By Kurt Spitzer, Executive Director, Florida Stormwater Association
On August 28, 2015, the US Environmental Protection Agency and the Army Corps of Engineers published final rules revising the definitions of Waters of the United States or “WOTUS.” If implemented as adopted, the new regulations will result in very significant impacts on Florida’s city and county governments, and the federal programs regulating the discharge of stormwater, because many more ditches, stormwater conveyances and flood control devices will be considered to be “waters of the US” and therefore subject to state and federal permit conditions and numeric nutrient criteria.
The adopted rules will have dramatic, far-reaching effects on your ability to improve water quality and manage stormwater programs. With limited resources to respond to public demand for improved water quality and to comply with state and federal permitting requirements, the rules’ overly broad definitions and application will likely have the paradoxical effect of actually decreasing (not improving) water quality. The problem with the rule is that the new definitions are SO BROAD that most waters would become jurisdictional. If they are subject to EPA and Army Corps jurisdiction, then CWA programs (such a stormwater permits) and Florida programs (such as BMAPs and TMDLs) will apply. The ability of a city or county to allocate scarce resources to targeted water quality improvement projects is therefore hampered because the breadth of responsibilities becomes unmanageable.
In response to the WOTUS regulations, the Florida Stormwater Association, Southeast Stormwater Association, Florida Rural Water Association and the FLC (the “Coalition”) joined together in challenging the rules in federal courts. In addition, the State of Florida has also filed a challenge to the WOTUS regulation.
On October 22, 2015 the Coalition filed a Petition for Review in the Sixth Circuit (federal) Court challenging the rules. Then on November 30th the Coalition filed a Complaint for Relief in US District Court in Tallahassee asking the Court to invalidate the WOTUS regulations and enjoin the Agencies from enforcing the rules.
The Petition and Complaint are the first of several steps in challenging the rules. The actions in different courts are necessary because it is unclear as to the proper venue for challenging this type of regulations. FSA and the FLC had been engaged in the rule development process for almost two years prior to the challenge.
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 its 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.
In early December, the Sixth Circuit Court heard arguments as to whether they had jurisdiction over the WOTUS matter. Given the importance of the WOTUS regulations and their impact, a decision of the Court is expected soon. If the Court determines that they have jurisdiction, the concerned parties will begin to prepare arguments on the validity of the WOTUS rules.
If the Sixth Circuit Court determines that they do not have jurisdiction, two things will occur: First, the Court’s nationwide injunction barring implementation of the rules will dissolve. Second, questions concerning the matter will shift to District Courts, which is why the Coalition also filed in the First District Court in Tallahassee.
Unless there is a specific exclusion, the WOTUS regulations apply the Clean Water Act and the provisions of the National Pollution Discharge Elimination System (NPDES) program, including the conditions of Municipal Separate Storm Sewer System permits, to many ditches, stormwater conveyances and attenuation ponds. Given the assessment of the proposed regulations and considering all tests in total, in many areas of Florida the following types of water bodies will now be considered to be jurisdictional waters of the United States:
- Man-made or man-altered ditches and conveyances, and stormwater ponds (designed to attenuate stormwater runoff) within the floodplain of a typically jurisdictional waterbody; and
- Man-made or man-altered ditches and conveyances, and stormwater ponds (designed to attenuate stormwater runoff) that have a direct connection to a jurisdictional water.
Ditches are excluded if they are built in uplands, drain only uplands and have less than a perennial flow. But in coastal areas, there are many ditches that are built in and drain uplands but have significant groundwater inputs; since they have constant flows, they may be WOTUS even if constructed in uplands.
Since the regulations are jointly issued by EPA and the Corps, there are at least two significant consequences of which Florida local governments should be aware:
- Municipal Separate Storm Sewer System permit requirements and water quality standards must be met in stormwater conveyances and retention structures that are determined to be WOTUS, including numeric nutrient criteria applicable to Class III (“recreational”) water bodies, antidegradation requirements and other permit conditions.
- Dredge and fill permitting policies of the Corps will be applicable to stormwater attenuation ponds, drainage ditches and other conveyances that are determined to be WOTUS – even during routine maintenance activities.
Independent consultants retained to evaluate the impacts of the rules have determined that the fiscal impacts on Florida city and county governments will easily exceed several hundred million dollars. See FSA’s Analysis of the Proposed Regulations and a more detailed analysis of the impacts of the proposed regulations which was prepared for the Florida H2O Coalition.
The Florida Stormwater Association is a 300-member professional association of cities, counties and consulting engineering firms that have an interest in stormwater management and finance, and water quality improvement. FSA was incorporated in 1993. It provides three basic services: advocacy, training and education, and communications. See www.florida-stormwater.org or call 888-221-3124 for more information.
