Motion to intervene in Clean Water Act (CWA) litigation; FedRCivP 24; The “presumption of adequate representation”; Whether the presumption was rebutted; Whether an appellant demonstrated a substantial interest in the case that might be impaired by the relief plaintiffs sought

The court held in this CWA case that proposed intervenor defendants/appellants-agricultural industry groups (referred to as the Associations) established “that all four criteria for intervention of right” were met. But proposed intervenor defendant/appellant-Coalition’s motions to intervene of right and for permissive intervention were properly denied. The Associations and the Coalition sought to intervene in this case involving the CWA and the Total Maximum Daily Load (TMDL) for phosphorus in the Maumee River and connected waterways that empty into Lake Erie. The district court denied them both permissive and intervention of right, ruling “that neither had met the criteria for intervention of right, and that the relevant factors weighed against permissive intervention.” On appeal, the court first addressed intervention of right and explained the “presumption of adequate representation.” It rejected plaintiffs’ argument that the Associations waived or forfeited the issue of whether the presumption was rebutted, and held that they rebutted it where they intended to “raise relevant arguments that conflict with” defendant-U.S. EPA’s interests. But the court held that the Coalition, whose members have discharge permits, “failed to show that the existing parties will not adequately represent its members’ interest in maintaining those existing permits under the prevailing Maumee TMDL.” As to whether the Associations met the remaining prongs of the intervention of right test, the court chose not to remand for the district court to complete the analysis of whether the Associations “demonstrated a substantial interest in the case or that such an interest might be impaired by the relief” plaintiffs sought. Instead, it addressed these prongs and held that the Associations “met the second and third criteria.” Finally, as to the Coalition’s motion for permissive intervention, the court agreed with the district court’s finding “that the Coalition’s proposed legal defenses were not relevant to the case’s disposition.” It also agreed “that this consideration is appropriate in determining whether permissive intervention is warranted.” And the district court’s “weighing of the respective factors in favor of and against intervention places [its] decision in the heartland of Rule 24(a)’s zone of discretion.” The court reversed the denial of the Associations’ motion to intervene, affirmed the denial of the Coalition’s motion to intervene, and remanded.