Skip to Content Skip to Content
Attorney General of Virginia Header

t
View Office of the Attorney General Expenditures

xt

HOT TOPICS

Lock Up Your Meds
News for CitizensOcwen MortgageMortgage Servicing Settlement Agreement
Tobacco
Computer Crime
Human Trafficking
Gang Prevention
Bullying
Drug Take Back Program Line of Duty Death Claims
Veterans
Medicaid Fraud
Elder Abuse and Neglect
TRIAD - Seniors
Official Opinions

 

State Seal
Commonwealth of Virginia
Office of the Attorney General

name and titleaddress

 

 

For media inquiries only, contact:  Brian J. Gottstein
Email: bgottstein@oag.state.va.us (best contact method)
Phone: 804-786-5874

 

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

- Victory will save Virginia taxpayers nearly $300 million -

RICHMOND (January 3, 2013) - 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 Accotink Creek.  The effect of this ruling could save Virginia taxpayers nearly $300 million in unnecessary costs. 

EPA had previously issued an edict that would cut the flow of water into the creek by allmost 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.

More about Attorney General Cuccinelli

Photos of the attorney general

A copy of this news release may be found on the attorney general's web site here.

Like us on FacebookFollow us on TwitterFind us on PinterestView our videos on YouTube View our photos on flickr