296 F.

3d 1021

SIERRA CLUB, Georgia Environmental Organization, Inc.,

Coosa River Basin Initiative Inc., Trout Unlimited, Ogeechee
River Valley Association, Inc., Plaintiffs-Appellees,
v.
A. Stanley MEIBURG, Acting Regional Administrator,
Christine T. Whitman, Administrator, the United States
Environmental Protection Agency, United States
Environmental Protection Agency ("U.S.EPA"), DefendantsAppellants.
No. 01-14587.

United States Court of Appeals, Eleventh Circuit.

July 2, 2002.

John A. Bryson, Robert Oakley, U.S. Dept. of Justice, Environment &

Natural Resources Div., App. Section, Greer Goldman, Washington, DC,
for Defendants-Appellants.
Douglas P. Haines, Georgia CLPI, Kesler Thompson Roberts, Georgia
Legal Watch, Athens, GA, Eric E. Huber, Earthjustice, Denver, CO,
Donald D. Stack, Martin Arthur Shelton, Stack & Associates, PC, Atlanta,
GA, for Plaintiffs-Appellees.
William Russell Phillips, GA Dept. of Law, Atlanta, GA, for Amicus
Curiae Georgia Environmental Protection.
Robert D. Mowrey, Alston & Bird, LLP, Atlanta, GA, for Amicus Curiae
Georgia Municipal Ass'n.
Lee A. DeHihns, III, Alston & Bird, Atlanta, GA, for Amicus Curiae
County Comm'rs of Georgia.
Appeal from the United States District Court for the Northern District of
Georgia.
Before EDMONDSON, Chief Judge, and CARNES and SILER* , Circuit

Judges.
CARNES, Circuit Judge:

The order we have before us in this appeal is based upon either an interpretation
of a consent decree or a modification of the decree. Which one of the two the
order is determines whether we have jurisdiction to review it. If the order is a
modification of the decree, instead of merely an interpretation, we have
appellate jurisdiction and the issue we must then decide is whether the district
court abused its discretion by modifying the decree as it did.

The consent decree itself resulted from a lawsuit brought by Sierra Club, along
with a collection of state and local environmental organizations, against EPA.1
The plaintiff environmental groups (for convenience we will refer to them
collectively as Sierra Club), had sued EPA to force it to establish and
implement pollution standards for Georgia waterways. The consent decree that
was eventually entered set out a timetable for the establishment of those
standards. EPA did establish the standards.

A couple of years after the consent decree had been entered, none of the
pollution standards EPA established as a result of the decree had actually been
implemented. Upset with the lack of progress, Sierra Club moved the district
court to reopen the consent decree and to take action compelling EPA to
develop implementation plans for the standards. EPA took the position that the
State of Georgia had the primary responsibility for implementing the standards
EPA had established. The district court deferred ruling on Sierra Club's motion
pending Georgia's development of the implementation plans. Once Georgia
filed with the court what it asserted were the required plans, EPA moved to
have Sierra Club's motion to re-open and compel declared moot. Sierra Club
responded that Georgia's implementation plans were not adequate and insisted
that EPA had the responsibility under the decree for formulating them. The
district court denied EPA's mootness motion because it agreed with Sierra Club
that the consent decree required EPA to develop implementation plans or to
ensure that those Georgia developed were adequate to satisfy the Clean Water
Act.

EPA has appealed the district court's order refusing to dismiss as moot Sierra
Club's motion to re-open and compel, contending that the court's decision to
impose on it an implementation-plan requirement modified the decree, and that
the modification was an abuse of the district court's discretion. Sierra Club
takes the position that the district court, when it stated EPA was required to

develop implementation plans, was not modifying but merely interpreting the
consent decree. If that is so, we lack jurisdiction over this appeal, because the
only possible jurisdictional basis for it is 28 U.S.C. 1292(a)(1) which
authorizes us to review interlocutorily an order modifying an injunction. Sierra
Club also argues in the alternative that, even if the district court's interpretation
of the decree crossed the line into modification, thereby giving us jurisdiction
to review it, we should hold that in view of changed circumstances the
modification was not an abuse of discretion.
5

Our reading of the consent decree convinces us it did not require EPA to
develop an implementation plan for the water quality standards it was to set,
and the clarity of the decree on the point is sufficient that the district court's
later imposition of such a requirement constitutes a modification of the decree.
As a result, we have jurisdiction to review the district court's action, and we
conclude that the court abused its discretion by grafting onto the decree a
substantial modification that was not part of the original bargain between the
parties.

I. BACKGROUND
6

The dispute about the terms of the consent decree plays out against the
background of the statutory and regulatory scheme established by the Clean
Water Act, 33 U.S.C. 1251 et seq., so we will start with a description of that
scheme. Congress passed the Clean Water Act (the "Act") "to restore and
maintain the chemical, physical, and biological integrity of the Nation's
waters." 33 U.S.C. 1251(a). To achieve that goal, the Act gives EPA two
main roles and responsibilities. The first is issuing permits that govern
individual discharges of pollutants, and the second is setting global water
quality standards for particular bodies of water.

Permits and Point Sources

7

Section 301(a) of the Act prohibits the discharge of any pollutants except those
that are sanctioned by a permit. 33 U.S.C. 1311(a). The statute gives EPA the
authority to issue permits for point sources, and those permits are to establish
technology-based effluent limitations that incorporate increasingly stringent
levels of pollution control technology over time. 33 U.S.C. 1311(b)(1)(A),
(B), (b)(2). The limits set out in the permits are to be based on how low current
technology can push pollution levels, and those limits are to be lowered as
pollution-reducing technology improves. Permits are issued to individual
dischargers through the National Pollutant Discharge Elimination System
(NPDES) program. Id. at 1342. Like most states, Georgia administers the

NPDES program within its borders subject to EPA oversight of the states's
permit-issuing procedures. 2
8

Permits cannot control all sources of pollution. They are aimed only at
pollution coming from a "point source," which is "any discernible, confined and
discrete conveyance ... from which pollutants are or may be discharged," that
offers a particular "point" to measure the amount of pollution being discharged.
33 U.S.C. 1362(14).

Non-Point Sources, Water Quality Standards, and TMDLs

9

In addition to originating from point sources, pollution also comes from nonpoint sources, such as runoff from farmlands, mining activity, housing
construction projects, roads, and so on. Non-point sources cannot be regulated
by permits because there is no way to trace the pollution to a particular point,
measure it, and then set an acceptable level for that point. Therefore, to regulate
non-point pollution, the Act requires states to establish water quality standards.
33 U.S.C. 1313(a)(c). To determine the water quality standard, a state
designates the use for which a given body of water is to be protected (fishing,
for example), and then determines the level of water quality needed to safely
allow that use. Id. at 1313(c)(2)(A). That level becomes the water quality
standard for that body of water.

10

Things can get complicated. Because of non-point source pollution, achieving

the specified water quality standard in a body of water may require more
stringent limitations upon point-source discharges than would otherwise be
required under the permit-issuing regime we have previously described. If the
regulation of point-source discharges does not achieve the necessary level of
water quality, Total Maximum Daily Loads (TMDLs) come into play. Id. at
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. Id. at 1313(d)(1)(C).

11

TMDLs must be established for every waterbody within the state for which
ordinary technology-based point-source limits will not do enough to achieve the
necessary level of water quality. Id. at 1313(d)(1)(A), (C). The state must
compile a list of these bodies of water in a report and submit it to EPA for
approval. Id. at 1313(d)(1)(A), (d)(2). (This list is sometimes referred to as
"the 303(d) list," because that is the section of the Act which requires each state
to prepare the list.) Each body of water on the list is known as a "water quality
limited segment" (or "limited segment" for short), see 40 C.F.R. 130.2(j), and
the state must set a TMDL for every pollutant in each limited segment.3 33

U.S.C. 1313(d)(1)(C).
12

Each TMDL serves as the goal for the level of that pollutant in the waterbody
to which that TMDL applies, allocating the total "load" the amount of
pollutant introduced into the water, see 40 C.F.R. 130.2(e) specified in that
TMDL among contributing point and non-point sources. The theory is that
individual-discharge permits will be adjusted and other measures taken so that
the sum of that pollutant in the waterbody is reduced to the level specified by
the TMDL. As should be apparent, TMDLs are central to the Clean Water Act's
water-quality scheme because, as one of the plaintiffs puts it, they tie "together
point-source and nonpoint-source pollution issues in a manner that addresses
the whole health of the water." Brief of Appellee Ogeechee River Valley
Association at 14.

13

The states are primarily responsible for preparing lists of limited segments and
their corresponding TMDLs, see 33 U.S.C. 1313(d)(1)(A), (C), but EPA has
approval authority over those lists. Id. at 1313(d)(2). If EPA disapproves a
state's list of limited segments, or a TMDL, EPA must issue its own list or
TMDL. Id. Some courts have held that a state's failure to timely submit its
TMDLs can be taken under certain circumstances by EPA as a constructive
submission of no TMDLs, triggering EPA's responsibility to establish its own.
See Scott v. City of Hammond, 741 F.2d 992, 996-98 (7th Cir.1984); Kingman
Park Civic Ass'n v. EPA, 84 F.Supp.2d 1, 5 (D.D.C.1999) (holding that "[l]ike
the majority of courts that have confronted this quandary, this Court holds that
`if a state fails over a long period of time to submit proposed TMDL's, this
prolonged failure may amount to constructive submission by that state of no
TMDL's'" (omitted citation)). We have not addressed this issue of constructive
submission yet, and need not do so in this case because under the consent
decree EPA was obligated to issue its own TMDLs according to a prescribed
timetable if Georgia continued to fail to establish them.

14

Once established, TMDLs are implemented through various mechanisms, some

of which are provided in the Act, with responsibilities for implementation
divided between EPA and the states. Point-source discharges are regulated
through the federal permit regime, with TMDLs incorporated into the effluent
and technological-based limitations. 40 C.F.R. 122.44(d)(1)(vii)(B). Although
EPA has the authority to issue permits, it has delegated that authority to the
states, at least to the majority of them, including Georgia. Even where it has
delegated that basic authority, however, EPA does retain the right to include
additional limits in NPDES permits when necessary to ensure a
congressionally-established standard of water quality. 33 U.S.C. 1312(a),
1342(a).

15

The Act generally leaves regulation of non-point source discharges through the
implementation of TMDLs to the states. 33 U.S.C. 1329. It imposes on the
states planning responsibilities, including the preparation of a non-point source
management plan, commonly referred to as a 319 report. Id. at 1329(a). In
this report, a state must, among other things, identify waters where water
quality standards can reasonably be met only by additional action to control
non-point source pollution, and designate the categories and subcategories of
non-point sources that contribute to the pollution in those waters. Id. at
1329(a)(1). States also have to prepare a management program that identifies
"best management practices and measures" to reduce pollution. Id. at
1329(b). EPA exercises authority over these programs and must approve them.
Once the programs have been approved, EPA may make grants to the states to
allow them to implement the plans. Id. at 1329(h).

16

Finally, a state has to prepare a "continuing planning process," which is

essentially a plan for how the state is going to clean up pollution. Id. at
1313(e)(1). Like the best management program, EPA has to approve or
disapprove each state's continuing planning process and, once it has been
approved, occasionally review it to ensure it stays consistent with the Act. Id. at
1313(e)(2). In preparing its continuing planning process, a state must
incorporate established TMDLs. See id. at 1313(e)(3)(C).

17

To summarize, under the Clean Water Act, Georgia has the primary authority
and responsibility for issuing permits and controlling nonpoint source pollution
in that state. It also has both the authority and the duty to compile the list of
limited segments (the 303(d) list), and establish TMDLs for each waterbody
on the list. EPA, for its part, has supervisory authority over various reports and
plans which the state is required by the Act to produce. EPA can also compile
its own list of limited segments and establish its own TMDLs, if the state's
efforts are either inadequate or too long delayed.

The Consent Decree and Dispute in this Appeal

18

By the time Sierra Club sued EPA in 1994, sixteen years after the Act had gone
into effect, Georgia had established only two TMDLs for the approximately
340 limited segments identified in its 303(d) list, and the district court found
that neither of those two TMDLs satisfied the requirements of the Act. In the
lawsuit, Sierra Club asked the court to force EPA to establish the TMDLs and
to implement them, because Georgia had not done so. The district court granted
summary judgment for Sierra Club, Sierra Club v. Hankinson, 939 F.Supp. 865
(N.D.Ga.1996), and entered an injunction requiring the EPA to both establish
and implement TMDLs for all Georgia limited segments by June 2001. Sierra

Club v. Hankinson, 939 F.Supp. 872 (N.D.Ga.1996). The injunction directed

EPA to "implement (or ensure that the State implements)" TMDLs through the
modification, revocation, and re-issuance of permits. It also imposed a number
of other requirements on EPA, most of which had to do with making it exercise
supervision over Georgia's water quality control efforts. EPA appealed to this
Court.
19

While EPA's appeal was still pending, in July of 1997 the parties agreed upon
the terms of a consent decree and persuaded the district court to enter it, which
it did in October of 1997. In the consent decree, EPA was ordered to establish
TMDLs for the limited segments on Georgia's 303(d) list on a basin approach
if Georgia continued to fail to do so. Under a schedule set out in the decree, all
TMDLs were to be established by 2004, and additional, more specific deadlines
were included. The decree provided that by 1998, EPA was to establish
TMDLs for twenty percent of the waterways on Georgia's 1996 list of limited
segments. These 1998 TMDLs are the ones that are the subject of this appeal,
the ones Sierra Club says EPA should have prepared an implementation plan
for, but they are only the first group of TMDLs that EPA was to establish under
the terms of the consent decree. The decree also required the EPA to establish
TMDLs for the remaining waterbodies on a river basin rotation schedule, if
Georgia failed to do so.

20

The basin rotation schedule was to begin in 1999, with TMDLs proposed for all
the basins by 2004. 4 Besides establishing TMDLs, the decree imposed other
responsibilities on EPA, including: (1) review of Georgia's continuing planning
process, (2) proposal of specific terms for Georgia/EPA Performance
Partnership Agreements, (3) biennial review of Georgia's TMDL program, and
(4) submission of annual compliance reports to the court and to the plaintiff
groups.

21

EPA proposed 124 TMDLs for Georgia's waterbodies in August of 1997 and
attached them to the consent decree which the parties submitted to the district
court for its approval. Under the terms of the decree, those TMDLs were to be
"established, or finalized" within six months after being proposed. All but eight
were timely established by EPA, and even those eight were established after
Sierra Club filed a motion to force EPA to do so. Once EPA had established the
TMDLs, nothing else was done with them. Georgia did not incorporate the
TMDLs into any of its non-point source management plans or reports and did
not implement them. As a result, two years after entering into the consent
decree, only one of the 124 water-bodies on Georgia's 1996 303(d) list met
water quality standards.

22

Dissatisfied with the progress made towards clean water in Georgia and with
EPA action or lack of it, in February 2000 Sierra Club moved the district court
to re-open the decree and to compel EPA to take further action. Specifically,
Sierra Club moved the court to order EPA to prepare implementation plans for
the 124 TMDLs the agency had established in 1998.5 EPA argued in response
that the decree did not obligate it to prepare implementation plans for or to
implement TMDLs, and that the decree should not be modified to impose that
responsibility on it.

23

The district court deferred ruling on Sierra Club's motion because Georgia
promised to develop implementation plans for the 124 TMDLs within nine
months. Within that time period, Georgia did develop implementation plans for
all 124 of those TMDLs. Because the plans which Sierra Club wanted EPA to
develop had now been developed by Georgia, EPA moved the court to dismiss
as moot Sierra Club's motion to re-open and compel. Sierra Club argued that its
motion was not moot, because Georgia's implementation plans were flawed or
otherwise unsatisfactory.

24

The district court denied the EPA's motion to dismiss as moot Sierra Club's
motion. In its order, the court ruled that "TMDL implementation plans are
required [of EPA] by the Consent Decree." As for the Georgia-prepared plans,
the court ruled that EPA had "obligations" to "ensure" those plans were
adequate. The order did not, however, declare the Georgia plans insufficient.
Instead, it directed EPA and Sierra Club to confer about those plans and attempt
to reach an agreement concerning them. If their disagreements could not be
resolved by discussion, the order stated, the court would grant either party's
request for an evidentiary hearing on the sufficiency of the Georgia plans.

25

EPA appealed the district court's order and also filed an emergency motion for
stay pending appeal. In response to a jurisdictional question we issued to the
parties, Sierra Club contends that we lack jurisdiction because the district
court's order denying EPA's motion to dismiss on mootness grounds is not final
so as to be appealable under 28 U.S.C. 1291, is not appealable under the
collateral order doctrine, and is not a modification of an injunction appealable
under 28 U.S.C. 1292(a)(1). Sierra Club also filed a motion to dismiss for
lack of jurisdiction on those grounds. EPA responded that this Court does have
jurisdiction and, alternatively, petitioned for a writ of mandamus.

II. DISCUSSION
A. Jurisdiction the District Court Did Modify the Consent Decree

26

EPA contends that we have jurisdiction over this appeal under 28 U.S.C.
1292(a)(1), which gives appellate courts jurisdiction to review interlocutory
orders of district courts "granting, continuing, [and] modifying" injunctions.6
Sierra Club contends that we do not, because the district court did not modify
the injunctive relief provided for by the consent decree, but only interpreted the
decree.7 If Sierra Club is correct and the district court only interpreted the
decree, we do not have jurisdiction. See Birmingham Fire Fighters Ass'n 117 v.
Jefferson County, 280 F.3d 1289, 1292 (11th Cir.2002).

27

We have said that in order to decide whether a district court's order relating to a
prior decree falls within the grant of appellate jurisdiction under 1292(a)(1),
we must decide whether the order modified the decree in a "jurisdictionally
significant way." Id. at 1292. A district court's interpretation of a consent decree
operates as a modification when it changes the legal relationship among the
parties. Id. at 1293. This determination is not significantly affected by whether
the district court called its order an interpretation, as this district court did, or a
modification. See Sizzler Family Steak Houses v. Western Sizzlin Steak House,
Inc., 793 F.2d 1529, 1539 (11th Cir.1986) ("What matters, however, is not the
district court's characterization of its order as amendatory or explanatory, but
rather the actual effect of the order on the obligations of the parties as set forth
in the original judgment.").

28

If the district court's order changes the legal relationship of the parties, it is a
modification of the decree, regardless of what it was called. As we explained in
Birmingham Fire Fighters, we do not engage in a fine point analysis of the
original decree and the later order. Instead, we take a fairly loose focus and ask
whether the district court's reading of the consent decree is "a gross
misinterpretation of the decree's original command," one that "leaps from the
page." Birmingham Fire Fighters, 280 F.3d at 1293. If so, then we have
jurisdiction. Applying this test, our starting point is to determine the legal
relationship among the parties that the consent decree itself established. The
next step is to determine whether the district court's order changed that
relationship in a "jurisdictionally significant way." Id. at 1292.

29

As this Court has explained before, "As a general matter, the rules we use to
interpret a consent decree are the same ones we use to interpret a contract
since a consent decree is a form of contract." Reynolds v. Roberts, 202 F.3d
1303, 1312 (11th Cir.2000). With a consent decree as with a contract, the first
place we look and often the last as well is to the document itself. The consent
decree in this case provided that if Georgia failed to establish TMDLs, EPA
was required to do so.8 The decree defined a TMDL as having "the meaning

provided at Section 303(d)(1)(C) of the CWA, 33 U.S.C. 1313(d)(1)(C), and

40 C.F.R. 130.2(i), as codified as of the Effective Date of this Decree, or as
subsequently amended." Neither the referenced statutory provision nor the
referenced regulation includes implementation plans within the meaning of
TMDLs. 9 The two are different, and the statute and regulation incorporated
into the definition part of the consent decree reflect that difference. A TMDL is
defined to be a set measure or prescribed maximum quantity of a particular
pollutant in a given waterbody, see 40 C.F.R. 130.2(i), while an
implementation plan is a formal statement of how the level of that pollutant can
and will be brought down to or kept under the TMDL.10
30

The consent decree clearly and explicitly places a number of duties on EPA,
including the requirement to establish TMDLs on a basin approach if Georgia
fails to do so, but it just as clearly does not require EPA to develop
implementation plans for those TMDLs once they are established. The decree
contains seven pages setting out in detail EPA's obligations under it, and
conspicuously absent from the list of those obligations is any mention of
implementation plans. Indeed, implementation plans are not mentioned at all
anywhere in the 28-page decree. If the parties had intended for the decree to put
such an important and substantial responsibility on EPA, they would have
spelled that out just they spelled out its responsibility to establish TMDLs.

31

The district court gave two reasons for finding that implementation plans were
required by the consent decree. First, it said that "[u]nder EPA's interpretation
of the Consent Decree, TMDLs would be developed with no guarantee that
they would ever be implemented. Developing TMDLs without implementing
them amounts to an academic endeavor which would have no effect on water
quality in Georgia." Or, as Sierra Club restates that concern, unless
implementation plans are read into TMDLs, the decree is reduced to "empty
formalism." We doubt that, because TMDLs are a necessary step before any
implementation plans can be formulated. Interpreting the decree as written
gives it meaning, because establishing TMDLs is a meaningful and not
necessarily simple step in the process of controlling pollution in Georgia's
waterbodies. After all, in sixteen years Georgia had established only two of the
hundreds of TMDLs that were necessary, and the adequacy of those two was
questionable. The decree put the TMDL task with all of its difficulties on EPA.
The responsibility for implementing the TMDLs once they were established
was left to Georgia, as it is in the Clean Water Act itself.

32

The second reason the district court gave for its conclusion that EPA was
required by the consent decree to establish implementation plans is that reading
that into the decree would further the goal of the Clean Water Act, which is

cleaner water. The court stated, "EPA's interpretation is incompatible with the
Clean Water Act goal of improving water quality. Specifically, among the
stated objectives of the Clean Water Act is the following: `[I]t is the national
policy that programs for the control of nonpoint sources of pollution be
developed and implemented in an expeditious manner....'" Of course, the
national policy and objectives relating to clean water are most reliably
embodied in the Act itself which puts the responsibility for implementation of
TMDLs on the states. Logically, the Act cannot be a source of authority for
changing the Act's allocation of responsibilities. Besides, the district court's
approach disregards the Supreme Court's instruction that "any command of a
consent decree or order must be found within its four corners, and not by
reference to any purposes of the parties or of the underlying statutes." United
States v. ITT Continental Baking Co., 420 U.S. 223, 233, 95 S.Ct. 926, 933, 43
L.Ed.2d 148 (1975) (quotations and citations omitted); see also United States v.
Atlantic Refining Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054
(1959) (rejecting a loose interpretation of the consent decree even though such
an interpretation might better effectuate the purposes of the acts assertedly
violated); Hughes v. United States, 342 U.S. 353, 356-57, 72 S.Ct. 306, 308, 96
L.Ed. 394 (1952) (rejecting an invitation to advance the asserted purpose of the
consent decree through an interpretation of a consent decree not justified by the
four corners of the decree).
33

The Supreme Court has observed that consent decrees generally do not have
overarching purposes which can be used as guides to interpretation. 11 For
example, in United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752,
1757, 29 L.Ed.2d 256 (1971), the Court explained that because consent decrees
are normally compromises between parties with opposing positions in which
each party gives up their rights to litigation and to prove their position, consent
decrees should be interpreted as written, "and not as it might have been written
had the plaintiff established his factual claims and legal theories in litigation."
In this case, the parties negotiated the terms of the decree and the timetable for
TMDL establishment and other relief within the framework of the statutory
scheme set out in the Act. The decree cannot be interpreted as requiring
whatever might be necessary and appropriate to achieve cleaner water, because
it was not written that way. It was written to bring about in a more expeditious
and certain manner than would otherwise have occurred one important step in
the process, and it appears to have achieved that goal or to have nearly done so.

34

This, then is the original relationship between the parties as established by the
consent decree: at Sierra Club's insistence EPA was obligated to develop for
the State of Georgia TMDLs, as defined by the statutory and regulatory
provisions. The order we have before us declared that the consent decree went

beyond that and required EPA to develop not just TMDLs but implementation
plans for TMDLs. Because the decree as written and entered did not require
EPA to prepare implementation plans for the TMDLs, the district court's order
requiring EPA to prepare them modified the decree because it changed the
legal relationship of the parties by "chang[ing] the command of the earlier
injunction." Birmingham Fire Fighters, 280 F.3d at 1293 (internal quotations
omitted). If a party obtains a decree forcing another party to perform task A,
and a later order adds task B, the legal relationship between the parties has been
changed by the later order. That is what happened in this case. There was a
change in EPA's obligations, in the tasks with which it was saddled. The law is
that if the change is sufficiently obvious if the original decree did not even
arguably require the additional task or obligation, so that the district court's
interpretation of the decree is "blatantly or obviously wrong" then we have
jurisdiction to review the order. Id. For the reasons we have set out, we
conclude that this is not a close call; the error in the district court's
interpretation of the consent decree is obvious enough to give us jurisdiction to
review the resulting modification.
B. The District Court Abused Its Discretion In Modifying the Consent Decree
35

Having decided that the district court obviously modified the decree when it
required EPA to prepare implementation plans, which gives us jurisdiction to
review its action, we turn now to the merits issue, which is whether the
modification was an abuse of discretion. Sierra Club contends that the
modification was within the district court's discretion and points to several
provisions in the decree which it says gives the district court the power to
modify it. One of those provisions says that the court retains jurisdiction over
the action and may issue orders to modify the terms of the decree and grant
further relief as justice requires. The other says that nothing in the decree "shall
be construed to limit the equitable powers of the Court to modify those terms
upon a showing of good cause by any party." We do not read these boilerplate
provisions as giving the district court any more power to modify the decree
than it already had under Rule 60(b)(5) of the Federal Rules of Civil
Procedure,12 as explicated by the Supreme Court in Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). The
provisions confirm the court's authority to modify the decree, but that authority
is still subject to the constraints set out in the Rufo decision. In that decision the
Supreme said that the party seeking modification of a consent decree must
show, first, "a significant change either in factual conditions or in law," id. at
384, 112 S.Ct. at 760, and, second, that "the proposed modification is suitably
tailored to the changed circumstance." Id. at 391, 112 S.Ct. at 763.

36

Sierra Club contends that there have been changes in both the law and

36

Sierra Club contends that there have been changes in both the law and
surrounding circumstances which justify the district court's modification of the
decree. It points to some guidance documents and a proposed rule published by
EPA as proof that the law has changed, but none of those documents or
proposals have the effect of law. As for guidance documents, they can modify
neither statutes nor regulations. To legally change its regulations, EPA must
comply with the rulemaking procedures set out in the Administrative
Procedures Act. 5 U.S.C. 551-706. The method by which guidance
documents are created does not even come close to compliance with those
procedures.

37

As for the proposed rule Sierra relies upon, it did not work a change in the law
because it has never been implemented and in fact has been withdrawn. EPA
proposed the new rule in 1999, see 64 Fed.Reg. 46012 (Aug. 23, 1999), and
published it as a final rule in July of 2000, see 65 Fed.Reg. 43586 (July 13,
2000), but it was never implemented. Congress refused to appropriate the
necessary funds for implementation, which delayed things, see Pub.L. No. 106246, 114 Stat. 511, 567 (2000), and then EPA withdrew the proposed rule. See
66 Fed.Reg. 41817 (Aug. 9, 2001). At no time was the new rule ever applied by
EPA, and as things stand, the relevant regulations related to the Act are the
same as they were in 1997. The statutory and regulatory regime the
applicable law is the same now as it was when the consent decree was
entered. There has been no change.

38

Nor has there been a change in factual circumstances sufficient to justify the
district court's modification of the decree. It is true that the state of Georgia is
not currently implementing the TMDLs established by EPA at the rate
contemplated by the Act, but Georgia has never carried out its responsibilities
under the Act at anywhere near the pace the Act contemplates. Georgia's
governmental lethargy in this area is nothing new. Indeed, it was what Sierra
Club calls "Georgia's 16 year failure and refusal to develop and implement the
[TMDL] process for hundreds of Georgia's rivers, streams, lakes, and estuaries
that were not meeting designated standards for fishing, swimming, and
drinking," which led to the lawsuit. Brief of Appellee Sierra Club at 3. A
decree cannot be justifiably modified based upon the theory of changed factual
circumstances when the circumstances simply have not changed.

39

Sierra Club contends that the district court was within its discretion in
modifying the decree because the decree had not achieved its purpose, and such
a failure can itself be a changed circumstance justifying modification. See
Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d
1529, 1539 (11th Cir.1986); United States v. United Shoe Machinery Corp.,

391 U.S. 244, 251-52, 88 S.Ct. 1496, 1501, 20 L.Ed.2d 562 (1968). That
contention is based upon the premise that the purpose of the decree was to
achieve clean water in Georgia, a state of affairs which everyone concedes is a
long way off. But the purpose of the decree was not nearly so ambitious. Clean
water may have been Sierra Club's motivation, its reason for bringing the
lawsuit to begin with, but the bargain it struck with EPA which produced the
consent decree was much more limited.
40

While the Clean Water Act sets out a process composed of several steps to
achieve clean water, the consent decree focuses on bringing about one of those
steps, the establishment of TMDLs, and it leaves attainment of the Act's
ultimate goal of cleaning up the water to the statutory and regulatory scheme
which requires compliance by Georgia subject to some oversight by EPA. The
consent decree does not supplant the Act itself. Under the decree, Georgia is
still responsible for incorporating TMDLs, regardless of whoever establishes
them, into its section 303(e) plan; Georgia is still responsible for incorporating
TMDLs into its NPDES permits; and Georgia is still responsible for
implementing non-point source pollution controls. EPA agreed only to a
supervisory role with respect to some of these implementation-related
processes, but it did not agree to take over the implementation process. The
objective of the consent decree was the establishment of TMDLs, not the much
more long-term goal of clean water.

41

Nothing has changed to make the provisions of the consent decree ineffective,
and experience has not shown that the decree is incapable of achieving its
purpose. It is still capable of and is in fact accomplishing what the parties set
out to achieve with the decree: the establishment of TMDLs. If Sierra Club
wants more done to bring about clean water in Georgia, it will have to look
beyond the consent decree and to the Clean Water Act and regulations, and
perhaps to additional litigation, to achieve those worthy goals.

42

A party seeking to modify a consent decree has a high hurdle to clear and the
wind in its face. See, e.g., Reynolds, 202 F.3d at 1312 ("Long standing
precedent evinces a strong public policy against judicial rewriting of consent
decrees."). Because Sierra Club has failed to clear that hurdle, the district court
should not have modified the decree in the course of interpreting it. It should
have granted EPA's motion to dismiss Sierra Club's motion to re-open the
decree and to compel action.

III. CONCLUSION
43

The district court's order denying EPA's motion to dismiss Sierra Club's motion

to re-open and compel action is REVERSED, and this case is REMANDED for
further proceedings consistent with this opinion.

Notes:
*

Eugene E. Siler, Jr., U.S. Circuit Judge, for the Sixth Circuit, sitting by
designation

Those organizations include the Ogeechee River Valley Association, Trout

Unlimited, Georgia Environmental Organization, and the Coosa River Basin
Initiative

Like Georgia, most states44 of them are in charge of their own NPDES
program. In the other six states EPA runs the program

A limited segment is often referred to as a "WQLS," but given the number of

other acronyms in our discussion we will avoid that one

EPA's performance in establishing the TMDLs for some of the water basins has
been the subject of other litigation under the consent decree, which has resulted
in another decree further defining EPA's duties

Sierra Club moved for other relief as well, but the request that EPA be required
to establish implementation plans is the only one involved in this appeal

The parties agree that the district court's order denying EPA's motion to dismiss
Sierra Club's motion to enforce or modify the consent decree is not a final order
as that term is used in 28 U.S.C. 1291, and that the order does not fall within
the collateral order doctrine. We concur with them on those points.
Accordingly, whether we have jurisdiction turns on 28 U.S.C. 1292(a)(1)

The plaintiffs also contend that we lack jurisdiction on the ground that there is
no justiciable controversy, because the issue is not yet ripe. The district court's
interpretation of the decree imposed on EPA a requirement to prepare
implementation plans or ensure that the ones prepared by Georgia satisfy the
requirements of the Act. It ordered EPA to take action within 30 days, action
that EPA insists it has no obligation to undertake. The matter is sufficiently ripe

EPA agreed to establish the 1998 TMDLs, the ones that are the subject of this
appeal, without waiting on Georgia to fail to do so first. In July of 1997 the
parties had agreed to the terms of the consent decree, one of which was that in
August EPA would propose for public comment by August of 1997 TMDLs for

twenty percent of the waterbodies in Georgia's 1996 303(d) list. These TMDLs
were attached to the consent decree when the parties submitted the decree to
the district court for its approval. The remaining TMDLs were to be developed
by EPA only after Georgia failed to do so
9

The statutory provision says:

Each State shall establish for the waters identified in paragraph (1)(A) of this
subsection, and in accordance with the priority ranking, the total maximum
daily load, for those pollutants which the Administrator identifies under section
1314(a)(2) of this title as suitable for such calculation. Such load shall be
established at a level necessary to implement the applicable water quality
standards.... 33 U.S.C. 1313.
The regulation defines a TMDL as: "[t]he sum of the individual [wasteload
allocations] for point sources and [load allocations] for non-point sources and
natural background." 40 C.F.R. 130.2(i).

10

Sierra Club attempts to escape this clear distinction between TMDLs and
implementation plans for them by arguing that implementation plans should be
read into TMDLs based upon EPA guidance documents and also a proposed
rule that was withdrawn before it went into effect. Putting aside any questions
about whether those documents actually do define implementation plans into
TMDLs, the inescapable fact is that the consent decree does not, because the
decree does not define TMDLs by reference to any guidance documents or
aborted rule. Instead, the decree defines the term by reference to a specific
statutory provision and a specific regulation that is in effect, and neither of
those two definitional sources indicates or even implies that TMDLs include
implementation plans. We find no ambiguity on the point in either the statute or
regulation, and because they are the sole source of the definition of TMDLs in
the consent decree they are all we look at to define the termCf. Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 697 n. 10,
115 S.Ct. 2407, 2413, 132 L.Ed.2d 597 (1995) (refusing to apply the ordinary
common-law meaning of a term when it was defined in the statute). Given the
clarity of the consent decree, we also decline Sierra Club's invitations to
consider any extrinsic evidence on the issue.

11

While consent decrees should not be interpreted according to a broad, nebulous

purpose, in different contexts courts are called upon to decipher the purpose of
some consent decrees. For example, the Supreme Court has said that when
considering whether an institutional-reform decree or other similar decree
should be modified, courts are to determine whether the motion is to modify a
term of the decree that is central to the basic purpose of the decree. If it is, then

modification is probably not appropriateRufo v. Inmates of Suffolk County Jail,

502 U.S. 367, 387, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992) ("If
modification of one term of a consent decree defeats the purpose of the decree,
obviously modification would be all but impossible."). See United States v. City
of Miami, 2 F.3d 1497, 1504 (11th Cir.1993) ("Thus, a court faced with a
motion to modify a consent decree in institutional reform litigation must begin
by determining the `basic purpose' of the decree."). But the purpose of the
decree even in that context is not to be conceived at too high a level of
generality, and is not used as a basis to expansively interpret the terms of the
decree. In the case before us, the district court used what is considered to be the
purpose of the decree to interpret expansively the decree's terms. That should
not be done.
12

Rule 60(b)(5) provides that a party may obtain relief from a court order when
"it is no longer equitable that the judgment should have prospective
application." Fed.R.Civ.P. 60(b)(5)