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Virginia DOT, et al. v. US EPA


Virginia DOT, et al. v. US EPA

A federal court in Virginia issued a strong decision in early January 2013 finding that EPA’s attempt to regulate stormwater flow in a federal TMDL is illegal under the CWA, echoing arguments made by NACWA in the case and providing a significant legal victory for the municipal stormwater community.  The court’s ruling in Virginia DOT, et al. v. EPA found that stormwater flow on its own is not considered a “pollutant” under the CWA; therefore, EPA’s efforts to use it as a surrogate for pollutants, such as sediment, in establishing TMDLs is illegal.  The court expressly found the CWA language limiting EPA’s TMDL authority to actual pollutants is unambiguous, with the court stating that “EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants."  NACWA has been a leading advocate against the use of flow-based TMDLs, including submitting a brief in the litigation, and was very pleased with the court’s decision.

EPA further announced in March 2013 that it would not appeal the ruling, preserving this important legal win for municipal stormwater utilities.  Combined with the Agency’s decision to also withdraw a similarly contested flow-based stormwater TMDL in Missouri, these actions suggest EPA has backed off attempts to develop federal flow TMDLs for stormwater.  However, the Virginia legal decision does not directly impact the ability of individual states to use flow TMDLs, and it is likely this ongoing battle will simply shift to the state level where similar stormwater TMDLs may be developed under state authority.

NACWA’s brief in case, filed in November 2012, echoes arguments the Association has made previously about the inappropriate use by the Agency of “flow TMDLs” for municipal stormwater discharges, leading to flow limits in municipal separate storm sewer system (MS4) permits.  In particular, the NACWA brief reiterates concerns over EPA’s controversial November 2010 memo on this topic, which suggested that states should use flow as a pollutant surrogate to establish numeric effluent limits in MS4 permits.  NACWA’s brief seeks to provide a national perspective on the significant flaws in the document, as well as EPA’s overall procedural approach in developing flow TMDLs.  NACWA previously submitted comment letters to EPA in January 2011 and May 2011 expressing serious concerns with the November 2010 memo and requesting it be withdrawn.  The NACWA brief highlights the history of the memo and outlines the critical legal and procedural concerns with the document. NACWA was joined on the brief by the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA).

The litigation was brought by the Commonwealth of Virginia and NACWA member Fairfax County, Virginia to challenge a flow-based TMDL for the Accotink Creek watershed in Fairfax County.  The state and municipal plaintiffs argue that EPA’s use of flow as a pollutant surrogate in the TMDL exceeds the Agency’s statutory authority under both the CWA and the Administrative Procedure Act.  The complaint also alleges a series technical flaws in the TMDL.


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