Federal judge rules against EPA stormwater regulation

A federal judge has ruled that the Environmental Protection Agency overstepped its bounds in trying to impose restrictions on stormwater in a Northern Virginia watershed, delivering a victory to Attorney General Kenneth T. Cuccinelli II, the state’s Department of Transportation and Fairfax County.

At issue was whether the EPA could regulate the flow of stormwater into the Accotink Creek in an effort to deal with the amount of sediment at its bottom. U.S. District Judge Liam O'Grady wrote in a nine-page opinion that water cannot be considered a “pollutant” under the Clean Water Act (CWA).

“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,” Mr. 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.”

Fairfax County estimated that the regulation would have resulted in an additional $110 million to $215 million in costs to keep up with the EPA’s Total Maximum Daily Load (TMDL) requirements. The estimated cost to the state Department of Transportation to meet its share of the mandated flow reductions in the Accotink TMDL was at least $70 million, according to Mr Cuccinelli’s office.

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