The opinion of the court was delivered by: Robert L. Hinkle United States District Judge
The Administrator of the Environmental Protection Agency has adopted numeric criteria for nutrients-primarily nitrogen and phosphorous-in Florida lakes, springs, and streams (including rivers). These cases, which have been consolidated for case-management purposes, present a series of challenges to the Administrator's actions. Some parties assert the Administrator did too much; some assert she did too little. This order upholds the Administrator's determination that numeric nutrient criteria are necessary for Florida waters to meet the Clean Water Act's requirements, upholds the Administrator's lake and spring criteria, invalidates the stream criteria, upholds the decision to adopt downstream-protection criteria, upholds some but not all of the downstream-protection criteria, and upholds the Administrator's decision to allow-and the procedures for adopting-site-specific alternative criteria.
This order begins with a summary of the ruling (section I). The order then sets out the background, addressing the most relevant Clean Water Act requirements (section II), the designated uses of Florida waters under the Clean Water Act (section III), the problem at issue-nutrient pollution (section IV), Florida's existing narrative criterion for nutrients (section V), EPA's call for numeric nutrient criteria (section VI), the Florida Department of Environmental Protection's work on numeric nutrient criteria (section VII), the Administrator's 2009 determination that Florida's narrative nutrient criterion is inadequate and that numeric nutrient criteria are necessary to meet the Clean Water Act's requirements (section VIII), and the Administrator's adoption of a rule setting numeric criteria (section IX). The order then summarizes the litigation (section X), the substantive issues (section XI), and the standard of review (section XII), before turning to the merits (section XIII).
The grounds for the decision include these. The Clean Water Act requires a state-or if it fails to act, EPA-to adopt water-quality "criteria" to protect a state's designated "uses" of its waters. The criteria must be based on sound science. The Florida Department of Environmental Protection adopted long ago a narrative criterion for nutrients: "nutrient concentrations of a body of water [must not] be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." Fla. Admin. Code r. 62-302.530(47)(b).
The narrative criterion has proved insufficient to control Florida's widespread nutrient pollution. The Administrator recognized at least as early as 1998 that the narrative criterion is insufficient and that numeric criteria should be adopted. The Florida Department of Environmental Protection agreed at least as early as 2003. In the ensuing years, neither has wavered from that view. FDEP worked toward the adoption of numeric criteria for many years but repeatedly moved back the projected completion date. In 2009 the Administrator made an explicit "determination" under Clean Water Act § 303(c)(4), 33 U.S.C. § 1313(c)(4), that new criteria-numeric criteria-are necessary to meet the Act's requirements. The determination imposed on the Administrator an explicit statutory duty to promptly propose and adopt new criteria unless Florida did so first. Id. Florida did not.
The Administrator's determination was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is the standard under which a court reviews an administrative decision of this kind. For convenience, this opinion uses "arbitrary or capricious" as shorthand for the entire standard.
The Administrator adopted lake and spring criteria based on modeling and field studies designed to determine the level at which an increase in nutrients ordinarily causes harmful effects. The criteria are based on sound science and are not arbitrary or capricious.
The Administrator was unable to develop acceptable stream criteria based on modeling and field studies and so adopted stream criteria using a different approach. She identified a representative sample of minimally-disturbed streams for which nutrient data were available, calculated annual geometric means for each stream and in turn for the sample set of streams, and set the criteria at the 90th percentile. The Administrator apparently concluded only that an increase above this level ordinarily causes a change in flora and fauna-not that it causes a harmful change. If there is a basis in sound science for disapproving a nutrient increase that causes any increase in flora and fauna, not just a harmful increase, the Administrator did not cite it. And even if the Administrator's conclusion was that an increase in nutrients to a level above the 90th percentile ordinarily causes a harmful change in flora and fauna, the Administrator again did not cite a sound-science basis for the conclusion. Without a further explanation, the stream criteria are arbitrary or capricious.
The Administrator adopted downstream-protection criteria that she referred to as "downstream protection values" or "DPVs." The goal was to protect a water body-in this case, a lake-from nutrient pollution introduced through upstream waters. The decision to adopt DPVs was not arbitrary or capricious. The Administrator allowed DPVs to be set through modeling or, in the absence of modeling, at one of two "default" levels. For a lake not in compliance with the lake criteria-an impaired lake-the default DPVs are the same as the lake criteria. Neither the provision for DPVs based on modeling nor the default DPVs for an impaired lake are arbitrary or capricious. But the default DPVs for a lake that is in compliance with the lake criteria-an unimpaired lake-suffer from a flaw analogous to that in the stream criteria. The default DPVs for an unimpaired lake are the ambient conditions at the "pour point"-the point at which the stream enters the lake. The Administrator's theory apparently is that any increase from ambient conditions ordinarily causes a change in flora and fauna-not that it causes a harmful change. Here, as with the stream criteria, the Administrator has cited no basis in sound science for disapproving any nutrient increase, not just a nutrient increase that causes a harmful increase in flora or fauna.
The Administrator authorized-and established a procedure for adopting- site-specific alternative criteria ("SSACs") that take the place of the otherwise-applicable criteria for a specific water body or set of water bodies (such as a watershed). SSACs must be based on sound science and must protect designated uses. The decision to authorize SSACs-and to establish this procedure for adopting them-was not arbitrary or capricious. Some parties assert that the regulation would allow SSACs for a set of water bodies so extensive that, under the governing law, the SSACs could properly be adopted only through rulemaking, not through the more-abbreviated SSAC procedures. The assertion is not ripe for judicial review at this time, because no such SSAC has been proposed or adopted, and there is no reason to believe one ever will be.
Finally, some parties challenge the Administrator's actions on other grounds, asserting that Congress unconstitutionally delegated authority to the Administrator, that the Administrator unconstitutionally discriminated against Florida and Florida residents, and that the Administrator violated the Regulatory Flexibility Act. These assertions are incorrect.
Congress adopted the Clean Water Act in 1972. The objective was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act recognizes the primary responsibility of the states to prevent or reduce pollution. Id. § 1251(b). The Act thus allows a state to adopt its own water-quality standards, subject to the EPA Administrator's approval.
In setting out the roles of the states and the Administrator, the Act employs three terms of art: "uses," "criteria," and "standards." Id. § 1313(c)(2)(A). A state designates the "uses" for its navigable waters and sets "water quality criteria" for the waters "based upon such uses." Id. A "standard" consists of the uses and corresponding criteria. Id. The standard must "protect the public health or welfare, enhance the quality of water and serve the purposes of" the Act. Id. And the standard must "be established taking into consideration [the waters'] use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration [the waters'] use and value for navigation." Id.
If a state standard is not "consistent with" the Act's requirements, or if the Administrator "determines that a revised or new standard is necessary" to meet the Act's requirements, the Administrator must "promptly prepare and publish proposed regulations setting forth a revised or new" standard. Id. § 1313(c)(4). The Administrator must adopt the revised or new standard within 90 days after publication, unless by that time the state has adopted a revised or new standard that is approved by the Administrator. Id. Whether the 90-day limit is judicially enforceable is less than clear. See Miss. Comm'n on Natural Res. v. Costle, 625 F.2d 1269, 1278 (5th Cir. 1980).
III. The Designated Uses of Florida Waters
These cases involve waters that Florida has designated as "class I" or "class III." The numbers run from most protected (class I) to least protected (class V). The designated uses of class III waters are "Fish Consumption; Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife," and they incorporate the additional uses of waters of a lower class: "Agricultural Water Supplies" and "Navigation, Utility and Industrial Use." Fla. Admin. Code r. 62-302.400(1); see also id. at r. 62-302.400(6). The designated uses of class I waters incorporate all these uses and add "Potable Water Supplies." Id. at r. 62-302.400(1); see also id. at r. 62-302.400(6).
IV. The Problem: Nutrient Pollution
Nutrients occur naturally in surface waters. But nutrient levels often increase, sometimes dramatically, as a result of human activity. Among the industries that may contribute to increases in nutrient levels-and whose trade associations are participating in this litigation-are wastewater treatment, power generation, and cattle ranching.
A nutrient increase ordinarily affects a water body's flora and fauna, that is, aquatic plants and animals. Among the vivid examples are algal blooms. At some point the effects of a nutrient increase become harmful. The effects can include significant changes in the ecosystem, in the health of plants and animals, in the recreational value of waters, and in the safety of drinking water.
The Clean Water Act requires each state to assess its waters at least every three years. In its 2008 report, FDEP recognized, as it had done in earlier reports, that nutrient pollution in Florida waters was widespread. FDEP concluded that nutrient impairment extended to 1,049 miles of rivers and streams, to 349,248 acres of lakes, and to 902 square miles of estuaries. Div. of Envtl. Assessment & Restoration, Fla. Dep't of Envtl. Prot., Integrated Water Quality Assessment for Florida: 2008 305(b) Report and 303(d) List Update ("2008 FDEP Report") 67 (Oct. 2008) (AR005821).*fn1 This was 5% of the state's assessed river and stream miles, 23% of the state's assessed lake acreage, and 24% of the assessed estuary surface. Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 75,762, 75,769 (Dec. 6, 2010) (AR086773).
Nutrient pollution thus was a major problem in Florida's waters. And it was not getting better. FDEP noted that scientists had documented increasing nutrient levels in surface waters since the 1970s. FDEP said the trend was continuing in Florida:
Freshwater harmful algal blooms (HABs) are increasing in frequency, duration, and magnitude and therefore may be a significant threat to surface drinking water resources and recreational areas. Abundant populations of blue-green algae, some of them potentially toxigenic, have been found statewide in numerous lakes and rivers. In addition, measured concentrations of cyanotoxins-a few of them of above the suggested guideline levels-have been reported in finished water from some drinking water facilities. 2008 FDEP Report at 37 (AR005791). FDEP noted-contrary to the assertion of some parties in this litigation-that phosphorous levels, like other nutrient levels, were increasing. Id. at ix (AR005749).
V. The Florida Narrative Nutrient Criterion
Water-quality criteria can be numeric or narrative. Some of the parties have suggested a useful analogy: a state could adopt a numeric speed limit-70 miles per hour-or a narrative standard-don't drive too fast. Or a state could adopt a combination of both-don't drive over 70, and don't drive too fast for conditions.
Florida's longstanding criterion for nutrients is narrative: "In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." Fla. Admin. Code r. 62-302.530(47)(b). With limited exceptions, Florida does not have numeric nutrient criteria.*fn2
VI. EPA's Call for Numeric Nutrient Criteria
Florida is not the only state with narrative, not numeric, nutrient criteria. By 1998 there were good grounds to conclude that narrative nutrient criteria were not working-not in Florida, and not in other states. The EPA Administrator and the Secretary of the United States Department of Agriculture reported that about 40% of assessed waters nationwide did not meet water-quality goals. Letter from Carol Browner, Adm'r, U.S. Envtl. Prot. Agency and Dan Glickman, Sec'y, U.S. Dep't of Agric., to Albert Gore, Jr., Vice President of the United States (Feb. 14, 1998) (AR000069). The Administrator and the Secretary adopted a Clean Water Action Plan intended to improve the situation. See U.S. Dep't of Envtl. Prot. & U.S. Dep't of Agric., Clean Water Action Plan: Restoring and Protecting America's Waters 58-59 (1998) (AR000142-43).
Later in 1998, as part of the effort to implement the Clean Water Action Plan, the Administrator issued a report entitled, "National Strategy for the Development of Regional Nutrient Criteria" (AR000001). The report recognized that excessive nutrients were a substantial part of the nation's water-quality problem and that narrative criteria were not the solution. The report said that the Administrator expected all states "to adopt and implement numerical nutrient criteria" by December 31, 2003. Id. at 9 (emphasis added) (AR000015). This gave the states more than five years to adopt numeric criteria.
VII. FDEP's Work on Numeric Nutrient Criteria
By 2001, if not earlier, FDEP was at work developing numeric nutrient criteria. Acting in conjunction with the state's water-management districts, FDEP conducted detailed studies and held meetings. FDEP compiled massive amounts of data. It spent millions of dollars. But projected completion dates came and went without the adoption of statewide numeric nutrient criteria.
Thus, for example, on December 30, 2003, FDEP submitted its first plan for developing numeric nutrient criteria. See Water Quality Standards & Special Projects Program & Watershed Assessment Section, Fla. Dep't of Envtl. Prot., State of Florida Numeric Nutrient Criteria Development Plan (Dec. 2003) (AR000767). The plan called for numeric-criteria rulemaking to begin in October 2004 and for a draft rule to be submitted to the Environmental Regulation Commission-the state body responsible for approving water-quality criteria-in October 2005. Id. at 9-10 (AR000776-77). FDEP said it anticipated that ERC activities could be completed in 12 months, barring major dissent. Id. at 4 (AR000771). But FDEP said it had limited control over ERC's schedule, making it difficult for FDEP to establish a firm completion date. Id.
On July 7, 2004, EPA responded to FDEP's 2003 plan, reiterating that nutrient over-enrichment was a "serious problem," acknowledging that determining appropriate numeric criteria was "very complex," and concluding that the 2003 FDEP plan described a "reasonable process." Letter from James D. Giattina, Dir., Water Mgmt. Div., U.S. Envtl. Prot. Agency, to Mimi Drew, Dir., Div. of Water Res. Mgmt., Fla. Dep't of Envtl. Prot. 1 (July 7, 2004) (AR000784). EPA said that completing the process "by the target dates indicated in the Plan"
would increase the protection of state waters from nutrient over-enrichment. Id. EPA also said that failure to meet these milestones might lead to a formal determination under the Clean Water Act that new or revised standards were necessary-a determination that would require the Administrator to promptly propose and adopt new or revised standards, unless the state did so first. EPA said:
If the State has not met the milestones as scheduled in the plan, EPA will evaluate whether a federal promulgation would be appropriate. At that time, the Administrator may determine that new or revised standards are necessary to meet the Clean Water Act (CWA), and choose to promulgate water quality criteria for nutrients applicable to surface waters within Florida in accordance with Section 303 of the CWA.
Id. at 1-2 (AR000784-85).
FDEP missed the October 2004 milestone for initiating rulemaking. In December 2004, FDEP moved the schedule back 18 months, now projecting that rulemaking would begin in April 2006 and that FDEP would submit a draft rule to ERC in April 2007. See Letter from Jerry Brooks, Deputy Dir., Div. of Water Res. Mgmt., Fla. Dep't of Envtl. Prot., to Andrew Bartlett, Water Mgmt. Div., U.S. Envtl. Prot. Agency (Dec. 14, 2004) (AR000788). FDEP continued to compile data and hold meetings. But still nothing came of the efforts.
FDEP missed the April 2006 revised milestone, too. More than a year later, in September 2007, FDEP submitted a revised plan with yet another revised schedule. See Water Quality Standards & Special Projects Program, Water Res. Div., Fla. Dep't of Envtl. Prot., State of Florida Numeric Nutrient Criteria Development Plan (Sept. 2007) (AR012228). FDEP now projected that rulemaking would begin in January 2010-more than five years later than originally projected-and that FDEP would submit a draft rule to ERC between January 2010 and January 2011. Id. at 16 (AR012243). FDEP again said it anticipated that ERC activities could be completed in 12 months, barring major dissent. Id. at 6 (AR012233). But FDEP also reiterated that it had limited control over ERC's schedule, making it difficult for FDEP to establish a firm completion date. Id.
On September 28, 2007, EPA responded to FDEP's 2007 revised plan, concluding once more than the plan described a "reasonable process." Letter from James D. Giattina, Dir., Water Mgmt. Div., U.S. Envtl. Prot. Agency, to Jerry Brooks, Dir., Div. of Envtl. Assessment & Restoration, Fla. Dep't of Envtl. Prot. 1 (Sept. 28, 2007) (AR000817). EPA also said-again-that a failure to meet the milestones might lead EPA to make a formal determination that new or revised standards were necessary. Id. at 2 (AR000818).
On December 31, 2008, FDEP submitted to EPA yet another revised plan. Bureau of Assessment & Restoration Support, Div. of Envtl. Assessment & Restoration, Fla. Dep't of Envtl. Prot., State of Florida Numeric Nutrient Criteria Development Plan (Dec. 2008) (AR128698). FDEP no longer projected that rulemaking would start by January 2010. Instead, the 2008 plan projected that rulemaking would start in the period from January 2010 to January 2011. Id. at 43 (AR128741). The 2008 plan gave no reason to believe that it would take less time than projected in earlier plans for FDEP to move from the start of rulemaking to a proposed rule; the earlier plans had projected this would take a year. And the 2008 plan gave no reason to believe the ERC process would take less time than earlier projected; the earlier plans had projected that the ERC process could be completed in a year, barring major dissent. The 2008 plan added another qualification: the ERC process could be completed in a year, "barring major dissent or administrative challenge." Id. at 4 (emphasis added) (AR128702). And the 2008 plan added this open-ended qualification, missing from earlier plans: "In the event there is an administrative challenge to the proposed criteria, the administrative hearing process would likely take at least another year." Id. If rulemaking started in January 2011 and it took a year to propose a rule, another year for ERC to act, and another year for an administrative challenge, a rule would be in place by January 2014-more than 15 years after EPA first said narrative criteria were not working, and more than 10 years after the December 2003 deadline by which EPA initially said it expected numeric criteria to be in place.
VIII. The 2009 Necessity Determination
On January 14, 2009, the Administrator did what she had been saying since 2004 she might do: she exercised her explicit statutory authority to determine that a new standard-a standard using numeric nutrient criteria-was necessary to meet the Clean Water Act's requirements. This order sometimes refers to this as the "2009 determination" or simply "the determination." The Administrator set out the basis for the determination in a ten-page letter.
The letter noted that the determination obligated the Administrator to promptly propose and adopt a new standard, unless Florida did so first. This was precisely what the Clean Water Act said. The letter set out the statutory basis for the determination, traced the FDEP's substantial efforts to control nutrient pollution and to develop numeric criteria, and continued:
Water quality degradation due to nutrient over-enrichment is a significant environmental issue in Florida. Florida's Department of Environmental Protection has acknowledged and documented the magnitude of over-enrichment. According to Florida's 2008 Integrated Report, approximately 1,000 miles of rivers and streams, 350,000 acres of lakes, and 900 square miles of estuaries are impaired for nutrients in the State.
. . . With almost 800,000 nutrient-related data points [in an available database], Florida has substantially more data points than any other State or Territory to clearly characterize the magnitude of its nutrient challenges.
An analysis of United States Geological Survey (USGS) monitoring data for nutrients in certain locations in Florida shows that levels of nutrient pollution have not significantly improved since 1980 despite strong efforts to control nutrient pollution. Concentrations of Total Phosphorus (TP) and Total Nitrogen (TN) have remained relatively constant at an average of 0.15mg/L and 1.4mg/L, respectively. Additionally, Florida's recurrent harmful algal blooms continue to pose threats to public drinking water supplies and recreational sites. Harmful algal blooms that occur inland and near shore are typically caused by excess nutrients.
Nutrient pollution in Florida has a predictable and widespread impact. The extent of this impact has been well documented and tracked for many years. According to Florida's most recent EPA-approved [list of impaired waters-a list the state must compile under Clean Water Act § 303(d), 33 U.S.C. § 1313(d)], of the 823 waters listed as impaired in Florida, over 60% (over 550 waters) are impaired for nutrients.
Florida's natural physical factors, including flat topography and numerous wetlands, a warm and humid climate, nutrient-rich soils, hydrology, and erosion caused by tropical storms and hurricanes make controlling nutrient pollution particularly challenging because these conditions are especially conducive to nutrient overenrichment. In addition, human caused impacts such as hydrological modifications (i.e., canals), intensive agricultural production, population growth and associated urban and suburban development have had a broad and widespread effect. Effectively addressing current nutrient impairments in the State represents a significant challenge and is compounded by a projected population growth of almost 80 percent in Florida from 2000 to 2030. Further development and urbanization will likely result in increased nutrient runoff and pressure to utilize remaining agricultural lands more intensively.
Within the continental United States, Florida possesses unique and nationally valued aquatic ecosystems, including shallow coral reefs, freshwater and salt marshes, swamps, and mangroves. These aquatic ecosystems are particularly sensitive to the effects of excessive nutrients which threaten the State's significant biological diversity. The number of species in Florida (3,500 native vascular plants and 1,500 vertebrates) is higher than in all but three other states. Further, Florida also has many endemic species (410 invertebrates, 258 plants and vertebrates) that are not found anywhere else on Earth. Florida has many water-filled caves and sinkholes that serve as hotspots of biological diversity and provide homes to many species of aquatic life, some unique to particular Florida locations. Additionally, Florida is the only state in the continental United States to have extensive shallow coral reef formations near its coasts (i.e. within five miles). A recent study initiated by the United Nations Food and Agriculture Organization found that the single richest concentration of marine life in the Atlantic Ocean lies some 10 miles off the tip of Southern Florida within the Florida Straits. This biological diversity relies on sufficient quality habitat and other natural resources, including clear, transparent waters low in phosphate and nitrogen nutrients. Especially in the case of coral reefs and flora and fauna in natural spring environments, clear water with plenty of light and oxygen available is critical to the protection of the species that inhabit these locations. Nutrient enriched water can have reduced transparency and low dissolved oxygen levels that are not protective of the natural biology in Florida. Effectively managing nutrient levels in Florida's lakes, flowing waters, estuaries and coastal waters through numeric nutrient criteria is important to maintaining the ecosystems in these waters and important ecosystems that are near shore.
The combined impacts of urban and agricultural activities along with Florida's physical features and important and unique aquatic ecosystems make it clear that the current use of the narrative nutrient criterion alone is insufficient to ensure protection of applicable designated uses. Numeric nutrient criteria will strengthen the foundation for identifying impaired waters, preparing TMDLs and developing NPDES permits, as well as support the State's ability to effectively partner to with point and nonpoint sources to control nutrients, thus providing the necessary protection for the State's designated uses.
Nutrient pollution in Florida remains a significant and growing challenge. Recognizing this, Florida has invested tens of millions of dollars in the collection of data to establish the cause and effect relationship between nutrients and biological conditions in order to be well positioned to establish what the State, itself, believes are much needed numeric nutrient water quality criteria. As discussed above, despite Florida's considerable data collection and analysis efforts and outreach with stakeholders to date, the State is relying on its narrative nutrient criterion, the application of which is resource intensive, time consuming, and less than effective in implementing programs to protect water quality and prevent impairments of designated uses due to nutrient overenrichment. The very substantial and widespread nature of nutrient challenges faced by the State and the barriers to effective implementation associated with narrative nutrient criteria in Florida, such as the need for numerous, highly technical site-specific analyses prior to the development of water quality-based effluent limitations in NPDES permits and TMDLs, strongly support the need in this case for numeric nutrient criteria to effectively protect designated uses and prevent impairments. In many circumstances, narrative criteria can be an effective tool for protecting designated uses, particularly when the scope and nature of the environmental problem is easily and clearly defined and derivation of appropriate control measures can be effectively and expeditiously accomplished (e.g., toxic pollutants and bioassessments). However, achieving faster and more effective progress in water quality protection with regard to nutrients is critical in Florida due to the significant and far-reaching impacts of nutrient pollution on the unique and highly valued aquatic ecosystems that exist in the State. In this case, numeric nutrient criteria are needed to protect Florida's designated uses.
Letter from Benjamin H. Grumbles, Assistant Adm'r, U.S. Envtl. Prot. Agency, to Michael Sole, Sec'y, Fla. Dep't of Envtl. Prot. ("2009 Determination Letter") 6-8 (Jan. 14, 2009) (footnotes omitted) (AR010962-64).
The letter included numerous citations to sources supporting its factual statements. The letter included a single error: after accurately setting out the large quantity of Florida waters that were impaired by nutrients, the letter gave percentages that were incorrect or at least incorrectly described. There is no reason to believe that the error affected the analysis or that the letter's factual statements and analysis were incorrect in any other respect.
IX. The Rule Establishing Numeric Criteria
On January 14, 2010, the Administrator signed a notice of proposed rulemaking for numeric nutrient criteria for Florida's lakes and flowing waters- waters that this order refers to as lakes, springs, and streams. The notice was published in the Federal Register on January 26, 2010. Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 4,174 (proposed Jan. 26, 2010) (AR029960). On August 3, 2010, the Administrator published a supplemental notice and request for comment. The Administrator received some 22,000 comments and conducted 13 public meetings. See ECF No. 188.
On November 14, 2010, the Administrator signed the final rule. It was published in the Federal Register on December 6, 2010. See Water Quality Standards for the State of Florida's Lakes and Flowing Waters, 75 Fed. Reg. 75,762 (Dec. 6, 2010) (AR086766). The rule is scheduled to take effect on March 6, 2012, but the Administrator has said she may seek to delay the effective date until June. The rule applies to lakes and flowing waters statewide, with regional differences for flowing waters, but the rule does not apply to flowing waters in the area designated as the South Florida region.
A. The Demand for a Determination
In July 2008, before the Administrator made the 2009 determination, five environmental organizations-collectively referred to in this order as the Florida Wildlife parties-filed the first of these cases, Case No. 4:08cv324.*fn3 They named as defendants EPA and its Administrator.*fn4 Over time, 13 entities-the Florida Department of Agriculture and Consumer Services,*fn5 the South Florida Water Management District, and 11 trade associations-intervened as additional defendants.*fn6
The Florida Wildlife parties sought relief under the Clean Water Act's citizen-suit provision. It allows a citizen to sue the Administrator to compel her to perform a duty that the Act makes non-discretionary. 33 U.S.C. § 1365(a)(2). The Florida Wildlife parties asserted that the 1998 Clean Water Action Plan, or the 1998 National Strategy report, constituted a "determination" that Florida's narrative nutrient standard was inadequate and a new standard was necessary, thus imposing on the Administrator the non-discretionary duty to "promptly" publish proposed new standards, and the further non-discretionary duty to adopt new standards within 90 days after the publication. See 33 U.S.C. § 1313(c)(4). The Administrator and intervenors denied that the 1998 documents constituted a "determination."
The 2009 determination did not render moot the Florida Wildlife parties' claim based on the 1998 documents, because the publication of new standards could have been sufficiently prompt after the 2009 determination but not sufficiently prompt after a 1998 determination. The claim that the Administrator made a determination in 1998 thus could have entitled the Florida Wildlife parties to relief they could not have obtained based only on the 2009 determination.
Even so, the 2009 determination rendered the 1998 issue less important. The Florida Wildlife parties filed an amended complaint-denominated the "third amended supplemental complaint" because there had been two earlier amendments on other grounds-that added a claim for relief based on the 2009 determination. The Administrator did not deny-and could not plausibly have denied-her non-discretionary duty to promptly publish revised or new standards based on the 2009 determination; that was the whole point of the determination. But at least some of the intervenors did deny the duty; they asserted that the 2009 determination was invalid.
On August 25, 2009, the Florida Wildlife parties and the Administrator moved for entry of a consent decree. The proposed decree required the Administrator to sign for publication-by January 14, 2010, one year after the 2009 determination-a proposed rule setting numeric nutrient criteria for Florida lakes and flowing waters. The proposed decree required the Administrator to adopt such a rule by October 15, 2010. These requirements would not apply, however, if by the same deadlines the state proposed its own numeric criteria and the Administrator approved them. The proposed decree imposed analogous deadlines one year later-on January 14, 2011, and October 15, 2011-for publication and adoption of numeric nutrient criteria for coastal and estuarine waters. The proposed decree allowed an extension of a deadline by agreement between the Florida Wildlife parties and the Administrator, with notice to the court. The decree allowed an extension on the Administrator's motion, without the Florida Wildlife parties' consent, in the court's discretion.
All parties-including the intervening defendants-were allowed to file briefs, declarations, and other written evidence addressing the motion for entry of the consent decree. Three additional entities filed amicus briefs.*fn7 The parties presented extensive oral argument. The parties were fully heard.
On December 30, 2009, I entered the proposed consent decree. A separate order explained at some length that the decree met the standards governing consent decrees. And the order continued:
One final point deserves mention. The consent decree obligates the Administrator to do nothing more than she could voluntarily choose to do anyway. The Administrator has already determined that the Florida narrative standard fails to meet the Clean Water Act's requirements. She could publish a revised or new standard for lakes and flowing waters by January 14, 2010, and for coastal or estuarine waters by January 14, 2011-and could do so earlier if she chose.
She could adopt a revised or new standard as soon after publication as the administrative process would allow-and thus by October 15, 2010, or October 15, 2011. Any revised or new standard would have to comply with the governing procedural and substantive law and would be subject to judicial review-but the same is true under the consent decree. The intervenors challenge the underlying determination that Florida's narrative standard is inadequate, but with or without the consent decree, that determination will be equally subject to challenge-based on the same standard of review and with an equal level ...