Florida League of Cities, Stormwater Association Challenge EPA Waters of the US Rule

On November 30, 2015 the Florida Stormwater Association 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 26th 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.

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” that became effective on August 28, 2015. More information may be found on EPA’s WOTUS website. 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 regulationswas prepared for the Florida H2O Coalition. FSA's final Comments on WOTUS may be found here.