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MS4 - Phase 2 Rules Released
FDEP has published proposed rules updating the requirements for Phase 2 MS4 permits.  See the November 20, 2017 edition of the Florida Administrative Register at page 15.  FDEP's rules pattern the regulations adopted late last year by EPA. Moving forward, the Department will need to make a determination on whether they implement the comprehensive or two step approach.  Either option will necessitate further rulemaking next year. 

EPA adopted the final MS4 General Permit Remand Rule on November 17, 2016, to satisfy a remand order from the US Court of Appeals for the Ninth Circuit.  The Final Rule embraced what came to be known as “Option 3” or the “State Choice” alternative, representing the most flexible alternative that had been considered by the Agency as far as NPDES program administrators and MS4 permit holders are concerned.  FSA had submitted comments on draft regulations released by EPA revising the permit criteria for small MS4 jurisdictions.  FSA's comments centered on the fact that the proposed regulations were improperly noticed and included requirements for numeric effluent limits - a measurement of water quality historically used only for point source discharges, like wastewater or industrial facilities.  The revised rules were the result of a settlement agreement between EPA and environmental organizations dating back to 2003 where the Court found that the general permitting scheme of EPA’s Phase 2 MS4 rules allowed small MS4s to design stormwater pollution control programs without adequate regulatory and public oversight, thus violating the Clean Water Act because it did not require EPA to review the content of the MS4’s Notices of Intent to discharge.

MS4 - Supreme Court Declines to Hear MS4 Permit Issue

The U.S. Supreme Court has declined to hear an appeal of a decision of the 9th Circuit Court that had been filed by Los Angeles County.  The 9th Circuit’s decision concerned Los Angeles’ Municipal Separate Storm Sewer System (MS4) permit and found that an exceedance of a water quality standard was an automatic violation of such standards and the Clean Water Act.  The decision also confused the purpose of water quality monitoring by MS4s with that of industrial point source discharges.  The Supreme Court gave no reason as to why it declined to hear the appeal.  Since FSA’s membership is not within the jurisdictional boundaries of the 9th Circuit Court, the 9th’s decision is “persuasive” but does not set precedent for MS4 permit-holders in Florida.  Nonetheless, the decision may result in environmental organizations renewing their focus on challenging MS4 permits as a way to drive water quality improvement initiatives. FSA had filed a “Friend of the Court” brief supporting Los Angeles County’s appeal to the US Supreme Court.

Los Angeles County had appealed a similar decision of the 9th Circuit to the Supreme Court in 2012 and FSA filed a brief supporting the County at that time.  Although the Supreme Court ruled favorably for the County in 2013, that decision concerned an issue that was not directly related to the issues raised in the new appeal.

Numeric Nutrient Criteria
In 2009, FSA was the first association of local governments to intervene in the original federal litigation concerning numeric nutrient criteria for the State of Florida. Numerous other parties have since intervened in one or more matters in the courts. Related information:

  • July 2, 2015 - The 11th Circuit Court of Appeals issues an Order denying the appeal of EarthJustice and other environmental groups, affirming Judge Hinkle's Order allowing EPA to accept FDEP's plan for NNC in Florida.

  • January 7, 2014 - Over the objections of most environmental organizations, US District Court Judge Robert Hinkle issued an Order Modifying the Consent Decree allowing EPA to accept the FDEP’s plan for NNC regulations in Florida.  FDEP will now begin to implement NNC in Florida.  However, note that the federal Administrative Procedures Act operates differently than Florida’s APA, and environmental organizations have six years to challenge EPA’s rules under the federal APA. 
  • February 19, 2013 - FSA and the Florida League of Cities file joint comments concerning EPA’s proposed regulations on estuaries.

  • January 31, 2013 - FSA and the Florida League of Cities file joint comments concerning EPA’s proposed regulations on flowing waters. Additional comments are filed on behalf of FSA, FLC and other stakeholders by counsel.
       
  • December 9, 2012 - FDEP releases a one-page factsheet summarizing the current status of NNC policy development in Florida. 
  •  November 30, 2012 - EPA approved the regulations. 
       
  • November 30, 2012 - US EPA has announced its approval of FDEP’s NNC in their entirety; however, EPA simultaneously took measures to “gap-fill” NNC policy for certain waters in Florida that were not covered (or not adequately covered) in their opinion by the Florida regulations, including urban stormwater conveyances that were largely exempt from FDEP’s definition of streams and therefore remained subject to Florida’s narrative nutrient criteria. 
       
  • November 21, 2012 - EPA moves to extend the November 30th deadline to submit NNC for many Florida waters by 120 days. Jim Giattina (EPA Region 4 Water Protection Division Director) states that EPA is near completion of its review of FDEP numeric nutrient criteria.
  • February 18, 2012 - US District Court issues its Order concerning challenges to EPA’s NNC. FSA, the Florida League of Cities and several other entities have appealed the Order of District Court.
  • December 8, 2011 - The Florida Environmental Regulation Commission adopted FDEP’s version of numeric nutrient criteria for freshwaters. The most important distinctions between the EPA and DEP rules are that DEP’s requires biological confirmation to demonstrate that impairment exists as indicated by nutrient levels, and that ditches, canals and urban stormwater conveyances remain subject to narrative criteria unless a numeric expression of a TMDL or SSAC is developed for the water.
       
  • June 2011 - EPA Issues its Response to FDEP’s Petition
      
  • April 2011 - FDEP files petition with EPA to withdraw EPA's 2009 Determination that EPA NNC are necessary in Florida. 
       
  • January 2011 - Complaint by FSA and the Florida League of Cities seeking to invalidate the EPA NNC regulations    

  • August 2009 - Consent Decree between Earthjustice and US EPA

Stormwater Utilities
Since the “Gainesville II” decision in 2003, the Florida Supreme Court has not ruled on another case concerning payment of stormwater utility fees by governmental entities.  The City of Ocala’s dispute with the Marion County School Board over payment of stormwater utility fees remains the most viable case to be heard by the Supreme Court within the next few years.

  • November 15, 2012 - Florida Supreme Court declined to hear the City of Key West’s appeal of the Third District Court’s finding that the Florida Keys Community College enjoys “sovereign immunity” and is not liable for the payment of stormwater utility fees. FSA and the League of Cities had filed briefs in support of Key West. Related Information:
  • January 18, 2012 - Decision of the Third District Court (No. 3D11-417) 
       
  • June 2011 - Friend of the Court brief of FSA, the Florida League of Cities and the City of Gainesville in support of the City of Key West’s appeal.

TMDLS

FSA widely distributed its Position Paper: Implementation of Total Maximum Daily Loads to members and other key policy makers throughout Florida.

Waterbody Reclassification

FSA is actively involved in front of the Environmental Regulation Commission on such issues as the revisions to the Impaired Waters Rule and state Water Quality Criteria. FSA petitioned the ERC to adopt revisions to the antiquated system of classifying waters in Florida; initial revisions were adopted in May of 2010. Related reclassification documents include:  

September 6, 2011 - EPA approves revisions to Florida’s reclassification system that were adopted by the Florida Environmental Regulation Commission on May 20, 2010.

Water Quality Credit Trading Rule Adopted

FDEP's Water Quality Credit Trading rules have been finalized, effective January 11, 2016. 

WOTUS Update

  • November 27, 2017 - FSA submits additional comments to EPA and the ACOE in response to a request for suggestions on a yet-to-be-drafted rule to revise the definition of “Waters of the United States” under the CWA.  It is anticipated that a draft of the new rule will be released in 2018, replacing the 2015 rule which EPA intends to repeal.

  • September 26, 2017 - FSA submits comments to EPA and the ACOE on the proposed rule to revise the definition of “Waters of the United States” under the CWA.
  • August 28, 2017 - EPA and the ACOE will hold ten teleconferences to hear from stakeholders on their recommendations to revise the definition of “Waters of the United States” under the CWA.  Nine of the sessions will be dedicated to specific sectors/stakeholders and one will be for the general public.  For more information visit EPA’s WOTUS webpage or contact Ms. Damaris Christensen at (202) 566-2428 or CWAwotus@epa.gov.
  • August 16, 2017 - EPA and the ACOE extended the deadline for submitting comments on the proposed rule by 30 days.  The new deadline is September 27, 2017.  Comments should be submitted EPA at  http://www.regulations.gov/ and reference "Docket ID No. EPA-HQ-OW-2017-0203."
  • July 27, 2017 - EPA and the ACOE published a proposed rule repealing the revisions to the Waters of the United States regulations that were adopted in 2015.  The publication of the rule begins a 30-day clock during which time comments may be submitted to EPA at  http://www.regulations.gov/.  Comments should reference "Docket ID No. EPA-HQ-OW-2017-0203."
  • March 6, 2017 - Shortly after President Trump issued an Executive Order directing EPA and the ACOE to review the WOTUS rule and begin the process to rescind or revise the rule, the Agencies filed a Notice of Intent to review the rule and withdraw or substantially revise the rule.   
  • January 13, 2017 - The outgoing Obama Administration filed a lengthy Brief in support of the WOTUS rules.  More importantly, the US Supreme Court agreed to hear an appeal from a decision of the Sixth Circuit Court (Ohio) on the issue of whether the Circuit or District court was the proper venue for review of WOTUS and similar rules.  Several groups representing regulated interests (including FSA) had filed an Appeal to SCOTUS after the Sixth Circuit Court ruled that they (not District Courts) had jurisdiction on such matters.  In addition to helping to determine which court the WOTUS rules should be heard, the decision by the Supreme Court  set the stage for other motions seeking delays in further actions by the Sixth Circuit Court, which were subsequently granted.  The delay gives the Trump Administration more time to start the process for withdrawal of the rule before a decision is rendered by a court.
  • November 1, 2016 - Briefs were filed in the Sixth Circuit Court of Appeals in Ohio.  FSA's briefs were combined with other regulated interests (both local governments and industrial) into a single brief of the "Business and Municipal Petitioners."  It is expected that a decision from that Court will be rendered sometime during the second quarter of 2017.  In the meantime, implementation of the WOTUS rules remain barred by the Court until a final decision on its legality is issued.
  • April 21, 2016 - The full Sixth Circuit Court issued an Order denying Petitions for rehearing by the full Court of a February ruling by a three-judge panel of the Court.  The panel of the Sixth Circuit Court of Appeals (Ohio) ruled that they had jurisdiction over challenges to the WOTUS rules and that the district courts were not the proper venue for such challenges.  The Clean Water Act provides that circuit courts have jurisdiction over rules approving or promulgating an effluent or other limitations.  Challenges to most other types of rules implementing the CWA must be filed in district court.  FSA and most of the other petitioners argued that the district courts were the proper venue for challenges to the WOTUS regulations.

    The panel's ruling was unusual in that it was actually three separate opinions.  In the 2 to 1 decision, one judge wrote the prevailing opinion and another wrote a dissent.  But the third judge wrote an opinion largely concluding that the Circuit Court did NOT have jurisdiction but felt compelled to follow what he believed to be a precedent setting decision of years ago.  For that reason - and only that reason - he opined that the Sixth had jurisdiction.  Thus, two of the three judges believed that the Sixth did not have jurisdiction but the court ruled in the opposite manner and the numerous Petitions seeking review by the full Court.
  • November 30, 2015 - FSA filed a Complaint for Relief in US District Court in Tallahassee asking the Court to invalidate the rules of EPA and the ACOE that revise the definitions of waters of the United States or "WOTUS",  and enjoin the Agencies from enforcing the rules.  On October 26, 2015 FSA had filed a Petition for Review in the Sixth Circuit (federal) Court challenging the rules.  The Complaint and Petition are the first of several steps in challenging the rules.  FSA has been engaged in the rule development process for almost two years.  The adopted rules will have dramatic, far-reaching effects on your ability to improve water quality and manage stormwater programs.  The rule is so broad and its impacts so far-reaching that it may actually weaken your ability to improve water quality.  See FSA “Comments” on this page.  Joining FSA in the lawsuit are the Florida League of Cities, Southeast Stormwater Association and the Florida Rural Water Association.
  • October 9, 2015 - The Sixth Judicial Circuit Court of Appeals issued a nationwide injunction stopping the WOTUS rule from being implemented – at least until there validity is otherwise determined.  Under the "likelihood for success" prong of the stay test, the Sixth Circuit noted three concerns:  The Rule's treatment of tributaries, adjacent waters, and waters with "significant nexus" and suggested that this does not comport with prior precedent in Supreme Court cases; that the federal agencies failed to give the public adequate notice and opportunity to comment on the (significantly revised) final Rule; and, that the rule was a significant expansion of federal authority under the CWA – an area where there has traditionally been a strong federal-state partnership.

    If implemented as adopted, the new regulations will result in VERY SIGNIFICANT impacts on the NPDES program and MS4 permit holders because most ditches, stormwater conveyances and certain flood control devices will be considered to be “waters of the US” and subject to permit conditions and numeric nutrient criteria.  See FSA’s Analysis of the Proposed Regulations.  A more detailed analysis of the impacts of the proposed regulations was prepared for the Florida H2O Coalition.  FSA's final Comments on WOTUS may be found here.