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Regulatory Issues - Phase 2 Rules 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, allowing the permitting authority to choose between two alternative means of establishing permit requirements in general MS4 permits:  First, a “comprehensive permit” approach where the full set of requirements necessary to meet the CWA goal of reducing pollutants to the maximum extent practicable (MEP) are included.  Second, a “two-step general permit,” which is a combination of a base general permit plus additional provisions needed to attain MEP.  The rule signed by the Administrator represents the most flexible alternative considered by the Agency as far as NPDES program administrators and MS4 permit holders are concerned.  

EPA's draft regulations revising the permit criteria for small MS4 jurisdictions were published in December 2015.  SESWA submitted formal Comments to EPA concerning the proposed rules on March 21, 2016.  The Association's primary concern was that the “one size fits all” approach of Option 1 (see below) would produce a significant hardship on many of the 6,000+ Phase 2 permit holders around the country.  SESWA recommended that EPA proceed with the "State Choice Approach" as it gave the administering entity and the permitted entities the most flexibility in complying with the new requirements.  SESWA also urged EPA to delete any references using the term “effluent limitations” within the rules, as Congress intended numeric interpretation of permit compliance to be reserved for point-source discharges, not MS4s. 

The rules stem from a settlement agreement between EPA and the Natural Resources Defense Council where EPA agreed to publish a notice of intent to propose rulemaking by December 17, 2015 and publish a final rule by November 17, 2016.  The Agreement seeks to enforce the provisions of a 2003 order finding that the general permitting scheme of EPA’s Phase 2 MS4 rules allows small MS4s to design stormwater pollution control programs without adequate regulatory and public oversight, and violates the Clean Water Act because it does not require EPA to review the content of the MS4’s Notices of Intent to discharge.

Regulatory Issues - WOTUS

Chronology of WOTUS Litigation

On June 27, 2017 EPA and the ACOE formally initiated the process to repeal or rescind the 2015 WOTUS regulations so that the regulatory text would revert to the definitions that existed prior to the amendments that were 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.

On February 28, 2017 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.  On March 6, 2017 US EPA and the ACOE filed a Notice of Intent to review and substantially revise or withdraw the WOTUS rule.

Two matters of interest concerning the WOTUS litigation occurred on January 13, 2017.  First, the Obama Administration filed a lengthy Brief in support of the WOTUS rules.  Second, US Supreme Court agreed to hear an appeal from a decision of the Sixth Circuit Court in Ohio on the (procedural) 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 SESWA) had filed an appeal to SCOTUS after the Sixth Circuit ruled that they (not District Courts) had jurisdiction on such matters.  The decision by the Supreme Court set the stage for opponents of WOTUS to seek delays in proceedings in front of the Sixth Circuit until the Supreme Court rules on the procedural issue, which the Sixth Circuit has subsequently granted.  The delay gives the Trump Administration more time to start the process for withdrawal or repeal of the rule before an initial decision is rendered by a court. 

On November 1, 2016 briefs were filed in the Sixth Circuit Court of Appeals in Ohio.  SESWA'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 of Appeals issued an order denying requests to rehear a decision of a panel of that Court.  The three-judge 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.  SESWA 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.

Several petitions for a rehearing in front of the full 6th Circuit Court were filed.  But the full court decided to not overturn the Panel's decision and send the matter to the district courts.  One bit of good news is that the rule remains stayed for the foreseeable future.

On November 30, 2015 SESWA filed a Complaint in US District Court in Tallahassee asking the Court to invalidate rules of EPA and the ACOE that revise the definitions of waters of the United States or "WOTUS", and to enjoin the Agencies from enforcing the rules.  SESWA had also filed a Petition for Review in the Sixth Circuit (federal) Court challenging the rules this past October.  The Complain and Petition are the first of several steps in challenging the rules. SESWA has been engaged in the rule development process for almost two years. The adopted rules will have dramatic, far-reaching effects on local governments’ ability to improve water quality and manage stormwater programs. See SESWA “Comments” on this page.  The Florida Stormwater Association, Florida League of Cities and the Florida Rural Water Association are also participating in the lawsuit.

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 the 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.

SESWA Comments on Proposed Rules
SESWA's formal Comments on EPA/Army Corps of Engineers' proposed draft rules revising the definitions of Waters of the United States were submitted on November 14, 2014.  While the stated intent of the revisions was to clarify what is and what is not a water of the US (see EPA’s WOTUS website) the rules significantly expand the numbers and types of waters subject to the provisions of the NPDES Program and MS4 permits.  For more information, see SESWA’s Analysis of the Proposed Regulations and short summary of the Final Rule prepared by Attorney Greg Munson.

SESWA Testifies on WOTUS at EPA Meeting
SESWA was invited to make a presentation on the impacts of the proposed WOTUS regulations to the WOTUS working group of EPA’s Local Government Advisory Committee.  The working group met in Atlanta on July 10, 2014.  The LGAC is charged to provide advice to EPA that helps build stronger partnerships with local governments.  The LGAC’s Waters Workgroup was established in December 2013 to address the nation's water infrastructure needs and the proposed WOTUS regulations.  There are two members of the LGAC from the southeast:  Johnny DuPree, Mayor of Hattiesburg, Mississippi, and Sue Hann, City Manager of Palm Bay, Florida.  In addition to presenting during their morning session, SESWA was asked to stay with the working group during through their executive session that afternoon.