united states district court tallahassee division case … · case 4:08-cv-00324-rh-wcs document 90...

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASE NO. 4:08-cv-00324-RH-WCS

FLORIDA WILDLIFE FEDERATION, INC.;SIERRA CLUB, INC.; CONSERVANCY OFSOUTHWEST FLORIDA, INC.; ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC.; andST. JOHNS RIVERKEEPER, INC.;

Plaintiffs,vs. JOINT MOTION OF PLAINTIFFS

AND DEFENDANT EPA FOR LISA P. JACKSON, Administrator of the ENTRY OF CONSENT DECREE ANDUnited States Environmental Protection INCORPORATED MEMORANDUMAgency; and the UNITED STATES OF LAWENVIRONMENTAL PROTECTION AGENCY,

Defendants,

FLORIDA PULP AND PAPER ASSOCIATION ENVIRONMENTAL AFFAIRS, INC., the FLORIDA FARM BUREAU FEDERATION, SOUTHEASTMILK, INC., FLORIDA CITRUS MUTUAL,INC., FLORIDA FRUIT AND VEGETABLEASSOCIATION, AMERICAN FARM BUREAU FEDERATION, FLORIDA STORMWATER ASSOCIATION, FLORIDACATTLEMAN’S ASSOCIATION, and FLORIDA ENGINEERING SOCIETY,

Intervenor-Defendants,

and

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Intervenor-Defendant. /

Case 4:08-cv-00324-RH-WCS Document 90 Filed 08/25/09 of 9

1/ Water quality standards consist principally of three components: (a) designated uses forwaters, such as water supply, recreation, fish propagation, or navigation; (b) water qualitycriteria, which define the amounts of pollutants, in either numeric or narrative form, that thewaters can contain without impairment of their designated uses; and (c) antidegradationrequirements, which are designed to protect and maintain existing uses and waters whose qualityexceeds that necessary to support designated beneficial uses. 33 U.S.C. § 1313(c)(2)(A); 40

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Plaintiffs Florida Wildlife Federation, Inc.; Sierra Club, Inc.; Conservancy of

Southwest Florida, Inc.; Environmental Confederation of Southwest Florida, Inc.; and

St. Johns Riverkeeper, Inc.; and Defendants the United States Environmental Protection Agency

and Lisa P. Jackson, Administrator (collectively "EPA") hereby move the Court to enter the

attached Consent Decree. (Exhibit 1). This motion is opposed by all Intervenor-Defendants.

For the reasons stated below, the Consent Decree is fair, reasonable, and consistent with

the goals and requirements of the Clean Water Act (“CWA”).

Procedural Status and Statutory Background

Plaintiffs filed their original complaint on July 17, 2008, in which they alleged that EPA

had failed to perform a statutory, non-discretionary duty under the CWA to prepare and publish

revised water quality standards for nutrients in the State of Florida. The non-discretionary duty

asserted by Plaintiffs is contained in CWA Section 303(c)(4)(B), which provides that “the

Administrator shall promptly prepare and publish proposed regulations setting forth a revised or

new water quality standard for the navigable waters involved . . . in any case where the

Administrator determines that a revised or new standard is necessary to meet the requirements of

[the CWA].” 33 U.S.C. §1313(c)(4)(B) (emphasis added). Section 303(c)(4)(B) further requires

EPA to promulgate new or revised standards within 90 days of proposal.

At present, the State of Florida has a narrative criterion for nutrients in its water quality

standards.1/ That criterion provides, in relevant part, that “in no case shall nutrient


C.F.R. §§ 131.6, 131.10-12. Only the second component, water quality criteria, is at issue in thiscase.

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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). A determination that numeric

water quality criteria are necessary under the CWA would thus require that “new or revised”

water quality standards be promulgated for waters of the United States in Florida.

In their original and first Amended Complaints filed in July 2008, Plaintiffs cited to a

document entitled “Notice of National Strategy for the Development of Regional Nutrient

Criteria” as the “determination” that triggered the alleged mandatory duty on the part of EPA to

prepare and publish revised water quality standards for nutrients in the State of Florida. On

January 6, 2009, Plaintiffs filed a Second Amended Complaint which included the same claims

as the earlier complaints but asserted that the “determination” that triggered the alleged

mandatory duty under Section 303(c)(4)(B) was the 1998 Clean Water Action Plan.

Shortly after the filing of the Second Amended Complaint, then EPA Assistant

Administrator Benjamin Grumbles, under authority delegated from the Administrator, issued a

determination on January 14, 2009, pursuant to 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. While recognizing Florida’s efforts to implement the narrative nutrient criteria

in a meaningful way and to collect data and other information in furtherance of establishing

numeric nutrient criteria, the Assistant Administrator concluded that Florida’s existing water

quality standards are not adequate to meet the requirements of the CWA. The Assistant

Administrator based his determination on several factors, including the magnitude of nutrient

over-enrichment in Florida’s waters, the fact that the problem of nutrient over-enrichment had


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not significantly improved since 1980 despite the State’s efforts to control nutrient pollution, and

the State’s unique physical factors that make controlling nutrient over-enrichment especially

challenging.

The January 14, 2009 Determination states that EPA intends to propose numeric nutrient

criteria for lakes and flowing waters in Florida within twelve months of the January 14, 2009

determination, and for estuaries and coastal waters, within 24 months of the determination. This

time frame allows EPA to utilize the large data set collected by Florida as part of a detailed

analysis of causal and response variables in nutrient impaired waters.

The Parties briefed cross motions for summary judgment in connection with the Clean

Water Action Plan claims in March 2009, and the court heard oral argument on those motions on

April 2, 2009. Subsequently, Plaintiffs moved for a stay of all proceedings on July 2, 2009 and

for leave to file an amended supplemental complaint to allege claims in connection with the

January 14, 2009 determination.

On July 2, 2009, Plaintiffs filed their Third Amended Supplemental Complaint, which

included the same claims as the Second Amended Complaint and added a claim that EPA has

failed to “promptly” set forth numeric water quality criteria in Florida in connection with the

January 14, 2009 determination. On July 20, 2009, the court granted Plaintiffs leave to amend,

deemed the third amended complaint properly filed, and stayed the proceedings for 60 days.

The Settlement

EPA and Plaintiffs have reached agreement on the attached Consent Decree as a full

resolution of Plaintiffs’ claims in this matter. Under the Consent Decree, EPA commits to sign

for publication proposed regulations setting forth numeric criteria for Florida’s lakes and flowing

waters no later than January 14, 2010. EPA would be cleared of this obligation if the State of


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Florida submits to EPA -- and EPA approves -- new or revised water quality standards for lakes

and flowing waters before January 14, 2010. Should EPA propose these numeric water quality

criteria, it would then have nine months to sign for publication a final rule, until October 15,

2010. The obligation to issue a final rule would no longer apply if the State of Florida submits --

and EPA approves -- new or revised water quality standards for lakes and flowing waters before

October 15. 2010.

The Consent Decree also includes EPA’s commitment to sign for publication a proposed

rule setting forth numeric criteria for Florida’s coastal and estuarine waters no later than January

14, 2011. As above, this obligation would no longer apply if the State of Florida submits to EPA

-- and EPA approves-- new or revised water quality standards for coastal and estuarine waters by

January 14, 2011. Should EPA propose these numeric water quality criteria, it would then have

nine months to sign for publication a final rule, until October 15, 2011. Again, this obligation

would no longer apply if the State submits -- and EPA approves -- new or revised water quality

standards for coastal and estuarine waters by October 15, 2011.

The Consent Decree does not affect any person’s opportunity to participate in the

development of numeric nutrient criteria for Florida waters, or to challenge the substantive

adequacy of any nutrient criteria promulgated by EPA.

The Settlement is Fair and Reasonable

It is in the interest of the public, the parties and judicial economy to resolve the issues in

this action without continued litigation. There is a strong policy in favor of voluntary resolution

of litigation through settlement, particularly where compliance with the settlement will

“contribute significantly toward ultimate achievement of statutory goals.” Lipuma v. American

Express Co., 406 F. Supp. 2d 1298, 1314 (S.D. Fla 2005) (quoting Patterson v. Newspaper &


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Mail Deliverers’ Union, 514 F.2d 767, 771 (2d Cir. 1975). Consent decrees "encourage[]

informal resolution of disputes, thereby lessening the risks and costs of litigation." SEC v.

Randolph, 736 F.2d 525, 528 (9th Cir. 1984); see also Metropolitan Housing Development, 616

F.2d 1006, 1014 & n. 10 (7th Cir. 1980) (noting benefits of consent decrees).

The Court should approve a settlement if it is fair, adequate, reasonable and not the

product of collusion. Leverso v. Southtrust Bank, 18 F.3d 1527, 1530 (11th Cir. 1994). In

reviewing a settlement, inquiry is directed not to whether the Court itself would have reached a

particular result but rather, to whether the proposed settlement is a reasonable compromise and

otherwise in the public interest. Here, the Consent Decree is fair, reasonable, and consistent with

the goals and requirements of the CWA. The Decree is the product of good faith negotiations

between the settling parties, each represented by counsel. Further, the Decree represents a

reasonable result that allows the parties to resolve this matter without the time and expense of

further litigation. The Decree is consistent with the goals of the CWA by requiring the

development of numeric nutrient criteria in the State of Florida pursuant to Section 303(c)(4)(B)

of the CWA, and in a manner that will allow for public participation in the process.

A proposed order granting this motion will be electronically transmitted to Chambers

simultaneous with the filing of the motion.

Plaintiffs and EPA have sought the position of the Intervenor-Defendants with respect to

this motion. Counsel for all Intervenor-Defendants have stated that their clients oppose the entry

of the Consent Decree. Plaintiffs and EPA expect that the Intervenor-Defendants will file an

opposition to this motion.


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Respectfully submitted,

Dated: August 25, 2009 /s/ Monica K. Reimer MONICA K. REIMERFlorida Bar No 0090069DAVID G. GUESTFlorida Bar No. [email protected]@earthjustice.orgP.O. Box 1329Tallahassee, FL 32302Telephone: (850) 681-0031 Facsimile: (850) 681-0020FOR PLAINTIFFS

THOMAS F. KIRWINActing United States AttorneyFlorida Bar No. 280941ROBERT D. STINSONFlorida Bar No. 319406Assistant United States Attorney111 North Adams Street, 4th FloorTallahassee, FL 32301Tel: (850) 942-8430

JOHN C. CRUDENActing Assistant Attorney General

Dated: August 25, 2009 /s/ Martha C. Mann MARTHA C. MANNFlorida Bar No [email protected]. Department of JusticeEnvironment and Natural Resources DivisionEnvironmental Defense SectionP.O. Box 23986Washington, D.C. 20026-2986Telephone: (202) 514-2664Facsimile: (202) 514-8865


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I caused a true and correct copy of the foregoing to beelectronically filed on August 25, 2009. The following counsel are to receive notice of the filingvia the Court’s electronic case filing system:

Monica K. ReimerDavid G. GuestEarthjusticeP.O. Box 1329Tallahassee, FL 32302

Terry ColeOertel Fernandez Cole & Bryant301 S. Bronough StreetTallahassee, FL 32302

Keith RizzardiSouth Florida Water Management District3301 Gun Club Road, MSC 1410West Palm Beach, FL 33406

/s/ Martha C. Mann MARTHA C. MANNUnited States Department of JusticeEnvironment and Natural ResourcesDivision


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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASE NO. 4:08-cv-00324-RH-WCS

FLORIDA WILDLIFE FEDERATION, INC.; SIERRA CLUB, INC.; CONSERVANCY OF SOUTHWEST FLORIDA, INC.; ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC.; and ST. JOHNS RIVERKEEPER, INC;

Plaintiffs,

vs.

LISA P. JACKSON, Administrator of the United States Environmental Protection Agency; and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendants, CONSENT DECREE FLORIDA PULP AND PAPER ASSOCIATION ENVIRONMENTAL AFFAIRS, INC., the FLORIDA FARM BUREAU FEDERATION, SOUTHEAST MILK, INC., FLORIDA CITRUS MUTUAL, INC., FLORIDA FRUIT AND VEGETABLE ASSOCIATION, AMERICAN FARM BUREAU FEDERATION, FLORIDA STORMWATER ASSOCIATION, FLORIDA CATTLEMAN’S ASSOCIATION, and FLORIDA ENGINEERING SOCIETY,

Intervenor-Defendants, and

Case 4:08-cv-00324-RH-WCS Document 90-2 Filed 08/25/09 Page 1 of 13

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SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Intervenor-Defendant. /

WHEREAS, Plaintiffs Florida Wildlife Federation, Inc.; Sierra Club, Inc.; Conservancy

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

Johns Riverkeeper, Inc. (“Plaintiffs”) filed their original Complaint on July 17, 2008 pursuant to

section 505(a)(2) of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(2).

WHEREAS, Plaintiffs filed their First Amended Complaint on August 5, 2008, and their

Second Amended Complaint on January 6, 2009.

WHEREAS, Plaintiffs’ original and Amended Complaints each allege that Defendants

Lisa P. Jackson and the United States Environmental Protection Agency (collectively “EPA”)

failed to perform a non-discretionary duty to set numeric nutrient criteria for the State of Florida

as required by CWA Section 303(c)(4)(B), 33 U.S.C. § 1313(c)(4)(B).

WHEREAS, Section 303(c)(4)(B) of the CWA, 33 U.S.C. § 1313(c)(4)(B), provides that

EPA’s Administrator shall promptly prepare and publish proposed regulations setting forth a

revised or new water quality standard for the navigable waters involved in any case where the

Administrator determines that a revised or new water quality standard is necessary to meet the

requirements of the CWA.

WHEREAS, Plaintiffs’ Second Amended Complaint alleged that the 1998 Clean Water

Action Plan constituted a determination by the Administrator that new or revised water quality

standards for nutrients were necessary to meet the requirements of the CWA.

WHEREAS, on January 14, 2009, EPA’s Assistant Administrator, pursuant to a one-time


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delegation of authority by the Administrator, made a determination under Section 303(c)(4)(B)

of the CWA, 33 U.S.C. § 1313(c)(4)(B), that new or revised water quality standards for nutrients

are necessary in the State of Florida.

WHEREAS, on April 9, 2009, Plaintiffs mailed EPA a notice of intent, pursuant to the

requirements of Section 505(b)(2) of the CWA, 33 U.S.C. § 1365(b)(2), to sue EPA for failure to

perform its nondiscretionary duty to promptly propose new water quality standards for nutrients

in the State of Florida in connection with the January 14, 2009 determination.

WHEREAS, the Court has granted Plaintiffs’ motion to amend their Second Amended

Complaint to add those claims set forth in their April 9, 2009 notice of intent.

WHEREAS, Plaintiffs and EPA (collectively “the Parties”) wish to effectuate a

settlement of the above-captioned matter without continued litigation.

WHEREAS, Plaintiffs and EPA have agreed to meet on an informal basis to discuss

EPA’s progress toward the proposal and finalization of water quality standards for nutrients in

Florida;

WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution

of the claims in the above-captioned matter.

WHEREAS, the Court, by entering this Decree, finds that the Decree is fair, reasonable,

in the public interest, and consistent with the CWA, 33 U.S.C. §§ 1251-1387.

NOW THEREFORE, without trial or determination of any issue of fact or law, and upon

the consent of the Parties, it is hereby ORDERED, ADJUDGED and DECREED that:

I. GENERAL TERMS

1. This Court has subject matter jurisdiction over the claims set forth in the Third


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Amended Complaint to order the relief contained in this Decree. Venue is proper in the United

States District Court for the Northern District of Florida.

2. Plaintiffs and EPA shall not challenge the terms of this Decree or this Court's

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of

this Decree.

II. TERMS OF AGREEMENT

3. Numeric water quality criteria for nutrients proposed pursuant to this consent

decree will consist of numeric values that EPA determines are protective of the designated uses

of waters addressed by the requirements in Paragraphs 4 through 11.

4. Except as provided in Paragraph 5 below, the appropriate EPA official shall, by

January 14, 2010, sign for publication in the Federal Register proposed regulations setting forth

numeric water quality criteria for lakes and flowing waters in the State of Florida, pursuant to

section 303(c) of the Clean Water Act, 33 U.S.C. 1313(c). “Lakes and flowing waters” are

inland surface waters that have been classified as Class I or III waterbodies pursuant to Rule 62-

302.400, F.A.C., excluding wetlands.

5. The requirements of Paragraph 4 shall not apply to any item in Paragraph 4 for

which, on or before January 14, 2010, the State has submitted new or revised water quality

standards for such item and EPA has approved such standards pursuant to section 303(c)(3) of

the Clean Water Act. Any such approval by EPA shall be in writing and signed by the EPA

official with the authority to make such approvals.

6. Except as provided in Paragraph 7 below, EPA shall, by October 15, 2010, sign

for publication in the Federal Register a notice(s) of final rulemaking addressing each of the


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items identified in Paragraph 4 for which EPA signed a notice(s) of proposed rulemaking

pursuant to Paragraph 4 of this Decree.

7. The requirements of Paragraph 6 shall not apply to any item identified in

Paragraph 6 for which on or before October 15, 2010, the State submits new or revised water

quality standards for such item and EPA has approved such standards pursuant to section

303(c)(3) of the Clean Water Act. Any such approval by EPA shall be in writing and signed by

the EPA official with the authority to make such approvals.

8. Except as provided in Paragraph 9 below, the appropriate EPA official shall, by

January 14, 2011, sign for publication in the Federal Register proposed regulations setting forth

numeric water quality criteria for coastal and estuarine waters in the State of Florida, pursuant to

section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c). “Coastal waters” are waters of the

Gulf of Mexico and Atlantic Ocean that are not classified as estuarine or open ocean, that are

within the three-mile territorial seas of Florida (see CWA section 502(8)), and that have been

classified as Class I, II, or III waterbodies pursuant to Rule 62-302.400, F.A.C., excluding

wetlands. “Estuarine waters” are predominantly marine regions of interaction between rivers

and nearshore ocean waters, where tidal action and river flow mix fresh and salt water.

Estuarine waters are bays, mouths of rivers, and lagoons, that are within the boundaries of the

State of Florida, and that have been classified as Class I, II, or III waterbodies pursuant to Rule

62-302.400, F.A.C., excluding wetlands.

9. The requirements of Paragraph 8 shall not apply to any item in Paragraph 8 for

which, on or before January 14, 2011, the State has submitted new or revised water quality

standards for such item and EPA has approved such standards pursuant to section 303(c)(3) of


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the Clean Water Act. Any such approval by EPA shall be in writing and signed by the EPA

official with the authority to make such approvals.

10. Except as provided in Paragraph 11 below, EPA shall, by October 15, 2011, sign

for publication in the Federal Register a notice(s) of final rulemaking addressing each of the

items identified in Paragraph 8 for which EPA signed a notice(s) of proposed rulemaking

pursuant to Paragraph 8 of this Decree.

11. The requirements of Paragraph 10 shall not apply to any item identified in

Paragraph 10 for which on or before October 15, 2011, the State submits new or revised water

quality standards for such item and EPA has approved such standards pursuant to section

303(c)(3) of the Clean Water Act. Any such approval by EPA shall be in writing and signed by

the EPA official with the authority to make such approvals.

III. ATTORNEYS’ FEES AND COSTS

12. The Parties agree that Plaintiffs are entitled to reasonable attorneys’ fees and costs

accrued as of the Effective Date of this Consent Decree on all claims asserted in their Third

Amended Complaint. The Parties will attempt to reach agreement as to the appropriate amount

of the recovery. Plaintiffs shall file any request for attorneys’ fees within sixty (60) of the

Effective Date of this Consent Decree. EPA shall have forty-five (45) days to respond to

Plaintiffs’ fee request.

IV. EFFECTIVE DATE

13. This Consent Decree shall become effective upon the date of its entry by the

Court. If for any reason the District Court does not enter this Consent Decree, the obligations set

forth in this Consent Decree are null and void.


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V. REMEDY, SCOPE OF JUDICIAL REVIEW

14. Nothing in this Consent Decree shall be construed to confer upon the Court

jurisdiction to review any decision, either procedural or substantive, to be made by EPA pursuant

to this Consent Decree, except for the purpose of determining EPA's compliance with this

Consent Decree.

15. Nothing in this Consent Decree alters or affects the standards for judicial review,

if any, of any final EPA action.

VI. RELEASE BY PLAINTIFFS

16. Upon entry of this Consent Decree by the Court, this Consent Decree shall

constitute a complete and final settlement of all claims that were asserted, or that could have

been asserted, by Plaintiffs against Defendants relating to the allegations in the Third Amended

Complaint.

17. Plaintiffs hereby release, discharge, and covenant not to assert (by way of the

commencement of an action, the joinder of the Administrator and/or EPA in an existing action,

or in any other fashion) any and all claims, causes of action, suits or demands of any kind

whatsoever in law or in equity that they may have had, or may now have, against Defendants

related to the allegations in the Third Amended Complaint, expressly including any allegation

that EPA has failed to promptly propose and to promulgate numeric nutrient standards in Florida

for lakes, flowing waters, estuarine waters, and coastal waters under CWA section 303(c), 42

U.S.C. § 1313(c). Plaintiffs expressly reserve the right to challenge in any forum and on any

ground the lawfulness of any nutrient water quality criteria EPA ultimately promulgates pursuant

to CWA § 303(c), 33 U.S.C. § 1313(c). Defendants reserve all defenses to any such challenge.


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VII. TERMINATION OF CONSENT DECREE AND DISMISSAL OF CLAIMS

18. When EPA’s obligations under Paragraphs 4 through 11 have been completed,

and the Plaintiffs’ claims for costs of litigation have been resolved pursuant to the process

described in Paragraph 12, this Consent Decree shall terminate. Upon termination of the

Consent Decree, the above-captioned matter shall be dismissed with prejudice. The Parties shall

file the appropriate notice with the Court so that the Clerk may close the file.

VIII. FORCE MAJEURE AND APPROPRIATED FUNDS

19. The obligations imposed upon EPA under this Decree can only be undertaken

using appropriated funds. No provision of this Decree shall be interpreted as or constitute a

commitment or requirement that the Administrator obligate or pay funds in contravention of the

Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal statute.

20. The Parties recognize that the performance of this Consent Decree is subject to

fiscal and procurement laws and regulations of the United States which include, but are not

limited to, the Anti-Deficiency Act, 31 U.S.C. § 1341, et seq. The possibility exists that

circumstances outside the reasonable control of EPA could delay compliance with the

obligations in this Consent Decree. Such situations include, but are not limited to, a government

shutdown; catastrophic environmental events requiring immediate and/or time-consuming

response by EPA; and extreme weather events (including but not limited to drought and

hurricanes). Should a delay occur due to such circumstances, any resulting failure to fulfill any

obligation set forth herein shall not constitute a failure to comply with the terms of this Consent

Decree, and any deadline so affected shall be extended one day for each day of the delay. EPA

will provide Plaintiffs with reasonable notice in the event that EPA invokes this Paragraph. Any


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dispute regarding such invocation shall be resolved in accordance with the dispute resolution

provision of Paragraph 21.

IX. DISPUTE RESOLUTION

21. In the event of a dispute between the Parties concerning the interpretation or

implementation of any aspect of this Decree, the disputing Party shall provide the other Party

with a written notice outlining the nature of the dispute and requesting informal negotiations. If

the Parties cannot reach an agreed-upon resolution within thirty (30) days after receipt of the

notice, any Party may move the Court to resolve the dispute.

X. MODIFICATIONS AND EXTENSIONS

22. The deadlines set forth in Paragraphs 4 through 11 above may be extended by

written agreement of the Parties with notice to the Court. To the extent the Parties are not able to

agree on an extension of any deadline set forth in this Consent Decree, EPA may seek

modification of the deadline in accordance with the procedures specified below.

A. If EPA files a motion requesting modification of any date or dates

established by this Consent Decree totaling more than thirty (30) days for each date and provides

notice to Plaintiffs at least thirty (30) days prior to filing such motion, and files the motion at

least sixty (60) days prior to the date for which modification is sought, then the filing of such

motion shall, upon request, automatically extend the date for which modification is sought. Such

automatic extension shall remain in effect until the earlier of (i) a dispositive ruling by this Court

on such motion, or (ii) the date sought in such motion. EPA may seek only one extension under

this subparagraph for each date established by this Consent Decree.


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B. If EPA files a motion requesting modification of a date or dates

established by this Consent Decree totaling thirty (30) days or less for each date, provides notice

to Plaintiffs at least fifteen (15) days prior to the filing of such motion, and files the motion at

least seven (7) days prior to the date for which modification is sought, then the filing of such

motion shall, upon request, automatically extend the date for which modification is sought. Such

extension shall remain in effect until the earlier of (i) a dispositive ruling by this Court on such

motion, or (ii) the date sought in the motion. EPA may seek only one extension under this

subparagraph for each date established by this Consent Decree.

C. If EPA does not provide notice pursuant to Subparagraphs 22.A or 22.B

above, EPA may move the Court for a stay of the date for which modification is sought. EPA

shall give notice to Plaintiffs as soon as reasonably possible of its intent to seek a modification

and/or stay of the date sought to be modified.

D. If the Court denies a motion by EPA to modify a date established by this

Consent Decree, then the date for performance for which modification had been requested shall

be such date as the Court may specify.

E. Any motion to modify the schedule established in this Consent Decree

shall be accompanied by a motion for expedited consideration.

XI. CONTINUING JURISDICTION

23. The Court retains jurisdiction for the purposes of resolving any disputes arising

under this Consent Decree, and issuing such further orders or directions as may be necessary or

appropriate to construe, implement, modify, or enforce the terms of this Consent Decree, and for

granting any further relief as the interests of justice may require.


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XII. AGENCY DISCRETION

24. Except as provided herein, nothing in this Decree shall be construed to limit or

modify any discretion accorded the Administrator by the CWA, the APA, or by general

principles of administrative law in taking the actions that are the subject of this Decree.

25. Nothing in this decree shall be construed as an admission of any issue of fact or

law.

XIII. NOTICE AND CORRESPONDENCE

26. Any notices required or provided for by this Decree shall be made in writing, via

electronic mail or other means, and sent to the following:

For Plaintiffs:

DAVID G. GUEST MONICA K. REIMER 111 South Martin Luther King Blvd. P.O. Box 1329 Tallahassee, FL 32301 [email protected] [email protected]

For Defendants:

MARTHA C. MANN United States Department of Justice Environmental Defense Section P.O. Box 23986 Washington, D.C. 20026-3986 [email protected]

BARBARA PACE U.S. Environmental Protection Agency Office of General Counsel Mail Code 2355A


1200 Pennsylvania Ave., N.W.Washington, DC 20460pace. barbara~epa.gov

xv. REPRESENTATIVE AUTHORITY

27. The undersigned representatives of each Party certify that they are fully authorized

by the Party they represent to bind that Party to the terms of this Decree.

COUNSEL FOR PLAINTIFFS:

Dated: 8 As /89/ ' ~fL ~DAVID G. GUESTMONICA K. REIMER1 1 1 South Martin Luther King Blvd.P.O. Box 1329Tallahassee, FL 32301

COUNSEL FOR DEFENDANTS:

Dated: L ~ ;\ lr s t iooVl

JOHN C. CRUD ENActing Assistant Attorney GeneralEnv. & Natural Resources Division

~~MARTHA C. MANUnited States Department of JusticeEnvironmental Defense SectionP.O. Box 23986Washington, D.C. 20026-3986Phone (202)305-0897

Fax (202) 514-2664martha.mann~usdoj .gov

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SO ORDERED.

Dated: _________________ _____________________________

ROBERT L. HINKLE United States District Judge


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