Court: Stormwater runoff not a pollutant, EPA can’t regulate it

Michael Bastasch DCNF Managing Editor
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A federal judge ruled Thursday that the Environmental Protection Agency exceeded its authority by trying to regulate water as a pollutant and restricting stormwater flow into a Fairfax County creek.

“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it,” said federal judge Liam O’Grady, who sided with the county and Virginia in the ruling.

In July, Virginia Attorney General Ken Cuccinelli and the Democratic-led Fairfax County Board of Supervisors filed a lawsuit against the EPA. The agency proposed a plan that required the county to control the flow of water in order to manage sediment discharges in Accotink Creek watershed.

“EPA was literally treating water itself — the very substance the Clean Water Act was created to protect — as a pollutant,” Cuccinelli said in a statement. “This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement.”

Virginia and Fairfax argued that the agency exceeded its authority under the Clean Water Act and diverted public funds away from more effective projects to restore Accotink Creek and other waterways. (RELATED: EPA withdraws threat of lawsuit against chicken farmer)

The plaintiffs also argued that the EPA’s plan could cost $500 million dollars, charging that the plan would have required state and local officials to “take people’s houses, evict them, knock the houses down and plant grass.”

The Clean Water Act authorizes the EPA the authority to establish Total Maximum Daily Loads (TMDLs) to regulate maximum acceptable levels of pollutants that can be discharged in particular waterways.

The EPA argued that water can be regulated as a pollutant if there is an overabundance of it. According to the agency, the water runoff was negatively impacting Accotink Creek, which it has the legal authority to protect.

However, the judge ruled otherwise.

“EPA may not regulate something over which it has no statutorily granted power … as a proxy for something over which it is granted power,” O’Grady said. “If the sediment levels in Accotink Creek have become dangerously high, what better way to address the problem than by limiting the amount of sediment permitted in the creek?”

According to the Virginia attorney general’s office, state taxpayers will save more than $300 million in unnecessary costs because of the ruling.

“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. “Logic like that would lead the EPA to conclude that if Congress didn’t prohibit it from invading Mexico, it had the authority to invade Mexico.  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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