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Water and Infrastructure Funding
Congress continues to discuss and debate legislation and funding on infrastructure, including that concerning water quality, flooding and resiliency.  The Senate passed the Drinking and Wastewater Infrastructure Act of 2021 (S.914) in April.  The House Transportation and Infrastructure Committee has passed its legislation (H.R. 1915 and H.R. 3684) with H.R. 3684 having passed the House.  It was then amended in the Senate before being passed and sent back to the House.  SESWA has adopted a White Paper on Stormwater Infrastructure Funding and is supporting increased federal funding and greater flexibility in stormwater and related programs, similar to the recommendations of EPA's Report on Evaluating Stormwater Infrastructure Funding and Financing.

Waters of the United States (WOTUS) - See Short Summary of Impacts
WOTUS-related events are listed below in chronological order.  "2017 Revisions" refers to articles concerning the repeal or replacement of the WOTUS rules that were initiated by the Trump Administration in 2017.  "2015 Litigation" refers to articles concerning the challenges by SESWA and others to the rules adopted by the Obama Administration in 2015.  

September 2021 (2017 Revisions) - On August 30 a federal court in Arizona issued a decision vacating (invalidating) the 2020 Navigable Waters Protection Rule.  (A New Mexico court has subsequently issued a similar decision.)  The Administration is interpreting the decision as applying nationwide.  The court has not yet ruled on whether the 2019 WOTUS Repeal rule is also vacated.  Since the 2019 rule had repealed the 2015 Clean Water Rule, invalidating the 2020 rule takes WOTUS policy back to that which originated in the 1980s.  If the 2019 repeal rule is invalidated, policy would revert to that which was contained in the 2015 regulations.

July 2021 (2017 Revisions) - EPA and the Army Corps of Engineers announced their intention to revise the definition of Waters of the United States or “WOTUS” using a two-step approach:  First, a “foundational” rule will be adopted which is intended to restore longstanding protections and return to the policies that existed prior to those adopted in 2015.  Second, a subsequent rule will build on that regulatory foundation.  As part of the process, EPA scheduled a series of initial public web conferences in August 2021 to hear from interested stakeholders on their perspectives on defining jurisdictional waters. Individuals were allowed to submit written comments to the Agencies at Regulations.gov and reference Docket ID No. EPA-HQ-OW-2021-0328 until September 3, 2021.

June 2021 (2017 Revisions) – On June 9, EPA and the Army Corps of Engineers announced their intentions to propose revisions to the definitions of "waters of the US."  EPA states that the revisions are necessary to better protect jurisdictional waters.  Visit EPA's WOTUS webpage for more information and new developments. 

February 2021 (2017 Revisions) – On February 18 lawyers for the Department of Justice asked a Colorado US Court of Appeals for a 60-day extension of time in an appeal of a trial court's ruling rejecting the "Replacement Rule."  DOJ said the time was necessary for EPA and the Army Corps of Engineers to review the rule for consistency with the CWA.  However, the appellate court rejected DOJ's request for an extension of time and overruled the decision of the trial court.

June 2020 (2017 Revisions) – The Navigable Waters Protection Rule or "Replacement Rule" became effective on June 22.  However, due to numerous court challenges throughout the country, it is doubtful that NPDES or other CWA-related programs will experience any changes in practice or policy for many months to come.

May 2020 (2015 Litigation) – On May 26, due to challenges to the "Repeal" and "Replacement" rules, SESWA, EPA and the other parties to SESWA's challenge to the 2015 WOTUS regulations jointly agreed to hold the litigation in abeyance for an additional 90 days.

April 2020 (2017 Revisions) - On April 21, EPA and the Army Corps published the "Navigable Waters Protection Rule" in the Federal Register, setting forth the definitions of what constitutes a water that is subject to federal jurisdiction.  Rules become effective 60 days after publication in the Register.  However, the challenges brought by the Center for Biological Diversity and other stakeholders will likely result in the courts holding implementation of the rule in abeyance until after its merits are litigated.

February 2020 (2017 Revisions) – On February 13, the Center for Biological Diversity and a variety of other stakeholders 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 that it impacts the species protected by the ESA.

January 2020 (2017 Revisions) - On January 23, EPA and the ACOE announced the finalization of regulations replacing rules determining application of the CWA.  The Replacement Rule is effective 60 days after publication in the Federal Register which has not yet occurred - assuming the rules are not challenged in Court. 

December 2019 (2017 Revisions) - On December 4, two landowners in New York state filed the third lawsuit challenging the repeal rule and a coalition of states filed the fourth complaint on December 20.    

October 2019 (2017 Revisions) - On October 22 and 23 lawsuits were filed challenging the repeal rule.  One was filed by the New Mexico Cattle Growers Association and the other was filed in South Carolina by a coalition of environmental organizations. 

October 2019 (2017 Revisions) - On October 22 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 2019 (2015 Litigation) - 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 on September 22 holding the litigation over the 2015 WOTUS rule in abeyance for 75 days.  That order was twice extended for a total of an additional 100 days.

September 2019 (2017 Revisions) - On September 12, 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 2019 (2015 Litigation) - On August 22, SESWA filed a brief in Tallahassee Federal Court in response to a decision of the Federal Court for the Southern District of Georgia.  The Georgia Court ruled against EPA and in favor of the Plaintiffs, in this case various state governments.  SESWA 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 2019 (2015 Litigation) - April 19, 2019 SESWA filed its Reply Brief US District Court in Tallahassee in response to the April 5, 2019 briefs filed by EPA and the Intervenors in the WOTUS litigation.

April 2019 (2017 Revisions) - On April 12, 2019 SESWA submitted formal comments to EPA concerning the rule proposed by EPA and the Army Corps of Engineers to replace the 2015 WOTUS regulations. 

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

March 2019 (2015 Litigation) - SESWA and its partner associations file a Motion for Summary Judgement in US District Court in Tallahassee, Florida.  The Motion asks the Court to invalidate the 2015 WOTUS rules.

February 2019 (2017 Revisions) - On February 14, 2019 EPA and the Army Corps of Engineers published a proposed rule in the Federal Register to replace the 2015 WOTUS regulations with definitions that significantly narrow the applicability of the CWA.  Comments on the proposed rule must be submitted by April 15, 2019 to either the Federal eRulemaking Portal or by sending an email to [email protected].  Reference Docket ID No. EPA-HQ-OW-2018-0149 when submitting comments.  Additional information may be found on EPA’s website.

February 2019 (2015 Litigation) - On February 4, 2019 SESWA's request to lift the abeyance of the WOTUS challenge was granted in an Order issued by the US District Court in Tallahassee, Florida.  Initial Motions are due March 15, 2019.

January 2019 (2015 Litigation) - On January 26 SESWA and its partners associations filed a Reply brief with the 1st DCA in Tallahassee in support of their motion to lift the abeyance of the original challenge of the 2015 WOTUS rules and move ahead with a briefing schedule for the case.

December 2018 (2017 Revisions) - On December 11, 2018 EPA and the Army Corps of Engineers released a proposed rule narrowing the application of the Clean Water Act's regulations.  Comments concerning the proposed regulations may be submitted to EPA within 60 days after publication of the rule in the Federal Register.  Additional information may be found on EPA’s website.

September 2018 (2015 Litigation) - 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 SESWA Executive Committee voted to reactivate its November 2015 Complaint challenging the WOTUS rules in Tallahassee federal court.  See September 28th Motion here.    

August 2018 (2017 Revisions) - On August 16, 2018 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.  The August 16th decision is based upon procedural grounds, finding that EPA violated notice-and-comment mandates when it enacted the delay on an accelerated timeframe with limited public input.  It negates the Applicability Rule in 26 states and in those states – barring further action – the 2015 WOTUS rule is effective.  WOTUS policy in the other 24 states is already subject to orders from two other courts blocking implementation of the 2015 WOTUS rule. 

July 2018 (2017 Revisions) - On July 31st, SESWA submitted comments on the supplemental notice of proposed rulemaking by EPA and the Army Corps.   

June 2018 (2017 Revisions) - On June 29th, 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.  

February 2018 (2015 Litigation) - On February 23rd, the US District Court for the Northern District of Florida entered an Order staying the case brought by SESWA and other parties against EPA and the Army Corps that challenged the 2015 WOTUS rule.  The case is now stayed until February 2019. 

January 2018 (2017 Revisions) - On January 31st 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 2018 (2015 Litigation) - 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 2017 (2017 Revisions) - On November 28, 2017 SESWA submitted 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.  

September 2017 (2017 Revisions) - On September 27, 2017 SESWA submitted comments to EPA and the ACOE on the proposed rules to repeal the 2015 WOTUS regulations.

August 2017 (2017 Revisions) - On August 28, 2017 EPA and the ACOE announced that they 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.  

August 2017 (2017 Revisions) - On August 16, 2017 EPA and the ACOE extend the deadline for submitting comments on the proposed WOTUS repeal rule.  The deadline was extended to September 27, 2017.

July 2017 (2017 Revisions) - On 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.     

June 2017 (2017 Revisions) - n 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.  

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

February 2017 (2017 Revisions) - 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.  

January 2017 (2015 Litigation) - 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.  

November 2016 (2015 Litigation) - 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."  

April 2016 (2015 Litigation) - 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.  

November 2015 (2015 Litigation) - 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.

October 2015 (2015 Litigation) - 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.

November 2014 - 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 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.  SESWA had previously testified on the impacts of the proposed WOTUS regulations to the WOTUS working group of EPA’s Local Government Advisory Committee in Atlanta on July 10, 2014.

Phase 2 Rules
November 2016 - 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.

December 2015 - 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.