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Victory will save Virginia taxpayers estimated $300 million plus

Attorney General Cuccinelli announces legal victory against EPA attempt to regulate water itself as

By --January 3, 2013

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RICHMOND - Late this afternoon, a federal judge accepted arguments made by Attorney General Ken Cuccinelli and ruled that the U.S. Environmental Protection Agency has exceeded its authority by attempting to regulate water itself as a pollutant by imposing restrictions on the flow of stormwater into Fairfax County’s AccotinkCreek. The effect of this ruling could save Virginia taxpayers more than $300 million in unnecessary costs.

EPA had previously issued an edict that would cut the flow of water into the creek by nearly half, in an effort to address the sediment flow on the bottom of the creek. In regulating the flow rate of stormwater into the creek, the agency was trying to regulate water itself as a pollutant, rather than the sediment. The attorney general challenged the EPA’s action as exceeding the agency’s legal authority to regulate pollutants under the Clean Water Act (CWA). These restrictions also would have diverted public funds that could be spent more effectively on stream restoration for Accotink Creek and other waterways in the region.

Judge Liam O’Grady agreed with co-plaintiffs VDOT (represented by the attorney general) and Fairfax County, saying in his ruling that federal law simply does not grant EPA the authority it claims. The Clean Water Act gives the EPA the authority to establish TMDLs - Total Maximum Daily Loads - regulating maximum acceptable levels of pollutants that may be discharged on a daily basis into a particular waterway. The problem for the EPA is that water is not a pollutant under the CWA. “The Court sees no ambiguity in the wording of [the federal Clean Water Act]. EPA is charged with establishing TMDLs for the appropriate pollutants; that does not give them the authority to regulate nonpollutants,” O’Grady said.

“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,” said Cuccinelli. “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.”

EPA also claimed that it could regulate water flow because it was a surrogate measure for regulating sediment. To that argument, Judge O’Grady responded, “EPA may not regulate something over which it has no statutorily granted power… as a proxy for something over which it is granted power.” He continued, “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?”

“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it,” O’Grady said.

“EPA was literally treating water itself—the very substance the Clean Water Act was created to protect—as a pollutant,” the attorney general noted. “This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement. And it was likely to do more harm than good, as its effectiveness was unproven and it would have diverted hundreds of millions of dollars Fairfax County was already targeting for more effective methods of sediment control.”

On December 14, 2012, the attorney general personally argued in federal district court in Alexandria on behalf of the Virginia Department of Transportation, and was joined by the Fairfax County Board of Supervisors, against the EPA’s overreaching restrictions. The attorney general challenged this substantial expansion of EPA’s regulatory power as a departure from the EPA’s CWA-authorized role of establishingTMDL requirements. VDOT and Fairfax County initiated this litigation in July 2012.

A copy of the court’s opinion can be found here.

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