Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 1 of 15

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

FLORIDA CLEAN WATER NETWORK, INC., et al.

Plaintiffs,

vs. Civil Action No: 4:09-CV-00165-MCR-WCS

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Defendants. _____________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION
TO DEFENDANTS’ MOTION TO ALTER OR AMEND

Defendants (hereinafter collectively referred to as “EPA”) have moved the Court to reconsider (alter or amend) the summary judgment granted to Plaintiffs on Counts I through V of their Complaint on March 30, 2012. (Doc. 123). For the reasons discussed herein, that motion is due to be denied.

STANDARD OF REVIEW

EPA extracts a partial quotation from Gulf Power Co. v. Coalsales II, L.L.C., Case No. 3:06cv270/MCR/MD, 2011 U.S. Dist. LEXIS 83428, *2-3 (N.D. Fla. July 29, 2011) for the standard of review on motions under Rule 59(e) (Doc. 123 at 5). The full quotation, including relevant matter omitted by EPA, is as follows:

Motions to alter or amend a final judgment under Rule 59(e) are granted sparingly and only where there is newly-discovered evidence or to correct manifest errors of law or fact upon which the judgment was based. See, e.g., Discrete Wireless, Inc. v. Coleman Technologies, Inc., No.

page1image13216
page1image13488
page1image13760
page1image14032

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 2 of 15

10-12495, 2011 WL 1251218, at *1 (11th Cir. April 5, 2011); see also 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2810.1 (2d ed. 1995). Even if errors have been committed, if the issues are at least arguable, such errors do not constitute “the sort of clear and obvious error which the interests of justice demand that [the court] correct.” American Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985). Moreover, a Rule 59(e) motion may not be used to re-litigate old matters or to present new arguments or evidence that could have been presented prior to judgment being entered. See Discrete Wireless, 2011 WL 1251218, at *1.

Id.
“Reconsidering the merits of a judgment, absent a manifest error of law or fact, is

not the purpose of Rule 59.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010). Accord, Elmore v. Cooper, No. 11-13263, 2012 U.S. App. LEXIS 6157, *4 (11th Cir. Mar. 26, 2012) (per curiam); Henderson v. Sec’y, Fla. Dep’t of Corr., 441 Fed. Appx. 629, 630 (11th Cir. 2011) (per curiam)

A motion for reconsideration cannot be used to “relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). This prohibition includes new arguments that were “previously available, but not pressed.” Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per curiam) (motion to alter judgment properly denied where plaintiffs waited until after case was dismissed to raise argument that Virginia law applied, rather than Florida law). A district court has sound discretion whether to alter or amend a judgment pursuant to a motion for reconsideration, and its decision will only be reversed if it abused that discretion. See O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992). Denial of a motion to amend is “especially soundly exercised” when a party gives no reason for not previously raising an issue. Id. (quotation marks and citation omitted).

Wilchombe v. Teevee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009). Accord, Lomax 2

page2image20352
page2image20624
page2image20896
page2image21168
page2image21440
page2image21712
page2image21984
page2image22256
page2image22528
page2image22800
page2image23072
page2image23344
page2image23616
page2image23888

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 3 of 15

v. Ruvin, No. 11-11495, 2012 U.S. App. LEXIS 6143, *5 (11th Cir. Mar. 26, 2012); Elmore v. Cooper, No. 11-13263, 2012 U.S. App. LEXIS 6157, *4 (11th Cir. Mar. 26, 2012) (per curiam); Henderson v. Sec’y, Fla. Dep’t of Corr., 441 Fed. Appx. at 630; Rance v. D.R. Horton, Inc., 316 Fed. Appx. 860, 863 (11th Cir. 2008) (per curiam); Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990). “A busy district court need not allow itself to be imposed upon by the presentation of theories seriatim.” Freeman v. Cont’l Gin Co., 381 F.2d 459, 469 (5th Cir. 1967).

ARGUMENT

I. EPA SEEKS TO RE-LITIGATE OLD MATTERS OR TO PRESENT NEW ARGUMENTS THAT COULD HAVE BEEN PRESENTED PRIOR TO JUDGMENT BEING ENTERED.

EPA raises two arguments in their motion for reconsideration: (1) the “effects test” articulated by the Court in Florida Public Interest Research Group Citizen Lobby, Inc. v. E.P.A. (“FPIRG II”), 386 F.3d 1070 (11th Cir. 2004), was merely dictum that is not binding on this Court; and (2) EPA’s alternative method for determining whether a provision of the amended Impaired Waters Rule established a new or revised water quality standard is entitled to be given deference by this Court.

In their Complaint, Plaintiffs allege in Counts I through V that EPA’s determination that several provisions of the amended IWR are not new or revised water quality standards is arbitrary and capricious. (Doc. 1). Plaintiffs explain that EPA’s determination is arbitrary and capricious for two reasons: (1) EPA failed to consider and

3

page3image14736
page3image15008
page3image15280
page3image15552
page3image15824
page3image16096
page3image16368
page3image16640
page3image16912
page3image17184
page3image17456

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 4 of 15

apply the “effects test” established in FPIRG II; and (2) EPA incorrectly considered and applied its alternative test (i.e., whether an IWR provision alters the magnitude, duration or frequency of permissible exceedances of pre-existing water quality criteria).1 (Doc. 76).

In response, EPA argued that the “effects test” established in FPIRG II was supplanted by EPA’s alternative test on remand in Florida Public Interest Research Group Citizens Lobby, Inc. v. E.P.A. (“FPIRG I”), No. 4:02-cv-408-WS-WCS, Doc. 185 (N.D. Fla. Feb. 15, 2007) (Order Granting Defendants’ Motion for Summary Judgment). (Doc. 89 at 19). EPA also asserted the applicability of deference. (Doc. 89 at 16). Later, EPA argued that FPIRG I is precedential and deserving of adherence under the rule of stare decisis. (Doc. 103 at 2-4).

EPA could have raised its argument about the “effects test” in FPIRG II being mere dictum in previous filings (Doc. 89 or 103), but it did not. EPA previously raised the specter that its decision was entitled to deference (Doc. 89 at 16), but failed to argue the point. A Rule 59(e) motion may not be used to present new arguments that could have been presented prior to judgment being entered or to re-litigate old matters. Gulf Power Co., supra. Accordingly, EPA’s Rule 59(e) motion should be denied.2

1 The Court’s summary judgment order does not address Plaintiffs’ second argument for holding EPA’s determination to be arbitrary and capricious. (Doc. 111).

2 In footnote 2 of EPA’s Motion to Alter or Amend the Judgement (Doc. 123), EPA asserts that it failed to raise the arguments of dictum and deference previously because Judge Stafford found in FPIRG I (Doc. 185) that the “effects test” in FPIRG II

4

page4image15928
page4image16200
page4image16472
page4image16744
page4image17016
page4image17288
page4image17560
page4image17832
page4image18104
page4image18376
page4image18648
page4image18920

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 5 of 15

II. THE “EFFECTS TEST” IS NOT MERE DICTUM

EPA argues that the “effects test” discussed by the Court in FPIRG II is mere dictum and not binding on the District Court. EPA could have presented this argument in memoranda filed prior to the Court’s grant of summary judgment on Counts I through V, but it did not. Such failure precludes consideration of this argument in a Rule 59(e) motion. Gulf Power Co., No. 3:06cv270/MCR/MD, 2011 U.S. Dist. LEXIS 83428 at *2- 3. Accordingly, EPA’s Rule 59(e) motion should be denied. Regardless of this preclusion however, Plaintiffs disagree with EPA.

This Circuit has said that dicta is defined as those portions of an opinion that are “not necessary to deciding the case then before us,” whereas a holding is comprised both of the result of the case and “those portions of the opinion necessary to that result . . ..” Powell v. Thomas, 643 F.3d 1300, 1304-1305 (11th Cir. 2011) (per curiam) (quoting United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009). Accord, Reese v.

was not the law of the case. No such finding is included in Judge Stafford’s order. As this Court correctly observed in its Order (Doc. 111), a district court in this circuit is not bound by the decisions of another judge of the same district court. Camreta v. Greene, __ U.S. __, __, 131 S. Ct. 2020, 2033 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02[1][d], p. 134-26 (3d ed. 2011) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”). Accord, Cornett v. Carrithers, No. 11-14242, 2012 WL 687011 (11th Cir. Mar. 2, 2012) (per curiam); United States v. Trapp, 396 Fed. Appx. 671, 674 (11th Cir. 2010) (per curiam); Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir. 1991) (per curiam). Denial of a motion to amend is “especially soundly exercised” when a party gives no reason for not previously raising an issue. Wilchombe v. Teevee Toons, Inc., 555 F.3d at 957 (quoting O’Neal v. Kennamer, 958 F.2d at 1047).

5

page5image19720
page5image19992
page5image20264
page5image20536
page5image20808
page5image21080
page5image21352
page5image21624
page5image21896
page5image22168
page5image22440
page5image22712
page5image22984

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 6 of 15

Sec’y, Fla. Dep’t of Corr., No. 11-12178, 2012 U.S. App. LEXIS 6501, *44 (11th Cir. Mar. 30, 2012).

Dictum may be defined as “a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding.” United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (quoting Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)). Dictum may be defined as a statement not necessary to the decision and having no binding effect. See id. (quoting American Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 356 N.W.2d 175, 178 (1984)); Black’s Law Dictionary 1100 (7th ed. 1999). See also New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1500 n. 7 (11th Cir. 1993) (Edmondson, J., concurring) (suggesting that dictum is statement not squarely presented by facts and one not absolutely necessary to decision of concrete case before the court). The Supreme Court has indicated that dicta are those statements that constitute neither the result of the case nor the portions of the opinion necessary to such result. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66-67, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). As Judge Posner has indicated, however, what is often at stake in distinguishing dictum from the holding of a case is that dictum is not authoritative. Crawley, 837 F.2d at 292. “So instead of asking what the word ‘dictum’ means we can ask what reasons there are against a court’s giving weight to a passage found in a previous opinion.” Id.

Denno v. School Bd. of Volusia County, Florida, 218 F.3d 1267, 1283 (11th Cir. 2000). EPA suggests that the question before the Court in FPIRG II was “whether EPA

had a non-discretionary duty to review the IWR under section 303(c) of the Clean Water Act,” (Doc. 123 at 7), and that “the issue of how to analyze the IWR was not before the circuit court . . ..” (Doc. 123 at 8). The Court, however, defined the issue before it somewhat differently. The Court said the issue was “whether the Florida Department of Environmental Protection, by establishing a new rule, changed or added to the state’s

6

page6image20120
page6image20392
page6image20664
page6image20936
page6image21208
page6image21480
page6image21752
page6image22024
page6image22296
page6image22568
page6image22840
page6image23112
page6image23384
page6image23656

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 7 of 15

existing water quality standards.” FPIRG II, 386 F.3d at 1073.3 The Court acknowledges that Plaintiffs argued that the IWR revised Florida’s existing standards as a matter of law or, in the alternative, as a matter of fact.4 The Court said:

On appeal, the plaintiffs argue that the district court erred by failing to specifically determine the effect of the Impaired Waters Rule on Florida’s Surface Water Quality Standards. Had the district court done so, the plaintiffs say, it would have concluded that the effect of the Impaired Waters Rule was actually to revise Florida’s “not to be exceeded at any time” standard and Florida’s narrative nutrient standard. The plaintiffs urge this Court to declare that as a matter of law the Impaired Waters Rule is

3 If the IWR changed or added to Florida’s existing water quality standards, then EPA was under a mandatory duty to review and approve or disapprove the new or revised water quality standards. FPIRG II, 386 F.3d at 1073; Clean Water Act § 303(c), 33 U.S.C. § 1313(c). Any breach of that mandatory duty would give rise to a citizen suit
and federal court jurisdiction. Clean Water Act § 505(a)(2), 33 U.S.C. § 1365(a)(2). Thus, “whether the district court had jurisdiction to hear the plaintiffs’ suit depends on whether the Impaired Waters Rule had the effect of revising or adding to Florida’s Surface Water Quality Standards.” Id. at 1091. The Court in FPIRG II held that resolution of the latter question required “the district court . . . to determine how Florida’s Surface Water Quality Standards had previously been applied, and whether the Impaired Waters Rule, as applied, actually changed the water quality standards.” Id. at 1082. “To undertake that analysis in a meaningful way, it is necessary to examine whether there were waterbodies
that were equally polluted both before and after the Impaired Waters Rule took effect, but that were classified differently depending on whether or not the Rule was used.” Id. at 1090. This analysis was central to determining whether the district court had jurisdiction. Accordingly, it is not mere dictum.

4 EPA asserts that the Court in FPIRG II did not have the benefit of the EPA’s position with regard to the applicability of the “effects test” on water quality standards. (Doc. 123 at 8) (quoting this Court’s summary judgment order, Doc. 111 at 13). This was the result of EPA’s failure to address the issue presented by Plaintiffs, not the result of a conclusion by the Court that could not have been anticipated because the issue of the practical effect of the IWR on existing water quality standards was not raised and argued. Both the Court’s opinion and Plaintiffs’ brief (Doc. 123-1) indicate that the practical effect of the IWR on water quality standards was an issue.

7

page7image24536
page7image24808
page7image25080
page7image25352
page7image25624
page7image25896
page7image26168
page7image26440

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 8 of 15

either a revision to Florida’s water quality standards, or, in the alternative, to remand the case to the district court to determine the effect of the Impaired Waters Rule on Florida’s water quality standards.

Id. at 1081.

This is the crux of the matter. The plaintiffs maintain that, regardless of how the defendants characterize the Impaired Waters Rule, the Rule has the practical impact of altering Florida’s Surface Water Quality Standards. This is true, the plaintiffs suggest, because waterbodies that were considered impaired under the existing standards are not classified as impaired under the Impaired Waters Rule, even when the overall levels of pollution are unchanged. Thus, plaintiffs say, the Rule has the effect of loosening Florida’s water quality standards. Even if the Impaired Waters Rule was designed simply as a means to measure which waterbodies met water quality standards and which did not, the plaintiffs maintain that the practical impact of these means necessarily changes the ends, as well. That is, if changing the means used to measure compliance with standards also alters the list of waters deemed compliant, the change in means effectively causes a change in standards, as well.

Id. at 1090. The Court said:

We agree with the plaintiffs that the district court erred by failing to conduct a thorough review of the effect of the Impaired Waters Rule on the water quality standards of Florida. The district court should have determined whether the practical impact of the Impaired Waters Rule was to revise Florida’s Surface Water Quality Standards. In order to do so, the district court was required to look beyond the Florida Department of Environmental Protection’s characterization of the Impaired Waters Rule as a methodology or “screening measure” that did not change the standards. Because the district court did not conduct a full analysis, we are constrained to vacate its order of summary judgment and remand for further proceedings consistent with this opinion.

Id. at 1088-1089.

In this case, the district court was obliged to determine whether the Impaired Waters Rule had the practical effect of loosening Florida’s water quality standards. To undertake that analysis in a meaningful way, it is necessary to examine whether there were waterbodies that were equally

8

page8image20872
page8image21144
page8image21416

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 9 of 15

polluted both before and after the Impaired Waters Rule took effect, but that were classified differently depending on whether or not the Rule was used.

Id. at 1090 (emphasis added). Finally, the Court concluded as follows:

[T]he district court erred in determining as a matter of law that the Impaired Waters Rule did not establish new or revised water quality standards. * * * [T]he district court was required to determine how Florida’s Surface Water Quality Standards had previously been applied, and whether the Impaired Waters Rule, as applied, actually changed the water quality standards. Accordingly, we vacate the entry of final summary judgment, and remand for further proceedings to determine what effect, if any, the Impaired Waters Rule had on Florida’s water quality standards.

Id. at 1082. See also id. at 1091.
Thus, the “result” of the Court decision in FPIRG II was that the District Court’s

judgment was vacated and remanded.5 “Necessary” to that decision was the Court’s conclusion that “it is necessary [for the District Court] to examine whether there were waterbodies that were equally polluted both before and after the Impaired Waters Rule took effect, but that were classified differently depending on whether or not the Rule was used.” Id. at 1090 (emphasis added). Accordingly, the Court in FPIRG II prescribed how the District Court was to determine whether the practical impact of the Impaired Waters

5 “Ultimately, whether the district court had jurisdiction to hear the plaintiffs’ suit depends on whether the Impaired Waters Rule had the effect of revising or adding to Florida’s Surface Water Quality Standards. In answering that question in the negative, the district court did not fully examine the practical impact the Impaired Waters Rule may have had on the state’s existing water quality standards – an examination necessary to the proper resolution of the jurisdictional question. We are, therefore, constrained to vacate the final order of summary judgment and remand for further proceedings consistent with this opinion.”

9

page9image18464
page9image18736
page9image19008
page9image19280
page9image19552
page9image19824
page9image20096

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 10 of 15

Rule was to revise Florida’s Surface Water Quality Standards. Such prescription was not mere dictum.
III. EPA’S CHEVRON DEFERENCE ARGUMENT IS INAPPOSITE

EPA argues that its alternative test for determining whether a provision of the amended Impaired Waters Rule established a new or revised water quality standard (i.e., whether an IWR provision alters the magnitude, duration or frequency of permissible exceedances of pre-existing water quality criteria) is entitled to be given deference by this Court under Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837 (1984) and its progeny. (Doc. 123 at 10). EPA raised the specter of Chevron deference in its Memorandum of Law in Response to Plaintiffs’ Motion for Summary Judgment and in Support of EPA’s Cross Motion for Summary Judgment (Doc. 89 at 16), but failed to argue the point. A Rule 59(e) motion may not be used to present new arguments that could have been presented prior to judgment being entered or to re-litigate old matters. Gulf Power Co., No. 3:06cv270/MCR/MD, 2011 U.S. Dist. LEXIS 83428 at *2-3. Accordingly, EPA’s Rule 59(e) motion should be denied. Regardless of this preclusion however, Plaintiffs disagree with EPA.

EPA suggests that its alternative test is a construction of Clean Water Act § 303(c)(2), 33 U.S.C. § 1313(c)(2). (Doc. 123 at 12-13). That subsection requires EPA to review and approve or disapprove new or revised water quality standards. “Water quality standards have three components: (a) the designated use or uses of a water body, such as drinking water supplies, or fishing and swimming; (b) the water quality criteria necessary

10

page10image14736
page10image15008
page10image15280
page10image15552

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 11 of 15

to support the designated use; and (c) an antidegradation policy . . ..” Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (Doc. 76 at 1 n.1). Accord, 40 C.F.R. § 131.6; EPA’s Memorandum of Law in Response to Plaintiffs’ Motion for Summary Judgment and in Support of EPA’s Cross Motion for Summary Judgment (Doc. 89 at 3-5). The Court in FPIRG II described the scope of EPA’s review of any new or revised water quality standards under § 303(c), 33 U.S.C. § 1313(c), as follows:

Among other things, this review involves a determination of the following:

Whether the state has adopted criteria that protect the designated water uses; [w]hether the State has followed its legal procedures for revising or adopting standards; [and w]hether the State standards which do not include the uses specified in section 101(a)(2) of the Act are based upon appropriate technical and scientific data and analyses . . .

40 C.F.R. § 131.5. Moreover, under the Clean Water Act, the state’s water quality standards may only be revised if the change complies with the anti-degradation policy which EPA regulations mandate each state to adopt. 33 U.S.C. § 1313(d)(4)(B); see 40 C.F.R. § 131.12. Thus, any change must, at the very least, maintain the existing quality of each waterbody, preventing any further “degradation” of the waterbody’s integrity. PUD No. 1 of Jefferson County and City of Tacoma v. Wash. Dep’t of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 1905-06, 128 L.Ed.2d 716 (1994) (citing 33 U.S.C. § 1313(d)(4)(B)).

386 F.3d at 1073. For example, states may not adopt and EPA may not approve a rule that will result in criteria that are insufficient to protect the designated uses of a waterbody. 40 C.F.R. §§ 131.5(a)(2), 131.6(c), 131.11(a). States may not adopt and EPA may not approve a rule that will result in the removal of a designated use that is an existing use. 40 C.F.R. §§ 131.10(g), 131.10(h)(1). And states may not adopt and EPA

11

page11image18296
page11image18568
page11image18840

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 12 of 15

may not approve a rule that fails to maintain and protect existing instream water uses and the level of water quality necessary to protect the existing uses. 40 C.F.R. § 131.12(a)(1).

These rules and others represent EPA’s exercise of delegated authority to elucidate the provisions of 33 U.S.C. § 1313(c)(2). See United States v. Mead, 533 U.S. 218, 303 (2001) (“When Congress has ‘explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation’”) (quoting Chevron). As such, they are binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary. See id. at 303-304 (“any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute”).6 EPA’s attempt to assert that its administrative decision limiting its consideration to whether an IWR provision alters the magnitude, duration or frequency of permissible exceedances of pre-existing water quality criteria is entitled to Chevron deference is misplaced. EPA was required to evaluate whether the contested IWR provisions were revisions of any water quality standards as described in 40 C.F.R. Part 131 and FPIRG

6 In contrast, “[i]nterpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” Christenson v. Harris County, 529 U.S. 576, 587 (2000).

12

page12image14104
page12image14376
page12image14648
page12image14920
page12image15192
page12image15464
page12image15736
page12image16008

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 13 of 15

II.7
In the present case, EPA determined that the amended IWR provisions in dispute

did not alter the magnitude, duration or frequency of permissible exceedances of pre- existing water quality criteria. Plaintiffs contend that EPA’s determinations were arbitrary, in part, because EPA failed to examine whether the IWR resulted in the delisting of waterbodies from the Impaired Waters List without any improvement in water quality.8 At issue in this case is not how the Clean Water Act should be construed, but rather whether the EPA’s determination that certain provisions of the amended IWR do not establish new or revised water quality standards was arbitrary or capricious under 5 U.S.C. § 706(2)(A) and related cases. See Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (Doc. 76 at 6-7); EPA’s Memorandum of Law in Response to Plaintiffs’ Motion for Summary Judgment and in Support of EPA’s Cross Motion for Summary Judgment (Doc. 89 at 14); Summary Judgment Order (Doc. 111 at 11-12).

In FPIRG II, the Court noted EPA’s assertion that the IWR merely established a

7 EPA’s analysis of whether the amended IWR altered the magnitude, duration or frequency of permissible exceedances of pre-existing water quality criteria focused exclusively on one component of water quality standards, i.e., criteria. EPA did not consider other components, including whether the amended IWR “maintain[s] the existing quality of each waterbody, preventing any further “degradation” of the waterbody’s integrity.” FPIRG II, 386 F.3d at 1073.

8 Alternatively, Plaintiffs contend that the contested IWR provisions altered the magnitude, duration or frequency of permissible exceedances of pre-existing water quality criteria standards. (Doc. 76). The Court, however, did not address this contention in it summary judgment order. (Doc. 111).

13

page13image16072
page13image16344
page13image16616
page13image16888

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 14 of 15

methodology which is used to assess what waterbodies meet applicable water quality standards. Id., 386 F.3d at 1090. However, the Court responded that a “relevant factor” to be considered in determining whether an IWR provision establishes a new or revised water quality standard is whether the IWR resulted in the delisting of waterbodies from the Impaired Waters List without any improvement in water quality. If such is the case, the Court said, the practical effect of the IWR may have been to “loosen” water quality standards. Id. at 1090-1091. The Court concluded that “the district court was obliged to determine whether the Impaired Waters Rule had the practical effect of loosening Florida’s water quality standards.” “To undertake that analysis in a meaningful way,” the Court said, “it is necessary to examine whether there were waterbodies that were equally polluted both before and after the Impaired Waters Rule took effect, but that were classified differently depending on whether or not the Rule was used.” Id. at 1090.
Thus, the Court recognized that the IWR could have the practical effect of changing standards without changing water quality criteria directly.

Plaintiffs contend that EPA’s determinations vis-a-vis the amended IWR are arbitrary. The appropriate standard of review is governed by Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)), not Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837 (1984) . Accordingly, EPA’s Chevron deference

14

page14image14136
page14image14408
page14image14680
page14image14952
page14image15224
page14image15496
page14image15768
page14image16040
page14image16312

Case 4:09-cv-00165-MCR-WCS Document 128 Filed 05/04/12 Page 15 of 15

argument is inapposite.9

IV. CONCLUSION

For the foregoing reasons, EPA’s Rule 59(e) motion for reconsideration (to alter or amend) is due to be denied.

Respectfully submitted,

s/ David A. Ludder

DAVID A. LUDDER

Attorney for Plaintiffs

Fla. Bar No. 0799998
Law Office of David A. Ludder, PLLC 9150 McDougal Ct.
Tallahassee, Florida 32312-4208
Tel (850) 386-5671
Fax (267) 873-5848
E-mail DavidALudder@enviro-lawyer.com

CERTIFICATE OF SERVICE

I hereby certify that on May 4, 2012, I electronically filed the foregoing using the CM/ECF system which will serve counsel of record by Notice of Electronic Filing.

s/ David A. Ludder

9 Plaintiffs also note that nowhere in FPIRG II did the Court address Chevron deference. There, the issue was similar to that here, i.e., whether provisions of the IWR established new or revised water quality standards.

15

page15image10808
page15image11080
page15image11352
page15image11624
page15image11896
page15image12168

About the Author

Linda Young has been the executive director of the Clean Water Network of Florida since 1994. From 1989 to 1997, she founded and published a monthly statewide environmental newspaper. Over the past twenty three years, she has co-founded some of the most long-lasting and effective environmental organizations in the Southeast, including the Gulf Restoration Network, Gulf Coast Environmental Defense and C.A.T.E. She holds a B.A. in Communications from Southern Oregon University and a M.A. in Political Science/Campaign Management from the University of West Florida.

You must log in to post a comment.