Virginians Claim USA Can’t Make Water Rules

ALEXANDRIA, Va. (CN) - A Virginia group claims the U.S. EPA violated the Tenth Amendment by imposing a "coercive ... unfunded mandate" on a watershed, "to implement a federal program - one not imposed by or under Virginia Law."

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The Occoquan Watershed Coalition's federal complaint is the latest in a rash of lawsuits all over the nation in which states, groups and people claim that federal rules and regulations-often involving the environment - violate states' rights.

The Occoquan Watershed Coalition claims the Environmental Protection Agency unconstitutionally ordered Virginia to control the amount of rain water allowed to flow into a Fairfax County stream, a mandate aimed at protecting benthic organisms that can be killed off by sediment-rich rain water.

The benthic zone is the lowest region of a body of water, along the bottom.

The Occoquan Coalition claims the so-called unfunded mandate will cost Virginia $225 million and the Virginia Department of Transportation $70 million, to comply with "total maximum daily loading (TMDL) for benthic impairments in the Accotink Creek watershed."

It claims the rule will pull Fairfax County and state money away from other projects, including "desperately needed" road maintenance and construction.

"This is the kind of coercive commandeering the Constitution does not authorize - commandeering that tramples the sovereignty of the state and local governments," the group claims in its complaint.

The group claims that the Clean Water Act gives the EPA responsibility to manage sediments flowing into the Accotink through pipes, or point sources, but gives state and local governments the power to manage nonpoint sources.

"The TMDL is intended to address an impairment in stream quality, specifically a reduction in quality of the 'benthic' ecosystem, the organisms that live on and near the bottom of healthy streams," the complaint states. "The EPA correctly recognizes that high flows of water will scour the sides of streams, causing soils to mix into the water only later to settle onto the bed of the stream and thereby suffocate the benthic organisms."

But the mandate "constitutes an actual and imminent threat of federal enforcement," the coalition says, and will rob the state of transportation money for highway projects and impose penalties for non-compliance.

The coalition wants the court to declare the mandate unconstitutional and to enjoin the EPA "from regulating the flow of water and from enforcing, requiring the Commonwealth of Virginia to enforce, or otherwise acting pursuant to the Accotink TMDL."

The coalition, which describes itself as a nonpartisan, broad-based citizens group, is represented by David Schnare of Burke, Va.

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