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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. /
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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
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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
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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
Case 4:08-cv-00324-RH-WCS Document 90-2 Filed 08/25/09 Page 11 of 13
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
12
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SO ORDERED.
Dated: _________________ _____________________________
ROBERT L. HINKLE United States District Judge
Case 4:08-cv-00324-RH-WCS Document 90-2 Filed 08/25/09 Page 13 of 13