March 2023, Volume 25, Issue 3 

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 Table of Contents

Notice of Change for the Statewide Stormwater Rule

On March 24, 2023 FDEP posted a Notice of Change to the Proposed Stormwater Rule in the Florida Administrative Register along with updated draft Rule language, a revised Statement of Regulatory Costs (SERC), and additional related documents. The Rule may not be filed for adoption until at least 21 days after the Notice of Change and a revised SERC have been published.

The updated draft Rule language includes: clarified definitions for BMPs; the addition of grandfathering language on conceptual ERP permits; revisions to the performance standard design requirements; a corrected EMC value for Low Intensity Commercial land; and, clarified BMP references. FSA members are encouraged to review these changes and provide input to FDEP. Some of these changes are significant, FSA is currently preparing comments so please review these changes and share your input with us ASAP!

Prior to the Notice of Change, FDEP held a Hearing on March 22, 2023 to review Lower Cost Regulatory Alternatives (LCRAs) received to the proposed 2023 Statewide Stormwater Rule. View the hearing’s agenda and recording on FDEP’s Water Resources Management Rules in Development page. Many FSA members, along with FSA, commented on the LCRAs and recommended that FDEP keep the Proposed Rule language as submitted February 24, 2023. We appreciate all the members who commented at the hearing and continue to support efforts to complete this ongoing rulemaking effort with a ratification bill that supports improved water quality this legislative session.

2023 Legislative Session Summary

On March 7th, Florida’s 2023 Legislative Session began, and what was thought to be a session with minimal legislation impacting water policy, quickly eroded with a windfall of bills focusing on limiting local government’s ability to protect water quality through local regulatory programs. Pre-emption bills that would impact local ordinance procedures, comprehensive plan amendment challenges, and building permit review times have been introduced. One bill goes as far as to limit local governments from adopting environmental and water policy laws, rules, and regulations.

The Local Ordinances bills (SB 170/HB 1515) have made significant progress through both House and Senate committees. While some amendments have been made to lessen impacts, if passed, this legislation will impact local government’s ability to regulate and ultimately enforce actions related to water policy. The Land and Water Management bills (SB 1240/HB 1197) have not made as much progress, and recent press has been critical of the bills’ actions. Without any revisions or amendments, the Land and Water Management bills would limit local governments from adopting any water policy or environmental regulations. Contact members of your delegation now to express your concerns!

FSA supports the Wastewater Grant Program bills (SB 458/HB 827) which provide increased availability of state funding for projects located in impaired waterbodies and positively enhances the effective management and operation of stormwater utilities.

FSA has been tracking legislation since the start of session and will continue this effort until the end of session. Members can visit FSA’s Legislative Page to see which bills are being tracked and view the details for each bill. The webpage is frequently updated with a list of FSA’s Priority Issues, Bill Tracking Reports, current news articles and information on individual bills. It’s a resource that is available for FSA members only; you will need your username and password to login.

Finally, save the date to join FSA’s May 18th Florida Legislative Session Recap Webinar for the only "post Session" webinar focused on Florida stormwater legislation!

Water Quality Enhancement Area Rulemaking

On March 14, 2023, FDEP submitted a Notice of Rule Development for Rule 62-330.010, F.A.C. to establish a water quality credit trading program between water quality enhancement area facilities permitted under the environmental resource permitting program and governmental entities. The rule will also include environmental resource permitting requirements for the water quality enhancement area facilities and the governmental entities. This rule is a requirement of House Bill 965 adopted in 2022, which states the provisions of the bill will not be implemented until a FDEP rule is finalized.  At this time no draft rule has been posted, and as FDEP moves forward, FSA will communicate with FDEP and FSA members to review draft rule language and provide feedback as the final rule is completed.

WOTUS Rule Falters

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 passed in the U.S. House earlier this month.  President Biden has vowed to veto the CRA if it reaches his desk, however, if signed the CRA precludes agencies from writing measures that are “substantially similar” in the future.

Just ten days earlier, on March 19, 2023, a day before the Waters of the United States (WOTUS) Rule was to take effect, a Texas federal judge blocked implementation of the Rule in two states (Texas and Idaho). This ruling is said to raise significant doubts that the Rule will survive legal scrutiny and that EPA will succeed in defending the Rule’s merits. In State of Texas, et al., vs. EPA, et al., Judge Jeffery Brown of the U.S. District Court for the Southern District of Texas granted motions to block the Rule while denying broader industry associations’ calls for a national injunction. Brown held that the agencies’ interpretation of the “significant nexus” test is too broad and that the rule “raises serious federalism questions” in regulating all interstate waters regardless of navigability. As we await rulings from Federal courts in North Dakota and Kentucky, as well as a decision from the Supreme Court, EPA announced that “the Rule is operative in all jurisdictions of the United States except Idaho and Texas.”

The new Rule defining WOTUS was published in the Federal Register in January 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.

FSA continues to monitor WOTUS impacts on stormwater programs and keep members informed.

Conference Early-Bird Registration Ends April 7th

The FSA Annual Conference will be held June 14-16, 2023, and will Celebrate 30 Years of Leadership in Stormwater Management. Join us in Ft. Myers, FL to hear from industry-leading experts on regulatory, technical, and management topics that matter to you. This year’s event features a comprehensive agenda with concurrent educational tracks, twenty presentations, up to 9.25 hours of continuing education, networking opportunities with your colleagues, and much more! If you only attend one conference in 2023, this is THE ONE you can’t afford to miss! Visit the FSA Conference page to register or view the agenda, rates, continuing education, and more.

Meet Jessica Kramer
Deputy Secretary, Regulatory Programs, FDEP

Jessica Kramer joined FDEP as Deputy Secretary for Regulatory Programs on February 27, 2023 bringing extensive experience in environmental and water resources policy.

Ms. Kramer most recently served as Senior Policy Advisor and Counsel for Brownstein Hyatt Farber Schreck, where she worked with clients in the energy, environment and natural resources fields, providing legal advice as well as assisting with congressional lobbying efforts. Prior to Brownstein, she worked on the Senate Committee on Environment and Public Works, where she provided legal and policy counsel on all matters related to water as well as on per- and polyfluoroalkyl substances (PFAS). Ms. Kramer served as the principal staffer responsible for drafting, negotiating and managing the Drinking Water and Wastewater Infrastructure Act of 2021. She was also the lead staffer on the water and water-related provisions contained in the Infrastructure Investment and Jobs Act of 2021, signed into law in November 2021.

Before her time with the Senate, Jessica worked in EPA’s Office of Water serving as Senior Policy Counsel to the Assistant Administrator, working on agency actions under the Safe Drinking Water Act, the Clean Water Act, as well as coordinating agency actions related to PFAS.

Welcome to the Department Jessica, FSA looks forward to working with you!

Nominate a FSA and/or FSAEF Board Member Today

FSA is looking for dynamic leaders dedicated to ensuring the continued success of the Association. There will be elections to fill vacancies on the Florida Stormwater Association and the FSA Educational Foundation Boards of Directors during the Friday Annual Membership meeting at this year’s Annual Conference. This is your chance to help lead the primary organization dedicated to furthering the stormwater management profession and water quality improvement programs in Florida.

What’s in it for you?

  • An opportunity to enhance the value and set the direction of FSA and FSAEF
  • A significant role in advancing your profession and water quality programs
  • Access to up-to-date information about the challenges facing your profession
  • The chance to exchange ideas and perspectives with other volunteer leaders

We want to hear from you! If you’re interested in serving or if you know of a member that you would like to recommend to serve, please send your nomination to [email protected] or complete a Leadership Nomination Form today! Nominations must be submitted by June 1, 2023.

FSAEF 2023 Scholarship - Help Us Spread the Word!

The FSA Educational Foundation’s Scholarship Program awards financial assistance to qualified students attending Florida colleges and universities whose educational interest is in stormwater research, management, or finance. In 2023 the FSAEF will be offering $2,000 scholarships. Applications are being accepted now from graduate students in colleges or schools of engineering, natural science, public administration (or closely related fields). Qualified applicants should Apply Online by August 11, 2023

Did You Miss FSA's March Webinar?

Applied Sciences

It's not too late to view the Adaptive Nutrient Source Identification Programs Webinar. FSA's March webinar reviewed examples of adaptive nutrient source identification programs used to pinpoint pollutant source locations and maximize BMP investment. FSA members can view the webinar recording online at no cost, thanks to the generous sponsorship of Applied Sciences.

 We appreciate your feedback! Please don't hesitate to contact us if you have any questions about FSA.