EPA Cannot Regulate Water Flow, Federal Court Rules

Published January 29, 2013

The U.S. Environmental Protection Agency cannot lawfully restrict the amount of rainwater that enters a creek, a federal district judge ruled, in a victory for Virginia state officials. Virginia government officials and the Fairfax County Board of Supervisors sued EPA after the federal agency issued a regulation that would force state and county officials to divert rainwater that would otherwise flow into Accotink Creek.

The state and county would have had to spend more than $300 million to divert the rainwater away from Accotink Creek had EPA prevailed.

The Virginia Department of Transportation and the Democrat-majority Fairfax County Board of Supervisors joined forces to fight EPA’s proposed regulations.

Water Is Not a Pollutant

“Storm water runoff is not a pollutant,” U.S. District Judge Liam O’Grady wrote in his opinion.

EPA argued too much rainwater entering the creek from stormwater infrastructure would dislodge sediments at the bottom of the creek and disturb worms and insects that allegedly keep the creek clean.

“The Court sees no ambiguity in the wording of [the Clean Water Act]. EPA is charged with establishing [limits on] the appropriate pollutants; that does not give them the authority to regulate nonpollutants,” O’Grady explained.

“EPA was literally treating water itself—the very substance the Clean Water Act was created to protect—as a pollutant,” Virginia Attorney General Ken Cuccinelli said in a press statement after the court’s decision.

“This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement.”

Pollution Limits

EPA set total maximum daily loads (TMDLs) on the amount of rainwater that can enter the Accotink Creek watershed in northern Virginia. EPA has authority to issue TMDLs on pollutants under its jurisdiction. The Accotink Creek case was the first time EPA tried to regulate water as a pollutant.

A total maximum daily load can be thought of as a pollution budget for a body of water. TMDLs establish the maximum amount of pollutants that can be allowed to enter. Surface water and rainwater are not pollutants, O’Grady explained, and are not subject to EPA permits. 

EPA Overstepped Authority

EPA needs congressional authorization in order to issue regulations, the judge explained. No congressional authorization exists for EPA to regulate the flow of water, O’Grady, noted. 

“EPA’s attempt to regulate the flow of rainwater illustrates the lack of scientific expertise among far too many people in the agency’s bureaucracy,” said Jay Lehr, science director for The Heartland Institute, which publishes Environment & Climate News

“EPA is an out-of-control federal agency with a primary goal of attaining ever-growing budgets and power rather than safeguarding the environment,” Lehr explained. “Unfortunately, EPA bears little resemblance to the agency that was created 40 years ago to cooperate with the states regarding environmental matters.”

Jeff Edgens, Ph.D. ([email protected]) is an assistant professor of political science at East Georgia State College and an adjunct scholar with the Competitive Enterprise Institute.