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Florida Pub. Interest Research Group Citizen Lobby v. EPA

ELR Citation: 34 ELR 20109
Nos. No. 03-13810, (11th Cir., 10/04/2004)

The Eleventh Circuit held that a district court erred in determining as a matter of law that Florida's impaired waters rule did not establish new or revised water quality standards and therefore was not subject to nondiscretionary review by the U.S. Environmental Protection Agency (EPA). Contrary to EPA's view, the environmental advocacy groups that filed suit had standing, and their claim was not rendered moot by EPA's subsequent review of changes to the state's impaired waters list. EPA's "reasonableness" review of the revised impaired waters list did not satisfy its duty, if it exists, to review the impaired waters rule to determine whether the rule complies with the Clean Water Act. As for the merits, the lower court failed to conduct a thorough review of the effect of the impaired waters rule on the water quality standards of Florida. Instead of concluding that the rule did not create water quality standards because the state failed to follow the proper procedures, the district court should have determined whether the practical impact of the rule was to revise the standards. The record establishes that both EPA and the state applied the impaired waters rule when they created and approved changes to Florida's impaired waters list. Thus, if water bodies that would have been included on the list under preexisting testing methodologies were left off the list because of the impaired waters rule, in effect the rule would have created new or revised water quality standards, even if the language of the regulation said otherwise.