Judge Stops EPA From Limiting Nonpollutants

(CN) - The government need not regulate the degree to which nonpollutants, even those that act as pollutant surrogates, flow into polluted bodies of water, a federal judge ruled.

Accotink Creek, a 25-mile long tributary of the Potomac River, is an "impaired" river monitored by the Environmental Protection Agency for water-quality issues.

The EPA identified the creek as having an unhealthy benthic community, meaning that the bottom-dwelling organisms from the creek are not as numerous as they should be.

To improve the creek's health and regulate the amount of sediment flowing into the creek, the EPA limited the flow of storm water into the Accotink. The EPA considers storm water flow rate as a "surrogate" for sediment.

The Virginia Department of Transportation challenged this limit on storm water flow, claiming that the EPA has no authority to regulate a pollutant by establishing a total maximum daily load (TMDL) for a nonpollutant.

U.S. District Judge Liam O'Grady agreed Thursday, finding that "stormwater runoff is not a pollutant, so the EPA is not authorized to regulate it via TMDL."

"Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of EPA's TMDL authority," O'Grady added.

Referring to the plain language of the Clean Water Act, the judge said, "the EPA would like to create the impression that Congress has given it loose rein to determine exactly what it could and could not regulate."

"EPA glosses over the fact that 33 U.S.C. §1314(a)(2)(D) only gives EPA the power to regulate pollutants as that term is defined - by Congress - elsewhere in the statute," he added.

The decision concludes: "Whatever reason EPA has for thinking that stormwater flow rate TMDL is a better way of limited sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority."

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