SAVE THE MANATEE CLUB v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (2024)

ORDER

THIS CAUSE is before the Court on Plaintiffs’ Amended Motion for Summary Judgment (“Motion,” Doc. 60),¹ to which Defendant filed a Response in Opposition (Doc. 32), and Plaintiffs filed a Reply (Doc. 38). For the reasons stated herein, the Motion will be denied and judgment will be entered in favor of Defendant.²

I. Background

Plaintiffs are environmental nonprofit organizations and Defendant is the United States Environmental Protection Agency (“EPA”). This action challenges the alleged failure of Defendant to reinitiate consultations under Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, with the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (collectively, the “Services”) on water quality standards for the Indian River Lagoon. (Compl., Doc. 1, at 1). Plaintiffs allege that “poor water quality has caused catastrophic mortality of Florida manatees” and threatens the lives of green sea turtles, loggerhead sea turtles, and smalltooth sawfish—all protected species under the ESA. (Id. at 2). Plaintiffs allege that a review of the administrative record will reveal that Defendant's failure to reinitiate consultations with the Services are arbitrary, capricious, an abuse of discretion, or contrary to law.

A. Clean Water Act Compliance

The Clean Water Act (“CWA”) requires states to adopt water quality standards, subject to EPA approval. 33 U.S.C. § 1313(c). “If the EPA determines that a state standard is not ‘consistent with’ the Act's requirements, or that ‘a revised or new standard is necessary’ to meet the Act's requirements, the EPA's Administrator must ‘promptly prepare and publish proposed regulations setting forth a revised or new’ standard.” Fla. Wildlife Fed'n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1299 (11th Cir. 2011) (quoting 33 U.S.C. § 1313(c)(4)).

Each state must identify waters that fail to meet the applicable water quality standards (“impaired waters”) and establish the total maximum daily load (“TMDL”) of pollutants for the impaired waters. 33 U.S.C. § 1313(d)(1)(A), (C). “A TMDL is a specification of the maximum amount of a particular pollutant that can pass through a waterbody each day without water quality standards being violated.” Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002) (citing 33 U.S.C. § 1313(d)(1)(C)).

Similar to the approval process for water quality standards, the EPA can either approve TMDLs or establish the TMDLs as determined necessary to effectuate water quality standards for those impaired waters. 33 U.S.C. § 1313(d)(2). Although Defendant has oversight authority on promulgating water quality standards and TMDLs, the duties of execution and enforcement remain with the states. See Meiburg, 296 F.3d at 1026–27.

To transition away from narrative water quality standards, in 2012, Florida promulgated a framework for interpreting the narrative requirements into numerical nutrient criteria (“NNC”).³ Fla. Admin. Code Ann. r. 62-302.531 (2012). This rule provided that TMDLs that already “interpret the narrative water quality criterion for nutrients” became the “primary site specific” NNCs. Id. Florida then submitted its revised water quality standards to Defendant for approval, including NNCs for nitrogen and phosphorous that applied to the Indian River Lagoon. (See Doc. 21-3 at 179).

In 2013, after a review of the revised standards, Defendant “approved the ․ site specific interpretations” and “determined that these new and revised [water quality standards] are consistent with” the CWA and its implementing regulations. (Id. at 189). Defendant “made determinations of ‘[n]o [e]ffect’ or ‘[n]ot [l]ikely [t]o [a]dversely [a]ffect’ for all aquatic and aquatic dependent species and their critical habitats.” (Id.).

Defendant then requested the Services’ “concurrence on those determinations” through the informal consultation process.⁴ (Id.) Along with its request for informal consultation, Defendant provided the Services with its biological examination on Florida's water quality standards. (Id. at 191–244). Defendant's biological examination found that Florida's water quality standards “will restore the waterbodies to a more natural trophic state” and “will provide for the protection of a healthy, well-balanced biological community.” (Id. at 202). Additionally, the biological examination explained the benefits associated with “the codification of the maximum pollutant load allowable ․ identified by the TMDL” as the new water quality standards. (Id.). Both Services agreed with Defendant's determinations, finding that the water quality standards are not likely to adversely affect any federally protected species. (Id. at 265–68, 466, 687).

B. Endangered Species Act Compliance

Section 7 of the ESA requires that federal agency actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”⁵ 16 U.S.C. § 1536(a)(2). “If a proposed federal action may affect an endangered species, the agency proposing the action must consult with the appropriate expert agency, either the Fish and Wildlife Service [ ] or the National Marine Fisheries Service [ ].” Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248 (11th Cir. 2012) (citing 50 C.F.R. § 402.14(a)).

“The agency proposing the action prepares a biological assessment to facilitate consultation with the expert agency.” Id. (citing 50 C.F.R. § 402.14(c)(5)). “If the agencies determine that the proposed action is not likely to adversely affect the species, the consultation process is terminated.” Id. (citing 50 C.F.R. § 402.13(a)). “However, if either agency determines that the proposed action is likely to adversely affect a species, formal consultation begins.” Id. (citing 50 C.F.R. § 402.14). “An agency must reinitiate consultation if new information arises that was previously unexamined.” Id. (citing 50 C.F.R. § 402.16).

In 2021, several years after the informal consultation process, FWS sent a letter to Defendant to “make [it] aware of new information regarding an ongoing Unusual Mortality Event ․ for manatees in the [Indian River Lagoon] ․ and recommend that [Defendant] reinitiate consultation on the [NNC] for [water quality standards] in estuaries.” (Doc. 21-3 at 46–48). The FWS letter stated that “[b]looms have reduced light penetration through the water column resulting in the loss of tens of thousands of acres of seagrass” and a “substantial number of mortalities ․ appear to be the result of starvation due to the loss of forage (seagrass) in the [Indian River Lagoon],” which “has been on a decline for the last decade.” (Id.).

Defendant responded to FWS that “based on [its] analysis of the information provided in [the FWS] letter and other relevant information available to [it], [Defendant] does not believe that re-initiation of the consultation on the NNC for the [unusual mortality event] area is appropriate or warranted.” (Id. at 49). Defendant explained that the “information in the [FWS] letter does not present new information with respect to the impacts from the nutrient criteria on species that were not previously considered during prior consultations. In addition, the information presented in the letter does not have a nexus to [Defendant's] action (approval of the nutrient criteria),” because the “nutrient-related concerns identified in the [FWS] letter appear to be attributed to waters not meeting the approved NNC,” and “not a deficiency with the underlying approved NNC.” (Id. at 53). Importantly, Defendant found that “there is no evidence that the previously approved and consulted-upon water quality criteria are not protective of manatees or seagrass and their associated critical habitats.” (Id.).

C. Procedural History

On December 20, 2021, Plaintiffs sent Defendant a notice of intent to sue based on an alleged ESA violation as required by 16 U.S.C. § 1540(g)(2)(A). (Admin. Rec., Doc. 21-3, at 1–12). This notice alerted Defendant that “in light of recent manatee mortality and new information suggesting that the current numeric nutrient standards are insufficient to protect against the current manatee die-off,” reinitiation of consultation with FWS was necessary by law. (Id. at 12). On February 7, 2022, Plaintiffs sent another notice to Defendant, which alerted it that new information had come to light “undermining [Defendant] and [the National Marine Fisheries Service]’s conclusions that the current estuary-specific numeric nutrient criteria are not likely to adversely affect any federally listed species or their critical habitats, including the threatened green turtle, the threatened loggerhead turtle, the endangered smalltooth sawfish, and the threatened Johnson's seagrass,” (id. at 30), thus necessitating reinitiation of consultation with the National Marine Fisheries Service by law. Plaintiffs’ notices accompanied a supplemental expert report from marine scientist, Dr. Peter Barile (the “Barile Report”). (Id. at 18–29).

Defendant considered the notices of intent and the Barile Report but did not reinitiate consultations with the Services within sixty days. Plaintiffs then filed this citizen suit pursuant to 16 U.S.C. § 1540(g), bringing two claims against Defendant for ESA violations. (Doc. 1 at 24–26). Plaintiffs pray that the Court declare Defendant in violation of the ESA and order Defendant to reinitiate ESA consultation with the Services. (Id. at 26). The administrative record and briefing are now complete, and the issue is ripe for the Court's review.

II. Legal Standard

Judicial review of administrative decisions is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The APA “waives the sovereign immunity of the United States to the extent that it permits ‘a person suffering legal wrong because of agency action’ to ‘seek relief other than money damages’ in federal court.”⁶ Hollywood Mobile Ests. Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1267 (11th Cir. 2011) (citing 5 U.S.C. § 702). Under the APA, “a court may only set aside an agency's decision if it is determined to be arbitrary, capricious, an abuse of discretion, or contrary to law.” Nat'l Parks Conservation Ass'n v. U.S. Dep't of the Interior, 835 F.3d 1377, 1383 (11th Cir. 2016) (citing 5 U.S.C. § 706(2)).

Federal Rule of Civil Procedure 56 usually governs the Court's review of a motion for summary judgment but “when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal, and the ‘entire case’ on review is a question of law.” Brinklys v. Johnson, 175 F. Supp. 3d 1338, 1349 (M.D. Fla. 2016), aff'd sub nom. Brinklys v. Sec'y, Dep't of Homeland Sec., 702 F. App'x 856 (11th Cir. 2017) (cleaned up). “[S]ummary judgment is the mechanism for deciding whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.” Id. at 1350 (quotation omitted).

“Agency action is considered arbitrary or capricious if the agency has ‘relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “The arbitrary and capricious standard is ‘exceedingly deferential.’ ” Defs. of Wildlife v. U.S. Dep't of Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996)). The Court is “not authorized to substitute [its] judgment for the agency's as long as its conclusions are rational.” Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). “[A]dministrative decisions should be set aside in this context only for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached.” Citizens for Smart Growth v. Sec'y of Dep't of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012).

III. Analysis

A. Article III Standing

Standing is always “an indispensable part of the plaintiff's case,” so the Court begins its analysis there. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To bring a case in federal court, a plaintiff must establish standing under Article III of the United States Constitution. Id. at 559–60, 112 S.Ct. 2130. “A plaintiff has standing under the Constitution when: (1) the plaintiff has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, (2) there is a causal connection between the injury and the conduct complained of, and (3) it is likely that the injury will be redressed by a favorable decision of the court.” Sierra Club v. Johnson, 436 F.3d 1269, 1276 (11th Cir. 2006) (quoting Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130).

The parties do not dispute that Plaintiffs have alleged a concrete interest in the protection of listed species that inhabit the Indian River Lagoon and that Section 7 consultations are designed to safeguard that interest. The Court agrees, and thus, only the latter two prongs of the standing inquiry are at issue. Here, Plaintiffs assert an injury to a procedural right. “For procedural rights cases, though injury in fact remains a firm requirement, standards for both causation and redressability are relaxed. So long as a plaintiff alleges that the challenged (or omitted) procedure protects a concrete interest, causation and redressability typically follow—even though we can't know whether that procedure, correctly performed, would have resulted in the substantive outcome that the plaintiff desires.” Ctr. for a Sustainable Coast v. U.S. Army Corps of Eng'rs, 100 F.4th 1349, 1353 (11th Cir. 2024).

When “a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Cahaba Riverkeeper v. U.S. Envt'l Prot. Agency, 938 F.3d 1157, 1162 (11th Cir. 2019). And that is so here. Plaintiffs seek that Defendant reinitiate consultation with the Services about the water quality standards in the Indian River Lagoon, and they allege there are protected species at risk because of that water quality. So, it is likely “[t]hat risk would be reduced to some extent if [Plaintiffs] received the relief they seek.” Mass. v. Env't Prot. Agency, 549 U.S. 497, 526, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Accordingly, Plaintiffs have established standing to bring their claims.

B. Obligation to Reinitiate Consultation

Plaintiffs argue that federal law requires Defendant to reinitiate consultation with the Services on the water quality standards for the Indian River Lagoon. (Doc. 60 at 21–22). To prevail on its claims, Plaintiffs must prove that as a matter of law that (1) Defendant retained or is authorized to exercise “discretionary Federal involvement or control over the action” and (2) “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.” 50 C.F.R. § 402.16(a).

1. Discretionary Federal Involvement or Control

Plaintiffs argue that Defendant has discretionary involvement and control over water quality standards and TMDLs because of its continuing obligations under the CWA. Plaintiffs rely on Wild Fish Conservancy v. United States Environmental Protection Agency, in which the district court came to the same conclusion and based its finding on the fact that Defendant “has the discretion sua sponte to promulgate new or revised standards for a state if it determines such standards are necessary to meet the requirements of the CWA.” 331 F. Supp. 3d 1210, 1214 (W.D. Wash. 2018) (citing 33 U.S.C. § 1313(c)(4)). Defendant argues that it is “immaterial that [it] has the authority to act” because to invoke that authority Defendant would need to “make a threshold determination” that a new or revised water quality standards are necessary, and then if Defendant creates new or revised water quality standards, that “would be a new and different federal action potentially triggering a new consultation on that future action.” (Doc. 32 at 22). Defendant only analyzes whether something constitutes “a new and different federal action,” (id.), and ignores whether it has the authority to exercise discretionary involvement or control over its original action. However, “the appropriate test is not whether the agency has completed its action, but whether it retains regulatory authority over the action.” Cottonwood Env't L. Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1087 (9th Cir. 2015).⁷

“[A]n agency's responsibility to reinitiate consultation does not terminate when the underlying action is complete. Stated another way, there is nothing in the ESA or its implementing regulations that limits reinitiation to situations where there is ‘ongoing agency action.’ ” Id. at 1086. The Court does not find it immaterial that Defendant has the statutory authority to unilaterally revisit its approval of any previous water quality standards and promulgate new standards whenever it decides necessary. See Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (“[Section 7] covers only discretionary agency actions and does not attach to actions ․ that an agency is required by statute to undertake once certain specified triggering events have occurred.”). Defendant's ability to publish regulations for water quality standards is not contingent upon any action by states, rather, Defendant has full discretion to determine when revised or new water quality standards are needed.

Based on § 1313(c)(4)(B), it is clear that Defendant has the authority to exercise discretionary involvement and control in the approval of Florida's water quality standards. See Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 784 (9th Cir. 2014) (“Whether an agency must consult does not turn on the degree of discretion that the agency exercises regarding the action in question, but on whether the agency has any discretion to act in a manner beneficial to a protected species or its habitat.”); Nw. Env't Advocs. v. U.S. Fish & Wildlife Serv., No. 3:18-cv-01420-AR, 2023 WL 7181694, at *23 (D. Or. Sept. 15, 2023), report and recommendation adopted, No. 3:18-cv-01420-AR, 2023 WL 8190727 (D. Or. Nov. 27, 2023) (holding that “EPA has retained sufficient discretion in approving Oregon's water quality standards under the CWA that EPA has a duty to reinitiate consultation”). Thus, the first element for requiring reinitiation of consultation is satisfied.

2. New Information

“[N]ot every piece of new information requires [d]efendants to reinitiate consultation.” Sea Turtle Conservancy v. Locke, No. 1:09-cv-259-SPM-GRJ, 2011 WL 13227945, at *6 (N.D. Fla. July 5, 2011). “The caselaw regarding reinitiation for new evidence is slim and consists only of Courts discussing the unambiguous language of the statute.” Ctr. for Biological Diversity v. U.S. Army Corps of Engineers, No. 19-cv-14199, 2020 WL 9073339, at *8 (S.D. Fla. Aug. 28, 2020). The ESA requires reinitiation of consultation when new information reveals effects of the action “are different or more extensive than those that [the defendant] previously considered.” Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla., 120 F. Supp. 2d 1005, 1025 (M.D. Fla. 2000). The burden is on “[the plaintiff] to make a showing that [the defendant] acted arbitrarily and capriciously in failing to reinitiate consultation” with the Services based on new information. Miccosukee Tribe of Indians of Fla. v. United States, 420 F. Supp. 2d 1324, 1337 (S.D. Fla. 2006); see Ctr. for Biological Diversity, 2020 WL 9073339, at *9 (“In determining whether reinitiation of consultation is necessary, the question is not whether new evidence establishes that the [action] will cause harm to species ․ but simply whether new evidence ‘reveals effects of the action that may affect’ the listed species.”) (quoting 50 C.F.R. § 402.16) (emphasis in original).

Plaintiffs first argue that their newly provided information demonstrates that the water quality standards Defendant approved in 2013 are inadequate to protect listed species based on “plain evidence of unprecedented catastrophic harm to listed species.” (Doc. 60 at 24–26). Plaintiffs assert that despite Defendant's assurances that the approved water quality standards would restore the Indian River Lagoon, “the water quality has instead deteriorated to the point that there has been a catastrophic die-off of manatees due to starvation, an increase of turtles developing tumors due to water pollution, and harm to smalltooth sawfish habitat.” (Id. at 25).

Defendant previously rejected this premise when presented with FWS's request for reinitiation of consultation, stating that “the impairment of the waters (meaning that the waters are not attaining the approved [water quality standards]) does not present new information that the EPA's approval of the NNC is affecting species in a manner that were not considered during the prior consultations.” (Doc. 21-3 at 53). Defendant asserted that the problem lies in Florida's implementation and enforcement of water quality standards and that “there is no evidence that if the waters at issue were meeting the approved water quality criteria, that those criteria would not be protective of manatees or seagrass.” (Id.).

Plaintiffs recognize “that the state's efforts here have fallen short,” (Doc. 60 at 27), but argue that Defendant “is not limited to ‘sitting helplessly by,’ ” (Doc. 38 at 13 (citing Wild Fish Conservancy, 331 F. Supp. 3d at 1225)), because Defendant could modify aspects of the TMDLs to help ensure that the water quality standards targets are met. (See id. (“[R]einitiated consultation between [Defendant] and the Services could broadly assess and address the state's failures to rein in the persisting high nutrient loads.”)). But whether it is within Defendant's authority to modify TMDLs is not the applicable standard for the existence of new information.⁸ Rather, the applicable standard is whether new information reveals effects of Defendant's 2013 standards approval that are different or more extensive than previously considered. Loggerhead Turtle, 120 F. Supp. 2d at 1025. Plaintiffs have not shown that the Indian River Lagoon's current impairment constitutes new information on the effects of the water quality standards because the parties agree that the 2013 water quality standards have not been achieved by Florida.

Plaintiffs also argue that Defendant should have given deference to FWS's request to reinitiate consultation because it has “more appropriate expertise,” (Doc. 60 at 25) (quoting Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987)), because FWS is “the federal agency responsible for protecting manatees” and the drafter of 50 C.F.R. § 402.16, (id.). However, no binding authority on this Court holds that federal agencies are required to defer to consultation requests from the Service responsible for protecting the listed species at issue. For that proposition, the Ninth Circuit in Marsh cited to cases that exclusively concern agency interpretation of statutes or administrative regulations. The issue before the Court is not to interpret 50 C.F.R. § 402.16, and FWS did not offer an interpretation of 50 C.F.R. § 402.16 in its letter to Defendant, (see Doc. 21-3 at 46–48).⁹ Thus, Marsh is not persuasive and Plaintiffs’ deference argument is unavailing.

Finally, Plaintiffs argue that new information is contained in its notices of intent and the Barile Report, which explains “that even if the water quality standards/TMDLs were being met, they would not be protective of manatees or seagrass.” (Doc. 60 at 28). The administrative record reveals that after Plaintiffs sent Defendant the notices and the Barile Report, Defendant's “staff thoroughly considered all of the information identified ․ and concluded that the information was not relevant to the development of the NNC, would not have changed the outcome of consultation, and/or was conclusory, unsupported, or lacked sufficient detail to reach a technically supportable conclusion.” (Doc. 21-3 at 96). Within the administrative record is Defendant's internal technical analysis of Plaintiffs’ notices of intent and the Barile Report, (id. at 78–90), which addressed each asserted new piece of information and answered the following questions: “[a]re the assertions relevant to the criteria,” “did we previously consider the information,” and “[w]ould the information change the outcome of consultation,” (id. at 78).

Plaintiffs point to some of the comments Defendant made within its technical analysis to argue that Defendant has already conceded uncertainty in the adequacy of Florida's water quality standards. (Doc. 60 at 29–30). For example, the Barile Report opined that the scientific models underlying Florida's water quality standards do not accurately account for climate change, to which Defendant commented that “[t]he statement regarding the role of climate change may represent new information relevant to the derivation of the NNC, because if the same nutrient loadings would result in different seagrass depth limits in the warmer, more acidic waters of today than they did in the cooler, less acidic waters of [the previous model], the current NNC may no longer be protective.” (Doc. 21-3 at 89). Defendant then concluded that “given the lack of detail about [climate change] provided, it is unclear whether this statement alone would be sufficient to change the outcome of consultation.” (Id.). Similarly, in another section, Defendant commented that a statement on warming water temperatures was “conclusory and unsupported” but “[i]f true, the statement may represent new information relevant to the derivation of the NNC.” (Id. at 85).

Additionally, the Barile Report discussed scientific papers that claim that lower levels of nutrients than what the 2013 water quality standards set can still cause algal outbreaks and seagrass loss, to which Defendant commented that the seagrass studied in one paper “does not occur anywhere in Florida and may have different responses to nutrients than the [Indian River Lagoon] seagrass species,” (id. at 82), and the macroalgal species in another paper “were presumably ․ accounted for in the derivation of the NNC” because they either “have been common ․ in the [Indian River Lagoon] for decades” or “[have] a worldwide native distribution,” (id. at 83).

If there is information showing that the Indian River Lagoon's water quality after the 2013 standards took effect “may affect the [protected species] to an extent or in a manner not previously considered, then Defendant[ ] [is] bound to reinitiate consultation.” Locke, 2011 WL 13227945, at *7 (emphasis in original). While “the threshold for a ‘may affect’ finding is ‘very low’ and can be triggered by ‘any possible effect,’ ” Center for Biological Diversity, 2020 WL 9073339, at *12 (quoting 51 Fed. Reg. 19,926, 19,949), the court there did not require the defendants there to show there was no possible effect on the protected species, id. Plaintiffs continue to carry the burden of establishing that Defendant acted arbitrarily and capriciously in failing to reinitiate consultation. Miccosukee Tribe, 420 F. Supp. 2d at 1337.

Upon review, the administrative record displays a lengthy technical analysis in which Defendant discussed whether the asserted information could have an impact on its approved water quality standards if certain assertions were true, better supported, or applicable to the Indian River Lagoon. (Doc. 21-3 at 78–90). Defendant ultimately concluded the assertions are not relevant to nutrient criteria, that Defendant previously considered the information, or that the information would not change Florida's water quality standards. (Id.). “[Defendant] is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Plaintiffs’ cherry-picked excerpts of Defendant's comments, when considered in the context of the entire technical analysis, are unconvincing to demonstrate that the asserted new information may affect listed species in a manner or to an extent not previously considered.

Additionally, Center for Biological Diversity is not analogous to the instant case. In that case, the Service conceded that a regulation schedule causes blue-green algae and the administrative record supported “a strong inference that [a neurotoxic compound found in blue-green algae] may cause harm to Manatees or other listed species” and that “[b]lue-green algae blooms can ․ shade out aquatic grassbeds where manatees feed and can cause grassbeds to die.” Ctr. for Biological Diversity, 2020 WL 9073339, at *11. The district court held that “the risks posed by [a neurotoxic compound] and destruction of grass beds” may affect listed species. Id. at *12. Unlike in Center for Biological Diversity, no such strong inference of risk to protected species is found in the administrative record of the instant case.

Rather, at best, the notices of intent and the Barile Report indicate a technical disagreement on the potential impacts of the 2013 water quality standards. However, the Court must “defer to the agency's technical expertise,” City of Oxford, Ga. v. Fed. Aviation Admin., 428 F.3d 1346, 1352 (11th Cir. 2005), because the standard of review is “exceedingly deferential,” and the Court is “not to conduct its own investigation and substitute its own judgment for the administrative agency's decision.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citations omitted). Review of the administrative record demonstrates that Defendant's decision not to reinitiate consultation is “not is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” U.S. Dep't of Navy, 733 F.3d at 1115; see Loggerhead Turtle, 120 F. Supp. 2d at 1026 (finding that the “voluminous administrative record contains the requisite support for” the defendant's administrative decision). Plaintiffs failed to demonstrate that Defendant's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Accordingly, Plaintiffs’ Amended Motion for Summary Judgment is due to be denied.

IV. Conclusion

In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:

1. Plaintiffs’ Amended Motion for Summary Judgment (Doc. 60) is DENIED.

2. The Clerk shall enter judgment in favor of Defendant and against Plaintiffs, providing that Plaintiffs shall take nothing on their claims.

3. The Clerk is directed to close this case.

DONE and ORDERED in Orlando, Florida on September 23, 2024.

FOOTNOTES

1.   The Court permitted Plaintiffs to refile its Motion for Summary Judgment (Doc. 29) with revised citations to the supplemented administrative record. (June 16, 2023 Endorsed Order, Doc. 59). The Motion is substantively identical to the initial filing. (See generally Doc. 29). Thus, it was unnecessary for Defendant to file a new Response to the Motion.

2.   Although this is titled a Motion for Summary Judgment, this case involves review of federal agency action under the Administrative Procedure Act, determining whether the agency action was arbitrary and capricious, rather than a traditional Rule 56 summary judgment analysis. Therefore, because the Court affirms the agency decision, Defendant is entitled to the entry of judgment in its favor even though it did not file a separate motion requesting such. See Brinklys v. Johnson, 175 F. Supp. 3d 1338, 1349 (M.D. Fla. 2016), aff'd sub nom. Brinklys v. Sec'y, Dep't of Homeland Sec., 702 F. App'x 856 (11th Cir. 2017) (indicating that in this type of action, the district court sits in an appellate capacity)

3.   Plaintiffs provide the following analogy for understanding the difference between narrative and numerical nutrient criteria: “like a speed limit that simply cautioned ‘don't drive too fast’ instead of setting a numeric limit of, say, 70 miles per hour.” (Doc 60 at 16).

4.   “Informal consultation is an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency or the designated non–Federal representative, designed to assist the Federal agency in determining whether formal consultation or a conference is required.” 50 C.F.R. § 402.13.

5.   In the ESA context, “action” is defined as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.” 50 C.F.R. § 402.02.

6.   “ ‘[A]gency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551.

7.   The case law on reinitiation consultations within the Eleventh Circuit is sparse, so the Court turns to persuasive authority from the Ninth Circuit to guide its inquiry.

8.   Imbedded in the parties’ arguments are their disagreement on the legal impact of Defendant's approval of TMDL targets as part of the NNC for the 2013 water quality standards. Plaintiffs argue that it opened the door for all TMDLs applicable to the Indian River Lagoon to be considered as part of the decision to reinitiate consultation on the 2013 water quality standards. (See Doc. 60 at 27–28). Defendant maintains that the two are still separate processes, unrelated to each other by law, and that Plaintiffs’ claims may only relate to water quality standards. (See Doc. 32 at 19–20, n.9). The Court does not find it necessary to decide this issue for the reasons addressed in this Order.

9.   The Supreme Court “explained that Auer was ‘rooted in a presumption ․ that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities.’ ” United States v. Dupree, 57 F.4th 1269, 1274 (11th Cir. 2023) (quoting Kisor v. Wilkie, 588 U.S. 558, 569, 139 S.Ct. 2400, 204 L.Ed.2d 841 (2019)).

CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE