Advocacy

Quick Links:  Phase 2 Rules  -  Water and Infrastructure Funding  -  WOTUS

Water and Infrastructure Funding
Congress has passed H.R. 3684, which was signed into law by President Biden on November 15, 2021.  SESWA had adopted a White Paper on Stormwater Infrastructure Funding supporting increased federal funding and greater flexibility in stormwater and related programs.  H.R. 3684 contains numerous provisions on stormwater, resiliency and water quality,  See SESWA's summary here.

WOTUS Rules Proposed
Waterbodies that are subject to federal jurisdiction are termed Waters of the US or “WOTUS.”  Such waters are subject to the provisions of the Clean Water Act and NPDES permitting programs, dredge and fill regulations, endangered species policies, etc. WOTUS policy has been subject to wide fluctuations over the past 20+ years, due in part to highly variable court decisions and also policy changes from one administration to another.  Attempts to clarify WOTUS policy were initiated with the adoption of revised regulations in 2015. View SESWA's 2015 White Paper. Litigation occurred throughout the country on those regulations when a new (and very different) set of regulations were adopted in 2020. After litigation over those regulations were underway, a final rule to establish the definition of WOTUS was published in early 2023.

On December 7, 2021 EPA and the Army Corps of Engineers proposed a new rule to again revise the scope of Waters of the US.  The Agencies stated that the newly proposed regulations reflected a policy that is somewhere in between the expansive set of definitions adopted in 2015 and the greatly narrowed definitions that were adopted in 2020.  More information may be found at EPA's WOTUS webpage. Comments can be found on the federal eRulemaking Portal at www.regulations.gov. See SESWA’s comments here.  The proposed rule was sent to the Office of Management and Budget (OMB) in September.  OMB review is the last step in the rule adoption process and typically takes around 90 days.

Meanwhile, on October 3, 2022 the US Supreme Court heard oral arguments for an appeal of a case seeking to clarify its 2006 ruling in Rapanos.  Sackett v. EPA asks SCOTUS when the CWA applies or does not apply to wetlands. A decision is expected in 2023.

On January 18, 2023 EPA and the Army Corps of Engineers released a final Revised Definition of Waters of 'Waters of the United States'". and took effect on March 20, 2023. The Rule is generally based on the pre-2015 definitions and appears to be a middle ground between the 2015 “Clean Water Rule” and the 2020 “Navigable Waters Protection Rule.” While the Rule seems to have a narrower application than that of the 2015 regulations, it does contain  language for “significant nexus” and “relatively permanent” tests, which will be subject to interpretation by regulators.  Waterbodies that meet either test will be jurisdictional and subject to EPA and Corps permitting requirements.  

On March 19, 2023 ruling in the State of Texas, et al. vs. EPA, et al., a federal judge blocked implementation of the Rule in two states (Texas and Idaho). EPA subsequently announced that "the Rule is operative in all jurisdictions of the United States except Idaho and Texas."

On April 12, 2023 the U.S. District Court for the Eastern District of North Dakota granted a request from 24 state officials to block the implementation of the rule from being implemented in those states. Of the 24 states the following Southeast states include Alabama, Georgia, Florida, Mississippi, South Carolina, and Tennessee. There are now a total 26 states where the rule has been enjoined and are subject to the pre-2015 regulatory regime.

On May 10, 2023, a decision by the U.S. Court of Appeals for the 6th Circuit granted approval for Kentucky to block the implementation of the most recent WOTUS rule. With this ruling, Kentucky becomes the 27th state to block the implementation of the new WOTUS rule, going back to the pre-2015 version.

On May 25, 2023, U.S. Supreme Court established a more stringent test to determine whether the Clean Water Act (CWA) applies to a wetland. The long-standing Sackett v. EPA case has been under review for over 10 years. The Supreme Court ruled that EPA had overstepped its authority in determining wetlands on the Sackett property and requiring remediation of construction impacts. The decision greatly limits EPA's authority on determining wetlands and requiring CWA permitting actions and could lead to significant changes to states implementation of wetlands permitting and 404 programs.

See WOTUS Archive for more information.

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.