Federal Court Rules EPA Cannot Regulate Stormwater Flow, Only Pollutants
January 15, 2013

Stormwater Flow Rate Is Not a “Surrogate” for Controlling Sediment Runoff

AGC is closely examining a landmark court decision rejecting the U.S. Environmental Protection Agency’s (EPA) attempt to use stormwater flow rate as a surrogate pollutant in a TMDL (total maximum daily load) case.  In this key decision handed down by the Federal District Court for the Eastern District of Virginia, a federal judge ruled that the Clean Water Act (CWA) does not authorize EPA to limit “stormwater flow” [in lieu of regulating sediment discharges] in TMDLs because such flow itself is not a pollutant (Virginia DOT v. EPA, E.D. Va., No. 1:12-cv-775, 1/3/13).  Click here to read the court decision. 

Water quality problems in the Accotink Creek in Fairfax County, Va. had triggered the CWA process for setting a “pollution diet” or clean-up plan, called a TMDL, for that creek designed to limit the amount of pollution that enters the water body.  The state failed to set the TMDL by the deadline, so EPA stepped in to do it.  But instead of setting limits for the pollutant itself – sediment — EPA decided to set the TMDL that limited the amount of water that could flow into the Accotink on the rainiest day of the year.  EPA called this a “surrogate” approach, and argued that it could regulate stormwater flow under the TMDL as a “surrogate” for the accumulation of sediment into the creek.  The court ruled that this approach exceeded EPA’s authority.

Note that in this case, all parties agreed that the Act’s definition of “pollutant” includes sediment, but not stormwater.  For the complete definition of “pollutant” under the Clean Water Act, see 33 U.S.C. §1362(6).)

Ultimately, the court saw just a “single issue:  Does the [CWA] authorize the EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek”  (Slip Op. at 3.)  It then launched into a statutory authority analysis (called a “Chevron inquiry”) and found “no ambiguity in the wording of this statute.”  (Slip Op. at 5.)  The TMDL language “does not give [EPA] authority to regulate nonpollutants.”  (Id.)  In rejecting EPA’s argument that they could regulate stormwater as a surrogate for a pollutant, the court relied primarily upon Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006) (rejecting use of annual and seasonal loads as inconsistent with term “daily” in CWA).  (Slip Op. at 5-6.)

In distinguishing other surrogate scenarios, the court noted that EPA’s so-called surrogate cases like Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir. 1978) regulated “non-harmful pollution parameters” that “were components of the effluent” for which EPA had express authority to regulate.  (Slip Op. at 6.)  Additionally, the court dismissed any regulatory authority relied on by EPA as “bootstrapping” and stated that “[t]o the extent the regulations allow EPA to set TMDLs for nonpollutants, they exceed the statutory authority of EPA.”  (Slip Op. at 7.)

Though the court found the Accotink TMDL unambiguously outside the authority granted to EPA under the CWA, and accordingly disposed of this motion at Chevron’s first step, it went on to “note[] that there is substantial reason to believe EPA’s motives go beyond ‘permissible gap-filling.’”  (Slip Op. at 8.)  The brief analysis of Chevron step two essentially boils down to the court finding no compelling answer to this question:  “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?”  (Slip Op. at 8.)  Of the 3,700 TMDLs for sediment nationwide, only four regulate the flow of stormwater and none of those four have ever been upheld by a court.  (Id.)

All in all, the opinion is brief and straightforward: The CWA permits TMDLs for pollutants, and “stormwater flow” is not a pollutant.  Therefore, the Accotink TMDL cannot be sustained.

In 2011, AGC worked with the Federal StormWater Association (a national Wash. DC-based coalition) to object to, and effectively forestall the release of, an EPA memo (November 2010 Stormwater/TMDL memorandum) that, if adopted as EPA policy in its current form, would have broadly authorized the exact kind of TMDL that the court has held unlawful in the Accotink Creek TMDL case.  That memo remains under internal agency review and has been the subject of much on-going debate.

AGC expects that EPA likely will appeal this decision.  Any limitation on EPA’s ability to regulate “flow” will be perceived as a significant setback to its upcoming stormwater regulatory agenda (e.g., EPA’s national post-construction stormwater rule that is currently under development and scheduled to be proposed in June 2013).  Even though the VDOT v. EPA decision is binding only in the Eastern District of Virginia, it is likely to cause EPA to re-evaluate whether it can regulate stormwater flow in developing its national post-construction stormwater rule.

For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org or (703) 837-5332.