Courts to EPA: Water is Not a Water Pollutant
Brief summary of court action
A U.S. District judge ruled on January 3 that the Clean Water Act does not allow the Environmental Protection Agency (EPA) to designate water as a water pollutant or a pollutant surrogate, and thus the amount of flow cannot be restricted by EPA for water quality protection purposes. EPA had implemented flow volume controls as a proxy to reduce sediment issues in an impaired tributary of the Potomac River in Virginia, and had been trying to implement volume controls as part of total maximum daily load (TMDL) limits in this instance. View the court decision here.
How this affects our clients
EPA has been formulating new stormwater quality rules for several years, and EPA had made clear that stormwater volume control from new development, redevelopment and possibly existing development would be a major component of the new rules. EPA sees volume control as an effective approach to minimize erosion and sedimentation in creeks caused by the additional stormwater runoff from increased impervious area of development. Many regulated entities see volume control, at least as being discussed by EPA, as a very costly requirement. If this court decision is upheld through the appeals, EPA likely would need to go back to the drawing board and identify alternative approaches to volume controls for their proposed stormwater rulemaking.
This ruling shouldn’t affect federal facilities’ volume control requirements related to Section 438 of the Energy Independence and Security Act (EISA) because that law is separate and distinct from the Clean Water Act.