Federal Judge Rules Stormwater Runoff is Not a Pollutant

File Type: Free Content, Article
Release Date: January 2013
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A federal judge in Alexandria, Virginia has ruled in favor of the Virginia Department of Transportation and the Fairfax Board of Supervisors that the U.S. Environmental Protection Agency (EPA) exceeded its regulatory authority by attempting to regulate stormwater runoff flowing into the Accotink Creek watershed as a pollutant through a Total Maximum Daily Load (TMDL) program. U.S. District Court Judge Liam O’Grady agreed with the plaintiffs that water itself is not a pollutant and cannot be regulated by the EPA. The judge’s order and opinion vacated the Accotink TMDL and remanded it back to the EPA for reconsideration.

NAIOP Northern Virginia, along with the National Association of Homebuilders and the Northern Virginia Association of Realtors, intervened on behalf of the private sector landowners and argued on December 14th in support of the plaintiffs’ claim that EPA cannot regulate the level of pollutant by establishing a TMDL for the flow of a nonpollutant into the creek. Specifically, Judge O’Grady concluded that “Claiming that a stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of EPA’s TMDL authority. Whatever reason EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority”

The judge’s order is a victory for the plaintiffs and NAIOP Northern Virginia and may have broader implications for the federal TMDL which placed the Chesapeake Bay and its tributaries on a “pollution diet”. EPA has the right to appeal the judge’s order, or formulate a new TMDL for the Accotink Creek watershed. NAIOP will continue to monitor the issue as it develops.