On January 7, 2014, the U. S. District Court for the Northern District of Florida granted a motion filed by the U.S. Environmental Protection Agency (EPA) to amend a consent decree between EPA and environmental interests who sued to force EPA to develop numeric nutrient criteria for Florida waters. Florida Wildlife Fed’n v. McCarthy, No. 08-cv-324, 2014 U.S. Dist. LEXIS 1343 (N.D. Fla. Jan 7, 2014). Several environmental organizations, represented by Earthjustice, had filed a motion to enforce the original consent decree that would have required EPA, rather than Florida, to develop the numeric criteria. The court denied that motion.
This decision is the latest development in a long-running dispute over nutrient pollution. In 2008 the environmental groups filed suit claiming that EPA’s 1998 guidance encouraging the states to develop numeric nutrient criteria was a formal determination that numeric criteria were necessary for the states to remain in compliance with the Clean Water Act (Act). EPA defended the suit at first then and issued a formal determination that numeric nutrient criteria were necessary for Florida waters under § 303(c)(4)(B) of the Act. The terms of the necessity determination were incorporated into a consent decree that was approved by the court.
EPA initiated notice and comment rulemaking to promulgate numeric nutrient criteria for Florida waters. The Florida Department of Environmental Protection accelerated its ongoing efforts to develop criteria and eventually promulgated a suite of nutrient standards approved by EPA on November 30, 2012. EPA amended the Florida necessity determination in light of its approving the state criteria and moved to amend the consent decree, which required EPA to develop criteria for Florida waters, based upon the changed circumstances.
The environmental organizations argued that EPA could not justify a modification of the consent decree based upon the federal agency’s unilateral amendment of the Florida necessity determination. The court disagreed stating that Florida’s development, and EPA’s approval, of state numeric nutrient criteria justified the requested modification of the consent decree and is consistent with the Clean Water Act mandate that the states retain primary responsibility for establishing water quality standards.