Regulatory

State

FSA has had significant representation on numerous statewide technical and policy advisory committees that have regulatory or financial impacts on city and county governments, including:   

  • TMDL Load Allocation Technical Advisory Committee    
  • Numeric Nutrient Technical Advisory Committee    
  • Pollutant Trading Credit Policy Advisory Committee    
  • Statewide Stormwater Rule Technical Advisory Committee    
  • Waterbody Designated Use and Classification Committee    
  • Statewide Stormwater Rule Advisory Committee

TMDLS

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

Water Quality / 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. 

Federal

Final Phase 2 Rule for Small MS4s Released

EPA Administrator Gina McCarthy signed 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.  The rule should not have a significant impact on small MS4s in Florida. 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 does not require EPA to review the content of the MS4’s Notices of Intent to discharge.


WOTUS Update

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."

June 27, 2017:  EPA and the ACOE have initiated the process to repeal or rescind the 2015 WOTUS regulations and re-codify the regulatory text that existed prior to new definitions being adopted in 2015.  The procedure to repeal the rule is very similar to that for its initial adoption, and will go through the normal regulatory processes.  View a pre-publication version of the rule.

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.

On 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.

On 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.

On 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.

On 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.