ELR Citation: ELR 20776
No(s). 01-14587 (11th Cir. Jul 2, 2002)

The court holds that a district court abused its discretion by modifying a consent decree between the U.S. Environmental Protection Agency (EPA) and an environmental group to include a requirement that EPA develop total maximum daily load (TMDL) implementation plans for the state of Georgia. The group sued EPA to compel the Agency to develop TMDLs for the state, and after a district court found that EPA had a duty to establish and implement the state's TMDLs, the parties entered a consent decree under which EPA agreed to establish the state's TMDLs. Subsequently, EPA established the TMDLs, but did not prepare implementation plans for the standards. The group moved to reopen the decree and to compel EPA to prepare the implementation plans or to ensure that the state did. Before the district court could rule, the state issued the implementation plans, but the group claimed that the plans were inadequate. The district court then refused to dismiss the suit against EPA and held that the consent decree required EPA to develop the implementation plans and, thus, to ensure the adequacy of the state-prepared plans. The court, however, first holds that the district court's order resulted in a modification of the consent decree by changing the legal relationship of the parties under the consent decree when it required EPA to develop the implementation plans when neither the Clean Water Act (CWA), its regulations, nor the consent decree required the Agency to do so. Such a modification is within a district court's discretion if there was a significant change in either factual conditions or in law and the proposed modification must be suitably tailored to the changed circumstances. Here, there has been no change in either the law or the factual circumstances. The CWA statutory and regulatory scheme for TMDLs has not changed, and the circumstances of the state's failure to adequately implement TMDLs are no different than the factual circumstances when the group first sued EPA. Thus, nothing has changed to make the provisions of the original consent decree ineffective, and it is still capable of accomplishing what the parties set out to achieve with the decree: the establishment of TMDLs. In addition, the court holds that the modification of the consent decree provided the Eleventh Circuit with appellate jurisdiction.

Counsel for Plaintiffs
Eric E. Huber
Earthjustice Legal Defense Fund
1631 Glenarm Pl., Denver CO 80202
(303) 623-9466

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Carnes, J. Before Edmondson and Siler,¹ JJ.