which the Administrator determines to be in 

accordance with this Act. (Emphasis added). 

The plaintiffs in the citizen‘s suit asserted that EPA‘s 1998 Clean Water Action Plan was a 

formal determination by the Administrator, under Section 303(c)(4)(B), that numeric nutrient 

criteria are necessary for Florida surface waters for the State of Florida to remain in compliance 

with the Clean Water Act.

9. EPA initially defended the suit and contested the argument that the 1998 document was a 

formal necessity determination under the Clean Water Act. By letter dated September 28, 2007, 

EPA had recently approved the State of Florida‘s revised Numeric Nutrient Criteria 

Development Plan which included a timetable through 2011. Exhibit 1.

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The January 14, 2009 “Necessity Determination”

10. On January 14, 2009, EPA released a letter from Benjamin H. Grumbles, former 

Assistant Administrator of EPA, to Michael Sole, (then) Secretary of the Florida Department of 

Environmental Protection (DEP), which stated: ―This letter constitutes a determination under the 

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

nutrients are necessary to meet the requirements of the CWA for the State of Florida.‖ Exhibit 

2.

11. EPA documents from December, 2008 reveal that the January 14, 2009, necessity 

determination was not prepared in conjunction with a reasoned analysis of scientific issues and 

environmental policy, but rather as part of a strategy either to induce settlement of the August, 

2008 citizen‘s suit or to support a motion to dismiss that suit.

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

memorandum to (then) EPA Administrator Stephen Johnson requesting that the Administrator 

grant Assistant EPA Administrator Benjamin Grumbles a one-time delegation to sign a necessity 

determination for the State of Florida. Exhibit 3. Mr. Luna stated: 

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

our 1998 Strategy[1]that numeric nutrient criteria are necessary for Florida to meet the 

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

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

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

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

(Emphasis added).

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

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

 

1

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

was the document serving as a necessity determination. In their first amended complaint, the plaintiffs alleged that 

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

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

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In response to this lawsuit, we believe that we should collect and analyze nutrientsrelated information pertaining to Florida and decide whether to make a Section 

303(c)(4)(B) determination that revised nutrient standards are necessary for the State of 

Florida to meet the requirements of the CWA. Making such a determination could 

give EPA a basis to propose a settlement to the plaintiffs or to request that the court 

dismiss the case. While making a determination may not resolve the litigation, we 

believe it is an option we should seriously consider and therefore are requesting 

delegation of authority. A CWA Section 303(c)(4)(B) can only be made by the 

Administrator or the Administrator‘s duly authorized delegate. (Emphasis added).

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

Monday, December 29, 2008.

13. With weekends and federal holidays excluded, Mr. Grumbles—who did not heretofore 

have the authority to make a necessity determination applicable to Florida—had only 11 working 

days, between December 29, 2008 and January 14, 2009, to make such a determination. 

Contrary to Mr. Luna‘s suggestion that the agency ―collect and analyze nutrients- related 

information pertaining to Florida‖ in order to justify a necessity determination, EPA released the 

January 14, 2009 letter. There is no record that would justify EPA taking such a sudden change 

in position.

14. EPA did not ―collect and analyze nutrient related information pertaining to Florida‖ (see

Luna memorandum, paragraph 11 of this Complaint and Exhibit 3), but in lieu thereof referenced 

existing information regarding Florida water quality in the letter prepared for Assistant 

Administrator Grumbles‘ signature.

15. EPA‘s January 14, 2009 necessity determination also failed to abide by the public 

participation and public consultation requirements in 40 C.F.R. 25.4(c) and (d), which are 

applicable to the January 14, 2009 determination pursuant to 40 C.F.R. 25(a)(2) and (5).

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16. The January 14, 2009 necessity determination was not the product of careful deliberation 

but a legal maneuver to quash the debate over the 1998 Clean Water Action Plan and limit any 

nationwide precedential effect of the suit filed in Florida. 

17. A privilege log provided by EPA in response to a request for documents filed under the 

federal Freedom of Information Act (FOIA) revealed that EPA was preparing a press release 

related to the January 14, 2009 necessity determination on the same day of, or prior to, 

Administrator Johnson having delegated the one-time authority to Assistant Administrator 

Grumbles to sign the determination indicating that a decision had been made to issue the 

necessity determination prior to the delegation or any collection or analysis of nutrient 

information related to Florida.

18. A deliberative marshalling of conclusive evidence is a necessary component of the 

Administrator‘s necessity determination under § 303(c)(4)(B) of the Clean Water Act. See 57 

Fed. Reg. 60848, 60858 (―In normal circumstances, it might be argued that to exercise section 

303(c)(4)(B) the Administrator might have the burden of marshalling conclusive evidence of 

 ̳necessity‘ for Federally promulgated water quality standards‖).2 In the instant case, EPA was 

faced with ―normal circumstances‖ but failed to marshal any evidence, much less conclusive 

evidence, that federal numeric nutrient criteria are necessary for Florida waters. 

19. The January 14, 2009 necessity determination is a condition precedent to and an integral 

part of the rulemaking procedure leading up to the promulgation of the challenged rules.

 

2

 In explaining why the Administrator did not engage in the ―normal‖ process of ―marshaling conclusive evidence 

of necessity‖ for promulgating federal water quality criteria in that specific circumstance, EPA emphasized that 

Congress had mandated promulgation of criteria for certain toxic constituents through amendments to the Clean 

Water Act. 57 Fed. Reg. 60848. EPA is operating under no such Congressional mandate in regard to numeric 

nutrient criteria.

 

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The August 18, 2009 Consent Decree

20. On or about August 18, 2009, EPA executed a consent decree committing EPA to 

propose numeric nutrient criteria for Florida fresh waters by January 14, 2010 and to finalize the 

freshwater criteria no later than October 15, 2010. Exhibit 4. Under the Consent Decree, EPA 

must propose numeric nutrient criteria for Florida estuarine and marine waters by January 14, 

2011 and must finalize those criteria by October 15, 2011.3

21. Over the objection of several intervenors, the Court in the original citizen‘s suit approved 

entry of the consent decree. Exhibit 5. 

EPA’s Criteria Proposed January 14, 2010

22. On January 14, 2010, EPA Administrator Lisa Jackson signed EPA‘s rule proposing 

numeric nutrient criteria for Florida‘s fresh waters (lakes and streams). Notice of the proposed 

rule was published in the Federal Register on January 26, 2010. Exhibit 6. 

23. On November 14, 2010, Administrator Jackson signed the final rule adopting numeric 

nutrient criteria for Florida‘s fresh waters (lakes and streams). Exhibit 7. The final rule is 

effective 15 months after publication in the Federal Register, except for section 131.43(e), which 

is effective 60 days after publication in the Federal Register.

24. EPA‘s promulgation of the Final Rule on November 14, 2010, is final agency action 

subject to challenge under the federal Administrative Procedures Act (APA). The January 14, 

2009, necessity determination is a necessary preliminary step in the rulemaking process and 

therefore is amenable to challenge as a basis for holding that the final rule is invalid.

 

3 On June 7, 2010, the parties to the Consent Decree filed a Joint Notice to the Court of Extension of Consent 

Decree Deadlines with the Court in the August 2008 citizen‘s suit. The Joint Notice extends the deadlines by which 

EPA must propose and finalize numeric nutrient criteria for Florida estuarine and marine waters to November 14, 

2011 and August 15, 2012, respectively. The deadline for finalizing numeric nutrient criteria for South Florida 

canals is extended to August 15, 2012. The Joint Notice did not affect the October 15, 2010 deadline by which EPA 

was to finalize numeric nutrient criteria for all lakes and all remaining streams within the State; EPA moved for, and 

was granted, a 30 day extension through November 14, 2010 which is a Sunday. EPA‘s new deadline to finalize the 

freshwater criteria became Monday, November 15, 2010.

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COUNT I

Necessity Determination 

Arbitrary and Capricious Standard of Review, 5 U.S.C. §§ 701-706

25. Plaintiffs contest EPA‘s numeric nutrient criteria rule for Florida as final agency action as 

provided by the federal Administrative Procedure Act, 5 U.S.C., §§ 701 – 706 and specifically § 

706(2)(A) which allows this Court to set aside final agency action that is arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law; paragraphs one (1) through twentyfour (24) are again alleged in this paragraph twenty-five (25) as if set out herein in full.

26. Section 706 of the Administrative Procedure Act, addressing the scope of judicial review 

of final agency action, states in relevant part that ―the reviewing court shall . . . hold unlawful 

and set aside agency action, findings and conclusions found to be . . . arbitrary, capricious, an 

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

27. The final rule is invalid because the January 14, 2009 necessity determination is 

―arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‖ In 

addition to the allegations as set out below, the January 14, 2009 necessity determination: A) was 

created as a litigation tool to implement a litigation strategy of inducing settlement; B) was 

developed to limit the potential precedential effect of the suit against Florida although nutrient 

enrichment of surface waters is not at all unique to Florida; C) was not based upon scientific

water quality related factors within the scope of the Clean Water Act; D) was not a determination 

of necessity whereby the Assistant Administrator marshaled evidence to support the need for 

federal water quality standards in Florida; E) requires the Administrator to set statewide or 

regional numeric nutrient criteria for which there is no professionally accepted peer reviewed 

methodology for setting such criteria; F) sets deadlines for the development of statewide numeric 

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nutrient criteria which cannot be met because there is no professionally accepted peer reviewed 

methodology for developing such criteria; G) singles out the State of Florida and its regulated 

community notwithstanding that substantial nutrient pollution of surface waters from 

anthropogenic sources occurs in other states; H) singles out Florida and its regulated community 

notwithstanding that the State of Florida was in the process of developing its own numeric 

nutrient criteria under an EPA-approved plan; I) disregards Florida‘s 79 EPA approved Total 

Maximum Daily Load determinations developed under Florida‘s EPA approved Impaired Waters

Rule, pursuant to which TMDLs are developed, as a change to Florida‘s water quality standards. 

J) arbitrarily deprived stakeholders of any meaningful public participation in the development of 

the criteria; and K) is contrary to the intent of Congress by ignoring the infrastructure of the 

CWA based on cooperative federalism. 

28. EPA‘s Final Rule ignored recent relevant recommendations from the Agency‘s Science 

Advisory Board (SAB) regarding the development of nutrient criteria. The SAB emphasized the 

necessity to understand the causative link between nutrient levels and impairment. See SAB 

Report at 4. Such an understanding is required to ensure that ―managing for particular nutrient 

levels will lead to desired outcomes.‖ Id. In particular, the SAB stressed that, ―[i]f the numeric 

criteria are not based upon well-established causative relationships [between nutrient levels and 

impairment], the scientific basis for the water quality standards will be seriously undermined.‖ 

Id. at 6. The SAB also highlighted the importance of using site-specific data so modeling results 

will be scientifically defensible: ―It is possible to use these water quality models to describe 

exposure (in terms of ambient nutrient concentrations) but in the absence of empirical data, this 

would not be scientifically defensible.‖ Id. at 18. There is no assurance that water quality 

criteria will protect designated uses in the absence of the consideration of site-specific 

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conditions. See id. at 37. EPA‘s Final Rule ignores these SAB recommendations: the rule 

establishes state-wide criteria that fail to account for local conditions, cause-and-effect 

relationships, and impairment threshold levels.

29. EPA had committed in the Consent Decree to proposing statewide criteria for fresh 

waters across the entire State of Florida by January 14, 2010 but as of November 3, 2009, 

approximately 60 days from EPA‘s self-imposed deadline, EPA had not yet determined the 

methods to be used stating in a declaration filed in the pending citizen suit regarding the 1998 

document that ―EPA is evaluating considering a range of possible approaches and methodologies 

for developing nutrient criteria for Florida....‖

COUNT II

Necessity Determination

Final Agency Action in Excess of Authority, Short of Statutory Right, 5 U.S.C. §§ 701-706

30. The final rule is invalid as provided by the federal Administrative Procedure Act, 5

U.S.C., §§ 701-706 and specifically § 706(2)(C), because the necessity determination underlying 

those rules is ―in excess of statutory jurisdiction, authority, or limitations, or short of statutory 

right‖; paragraphs one (1) through twenty-four (24) are again alleged in this paragraph thirty (30)

as if set out herein in full. 

31. The Assistant Administrator issued the January 14, 2009 necessity determination to settle 

the suit filed against EPA in August of 2008 (or give EPA a basis for seeking dismissal). 

Exhibit 3. 

32. A necessity determination under § 303(C)(4)(B) must be a science-based decision based 

upon a determination that water quality criteria authorized by, and within the scope of, the Clean 

Water Act are necessary to protect the designated uses of a State‘s surface waters.

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33. EPA itself has stated that, under § 303(C)(4)(B), the Administrator must marshal 

conclusive evidence that federally promulgated criteria are necessary for a State‘s surface waters 

before imposing federally generated criteria upon the State. See 57 Fed. Reg. 60848, 60858. 

34. Nothing within the Clean Water Act grants EPA the authority to declare that a state needs 

federally promulgated surface water criteria as a means of inducing the settlement or dismissal of 

a lawsuit filed against the federal agency with the express purpose of limiting precedential 

impacts in other states. In promulgating the January 14, 2009 necessity determination as a 

litigation strategy (Exhibit 3), EPA has exceeded its statutory authority under the Clean Water 

Act in violation of 5 U.S.C. § 706(2)(C).

COUNT III

Necessity Determination

Failure to Observe Proper Procedures, 5 U.S.C. §§ 701-706

35. The final rule is invalid as provided by the federal Administrative Procedure Act, 5

U.S.C., §§ 701-706 and specifically § 706(2)(D) because the necessity determination underlying 

those rules was promulgated ―without observance of procedure required by law‖ and if the 

necessity determination is deemed invalid, then the final rule was promulgated in a fatally 

defective manner; paragraphs one (1) through twenty-four (24) are again alleged in this 

paragraph thirty-five (35) as if set out herein in full. 

36. In response to a request for information and copies of public records under the federal 

Freedom of Information Act (FOIA), counsel for EPA responded in June of 2009 that no record 

was established [for the promulgation of the necessity determination] because the January 14, 

2009 document was not final agency action subject to challenge under the federal APA. As 

reflected in withheld item 554 at page 105 of the 150 page privilege log provided in response to 

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the FOIA request, an e-mail was circulated on January 13, 2009, the day before the letter was 

released, wherein EPA legal counsel were questioning whether the January 14, 2009 necessity 

determination was indeed final agency action—although the action had already been taken. 

37. The January 14, 2009 necessity determination was ―without observance of procedure 

required by law‖ in that it was performed without the development of a proper record of 

decision.

38. Additionally, the rule is invalid because the January 14, 2009 determination was ―without 

observance of procedure required by law.‖ EPA failed to abide by the public notification and 

public consultation requirements of 40 C.F.R. 25.

COUNT IV

Instream Criteria

Arbitrary and Capricious Standard, 5 U.S.C. §§ 701-706

39. Plaintiff challenges EPA‘s final rule, 40 C.F.R. § 131.43(c)(2)(i), as final agency action 

as provided by the federal Administrative Procedure Act, 5 U.S.C. §§ 701 – 706 and specifically 

§ 706(2)(A) which allows this Court to set aside final agency action that is arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law; paragraphs one (1) through 

twenty-four (24) are again alleged in this paragraph thirty-nine (39) as if set out herein in full.

40. As conceded by EPA in the preamble to its proposed rule, EPA was unable to establish a 

cause-and-effect (or dose-response) relationship between the instream concentrations of 

nutrients, both total nitrogen (TN) and total phosphorus (TP), and an observable negative 

biological response when reviewing data from Florida streams.

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41. The failure to establish a cause-and-effect or dose-response relationship means that EPA 

cannot establish the instream concentration at which negative environmental impacts occur in 

Florida‘s freshwater streams i.e., EPA‘s rule lacks an adequate scientific basis.

42. Notwithstanding its failure to establish a relationship between instream nutrient 

concentrations and environmental (primarily biological) impacts, EPA has promulgated numeric 

nutrient criteria for instream TP and TN using a reference water approach that is both facially 

invalid and invalid as applied. 

43. EPA reviewed TP and TN data from Florida streams considered to have ―good biology‖ 

which, for EPA‘s purposes, means that the waters reviewed exceeded a score of 40 points 

applying Florida‘s Stream Condition Index (SCI) or waters selected as ―benchmark waters‖ by 

the State of Florida. Designation of a stream as a ―benchmark water,‖ also uses the SCI as a 

determining factor. 

44. EPA then prepared a frequency distribution (graph or plot of the data) looking at the 

frequency of occurrence of nutrient data (TP and TN data expressed as milligrams per liter or 

mg/l) from those waters with an SCI score exceeding 40 points and a limited number of the 

State‘s benchmark or reference waters. EPA then arbitrarily drew a line at either the 75th 

percentile, i.e., the point on the graph of the data at which 75 percent of the data would lie to the 

left of the line under the curve, or the 90th percentile depending upon the location of the streams 

within the State. EPA declared that TP or TN concentrations corresponding to the 75th or 90th 

percentile on the graph, depending upon the nutrient region, are the new federal instream nutrient 

criteria.

45. EPA‘s reference water basis for its nutrient criterion is arbitrary and capricious for a 

number of reasons, including but not limited to:

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A. Arbitrarily selecting the 75th percentile means that 25 percent of the data from 

EPA‘s reference streams exceed the new criterion; similarly, choosing the 90th percentile means 

that 10% of the data from biologically healthy streams now exceeds the criterion. As a result, 

under EPA‘s rule, a large proportion of EPA‘s reference waters—the biologically healthy clean 

waters that EPA used to set its standards—by law are impaired and must be ―restored‖ under the 

Clean Water Act Total Maximum Daily Load (TMDL) program under § 303(d) of the Act.

B. EPA conceded that it could not establish a cause-and-effect or dose-response 

relationship between nutrient concentrations and biological response in streams. EPA‘s 

reference water approach arbitrarily claimed that a relationship existed between good stream 

biology and nutrient concentrations without any evidence to support it. 

C. EPA‘s own Science Advisory Board (SAB) advised EPA that the failure to 

establish a cause-and-effect relationship could render EPA‘s attempt to set numeric endpoints for 

nutrients meaningless stating: ―[w]ithout a mechanistic understanding and a clear causative link 

between nutrient levels and impairment, there is no assurance that managing for particular 

nutrient levels will lead to the desired outcome.‖ Final Report, April 28, 2010.

46. The reference water approach, as applied by EPA, is invalid for a number of reasons 

including but not limited to:

A. Using an SCI score of 40 points, EPA filtered out tens of thousands of data points 

within Florida‘s STORET database down to 521 sampling locations for TN and 525 sampling 

sites for TP, with data restricted to a 6-year period of record (2004 – 2009); based on these 

limited data points a geometric mean of the TP and TN data were calculated for each site and the 

various sites were assigned to one of four nutrient regions.

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B. For most sites, EPA only had two data points over the six year period from which 

EPA calculated a mean (average) nutrient concentration; in some nutrient regions, from 45% to 

59% of the site ―geometric means,‖ were based upon a single measurement over the 6-year 

period of record. It is not possible to calculate a mean from a single measurement.

C. One or two measurements over a 6-year period of record are meaningless for 

characterizing the nutrient regime of the water body. This is especially true in Florida which 

experiences regularly occurring extreme high rainfall and drought cycles that result in great 

variation in concentrations.

D. After proposing criteria using the approach set out in subparagraphs A through C 

above, EPA changed course in August of 2010 abandoning its SCI-approach and using nutrient 

data from the State‘s benchmark or reference waters but arbitrarily eliminating waters that EPA 

did not prefer notwithstanding the State‘s database establishing the waters as reference waters. 

EPA then reversed itself again, applying the SCI approach only to the phosphate rich West 

Central Nutrient Region (a/k/a the Florida Bone Valley) applying the 75th percentile but the 

applying the benchmark-approach using the 90th percentile to other parts of the State.

E. Whether using the SCI-Approach or Benchmark Approach, neither establishes a 

cause-and-effect relationship between nutrient concentrations and instream biological harm and, 

but for EPA‘s own self-serving guidance from the late 1990s, and contrary to the April 2010 

SAB report, these reference water approaches are not peer reviewed approved methods for 

establishing water quality criteria because neither method assures that if the number is met the 

Clean Water Act mandate of protecting designated uses will be met.

F. Using a reference water approach is an admission by EPA that the agency cannot 

interpret Florida‘s narrative criterion into ecologically meaningful numeric endpoints 

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notwithstanding that the preamble to EPA‘s final rule claims to have done just that; EPA‘s 

assertion that it has, or can, interpret Florida‘s narrative nutrient criterion—for all streams across 

the state—using some variation of a reference water approach is false.

47. EPA‘s methods for determining compliance with the instream criteria are also arbitrary; 

while EPA derived the criteria using an undefined ―long-term geometric mean,‖ it decided to 

assess compliance using an annual geometric mean, or a long-term arithmetic mean of geometric 

means. The various statistical expressions are neither the same nor interchangeable.

 COUNT V

Instream Criteria

Final Agency Action in Excess of Authority, Short of Statutory Right, 5 U.S.C. §§ 701-706

48. Plaintiff challenges EPA‘s final rule, 40 C.F.R. § 131.43(c)(2)(i), as final agency action 

as provided by the federal Administrative Procedure Act, 5, U.S.C., §§ 701-706 and specifically 

§ 706(2)(C), which allows this Court to set aside final agency action that is ―in excess of 

statutory jurisdiction, authority, or limitations, or short of statutory right‖; paragraphs one (1) 

through twenty-four (24) and paragraphs thirty-nine (39) through forty-seven (47) are again 

alleged in this paragraph forty-eight (48) as if set out herein in full.

49. EPA‘s numeric nutrient criteria for Florida streams are not protective of the designated 

uses for those streams and therefore beyond the scope of EPA‘s rulemaking authority in that:

A. The criteria are not based upon a dose-response or cause-and-effect relationship 

and therefore there is no scientific basis to support EPA‘s assertion that maintaining a given 

instream concentration of TN or TP is necessary to protect the waterbody from negative impacts; 

B. The criteria are based upon a reference water approach that does not establish 

cause and effect. EPA has established threshold principles that all water quality criteria should 

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meet. See Guidelines for Deriving Numerical National Water Quality Criteria for the Protection 

of Aquatic Organisms and Their Use (USEPA 1985). The purpose of water quality criteria is to 

protect aquatic organisms and their uses from unacceptable effects. See id. at vi. Proper criteria 

derivation requires the establishment of a cause-and-effect relationship to ensure that regulation 

of the pollutant is necessary and will produce the desired effect. Id. at 15- 16, 21. For materials 

that have a threshold effect (like nutrients), the threshold of unacceptable effect must be 

determined. Id. at 8. As applied by EPA, the criteria did not include sufficient nutrient data to 

properly characterize the reference waters and therefore could not be used to predict the 

biological reaction of unrelated surface waters to instream nutrient concentrations;

C. As originally proposed, EPA‘s rule included downstream protective values 

(DPVs) for streams flowing to estuaries that effectively reduced the proposed instream protective 

values (IPVs) to a fraction of the IPV concentration; EPA deferred action on its estuarine DPVs 

but proceeded to finalize its instream criteria (IPVs).

D. By asserting that the DPVs are necessary, EPA has conceded that the IPVs were 

not developed to be protective of downstream waters in violation of 40 CFR s. 131.10(b). If the 

IPVs were developed consistent with federal law, there would be no need to propose the DPVs. 

By withdrawing the DPVs, EPA has left standing (and has finalized), instream criteria that are 

not protective of the designated uses of the streams for which they have been set (using the 

reference water approach with insufficient data) or for downstream waters.

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Count VI

Lakes Criteria

Arbitrary and Capricious Standard, 5 U.S.C. §§ 701-706

50. Plaintiff challenges EPA‘s final rule, 40 C.F.R. § 131.43(c)(1), as final agency action as 

provided by the federal Administrative Procedure Act, 5 U.S.C., §§ 701 – 706 and specifically § 

706(2)(A) which allows this Court to set aside final agency action that is arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law; paragraphs one (1) through twentyfour (24) and paragraphs thirty-nine (39) through forty-seven (47) are again alleged in this 

paragraph fifty (50) as if set out herein in full.

51. Many lakes within the Bone Valley region of Florida, are naturally high in TP because 

they are located in phosphorous rich soils and phosphate rock substrate. 

52. EPA‘s rule imposes total phosphorus criteria on naturally occurring and constructed lakes 

within Florida‘s Bone Valley that are lower than what is expected to occur naturally.

53. Lakes with ambient TP concentrations greater than EPA‘s lakes criteria would be deemed 

impaired and would have to be ―restored‖ under s. 303(d) of the Clean Water Act to meet 

nutrient targets that are not attainable and would never have occurred naturally.

54. The Clean Water Act does not require, and EPA has no authority to mandate, criteria that 

are more stringent than naturally occurring background conditions. 

Count VII

Downstream Values for Lakes, BATHTUB Model

Arbitrary and Capricious Standard, 5 U.S.C. §§ 701-706

55. Plaintiff challenges EPA‘s final rule, 40 C.F.R. § 131.43(c)(2)(ii), as final agency action 

as provided by the federal Administrative Procedure Act, 5 U.S.C., §§ 701 – 706 and specifically 

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§ 706(2)(A) which allows this Court to set aside final agency action that is arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law; paragraphs one (1) through 

twenty-four (24) and paragraphs thirty-nine (39) through forty-seven (47) are again alleged in 

this paragraph fifty-five (55) as if set out herein in full.

56. EPA‘s rule adopts the BATHTUB nutrient loading model to establish additional numeric 

criteria that reduce instream criteria for those streams which flow into lakes. 

57. The BATHTUB model was developed for southeastern impounded waters and was not 

intended, nor is it applicable, to shallow subtropical Florida lakes.

58. As with the DPVs for streams flowing into estuaries, EPA‘s determination that 

downstream protective values for lakes are needed is an admission that its instream criteria are 

insufficient to protect downstream waters as required by 40 CFR 131.10(b); if the instream 

criteria are protective of instream designated uses and downstream waters, there is no basis for 

establishing the downstream protective values for lakes.

59. Consequently, EPA‘s application of the BATHTUB or any alternative model to establish 

downstream protective values for lakes is arbitrary, capricious and otherwise contrary to law.

60. EPA‘s final rule requires that flows into a lake meet the TP and TN values for the lake at 

the point of entry. Therefore, if a lake does not meet standards, the IPV for all streams in the 

watershed must be reduced even if they do not cause or contribute to the lake‘s failure to meet 

the required limits. As a result, the IPVs for all influent streams would have to be reduced below 

the levels needed to protect the streams themselves. This imposes an unreasonable and arbitrary 

requirement on the upstream components.

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Count VIII

Nitrate-Nitrite Criterion for Springs

Arbitrary and Capricious Standard, 5 U.S.C. §§ 701-706

61. Plaintiff challenges EPA‘s final rule, 40 C.F.R. § 131.43(c)(3), as final agency action as 

provided by the federal Administrative Procedure Act, 5 U.S.C., §§ 701 – 706 and specifically § 

706(2)(A) which allows this Court to set aside final agency action that is arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law; paragraphs one (1) through twentyfour (24) and paragraphs thirty-nine (39) through forty-seven (47) are again alleged in this 

paragraph sixty-one (61) as if set out herein in full.

62. EPA has finalized a numeric criterion of 0.35 mg/l nitrate-nitrite which was originally 

developed by the Florida Department of Environmental Protection (DEP) for spring boils and 

spring vents; the State has not yet finalized the criterion.

63. EPA did no studies or analyses to determine that 0.35 mg/l nitrate-nitrite was an 

appropriate criterion for all springs across the State of Florida. 

64. State studies presented in support of the criterion at public workshops indicated that 

nitrate-nitrite concentrations of 0.44 mg/l could occur in spring boils and vents without 

demonstrating negative biological response.

65. EPA‘s finalization and application of the unadopted State criterion to all springs within 

the State of Florida is arbitrary, capricious and contrary to law. 

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Count IX

Failure to Exclude Waters with Nutrient TMDLs from the Rule is Arbitrary and 

Capricious

66. Plaintiff challenges EPA‘s final rule as final agency action as provided by the federal 

Administrative Procedure Act, 5 U.S.C., §§ 701 – 706 and specifically § 706(2)(A) which allows 

this Court to set aside final agency action that is arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; paragraphs one (1) through twenty-four (24) are again 

alleged in this paragraph sixty-six (66) as if set out herein in full.

67. EPA previously approved Florida‘s Impaired Waters Rule, Rule 62-303, Fla. Admin. 

Code, as a change to Florida‘s water quality standards. EPA has also approved at least 79 Total 

Maximum Load Determinations (TMDLs) by Florida as the appropriate water quality standards 

for those waters. 

68. In the final rule, EPA fails to exempt waters with existing EPA-approved nutrient 

TMDLs from the rule. Failure to recognize the already approved TMDLs is a change in EPA‘s 

position on the ability of those limits to meet the requirements of the CWA. Nutrient TMDLs 

include numeric limits similar to that of water quality criteria in that both the TMDLs and the 

water quality criteria must protect the designated use of the applicable waters. See 44 U.S.C. §§ 

1313(c)-(d); 40 C.F.R. §§ 130.2(j) and 130.7 Such a change in position without adequate 

explanation and support in the record is arbitrary and capricious and an abuse of discretion.

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Count X

Failure to Fully Disclose the Rulemaking’s Technical Basis, Regulatory Implications, and 

Economic Impacts Constitutes a Failure to Observe Procedures Required by Law. 5 U.S.C. 

§ 706(2)(D).

69. Plaintiff challenges EPA‘s final rule as final agency action as provided by the federal 

Administrative Procedure Act, 5 U.S.C., §§ 701 – 706 and specifically § 706(2)(D) which allows 

this Court to set aside final agency action made without observance to procedures required by 

law; paragraphs one (1) through twenty-four (24) are again alleged in this paragraph sixty-nine 

(69) as if set out herein in full.

70. Throughout this rulemaking process, EPA has failed to disclose the rulemaking‘s 

technical basis, regulatory implications, and economic impacts. Cf. 5 U.S.C. § 533(b). EPA was 

not forthcoming with data, methods, analyses, or clear explanations of rule provisions. EPA has 

not explained the Science Advisory Board‘s critical review of EPA‘s nutrient criteria derivation 

method. EPA has incorrectly represented that this rule will have, at most, only indirect impacts 

on regulated entities in Florida. EPA has consistently understated the economic implications of 

the rule on Florida. Contrary to the requirements of the Administrative Procedure Act, EPA 

conducted this rulemaking in a manner that frustrated the public‘s right to effectively participate 

in the process. 

RELIEF REQUESTED

Plaintiff respectfully requests that this Court enter judgment in favor of Plaintiff as 

follows:

1. Finding the November 15, 2010 Final Rule invalid because the January 14, 2009 

necessity determination violates the federal Administrative Procedures Act in that it is: A) 

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arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law; B) in excess 

of statutory jurisdiction, authority, or limitations, or short of statutory right; and, C) that the 

necessity determination and therefore the final rule were prepared without observance of 

procedure required by law;

2. Finding 40 CFR §§ 131.43(c) (1), (2) and (3) to be final agency action in violation 

of the federal Administrative Procedures Act in that the rule provisions are: A) arbitrary, 

capricious an abuse of discretion, or otherwise not in accordance with law; B) in excess of 

statutory jurisdiction, authority, or limitations, or short of statutory right; and or, C) prepared 

without observance of procedure required by law;

3. Enjoining the Administrator and EPA from implementing the federal numeric 

nutrient criteria for Florida in the Final Rule, 40 CFR part 131. 

4. Grant any further relief this Court may deem just and proper.

Dated this 7th day of December, 2010.

s/ Carol A. Forthman

Carol A. Forthman

Florida Bar No. 307327

Florida Department of Agriculture 

 and Consumer Services

407 South Calhoun Street

The Mayo Building, Rm. 520

Tallahassee, Florida 32399-0800

Telephone: 850/245-1000

Facsimile: 850/245-1001

forthmc@doacs.state.fl.us

BILL McCOLLUM

ATTORNEY GENERAL

s/ Jonathan A. Glogau

Jonathan A. Glogau

Chief, Complex Litigation

Fla. Bar No. 371823

PL-01, The Capitol

Tallahassee, FL 32399-1050

850-414-3300, ext. 4817

850-414-9650 (fax)

jon.glogau@myfloridalegal.com

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