Time to Take Action
Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.

Judge Slaps Down EPA Bid to Regulate Water as a Pollutant

03 Jan 2013 By David A. Patten

A federal district judge Thursday shot down a “novel” EPA attempt to regulate the flow of water as a pollutant, stopping dead in its tracks what otherwise would have been a major regulatory expansion.

The ruling by U.S. District Judge Liam O’Grady handed a significant legal victory to Virginia Attorney General Kenneth T. Cuccinelli II, who is running for governor of the Commonwealth.

Cuccinelli personally argued the case before O’Grady on Dec. 14, warning the EPA’s attempt to regulate the flow of water into state waterways would amount to a “tremendous expansion” of its regulatory power.

O’Grady appeared to concur in his opinion, writing: "The Court sees no ambiguity in the wording of [the federal Clean Water Act]. EPA is charged with establishing [limits on] the appropriate pollutants; that does not give them the authority to regulate nonpollutants.”

Assuming the judgment withstands appeal, it would spare Fairfax County an estimated $300 million in compliance costs. Nationwide, three other lawsuits against the EPA’s recent assertion of its authority to regulate water flow are pending.

Cuccinelli commented in a statement after the ruling: "EPA was literally treating water itself -- the very substance the Clean Water Act was created to protect -- as a pollutant. This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement.

“And it was likely to do more harm than good,” he added, “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."

The Virginia Attorney General portrayed the EPA rainwater regulation as a classic case of bureaucratic overreach.

"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 in his statement.

"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 1972 Clean Water Act authorizes the EPA to establish a limit, called the Total Maximum Daily Load (TMDL), for how much of a pollutant it will allow to enter a waterway.

But the Accotink TMDL would have ordered state and local officials to reduce almost by half the amount of stormwater that would flow into the creek. That influx, the EPA said, was stirring up sediment in the waterway, and harming worms and insects that help keep the creek clean.
But O’Grady said the EPA needs congressional authorization in order to issue such regulations.

"Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it," O'Grady said.

Cuccinelli, the conservative Republican who is running for governor against former DNC chief Terry McAuliffe, told
Newsmax TV in an exclusive December interview that he was reaching across the aisle to work with Democrats in order to try to rein in the EPA.

“You know it’s bad when a partisan Democrat board of supervisors, like Fairfax County, will join us to sue the EPA,” he said. “That’s how bad it’s gotten.”

Cuccinelli, a former three-term state senator from Northern Virginia who is seen as an unabashed champion of the Old Dominion’s grass-roots conservative community, added: “I refer to it as the Employment Prevention Agency. They’re very good at that.”

The legal confrontation that led to Thursday’s verdict stems from longstanding EPA concerns about the health of aquatic life in Fairfax County’s Accotink Creek, which ultimately feeds into the Potomac River and the Chesapeake Bay.

The Democratic-dominated Fairfax County Board of Supervisors was initially reluctant to join forces with Cuccinelli, concerned with the optics of teaming up with the stalwart Republican conservative in an election year.

But in July, facing hundreds of millions of dollars in compliance costs, the Supervisors decided they had to have the attorney general’s legal firepower on their side if they hoped to prevail over the increasingly assertive EPA, led by outgoing administrator Lisa Jackson.

Fairfax County Supervisor John Cook, a Republican, told the Washington Post: “When people talk about federal agencies running amok, this is exactly what it looks like.

The EPA’s overreach is so extreme that the Democrats on the board realized that, even in an election year, they had to do this for the county.”

O’Grady’s ruling vindicated Cuccinelli’s argument that the EPA had exceeded its legal authority in granting itself the authority to regulate water flow where no such authority existed.

“If you want to boil down what ties us all together as Americans,” Cuccinelli told Newsmax, “it’s that is a nation of laws and not of men. Some people in government forget that sometimes.”




In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

Home Contact


              Page Updated: Sunday June 09, 2013 10:21 PM  Pacific

             Copyright © klamathbasincrisis.org, 2001 - 2012, All Rights Reserved