From The Editor | January 10, 2013

EPA Goes Too Far On Stormwater


By Kevin Westerling,

“Government overreach” is a phrase bandied about a lot these days and — politics being what they are — it’s usually wise to consider the source. This time, however, the charge comes from a federal judge, who recently ruled that the U.S. Environmental Protection Agency (EPA) overstepped its authority in attempting to regulate stormwater flow into a Virginia watershed.

As reported by Legal Newsline, the EPA issued an edict to nearly halve the amount of water flowing into Fairfax’s Accotink Creek in an attempt to reduce sediment buildup, which contributes to poor water quality. Under the Clean Water Act, the EPA protects water quality by setting limits on the amount of pollutants discharged into waterways — total maximum daily loads (TMDLs) — but in this way, Attorney General Ken Cuccinelli (R) argued, the EPA was treating water itself as a pollutant.

“EPA cannot be allowed to exceed its clearly limited statutory authority,” U.S. District Judge Liam O’Grady said in his decision. “Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it via TMDL.”

Cuccinelli, who argued on behalf of the Virginia Department of Transportation and the Fairfax Country Board of Supervisors, went further:

“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,” he stated. “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.”

The verdict was also lauded by Virginia Governor Bob McDonnell (R), who estimated that the proposed mandate would have cost taxpayers more than $300 million. Instead, those funds can be allocated for alternate ways to control sediment — as was the plan all along, according to Sharon Bulova, chairman of the Fairfax County Board of Supervisors, which has a majority of Democrats.

The Washington Post reports that Bulova and the Board supported the suit — despite past discord with the “arch conservative” Cuccinelli — because the mandates would hurt the region’s economy and do nothing to help the environment.

“I know a lot of people were scratching their heads over that,” Bulova acknowledged, in reference to the alliance with Cuccinelli, “but we want to make sure that the money is well spent.”

For his part, Cuccinelli has previously challenged government authority on greenhouse gas regulations and health care, the Richmond-Times Dispatch notes, and is the presumptive Republican nominee for governor.

The odd pairing of bedfellows in the case indicates that EPA regulation of stormwater flow, at least for Fairfax, is a consensus issue that goes beyond party politics. What’s more, the potentially precedent-setting verdict validated their claim: This time, the EPA went too far.

Do you agree with the court's decision? Was the EPA striving to enhance water quality, or to expand its own power? Share your comments below...