The Eleventh Circuit Court of Appeals has dismissed, for lack of standing, intervenors’ appeal of a 2009 district court order approving a consent decree that required EPA to set numeric limits on phosphorous and nitrogen pollution for certain bodies of water in Florida. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., No. 10-10886 (11th Cir. 8/3/11). The consent decree settled a lawsuit several environmental groups filed against EPA alleging that the agency had failed to set timely new water quality standards in the state. The decree required EPA to issue numeric standards within two years. According to intervenors-appellants, a state water management district and a utility council, the consent decree was “substantively and procedurally unreasonable,” and the court abused its discretion by approving it. Appellants argued that they were injured because the consent decree established an “unrealistic” deadline for adopting new numeric water criteria, giving them insufficient time to comment on EPA’s rulemaking.
Finding that appellants could not demonstrate injury stemming from the consent decree, the court determined that they therefore lacked standing. According to the court, Florida had failed to adopt or propose statewide numeric standards but maintained its narrative standard that used descriptive language to determine the point at which water quality was impaired. EPA found the state’s narrative standard to be in violation of the Clean Water Act, and that finding was adopted in the 2009 consent decree. Since 2009, EPA has followed the consent decree’s mandated time frame but has yet to promulgate a final rule. Once EPA does so, appellants may challenge the consent decree’s influence on the rulemaking.