WOTUS ARCHIVE

• See the latest updates on the Advocacy Page.
  
  
• February 18, 2021 - Cited by observers as an indication of a possible change in policy by the new Administration, lawyers for the Department of Justice asked the US Court of Appeals for the 10th Circuit (Colorado) for a 60-day extension of time for an appeal of the Court's ruling that rejected the 2020 "Replacement Rule."  The DOJ lawyers argue that the extension of time is necessary for EPA and the Army Corps of Engineers to review the Rule for consistency with the CWA.  However, the Appellate Court denied the request for an extension of time and also overturned the lower court's decision that rejected the Replacement Rule.
  
  

• June 22, 2020 - The "Replacement Rule" becomes effective.  However, due to the numerous court challenges to the rule throughout the country, it is doubtful that MS4 permit holders or other CWA related programs will experience any changes in practice or policy for months to come.

• May 26, 2020 - Due to challenges to the "Replacement" and "Repeal" rules, all parties to FSA's challenge to the 2015 WOTUS rules have jointly agreed to hold the litigation in abeyance for an additional 90 days.   

• April 21, 2020 - EPA and the Army Corps publish the "Navigable Waters Protection Rule" replacing the definitions of what constitutes a water subject to federal jurisdiction.  Federal rules become effective 60 days after publication in the Register.  However, the challenges brought by the Center for Biological Diversity and other will likely ask the courts to hold implementation of the rule in abeyance until after its merits are litigated. 

• February 13, 2020 - The Center for Biological Diversity and a variety of other stakeholder jointly filed formal Notice of Intent to Sue EPA and the Army Corps if the Replacement Rule is adopted.  The Notice alleges that the proposed Rule violates provisions of the Endangered Species Act by so narrowing the application of the CWA, it affects species protected by the ESA. 

• January 23, 2020 - EPA and the Arny Corps announced that a proposed rule to replace regulations providing definitions of "waters if the US" and therefore applicability of the CWA was finalized.  The rule significantly narrows the scope of the CWA.  Such rules are effective 60 days after publication in the Federal Register (which has not yet occurred) and assuming there are no challenges to the Replacement Rule in federal court.

• December 2019 - Additional lawsuits challenging the "repeal rule" were filed in federal courts on December 4 by two landowners in New York state and on December 20 by a coalition of 15 states and cities. 

• October 22-23, 2019 - Separate lawsuits challenging the "repeal rule" were filed in federal courts by an association of New Mexico ranchers and a coalition of environmental groups.
  
  

• October 22, 2019 - EPA published a Final Rule in the Federal Register repealing the 2015 WOTUS regulations.  The repeal rule is effective 60 days after publication, assuming it is not challenged in court.

• September 22, 2019 - After considering a Joint Position Statement of the Plaintiffs and Defendants, the U.S. District Court for the Northern District of Florida issued an Order holding the litigation over the 2015 WOTUS rule in abeyance for 75 days, which was subsequently extended for an additional 45 days - after the effective date of the rule repealing the 2015 WOTUS regulations.

• September 12, 2019 - EPA announced that it had finalized a rule repealing 2015 WOTUS rule and that the Agency intends to adopt replacement regulations early next year.  The repeal rule is not final until it is published in the Federal Register and will be challenged almost immediately thereafter.  

• August 22, 2019 - In early August a Federal Court for the Southern District of Georgia ruled against EPA and in favor of the Plaintiffs, in this case various state governments.  FSA and its co-plaintiffs are obligated to provide information concerning developments in similar cases to Judge Walker in our case in Tallahassee.  See attached filing.  While the Georgia decision ruled in a manner favorable to most of our issues, the court was not asked to rule on one of our key issues - whether waters composing an MS4 system could simultaneously be jurisdictional waters or WOTUS.  We continue to await action from Judge Walker in Tallahassee.

• April 19, 2019 - FSA files a Reply Brief in U.S. District Court for the Northern District of Florida.  The Brief is in response to the April 5, 2019 filings of EPA and Intervenors in WOTUS litigation.

• April 12, 2019 - FSA submits comments to EPA concerning the rule proposed by EPA and the Army Corps of Engineers replacing the 2015 WOTUS regulations.

• April 5, 2019 - The reply briefs of the Environmental Protection Agency and Intervenors Natural Resources Defense Council, National Wildlife Federation and Tennessee Scenic Rivers Association were filed with the Court on April 5, 2019 in support of the 2015 WOTUS rules.

• March 15, 2019 - FSA and the Florida League of Cities, Rural Water Association and the Southeast Stormwater Association filed a Motion for Summary Judgement in US District Court for the Northern District of Florida in Tallahassee.  The Motion asks the Court to invalidate the 2015 Rules.

• February 14, 2019 - EPA and the Army Corps of Engineers published a proposed rule replacing the 2015 WOTUS regulations with a significantly more narrow set of definitions.  Comments on the proposal are due by April 15, 2019 and may be submitted using the Federal eRulemaking Portal at http://www.regulations.gov/ or by sending an email to [email protected].  Be sure to reference Docket ID No. EPA-HQ-OW-2018-0149.  Additional information may be found at:  www.epa.gov/wotus-rule.

• February 4, 2019 - The US District Court in Tallahassee issued an Order lifting the abeyance of the WOTUS challenge as requested in FSA's January 25th Reply brief.

• December 11, 2018 - EPA and the Army Corps of Engineers release a draft proposed rule narrowing the definitions of Waters of the United States.  Once the final proposal is published in the Federal Register, members have 60 days to submit comments to EPA.

• September 28, 2018 - In response to the decision of the South Carolina court and numerous other changes in policy direction in both the regulatory and judicial arenas, the FSA Board of Directors votes to reactivate its November 2015 Complaint challenging the WOTUS rules in Tallahassee federal court.  See September 28th Motion here.

• August 16, 2018 - An order of a federal district court in South Carolina stayed (blocked) the Trump Administration’s Applicability Rule.  The Applicability rule would have delayed the effective date of the Obama Administration’s WOTUS Rule until 2020, giving EPA plenty of time to replace the 2015 rule with a new set of WOTUS definitions.   However, WOTUS policy in the other 24 states (including Florida) is already subject to orders from two other courts blocking implementation of the 2015 WOTUS rule.  In those states, the Applicability rule and the August 16^th decision throwing the rule out have no effect.  EPA will now likely redouble efforts to adopt their “repeal/replace rule” which would repeal the 2015 rule and replace it with a new set of definitions of Waters of the US.

• July 31, 2018 - FSA submitted comments to EPA and the Army Corps concerning the supplemental notice of proposed rulemaking.

• June 29, 2018 - EPA and the Army Corps issued a supplemental notice of proposed rulemaking to the July 2017 proposed action to repeal the 2015 WOTUS definition, clarifying that the agencies are proposing to permanently repeal the 2015 rule (definitions) in its entirety. The notice also reiterates that the agencies are proposing to recodify the pre-2015 regulations to keep them in place while the agencies finalize new WOTUS definitions.  Comments on the new rule are due by August 13, 2018.  Reference Docket ID No. EPA-HQ-OW-2017-0203 and submit comments here. 

• February 23, 2018 - The US District Court for the Northern District of Florida entered an Order staying the case brought by FSA, the Southeast Stormwater Association and other parties against EPA and the Army Corps challenging the 2015 WOTUS rule.  The case is now held in abeyance February 2019.  It is expected that EPA/Corps will proposed new definitions for "Waters of the United States" later in 2018.

• January 31, 2018 - EPA and Army Corps finalize a rule delaying the applicability date of the 2015 WOTUS rule by two years, during which time the agencies will continue the process of reviewing and updating the rule.

• January 22, 2018 - The US Supreme Court issues a unanimous decision finding that federal district courts (not federal circuit courts of appeal) are the proper jurisdictions for challenges to rules like WOTUS, negating the decisions of the Sixth Circuit Court in Ohio regarding WOTUS.

• 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 [email protected].

• 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.

• 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.