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January 08, 2013
Flow not a pollutant for TMDL purposes

Top Virginia officials are thoroughly pleased with a decision by a U.S. district court judge that for the time being relieves the state of the responsibility to regulate stormwater flowing into a tributary of the Potomac River.  According to Judge Liam O’Grady of the District Court for the Eastern District of Virginia, the U.S. EPA overstepped its authority by attempting to require that the state reduce sediment discharges into Accotink Creek by controlling the flow rate of stormwater running off into the creek.

The EPA stated that in this case, stormwater flow would serve as a surrogate in controlling discharges of sediment.  But the court found no such authority for the surrogate approach in the Clean Water Act (CWA).

$300 million savings

“The effect of this ruling could save Virginia taxpayers more than $300 million in unnecessary costs,” said Virginia Attorney General Ken Cuccinelli, who personally argued the state’s position in the district court. 

“Over time the regulation would have impacted numerous other projects, costing even more and having a negative impact on future job creation,” said Virginia Governor Bob McDonnell in a statement. 

“The ruling today is a testament to Attorney General Ken Cuccinelli’s good work to fight back on economically harmful, and unnecessary regulations,” added McDonnell’s office.

Benthic impairment

The case involves the April 2011 total maximum daily load (TMDL) for “flow rate of stormwater” the EPA established for Accotink Creek, a 25-mile-long water body in Fairfax County.  The creek is experiencing impairments to benthic communities, that is, organisms living on or near the bottom of the creek are not as numerous or healthy as they should be.  EPA’s TMDL would have specifically limited the flow of stormwater into Accotink Creek to 681.8 ft3/acre-day. 

According to the court, the EPA and the state agreed that sediment is a pollutant under EPA’s CWA authority while the flow of stormwater is not.   But the EPA argued that framing the TMDL in terms of stormwater flow rate is superior to simply expressing it in terms of maximum sediment load.  The Agency also stated that the surrogate approach should be allowed because the CWA does not explicitly forbid it. 

Statute is unambiguous

Judge O’Grady rejected both arguments.  Calling EPA’s surrogate pollutant attempt “mere bootstrapping,” the judge notes that in writing the CWA, Congress was unambiguous in not extending the Agency’s TMDL authority to non-pollutants that could serve as surrogates for pollutants. 

Regarding the Agency’s second argument–no explicit prohibition–the judge cites a case in the D.C. Circuit Court of Appeals wherein the court rejected EPA’s attempt to establish yearly or seasonal TMDLs when the CWA authorizes daily loads only.  “EPA is not explicitly forbidden from establishing total maximum annual loads any more than they are explicitly barred from establishing TMDLs for nonpollutants,” wrote O’Grady.  “The question is whether the statute grants the agency the authority it is claiming, not whether the statute explicitly withholds that authority.”

The EPA has been experimenting with the use of stormwater as a non-statutory surrogate pollutant for sediment, but opposition has been stiff.  The court notes that the Agency has approved 3,700 TMDLs for sediment nationwide, none of which regulate the flow rate of stormwater.  By comparison, the EPA has tried out its novel approach of regulating sediment via flow in only four instances nationwide, and all four attempts were challenged in court.  One has settled and the other three are pending.

Click here to read the district court’s opinion in Virginia DOT v. EPA.