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Litigation

FSA monitors active and potential cases that have statewide or national significance, and has filed briefs at the trial, appellate and Supreme Court levels in both state and federal courts. FSA’s interest has primarily focused on defending the ability of local governments to impose reasonable charges for the management of stormwater, and ensuring that water quality criteria and related policies are scientifically sound.

Quick Links:  WOTUS - State - Federal - FDEP NNC - MS4 Permit - NNC - Stormwater Utilities

Litigation - State

Stormwater Utilities - Since the “Gainesville II” decision in 2003, the Florida Supreme Court has not ruled on another case concerning payment of stormwater utility fees by governmental entities.  The City of Ocala’s dispute with the Marion County School Board over payment of stormwater utility fees remains the most viable case to be heard by the Supreme Court within the next few years.

  • November 15, 2012 - Florida Supreme Court declined to hear the City of Key West’s appeal of the Third District Court’s finding that the Florida Keys Community College enjoys “sovereign immunity” and is not liable for the payment of stormwater utility fees. FSA and the League of Cities had filed briefs in support of Key West. Related Information:
  • January 18, 2012 - Decision of the Third District Court (No. 3D11-417)
       
  • June 2011 - Friend of the Court brief of FSA, the Florida League of Cities and the City of Gainesville in support of the City of Key West’s appeal.

FDEP Numeric Nutrient Criteria – On December 8, 2011 the Florida Environmental Regulation Commission adopted FDEP’s version of numeric nutrient criteria for freshwaters. The most important distinctions between the EPA and DEP rules are that DEP’s requires biological confirmation to demonstrate that impairment exists as indicated by nutrient levels, and that ditches, canals and urban stormwater conveyances remain subject to narrative criteria unless a numeric expression of a TMDL or SSAC is developed for the water.

The FDEP NNC rules were upheld in Administrative Court on June 7, 2012. EPA approved the regulations on November 30, 2012. The First District Court of Appeal rejected a challenge to the Administrative Court’s decision on February 25, 2013.

Litigation - Federal

Supreme Court Declines to Hear MS4 Permit Issue - The U.S. Supreme Court has declined to hear an appeal of a decision of the 9th Circuit Court that had been filed by Los Angeles County.  The 9th Circuit’s decision concerned Los Angeles’ Municipal Separate Storm Sewer System (MS4) permit and found that an exceedance of a water quality standard was an automatic violation of such standards and the Clean Water Act.  The decision also confused the purpose of water quality monitoring by MS4s with that of industrial point source discharges.  The Supreme Court gave no reason as to why it declined to hear the appeal.  Since FSA’s membership is not within the jurisdictional boundaries of the 9th Circuit Court, the 9th’s decision is “persuasive” but does not set precedent for MS4 permit-holders in Florida.  Nonetheless, the decision may result in environmental organizations renewing their focus on challenging MS4 permits as a way to drive water quality improvement initiatives. FSA had filed a “Friend of the Court” brief supporting Los Angeles County’s appeal to the US Supreme Court.

Los Angeles County had appealed a similar decision of the 9th Circuit to the Supreme Court in 2012 and FSA filed a brief supporting the County at that time.  Although the Supreme Court ruled favorably for the County in 2013, that decision concerned an issue that was not directly related to the issues raised in the new appeal.

Numeric Nutrient Criteria - In 2009, FSA was the first association of local governments to intervene in the original federal litigation concerning numeric nutrient criteria for the State of Florida. Numerous other parties have since intervened in one or more matters in the courts. Related information:

  • July 2, 2015 - The 11th Circuit Court of Appeals issues an Order denying the appeal of EarthJustice and other environmental groups, affirming Judge Hinkle's Order allowing EPA to accept FDEP's plan for NNC in Florida. 
  • January 7, 2014 – Over the objections of most environmental organizations, US District Court Judge Robert Hinkle issued an Order Modifying the Consent Decree allowing EPA to accept the FDEP’s plan for NNC regulations in Florida.  FDEP will now begin to implement NNC in Florida.  However, note that the federal Administrative Procedures Act operates differently than Florida’s APA, and environmental organizations have six years to challenge EPA’s rules under the federal APA. 

  • March 11, 2013 – EPA and FDEP reach agreement on a compromise solution that largely adopts the FDEP NNC regulations.  Implementation guidance and legislation must still be adopted in Florida, and the agreement must survive a likely challenge in federal court.

    See the FSA Briefing Paper on Stormwater Conveyances and Drainage Ditches and FDEP's Press Release.

  • February 19, 2013 - FSA and the Florida League of Cities file joint comments concerning EPA’s proposed regulations on estuaries.

  • January 31, 2013 – FSA and the Florida League of Cities file joint comments concerning EPA’s proposed regulations on flowing waters. Additional comments are filed on behalf of FSA, FLC and other stakeholders by counsel.
       
  • December 9, 2012 – FDEP releases a one-page factsheet summarizing the current status of NNC policy development in Florida.
       
  • November 30, 2012 – US EPA has announced its approval of FDEP’s NNC in their entirety; however, EPA simultaneously took measures to “gap-fill” NNC policy for certain waters in Florida that were not covered (or not adequately covered) in their opinion by the Florida regulations, including urban stormwater conveyances that were largely exempt from FDEP’s definition of streams and therefore remained subject to Florida’s narrative nutrient criteria.
       
  • November 21, 2012 – EPA moves to extend the November 30th deadline to submit NNC for many Florida waters by 120 days. Jim Giattina (EPA Region 4 Water Protection Division Director) states that EPA is near completion of its review of FDEP numeric nutrient criteria.
       
  • February 18, 2012 – US District Court issues its Order concerning challenges to EPA’s NNC. FSA, the Florida League of Cities and several other entities have appealed the Order of District Court.
       
  • June 2011 - EPA Issues its Response to FDEP’s Petition
      
  • April 2011 – FDEP files petition with EPA to withdraw EPA's 2009 Determination that EPA NNC are necessary in Florida.
       
  • January 2011 – Complaint by FSA and the Florida League of Cities seeking to invalidate the EPA NNC regulations   

  • August 2009 – Consent Decree between Earthjustice and US EPA