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What's New

Bacteria TMDLs Published by FDEP

FDEP has recently published draft updates to fecal indicator bacteria TMDLs for certain impaired surface waters in the Everglades West Coast Basin.  The Department's plan is that the proposed TMDLs for certain waters in southwest Florida will serve as a pilot for a new, consolidated approach that FDEP will use to address fecal indicator bacteria impairments on a statewide basis. More information on the proposed TMDLs and draft Reports may be found on the Department’s website. The comment period on the draft TMDLs closed on April 15, 2022. FSA's comments primarily center on the fact that the proposed rule tends to place most of the burden to prove or disprove the actual source of bacterial pollution on the MS4 permit holder.

Statewide Stormwater Rule

  • [January 2024+] HB 7053/SB 7040 - Ratification of the FDEP's Rules Relating to Stormwater were filed. Visit FSA's Legislative page for detailed bill tracking information.  
  • [April 2023] The rule was adopted by the Department of State in April 2023 but is awaiting Legislative ratification during the 2024 Legislative Session before it can become effective. Ratification of the rule is required by the Legislature due to its fiscal impact. View FDEP's Rulemkaing page (see Notice of Change for Chapter 62-330, F.A.C. link in Comments) and FDEP's Rulemaking Workshop page (see latest text under March 2023 Notice of Change) for more information.
  • [2020] Florida Legislature passed SB 712, The Clean Waterways Act, requiring FDEP and the WMDs to initiate rulemaking to update the statewide stormwater design criteria program by January 1, 2021. The 2007 "Harper" report provided to FDEP determined that the existing criteria were (in most cases) not adequate to attain the goal of 80% reduction in pollutant loadings that would cause or contribute to violations of state water quality criteria nor the goal of a 95% reduction in pollutant loadings when discharging to Outstanding Florida Waters. A subsequent series of FDEP recommendations drafted in March 2010 were never adopted. Section 5 of SB 712 directed FDEP and the WMDs to update the design criteria and the Environmental Resource Permit Applicant's Handbook using the most recent scientific information available.

Stormwater Needs Assessments

Section 5 of HB 53 (2021 Session) required each county, city or special district that provides stormwater services to create a 20-year needs analysis.  By July 31, 2022, each county was required to compile the information from the jurisdictions within its borders and transmit the data to the Legislature's Office of Economic and Demographic Research (EDR).  EDR is to prepare a Report projecting statewide stormwater needs by January 1, 2023.  As of September, 53 (of 67) counties submitted information, including data from over 800 jurisdictions - most was from independent special districts.  For more information, contact EDR or view presentations from the FSA 2021 Annual Conference or the FSA 2021 Winter Conference on HB 53. Results from the Needs Analysis for Stormwater have been published on the EDR website.


Water Quality Enhancement Areas (WQEAs)

In 2022, the Florida Legislature passed House Bill 965, now Chapter 2022-215, Laws of Florida. The bill authorizes the creation of water quality enhancement areas (WQEAs), which are defined as natural systems constructed, operated, managed, and maintained for the purpose of providing offsite regional treatment for which enhancement credits may be provided. In addition, the bill requires the construction, operation, management, and maintenance of a WQEA to be approved through the ERP permitting process and requires a WQEA to address the contributions of pollutants or constituents within a specific area determined by FDEP that does not meet state water quality criteria.

To obtain a WQEA permit, the bill requires an applicant to provide certain reasonable assurances about the proposed WQEA and propose a performance and success criteria monitoring and verification plan as well as requires the WQEA permit to provide for the assessment, valuation, and award of credits based on units of pollutants removed.  Furthermore, the bill specifies that a WQEA may only provide enhancement credits in an enhancement service area determined by the FDEP and specifies that enhancement credits may only be sold to governmental entities.

The FDEP and WMDs have initiated rulemaking to authorize the sale and use of enhancement credits for specified purposes; providing construction; providing that the authority of the act is supplemental; and directing the department to maintain enhancement credit ledgers.  See FSA's comments.


Wetlands Delegation (404)

After years of discussion and debate, on December 17, 2020, EPA and the Army Corps of Engineers delegated the authority to issue dredge and fill (“section 404”) permits to the State of Florida.  That agreement was quickly challenged by a coalition of environmental groups in Washington, DC, federal court.  If upheld by the court, FDEP will be the State’s lead agency administering the program.  Permits impacting traditional “navigable” waters would still be issued by EPA and the Corps; permits impacting all other jurisdictional waters will be issued by FDEP and other state agencies. Florida is only the third state to obtain authority to issue 404 permits, if the agreements are upheld.

On February 15, 2024, the U.S. District Court in Washington D.C. ruled in favor of plaintiffs who challenged the US EPA’s approval of Florida’s assumption application for the 404 Wetland Permitting program, a landmark decision that could have significant impacts to future development in the state. The decision was based on issues surrounding how the state handled the Endangered Species Act review and noted discrepancies between the state and federal process. The District Court’s ruling vacated the decision that provided FDEP with the authority to manage the 404 Wetland program and now could potentially bring the program back under federal jurisdiction. On February 26, 2024, FDEP filed a motion seeking a partial stay on the decision of the case. The motion included recommendations for moving forward, but most importantly requested the stay be in effect for six months with the ability to extend. At this time, the U.S. Army Corps of Engineers (USACE) has begun to take on the permitting responsibilities from FDEP and will continue to process applications until further notice. This action may change as decisions are made on the FDEP motion for a stay and/or potential future appeals to the February 15th ruling. More information may be found on FDEP’s 404 webpage and the US Army Corps of Engineers Regulatory page.


WOTUS Rulemaking [Jump to latest update]

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.  Recent attempts to clarify WOTUS policy was initiated with the adoption of new regulations in 2015.  Litigation throughout the country on those regulations was still underway when a new (and very different) set of regulations were adopted in 2020.  Litigation over those regulations is still underway.

On December 7, 2021 EPA and the Army Corps of Engineers proposed a new rule to revise the scope of Waters of the US.  The Agencies have stated that the newly proposed regulations reflect 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 were accepted via the federal eRulemaking Portal at www.regulations.gov until February 7, 2022.  FSA's comments were submitted on February 4, 2022.

In January of 2022, a new appeal was filed seeking to clarify the Supreme Court of the United States 2006 Rapanos decision.  Sackett v.  EPA asked the Court to clarify when a wetland is subject to the CWA and oral arguments were heard on October 3, 2022.  A decision should be issued by the Court in early 2023.

On January 18, 2023, the EPA and the Army Corps of Engineers published the final "Revised Definition of 'Waters of the United States' rule".  The rule was set to take effect on March 20, 2023, however the Rule was blocked in Texas and Idaho due to a U.S. District Court ruling. Additional rulings are pending from Federal courts in North Dakota and Kentucky, as well as a decision from the Supreme Court.  

On March 29, 2023, the U.S. Senate approved a Congressional Review Act (CRA) resolution to block the Biden administration’s rule defining Waters of the United States (WOTUS). A companion resolution already passed in the U.S. House. President Biden later vetoed the CRA.

On April 12, 2023, a U.S. District Court for the Eastern District of North Dakota granted a request from 24 state officials (Florida included) to block the rule from being implemented in their states. This combined with a recent federal court ruling in Texas granting requests from Texas and Idaho for a preliminary injunction against the rule, makes for a total of 26 states that are now subject to the regulatory regime that was in place prior to the 2015 rule.

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, the U.S. Supreme Court narrowed the reach of the Clean Water Act (CWA) over wetlands, holding that only wetlands that are "indistinguishable" from adjacent jurisdictional waterbodies can be covered by the law. This decision effectively overturns wetlands provisions in the January 18th revised Rule. The Court's decision in Sackett v. EPA  generally endorses the long-controversial "continuous surface connection" test for CWA jurisdiction over wetlands, rejecting the broader "significant nexus" standard that emerged from competing opinion in the same case.  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 which could lead to significant changes to states implementation of wetlands permitting and 404 programs.

On August 29, 2023, EPA and the Army Corps of Engineers issued a "good cause" final rule narrowing the definition of WOTUS to align with the Supreme Court's decision in Sackett v. EPA, which eliminates the the "significant nexus" test for determining whether any waters are jurisdictional while also excluding "adjacent" wetlands and "interstate wetlands" from the definition of jurisdiction waters. View the pre-publication version of the rule and EPA's Fact Sheet to learn more.

On September 8, 2023, the final "Revised Definition of Waters or the United States'; Conforming," became effective after publication in the Federal Register.

Watch for communications from FSA as the process moves forward. Jump to earlier updates or see previous updates in the WOTUS Archive.


HISTORY

 "10-2" General Permit Report Issued

Section 5 of SB 712 also directed FDEP to review and evaluate permits submitted pursuant to Section 403.814(12), FS, for compliance with state water quality standards and improvements to the permitting program.  Section 403.814(12) provides for a general permit for stormwater systems that are less than 10 acres and include less than two acres of impervious area.  FDEP's Report on the 10-2 permitting program was issued in December 2020.


Biosolids

Biosolids is a byproduct of the sewage treatment process that must be periodically removed to keep the plant operating properly.  There are three different classes of biosolids, depending on the level of treatment the biosolid receives before disposal.  Biosolids policy was the subject of much interest during the 2019 Legislative Session and was contained in SB 712 (2020 Session).  With the passage of SB 712, rulemaking was re-initiated and FSA submitted additional comments on October 19, 2020.  An (updated) proposed rule on biosolids disposal was published on December 3, 2020, along with a Statement of Estimated Regulatory Costs. HB 1309 passed during the 2021 Session, ratifying the FDEP rule on biosolids.  For more information, visit FDEP's Biosolids Webpage.


Infrastructure Investment and Jobs Act

Congress passed H.R. 3684 - the Infrastructure Investment and Jobs Act - in early November, which President Biden signed into law on November 15, 2021.  The measure covers a wide range of projects, from drinking water, to energy, to broadband and transportation.  Several provisions addressed water quality and stormwater.  See FSA's summary here.


MS4 - Phase II GP Rule Revisions

EPA adopted 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, representing the most flexible alternative that had been considered by the Agency as far as NPDES program administrators and MS4 permit holders are concerned.  FSA had submitted comments on draft regulations released by EPA revising the permit criteria for small MS4 jurisdictions.  FSA's comments centered on the fact that the proposed regulations were improperly noticed and included requirements for numeric effluent limits - a measurement of water quality historically used only for point source discharges, like wastewater or industrial facilities.  EPA's revised rules were the result of a settlement agreement between EPA and environmental organizations dating back to 2003. FDEP proposed rules adopting EPA's 2016 Phase II regulations "by reference" in November 2017 and adopted its final revisions to the General Permit for Phase II MS4s in early 2021.


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. 

  • 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 - EPA approved the regulations.

  • 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. 

  • 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.

  • 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.

  • 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


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.  See the Opinion of FSA legal counsel concerning payment of SWU fees by schools and state agencies.  

Ocala reaches SWU Agreement with School Board
After years of negotiations in and out of court, in May 2018 the City of Ocala reached an innovative agreement with the Marion County School Board over the payment of stormwater utility fees.  The School Board had recently completed construction of a new cafeteria for one of their schools which required a new utility account.  The City has a unified utility account billing system for all utilities, including stormwater.  The City agreed to forego the SWU fees that had not been paid in the past, but refused to provide additional utility service for the cafeteria until the School Board agreed to pay for all utility services provided to all facilities prospectively, to which the School Board agreed. 

Key Stormwater Utility Fee Cases

  • January 23, 2019 - After hearing Oral Arguments from counsel representing the City of West Palm Beach and the Palm Beach County School Board, the Fourth District Court of Appeal issued a PCA decision upholding the School Board's position in the litigation.  See more information on PCAs and decisions regarding SWU Fees in Florida.

  • July 5, 2018 - FSA, the League of Cities, and the cities of Tampa and Gainesville, filed a "Friend of the Court" brief at the Fourth DCA in support of the City of West Palm Beach's appeal.  Oral arguments at the DCA have been scheduled for January 22, 2019. 

  • June 26, 2018 - The City of West Palm Beach filed an appeal of the Circuit Court's decision with the Fourth District Court of Appeal.

  • December 22, 2017 - An Order of a Palm Beach County Circuit Court finds that the Palm Beach County School Board is not liable for the payment of stormwater utility fees to the City of West Palm Beach.  The City is appealing the decision to the Fourth DCA.  FSA, the League of Cities, and the cities of Gainesville and Tampa are filing a Friend of the Court brief in support of West Palm Beach.

  • 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.

  • January 18, 2012 - Decision of the Third District Court (No. 3D11-417) in Key West vs. Florida Keys Community College.

  • 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.


Total Maximum Daily Loads (TMDLS)

FSA widely distributed its Position Paper: Implementation of Total Maximum Daily Loads to members and other key policy makers throughout Florida.


Triennial Review

The CWA requires states to review their surface water quality standards every three years.  FDEP initiated its review last summer and held several workshops on draft revisions.  FSA submitted initial comments on the proposed revisions to FDEP in November 2019 and additional comments on cyanotoxin standards on August 11, 2020.  As a part of the review process, FDEP has recently released a Draft document on implementation of the Turbidity Criterion for Coral Reefs.  As with many other initiatives, the COVID-19 pandemic caused a delay in the progress of the review process.  See updates here.


Waterbody Reclassification

FSA is actively involved in front of the Environmental Regulation Commission on such issues as the revisions to the Impaired Waters Rule and state Water Quality Criteria. FSA petitioned the ERC to adopt revisions to the antiquated system of classifying waters in Florida; initial revisions were adopted in May of 2010. Related reclassification documents include:  

September 6, 2011 - EPA approves revisions to Florida’s reclassification system that were adopted by the Florida Environmental Regulation Commission on May 20, 2010.


Water Quality Credit Trading Rule Adopted

FDEP's Water Quality Credit Trading rules have been finalized, effective January 11, 2016.