Yesterday, a Federal District Court in Alexandria, Va., found that the U.S. Environmental Protection Agency (EPA) had exceeded its authority in an effort to enforce the Clean Water Act.
EPA had tried to expand the scope of its congressionally appointed water quality jurisdiction to include limits on the quantity of water allowed to flow into a stream.
In 2011, EPA’s Region III established a Total Maximum Daily Load (TMDL) for storm water flow into the Accotink Creek, a tributary of the Potomac River. The Accotink is one of 30 streams that run through Fairfax County in the heavily populated region of Northern Virginia.
TMDL normally applies to the total amount of a pollutant, such as nitrogen, allowed to flow into a body of water.
Water is not a pollutant
However, EPA assigned a TMDL for the amount of water itself that would be allowed to flow into the stream, cutting that amount by nearly half. Realistically, runoff depends on rainfall, which is not within the control of any agency.
EPA claimed that it was using water flow as a surrogate for the total amount of sediment allowed into the stream. Sediment is a pollutant which can be harmful to benthic wildlife, including worms, plants and insects that live at the bottom of streams.
But Fairfax County’s Board of Supervisors, along with the Virginia Dept. of Transportation (VDOT), sued EPA to block the new rules.
Forcing regulation of private property
Both entities have long histories of extensive environmental management and water quality protection, spending millions of dollars over the decades to control runoff and restore stream beds.
But according to the suit, “since much of the storm water flow from VDOT property into Accotink Creek originates from adjacent properties, EPA is effectively forcing VDOT to regulate runoff from property that it neither owns nor controls.”
The suit claimed that the new TMDL will “force the County to divert approximately $110 million to $215 million [toward flow reduction] rather than a more cost-effective and direct approach to addressing the habitat needs of benthic organisms.”
Because the Accotink flows through a heavily urbanized region, VDOT estimated it would have to spend $70 million and condemn private homes and office buildings to remedy the situation.
Cuccinelli argues the case
In December, Virginia Attorney General Ken Cuccinelli, representing VDOT, argued before the Court that water is not a pollutant, by any definition.
Furthermore, he argued that EPA is not allowed by the Clean Water Act to count surrogates of pollutants as actual pollutants.
The Court agreed and issued a finding that “Storm water runoff is not a pollutant, so EPA is not authorized to regulate it.”
"EPA's thinking here was that if Congress didn't explicitly prohibit the agency from doing something, that meant it could, in fact, do it," Cuccinelli said in a statement. "This incredibly flawed thinking would have allowed the agency to dramatically expand its power at its own unlimited discretion. Today, the court said otherwise."
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