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Quick Links - History

 

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.
 

Congress Passes 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


Assessing Long-Term Stormwater Needs

Section 5 of HB 53 (2021 Session) requires each county, city or special district that provides stormwater services to create a 20-year needs analysis by June 30, 2022 and transmit such documentation to the county government.  By July 31, 2022, each county must compile and transmit the data to FDEP and to the Office of Economic and Demographic Research (EDR) of the Florida Legislature.  By January 1, 2023, EDR must tabulate the information for the purpose of publishing a statewide evaluation of stormwater needs.  FSA has been working with EDR to help ensure that the needs assessment is accomplished as efficiently as possible.  For more information, contact EDR or view presentations from the FSA 2021 Annual Conference or the FSA 2021 Winter Conference on HB 53.


 Statewide Stormwater Rule

SB 712 (2020 Session) required FDEP and the WMDs to initiate rulemaking updating the statewide stormwater design criteria program by January 1, 2021.  2007 report provided to FDEP determined that the existing criteria were (in many 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 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.  To assist in that effort, FDEP appointed a Technical Advisory Committee to provide a forum for identifying and outlining recommendations for strengthening stormwater design and operation regulations, in addition to publishing a Clean Waterways Act Rulemaking webpage.  A final Summary Report of their recommendations was published by FDEP in March 2022 .  See FSA's Position Paper on the design criteria.

FDEP has scheduled a workshop on the current draft revisions to the ERP Applicants Handbook for May 18, 2022.  Copies of the current draft revisions for Terms and Definitions and Performance Standards are available for review.  Comments should be sent to [email protected]  


 "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.


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 the latest updates here.


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.


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.


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.

Wetlands Delegation

After years of discussion and debate, EPA and the Army Corps of Engineers delegated the authority to issue dredge and fill (“section 404”) permits to the State of Florida on December 17, 2020.  However, that agreement was quickly challenged by a coalition of environmental groups in Washington, DC, federal court.  If the agreements are 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.  More information may be found at EPA's website and on FDEP’s 404 webpage.  Florida is only the third state to obtain authority to issue 404 permits, if the agreements are upheld.


New 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.  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 may be submitted to the federal eRulemaking Portal at www.regulations.gov on or before February 7, 2022.  FSA's comments were submitted on February 4, 2022.

In January of 2022, a new appeal seeking to clarify the SCOTUS 2006 Rapanos decision.  Sackett v.  EPA asks the Court to clarify when a wetland is subject to the CWA.  Oral arguments in Sackett have been scheduled for October 3, 2022, so a decision should be issued in early 2023.

Watch for communications from FSA as the rulemaking process moves forward and see previous updates in the WOTUS Archive.


HISTORY

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


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.


 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.