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Quick Links:  Phase 2 Rules  -  WOTUS

Phase 2 Rules Released

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.

WOTUS

June 2018 -  On June 29th, EPA and the Army Corps issue 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.  Reference Docket ID No. EPA-HQ-OW-2017-0203 and submit comments here prior to July 27, 2018. 

May 2018 - After delaying the implementation of the 2015 WOTUS regulations, EPA has stated on several occasions that a revised jurisdictional rule will be released and finalized before the end of 2018.  The rule is expected to have a much more narrow application than the 2015 regulation, and will track the so-called Scalia test (after Supreme Court Justice Anthony Scalia) when determining what waters are or are not subject to federal jurisdiction.  Among other things, the Scalia test on jurisdictional waters includes those that are “relatively permanent” waters linked by a “continuous surface connection” in contrast with waters that may have a “significant nexus” with other waters as was contained in the 2015 rule.  Meanwhile, several states and some environmental organizations continue to challenge EPA’s recently-finalized rule to delay the effective date of the 2015 rule.

February 2018 - 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.  It is expected that EPA/Corps will proposed new definitions for Waters of the US later in 2018. 

January 2018 - 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 - 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 - 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.  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 2017 - On September 27, 2017 SESWA submitted comments to EPA and the ACOE on the proposed rules to repeal the 2015 WOTUS regulations.

August 2017 - 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.  For more information visit EPA’s WOTUS webpage or contact Ms. Damaris Christensen at (202) 566-2428 or [email protected].

August 2017 - On August 16, 2017 EPA and the ACOE extend the deadline for submitting comments on the proposed WOTUS repeal rule.  The deadline is extended to September 27, 2017.  The location to submit comments (http://www.regulations.gov/) and the reference ("Docket ID No. EPA-HQ-OW-2017-0203") have not changed.

JULY 2017 - 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.  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 2017 - 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.

MARCH 2017 -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 - 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 - 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. 

NOVEMBER 2016 - 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.

APRIL 2016 - 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.

NOVEMBER 2015 - 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 - 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 and short summary of the Final Rule prepared by Attorney Greg Munson.

JULY 2014 - 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 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 to address the nation's water infrastructure needs and the proposed WOTUS regulations.