Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 1 of 86 PageID 1
`
`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
`
`SAVE THE MANATEE CLUB,
`CENTER FOR BIOLOGICAL
`DIVERSITY, and DEFENDERS OF
`WILDLIFE,
`
`Plaintiffs,
`
`v.
`
`UNITED STATES
`ENVIRONMENTAL PROTECTION
`AGENCY,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. _______
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
`
`SAVE THE MANATEE CLUB,
`CENTER FOR BIOLOGICAL
`DIVERSITY, and DEFENDERS OF
`WILDLIFE,
`
`Plaintiffs,
`
`v.
`
`UNITED STATES
`ENVIRONMENTAL PROTECTION
`AGENCY,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. _______
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 2 of 86 PageID 2
`
`INTRODUCTION
`
`1.
`
`This case challenges the failure of the U.S. Environmental Protection
`
`Agency (“EPA”) to reinitiate Endangered Species Act (“ESA”) section 7
`
`consultation with the U.S. Fish and Wildlife Service (“FWS”) and the National
`
`Marine Fisheries Service (“NMFS”) (together, the “Services”) on water quality
`
`standards for Florida’s Indian River Lagoon, where poor water quality has caused
`
`catastrophic mortality of Florida manatees.
`
`2.
`
`The Indian River Lagoon (the “Lagoon”) is one of the most
`
`biologically diverse estuaries in North America. Its seagrass ecosystem is home to
`
`thousands of plant and animal species. Sometimes called the “cradle of the ocean,”
`
`the Lagoon features brackish waters that some predators avoid, leading young sea
`
`turtles, fish, crab, and shrimp to spend their juvenile stages there before they
`
`mature and move into the Atlantic Ocean. The iconic Florida manatee inhabits the
`
`Lagoon, alongside green sea turtles, loggerhead sea turtles, and smalltooth sawfish.
`
`The manatee and sea turtles are protected as “threatened” species under the ESA.
`
`The smalltooth sawfish is protected as an “endangered” species under the ESA.
`
`3.
`
`The Indian River Lagoon is currently suffering ecologic collapse.
`
`More than a thousand manatees died in Florida in 2021, more than any other year
`
`on record, with more than half of the deaths occurring in the Lagoon. Manatee
`
`deaths in the Lagoon have continued into 2022 at a record pace.
`
`1
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 3 of 86 PageID 3
`
`4.
`
`The root of the problem is deteriorating water quality. Excess nitrogen
`
`and phosphorus pollution from human activities fuels harmful algal outbreaks that
`
`block sunlight from reaching seagrass, the manatee’s main food source. As a result,
`
`tens of thousands of acres of seagrass have died, and hundreds of manatees have
`
`starved to death. Other ESA-listed species in the Lagoon are also harmed by the
`
`same pollution. Sea turtles develop deadly tumors in the dirty water, and
`
`smalltooth sawfish lose their mangrove habitat.
`
`5.
`
`Congress passed the Clean Water Act (“CWA”) and the ESA to
`
`prevent such harms.
`
`6.
`
`The CWA charges the Florida Department of Environmental
`
`Protection (“FDEP”) and EPA with the protection of Florida’s waterbodies,
`
`including the beleaguered Indian River Lagoon. Pursuant to its CWA duty, FDEP
`
`has set pollution budgets known as “total maximum daily loads” (“TMDLs”) for
`
`each pollutant impairing a waterbody. FDEP set TMDLs for nitrogen and
`
`phosphorus in the Indian River Lagoon in 2009 with a goal of preserving the
`
`natural balance of flora and fauna in the Lagoon, including maintaining seagrass.
`
`EPA approved FDEP’s 2009 TMDLs as water quality standards for the Lagoon in
`
`2013.
`
`7.
`
`At the time EPA approved these TMDLs as water quality standards, it
`
`consulted with FWS and NMFS under section 7 of the ESA. The ESA consultation
`
`
`
`2
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 4 of 86 PageID 4
`
`process exists to ensure that EPA’s actions—including its approval of a state’s
`
`water quality standards—are not likely to jeopardize the survival and recovery of
`
`listed species or destroy or adversely modify designated critical habitat. Following
`
`consultation, FWS concurred in EPA’s determination that the water quality
`
`standards would not likely adversely affect manatees. NMFS determined that the
`
`water quality standards would not jeopardize green sea turtles, loggerhead sea
`
`turtles, or smalltooth sawfish.
`
`8.
`
`The ESA also requires that consultation be reinitiated in certain
`
`circumstances when new information reveals effects of an action on listed species
`
`or critical habitat that were not previously considered.
`
`9.
`
`On August 10, 2021, FWS asked EPA to reinitiate consultation based
`
`on new information that harmful algal outbreaks have killed tens of thousands of
`
`acres of seagrass, leading manatees to starve to death in record numbers.
`
`10. EPA refused to reinitiate consultation in response to FWS’s request.
`
`11. Plaintiffs Save the Manatee Club, Center for Biological Diversity, and
`
`Defenders of Wildlife notified the EPA, FWS, and NMFS of their intent to sue
`
`over EPA’s failure to reinitiate consultation in violation of ESA section 7. Like
`
`FWS, Plaintiffs explained that new information shows that the mass die-off of
`
`manatees and harm to other protected species in the Indian River Lagoon is caused
`
`by nitrogen and phosphorus pollution subject to the 2009 TMDLs. Plaintiffs also
`
`
`
`3
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 5 of 86 PageID 5
`
`explained that new information shows that the TMDLs are not adequately followed
`
`or enforced, nor are there reasonable assurances that the state will meet the
`
`TMDLs in the absence of additional enforcement measures. Finally, Plaintiffs
`
`explained that new information demonstrates that the TMDLs fail to account for
`
`contributions from historic pollution sources, underestimate contributions from
`
`septic systems, and do not account for the impacts of climate change.
`
`12. EPA did not reinitiate consultation in response to Plaintiffs’ notice.
`
`13. Manatees and other ESA-protected species in the Indian River Lagoon
`
`are suffering and will continue to suffer until water quality in the Lagoon
`
`improves. Plaintiffs therefore ask this Court to compel EPA to reinitiate
`
`consultation with the Services to protect ESA-listed species that depend on the
`
`Lagoon’s fragile habitat, as the Endangered Species Act requires.
`
`JURISDICTION AND VENUE
`
`14. Plaintiffs bring this action pursuant to the citizen suit provision of the
`
`ESA, 16 U.S.C. § 1540(g), which waives EPA’s sovereign immunity. Pursuant to
`
`this provision, Plaintiffs sent EPA and the Services two 60-day notice letters of
`
`their intent to sue for all ESA violations listed herein. See id. § 1540(g)(2)(A)(i).
`
`Plaintiffs sent the first notice letter—regarding consultation with FWS on impacts
`
`to manatees—on December 20, 2021, and the second letter—regarding
`
`consultation with NMFS on impacts to green sea turtles, loggerhead sea turtles,
`
`
`
`4
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 6 of 86 PageID 6
`
`and smalltooth sawfish—on February 7, 2022. [Attached as Exhibits 1 and 2]. EPA
`
`has not remedied the legal violations Plaintiffs identified in the 60-day notice
`
`letters and now allege in this Complaint.
`
`15. This Court has jurisdiction over Plaintiffs’ claims under 16 U.S.C.
`
`§ 1540(g) and 28 U.S.C. § 1331 (federal question) and may issue a declaratory
`
`judgment and injunctive relief under 28 U.S.C. §§ 2201–02.
`
`16. Venue lies in the Middle District of Florida pursuant to 28 U.S.C.
`
`§ 1391(e)(1)(B) & (C), because a substantial part of the Indian River Lagoon and
`
`the species at issue occur in this District, and because Plaintiff Save the Manatee
`
`Club’s office is in Maitland, Orange County, in this District. For these reasons,
`
`venue is further appropriate in the Orlando Division of the Middle District of
`
`Florida as this action is most directly connected with, and most conveniently
`
`advanced, in the Orlando Division. See Middle District of Florida Local Rule
`
`1.04(a)–(b).
`
`PARTIES
`
`17. Plaintiff Save the Manatee Club is a nonprofit 501(c)(3) membership
`
`organization dedicated to the conservation of manatees. The organization was
`
`founded in 1981 by singer and songwriter Jimmy Buffett and Governor of Florida
`
`Bob Graham. Save the Manatee Club is located in Maitland, Florida. The
`
`organization currently has about 40,000 active members.
`
`
`
`5
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 7 of 86 PageID 7
`
`18. Save the Manatee Club brings this action on behalf of itself and its
`
`members, many of whom enjoy observing, photographing, and appreciating the
`
`Florida manatee in its natural habitat. Save the Manatee Club members regularly
`
`engage in these activities in the Indian River Lagoon and will continue to do so in
`
`the future.
`
`19. For example, one of Save the Manatee Club’s members and
`
`volunteers lives, works, and recreates on or around the Indian River Lagoon. She
`
`has lived in Indian River County since 2011 and has been an active volunteer with
`
`Save the Manatee Club since 2012. This member has authored a book about
`
`manatee evolution, physiology, mythology, and conservation based on her
`
`observations and enjoyment of the animals in their Lagoon habitat. In addition to
`
`her volunteer work with Save the Manatee Club, this member gives educational
`
`talks on manatees to various environmental organizations and boating and garden
`
`clubs. One of her favorite activities is leading guided walks and kayak tours at
`
`Round Island, a well-known manatee observation area. During these tours, she
`
`shares her knowledge about and experiences with manatees, and discusses the
`
`animals’ interesting lifestyle and biological quirks with members of the public.
`
`20. Plaintiff Center for Biological Diversity (the “Center”) is a nonprofit
`
`501(c)(3) organization incorporated in the State of California with offices across
`
`the country, including in Washington, D.C., Arizona, California, Florida, New
`
`
`
`6
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 8 of 86 PageID 8
`
`York, North Carlina, Oregon, and Washington, and in Baja California Sur, Mexico.
`
`The Center works through science and environmental law to advocate for the
`
`protection of endangered, threatened, and rare species and their habitats both in the
`
`United States and abroad. The Center has over 81,800 active members, including
`
`members who reside in and travel to areas where manatees feed, breed, and
`
`migrate.
`
`21. The Center brings this action on behalf of itself and its members,
`
`many of whom enjoy observing, photographing, and appreciating the Florida
`
`manatee and other species in their natural habitat in the Indian River Lagoon. The
`
`Center’s members regularly engage in these activities in the Indian River Lagoon
`
`from land and water and will continue to do so in the future.
`
`22. For example, one of the Center’s members moved near the Indian
`
`River Lagoon in 1978 and became involved in manatee protection shortly
`
`thereafter. She has been advocating for manatees since high school and interned at
`
`the Marine Mammal Pathobiology Laboratory in Saint Petersburg, Florida, while
`
`pursuing her undergraduate degree. She also has a graduate degree in Coastal
`
`Resource Management and has provided data that informed the Florida Fish and
`
`Wildlife Conservation Commission’s manatee protection plans. This member
`
`drives within sight distance of the Lagoon every week and kayaks on the Lagoon
`
`several times a year. She also stops at the manatee observation deck at Haulover
`
`
`
`7
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 9 of 86 PageID 9
`
`Canal every month and has concrete plans to do so again in May and June 2022.
`
`She considers manatees a wonderful cultural resource for the state of Florida that
`
`residents have the right to enjoy.
`
`23. Plaintiff Defenders of Wildlife (“Defenders”) is a nonprofit 501(c)(3)
`
`membership organization dedicated to the protection and restoration of all native
`
`wild animals and plants in their natural communities and the preservation of the
`
`habitats on which these species depend. Headquartered in Washington, D.C.,
`
`Defenders has regional and field offices in Alaska, Arizona, California, Colorado,
`
`Florida, Montana, New Mexico, North Carolina, Ohio, Oregon, Texas,
`
`Washington, and Wyoming. Defenders has nearly 2.2 million members and
`
`activists across the United States, including more than 124,000 members living in
`
`Florida where manatees live, feed, breed, and migrate.
`
`24. Defenders brings this action on behalf of itself and its members, many
`
`of whom enjoy observing, photographing, and appreciating the Florida manatee
`
`and other species in their natural habitats. Defenders’ members regularly engage in
`
`these activities in various locations within Florida, including the Indian River
`
`Lagoon, from land and water and will continue to do so in the future.
`
`25. For example, one of Defenders’ members enjoys viewing Florida
`
`manatees as often as she can. A key factor in her decision to live in Winter Park,
`
`Orange County, Florida, was that the city is near areas where she can regularly
`
`
`
`8
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 10 of 86 PageID 10
`
`view and enjoy manatees. She frequently enjoys visiting a manatee aggregation
`
`site in Blue Springs State Park in Orange City, Volusia County, Florida. This
`
`member also regularly visits the beach at Indialantic, a town between the Indian
`
`River Lagoon and the Atlantic Ocean, from which she can easily travel to the
`
`Indian River Lagoon to attempt to view manatees. This member has concrete plans
`
`to travel to the Indian River Lagoon to attempt to view manatees in May or June
`
`2022. This member has also served as the Advocacy Committee Co-Chair of the
`
`Free the Ocklawaha River Coalition for Everyone, participated in the twice-yearly
`
`Manatee Forum meeting hosted by the Florida Fish and Wildlife Conservation
`
`Commission, and produced policy and outreach materials, comment letters, blog
`
`posts, and social media posts about manatees and the conservation challenges they
`
`face. Moreover, this member has engaged and will continue to engage in pro bono
`
`work to support manatee conservation.
`
`26. Plaintiffs and their members are harmed by EPA’s failure to reinitiate
`
`consultation with FWS and NMFS. This failure harms manatees, green sea turtles,
`
`loggerhead sea turtles, smalltooth sawfish, and other ESA-listed species that
`
`depend on the health of the ecosystem of the Indian River Lagoon, thereby
`
`decreasing Plaintiffs’ members’ opportunities to observe and enjoy them in their
`
`natural habitats.
`
`
`
`9
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 11 of 86 PageID 11
`
`27. An order from this Court declaring that EPA is in violation of the
`
`ESA and its implementing regulations, and directing EPA to reinitiate consultation
`
`with the Services, will remedy Plaintiffs’ injuries. The ESA consultation process
`
`will help EPA protect and recover manatees, green sea turtles, smalltooth sawfish,
`
`and other ESA-protected species in the Indian River Lagoon where Plaintiffs’
`
`members observe and enjoy these species.
`
`28. Defendant EPA is the federal agency charged with administering the
`
`Clean Water Act and ensuring that its actions under that statute do not jeopardize
`
`the survival and recovery of any ESA-listed species or destroy or adversely modify
`
`their critical habitat.
`
`
`
`FACTUAL BACKGROUND
`
`29. The Indian River Lagoon is an estuary on Florida’s Atlantic Coast that
`
`includes the Mosquito Lagoon, the Banana River Lagoon, and the Indian River.
`
`The ecology of the Lagoon is defined by seagrass, a grass-like flowering aquatic
`
`plant that provides habitat and forage for many commercially, recreationally, and
`
`ecologically important species. The Lagoon sustains species protected under the
`
`Endangered Species Act, including the Florida manatee (Trichechus manatus
`
`latirostris), green sea turtle (Chelonia mydas), loggerhead sea turtle (Caretta
`
`caretta), and smalltooth sawfish (Pristis pectinate).
`
`
`
`10
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 12 of 86 PageID 12
`
`30. As human development has increased around the Indian River
`
`Lagoon, so has the input of nitrogen and phosphorus from wastewater treatment
`
`discharges, leaking septic systems, and stormwater runoff and leachate of fertilizer
`
`and manure, among other sources. These nutrients, in turn, feed harmful algal
`
`outbreaks, which block light from getting to the seagrass, causing it to die.
`
`31. As a result of the seagrass die-off, manatees in the Lagoon, which
`
`depend on the seagrass as their primary source of food, have been starving to
`
`death. More than 1,100 manatees died in 2021 in Florida—in total, 2021 saw a
`
`nearly 19% loss of the Atlantic coast population. Manatees are continuing to die at
`
`a record pace this year and continue to be particularly impacted by the seagrass
`
`loss in the Lagoon.
`
`32.
`
` Other protected species in the Indian River Lagoon are also suffering
`
`from the impacts of water pollution. Water pollution in the Indian River Lagoon
`
`has been recently linked to the development of fibropapillomatosis in sea turtles, a
`
`chronic and often lethal tumor-causing disease. Water pollution also harms red
`
`mangroves, which provide nursery habitat for smalltooth sawfish.
`
`33. The Lagoon is now at its ecological tipping point. If pollution is not
`
`curbed, the Lagoon will no longer be defined by its seagrass habitat, but by toxic or
`
`harmful algal outbreaks. Manatees, sea turtles, smalltooth sawfish, and other ESA-
`
`
`
`11
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 13 of 86 PageID 13
`
`protected species that depend on clean water in the Indian River Lagoon will
`
`continue to suffer and die.
`
`
`
`
`
`LEGAL BACKGROUND
`
`I.
`
`The Clean Water Act
`
`34. Congress passed the CWA fifty years ago to prevent the type of
`
`ecological collapse currently occurring in the Indian River Lagoon. The aim of this
`
`statute is to “restore and maintain the chemical, physical, and biological integrity
`
`of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve this goal, the CWA
`
`requires states to set water quality standards protective of public health and the
`
`environment. Id. § 1313(c).
`
`35. Water quality standards consist of two elements. The first is a
`
`waterbody’s designated use—meaning the goals for the use of a particular
`
`waterbody. See 40 C.F.R. § 131.3(f), (i). For example, the highest surface water
`
`classification in Florida is Class I, for “potable water supplies,” while the lowest
`
`classification is Class V, for “navigation, utility and industrial use.” Fla. Admin.
`
`Code Ann. r. 62-302.400.
`
`36. The second element of a water quality standard is the criteria, or
`
`qualities of a waterbody that, if met, will support a waterbody’s designated use.
`
`See 40 C.F.R. § 131.3(b), (i). Criteria can be expressed in numeric or narrative
`
`form. Id. § 131.3(b). For example, Class I waterbodies in Florida cannot exceed a
`
`
`
`12
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 14 of 86 PageID 14
`
`total arsenic concentration of 10 μg/L, while Class V waterbodies cannot exceed a
`
`total arsenic concentration of 50 μg/L (numeric standard). See Fla. Admin. Code
`
`Ann. r. 62-302.530(5)(a). By contrast, the standard for undissolved “oils and
`
`greases” for all classes of Florida waterbodies is narrative: none “shall be present
`
`so as to cause taste or odor, or otherwise interfere with the beneficial use of
`
`waters.” Id. § 62-302.530(50)(b).
`
`37. Under the CWA, states also set pollution budgets, known as “total
`
`maximum daily loads” or “TMDLs,” for particularly polluted waterbodies. 33
`
`U.S.C. § 1313(d)(1)(A), (d)(1)(C). States must establish TMDLs for each pollutant
`
`impairing a waterbody. Id. § 1313(d)(1)(C). TMDLs set a numeric target reflecting
`
`the maximum amount of the pollutant that a waterbody can receive and still
`
`comply with applicable water quality standards. 33 U.S.C. § 1313(d)(1)(C).
`
`38. With the numeric target as a starting point, states then allocate that
`
`total pollutant load among the various sources that contribute the pollutant to the
`
`waterbody. There are two categories of contributors to the total pollutant load:
`
`(1) “point source” contributors—single identifiable sources, such as a discharge
`
`pipe from a sewage treatment plant, see 33 U.S.C. § 1362(14); and (2) “nonpoint
`
`source” contributors—pollution sources that do not originate from a single
`
`identifiable source, such as fertilizer runoff from farms. 40 C.F.R. § 130.2(g)–(i).
`
`
`
`13
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 15 of 86 PageID 15
`
`39. EPA oversees states’ development of water quality standards and
`
`TMDLs. 33 U.S.C. § 1313(c)(3), (d)(2). Among other things, this means EPA may
`
`not approve or continue to authorize a TMDL or water quality standard that is
`
`inadequate. EPA’s TMDL guidance explains that TMDL submittals should
`
`identify all “point and nonpoint sources of the pollutant of concern, including [the]
`
`location of the source(s) and the quantity of the loading” to enable EPA to
`
`adequately review the load and wasteload allocations. See EPA, Guidelines for
`
`Reviewing TMDLs under Existing Regulations Issued in 1992 at 1, 4 (May 20,
`
`2002). The TMDL must also include a “margin of safety which takes into account
`
`any lack of knowledge concerning the relationship between effluent limitations and
`
`water quality.” 33 U.S.C. § 1313(d)(1)(C). EPA is expected to closely scrutinize a
`
`TMDL and its component parts, including ensuring that the TMDL has a
`
`sufficiently protective margin of safety and that it provides “reasonable
`
`assurances” that point and nonpoint source control measures will achieve the
`
`expected load reductions. See EPA, Guidelines for Reviewing TMDLs under
`
`Existing Regulations Issued in 1992 (May 20, 2002).
`
`40. EPA has authority to revise water quality standards “in any case
`
`where the [EPA] 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).
`
`EPA also has the authority to establish TMDLs itself, rather than waiting on the
`
`
`
`14
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 16 of 86 PageID 16
`
`state to do so, in the event EPA deems a state-submitted TMDL inadequate. 33
`
`U.S.C § 1313(d)(2). If a TMDL fails to attain water quality standards, “a TMDL
`
`revision is required.” EPA, Guidance for Water Quality-based Decisions: The
`
`TMDL Process 2 (April 1991).
`
`
`
`II. The Endangered Species Act
`
`41.
`
`In 1973, recognizing that certain species “ha[d] been so depleted in
`
`numbers that they are in danger of or threatened with extinction,” Congress
`
`enacted the ESA, 16 U.S.C. §§ 1531–44, “to provide a means whereby the
`
`ecosystems upon which endangered species and threatened species depend may be
`
`conserved, [and] to provide a program for the conservation of such endangered
`
`species and threatened species.” Id. § 1531(a)(2), (b). Congress declared that it is
`
`“the policy of Congress that all Federal departments and agencies shall seek to
`
`conserve endangered species and threatened species and shall utilize their
`
`authorities in furtherance of the purposes of this chapter.” Id. § 1531(c)(1).
`
`42. The ESA defines conservation as “the use of all methods and
`
`procedures which are necessary to bring any endangered species or threatened
`
`species to the point at which the measures provided pursuant to [the ESA] are no
`
`longer necessary.” Id. § 1532(3). The ESA’s goal is not simply to prevent
`
`endangered and threatened species from becoming extinct, but to recover these
`
`species to the point where they no longer require the statute’s protections.
`
`
`
`15
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 17 of 86 PageID 17
`
`43. Considered “the most comprehensive legislation for the preservation
`
`of endangered species ever enacted by any nation,” the ESA embodies the “plain
`
`intent” of Congress to “halt and reverse the trend toward species extinction,
`
`whatever the cost.” Tenn. Valley Authority v. Hill, 437 U.S. 153, 180, 184 (1978);
`
`see also id. at 185 (ESA section 7’s legislative history “reveals an explicit
`
`congressional decision to require agencies to afford first priority to the declared
`
`national policy of saving endangered species” and “a conscious decision by
`
`Congress to give endangered species priority over the ‘primary missions’ of federal
`
`agencies”).
`
`44. Section 7(a)(2) of the ESA imposes on federal agencies such as EPA a
`
`substantive duty to ensure that actions they authorize or carry out—including
`
`approval of a state’s water quality standards—are not likely to jeopardize listed
`
`species or destroy or adversely modify critical habitat designated for such species.
`
`16 U.S.C. § 1536(a)(2); see also Memorandum of Agreement Between the
`
`Environmental Protection Agency, Fish and Wildlife Service and National Marine
`
`Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act
`
`and Endangered Species Act, 66 Fed. Reg. 11,202 (Feb. 22, 2001) (“EPA &
`
`Services MOU”). Such “action agencies” must discharge this obligation in
`
`consultation with the appropriate expert fish and wildlife agency—FWS in the case
`
`of the manatee; NMFS in the case of green sea turtles, loggerhead sea turtles, and
`
`
`
`16
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 18 of 86 PageID 18
`
`smalltooth sawfish. See id.; 50 C.F.R. § 402.01(b); id. §§ 17.11(h), 223.102(e),
`
`224.101(h).
`
`45. The action agency’s ESA obligations do not end after completing an
`
`initial consultation. The ESA also requires that consultation be reinitiated in certain
`
`circumstances where “discretionary Federal involvement or control over the action
`
`has been retained or is authorized by law.” 50 C.F.R. § 402.16(a).
`
`46. With regards to state water quality standards and TMDLs, EPA has
`
`continuing discretionary authority under 33 U.S.C. § 1313(c)(4)(B), which requires
`
`it to revise water quality standards “in any case where the [EPA] Administrator
`
`determines that a revised or new standard is necessary to meet the requirements of
`
`[the Clean Water Act],” and 33 U.S.C § 1313(d)(2) & (e)(2), which provides EPA
`
`with continuing discretionary authority over TMDLs. See also EPA & Services
`
`MOU at 11,206 (“EPA and the Services have agreed that where information
`
`indicates an existing standard is not adequate to avoid jeopardizing listed species,
`
`or destroying or adversely modifying designated critical habitat, EPA will work
`
`with the State/Tribe to obtain revisions in the standard or, if necessary, revise the
`
`standards through the promulgation of federal water quality standards under
`
`section 303(c)(4)(B) of the CWA.”).
`
`47. Where the action agency retains discretionary involvement or control
`
`over its action, it must reinitiate consultation:
`
`
`
`17
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 19 of 86 PageID 19
`
`(1) If the amount or extent of taking specified in the
`incidental take statement is exceeded;
`(2) If new information reveals effects of the action that
`may affect listed species or critical habitat in a manner
`or to an extent not previously considered;
`(3) If the identified action is subsequently modified in a
`manner that causes an effect to the listed species or
`critical habitat that was not considered in the
`biological opinion or written concurrence; or
`(4) If a new species is listed or critical habitat designated
`that may be affected by the identified action.
`
`50 C.F.R. § 402.16(a).
`
`
`
`PROCEDURAL HISTORY
`
`48. For decades, Florida’s water quality standard for nutrients, including
`
`nitrogen and phosphorus, was a “narrative” criterion: “In no case shall nutrient
`
`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 Ann. r. 62-302.530(48)(b).
`
`49.
`
`In 2008, environmental groups sued EPA, explaining that this vague
`
`narrative criterion was insufficient to protect Florida waters, and that “numeric”
`
`nutrient criteria were needed to control nitrogen and phosphorus pollution. The
`
`groups analogized the problem to highway speed limits. A numeric speed limit
`
`sign would read “Speed Limit 50 MPH” while a narrative speed limit sign would
`
`read “Don’t Drive Too Fast.” Nitrogen and phosphorus pollution in Florida could
`
`not be adequately controlled without specific numeric pollution limits in place.
`
`
`
`18
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 20 of 86 PageID 20
`
`50. Through a consent decree, EPA agreed to set revised standards. In
`
`2010, EPA proposed and finalized rules establishing numeric nutrient criteria.
`
`51.
`
` On June 13, 2012, Florida submitted its own revised water quality
`
`standards for EPA’s approval under 33 U.S.C. § 1313(c) to supersede those
`
`adopted by EPA. Florida’s revisions included a rule adopting a framework for
`
`developing numeric interpretations of the existing statewide narrative nutrient
`
`criterion.
`
`52. The framework explains that where a site-specific TMDL has been
`
`adopted “that interpret[s] the narrative water quality criterion for nutrients,” the
`
`TMDL shall be the numeric interpretation of the narrative nutrient criterion. Fla.
`
`Admin. Code Ann. r. 62-302.531.
`
`53. For the Indian River Lagoon and its constituent Banana River Lagoon,
`
`FDEP set TMDLs for nitrogen and phosphorus in 2009 and submitted them for
`
`EPA’s approval as numeric nutrient criteria. EPA approved these TMDLs as water
`
`quality standards in 2013. They are codified as “Estuary-Specific Numeric
`
`Interpretations of the Narrative Nutrient Criterion” under Fla. Admin. Code r. 62-
`
`302.532(aa) (referencing Fla. Admin. Code r. 62-304.520). In other words, while
`
`typically a TMDL is set in order to meet a water quality standard, here the water
`
`quality standards are the TMDLs for the Indian River Lagoon and the TMDLs are
`
`the water quality standards.
`
`
`
`19
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 21 of 86 PageID 21
`
`54. Under ESA section 7(a)(2), EPA consulted with FWS and NMFS on
`
`its approval of the Indian River Lagoon water quality standards/TMDLs in 2013.
`
`55.
`
`In its informal consultation with the FWS, EPA concluded that its
`
`approval would not adversely affect Florida manatees. FWS concurred in that
`
`determination. In the biological opinion that NMFS issued to EPA following
`
`formal consultation on green sea turtles, loggerhead sea turtles, and smalltooth
`
`sawfish, NMFS concluded that EPA’s approval would not likely jeopardize the
`
`continued existence of these species or destroy or adversely modify designated
`
`critical habitat for the smalltooth sawfish.
`
`56.
`
`In March 2021, after more than 500 manatees had died since the
`
`beginning of the year, the Secretary of Commerce, in consultation with the
`
`Secretary of the Interior and with the guidance of the Working Group on Marine
`
`Mammal Unusual Mortality Events, officially declared an “Unusual Mortality
`
`Event” for the Atlantic Florida manatee under the Marine Mammal Protection Act,
`
`16 U.S.C. § 1421c(a)(2)(B).
`
`57. On August 10, 2021, FWS requested that EPA reinitiate ESA
`
`consultation. The letter explained that FWS “would like to make [EPA] aware of
`
`new information regarding an ongoing Unusual Mortality Event (UME) for
`
`manatees in the Indian River Lagoon (IRL) in Florida and recommend that EPA
`
`reinitiate consultation on the numeric nutrient criteria for water quality standards in
`
`
`
`20
`
`
`
`Case 6:22-cv-00868-CEM-LHP Document 1 Filed 05/10/22 Page 22 of 86 PageID 22
`
`estuaries.” FWS’s letter alerted EPA that the Indian River Lagoon has reached an
`
`“ecological tipping point” and that the loss of “tens of thousands of acres of
`
`seagrass” due to excess nutrient pollution was causing the ongoing die-off of
`
`manatees.
`
`58. On November 23, 2021, EPA responded by letter to FWS, declining
`
`to reinitiate consultation.
`
`59. As required by the ESA citizen suit provision, 16 U.S.C.
`
`§ 1540(g)(2)(A)(i), on December 20, 2021, Plaintiffs sent EPA and FWS a 60-day
`
`notice letter explaining that the agency is in violation of the Endangered Species
`
`Act for failing to reinitiate consultation with FWS. Plaintiffs sent EPA and NMFS
`
`a second 60-day notice letter on February 7, 2022, notifying EPA that it is in
`
`violation of the ESA for failing to reinitiate consultation with NMFS.
`
`60. Plaintiffs’ letters point
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
