In a case of first impression, a federal court held last month that the Environmental Protection Agency (“EPA”) cannot regulate storm water flow in setting a total maximum daily load (TMDL) for impaired waters under the Clean Water Act (“CWA”).[1] The court found that EPA can only issue TMDLs for actual pollutants. Virginia DOT v. EPA.[2]

Background

The CWA was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[3] The Act prohibits the discharge of a pollutant by any person, except in compliance with specified statutory sections.[4] Under CWA section 303(d), states, territories, and authorized tribes are required to develop lists of impaired waters.[5] These are waters that are too polluted or otherwise degraded to meet water quality standards set by states, territories, or authorized tribes. The law requires that these jurisdictions establish priority rankings for waters on the lists and develop TMDLs for these waters. A TMDL is a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards.

Accotink Creek is a 25-mile long tributary of the Potomac River, located in Fairfax County, Virginia. As a result of prior litigation, EPA was required to set TMDLs appropriate to improve the health of the community of “benthic” organisms in the creek, i.e. organisms that live on or near the creek bottom. EPA believed the health of the creek could be improved by reducing sedimentation. On April 18, 2011, it set a TMDL for Accotink Creek based on stormwater flow, in order to reduce sedimentation of the creek. EPA limited the flow rate of stormwater into the creek to 681.8 ft3/acre-day.

In July 2012, the Virginia Department of Transportation and the Fairfax County Board of Supervisors (collectively “Virginia DOT”)[6] challenged EPA’s TMDL on multiple grounds, including an argument that the CWA does not authorize EPA to set a TMDL to restrict sedimentation based on stormwater flow, but only to regulate pollutants in stormwater.

The Virginia DOT Decision

On November 16, 2012, Virginia DOT filed a Motion for Judgment on the Pleadings. The motion raised a single issue: “Does the Clean Water Act authorize EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek?” The court reviewed EPA’s decision to set the TMDL under the two-step analysis set forth in Chevron, U.S.A., Inc. v. NRDC, Inc.[7] The first step under Chevron is to determine whether Congress addressed the “precise question at issue.”[8] The second step under Chevron is – if necessary – to determine whether EPA’s interpretation of the CWA was “permissible.”[9]

Applying Chevron’s first step, the court analyzed whether Congress expressly authorized EPA to set a TMDL for stormwater, a nonpollutant. The court noted that the DC Circuit has considered and rejected a similar attempt by EPA “to take liberties with the way Congress intended it to express its TMDLs.”[10] In that case, Friends of the Earth, Inc. v. EPA, the court found that EPA was not allowed to express a TMDL for the Anacostia River in terms of annual or seasonal maximums because the CWA granted EPA authority only for daily loads.[11]

In Virginia DOT, the court cited Friends of the Earth, Inc. v. EPA, for the proposition that “EPA may not regulate something over which it has no statutorily granted power – annual loads or nonpollutants – as a proxy for something over which it is granted power – daily loads or pollutants.”[12] Analyzing the case under Chevron step one, the Virginia DOT court found under the plain language of the statue that sediment is a “pollutant” – as the term is defined by the CWA – but stormwater is not.[13] The court expressly rejected EPA’s argument that the stormwater maximum load is regulable as a surrogate for sediment.

Although unnecessary, the court went on to note that even given deference, EPA’s position would also fail under Chevron step two because EPA was impermissibly attempting to increase the extent of its authority by setting flow TMDLs.[14] The court held, therefore, that the CWA unambiguously does not authorize EPA to regulate stormwater runoff via TMDL because stormwater is not a pollutant, and granted Virginia DOT’s motion for judgment on the pleadings.

Significance of the Court’s Ruling

This is the first ruling specifically addressing EPA’s authority to use flow limits as surrogates in establishing TMDLs. It is not, however, the only instance in which EPA has sought to do so. In 2010, EPA issued a draft guidance memo on the use of stormwater flow as a surrogate for sediment but received adverse comments, primarily encouraging EPA to issue rules rather than guidance. EPA has not finalized the memo or issued rules. Any further attempt at this point would need to address the Virginia DOT decision.

EPA Region 7 has developed three other TMDLs for flow, all in Missouri. All of EPA’s attempts at flow TMDLs have been challenged in court. One settled last year and the others are pending. In one of those cases, the City of Springfield, Missouri filed a motion for judgment on the pleadings in January 2013.

In addition to determining that the “plain language of the statute trumps all,” the court in Virginia DOT took the additional step of examining Congress’ intent in enacting the CWA. The legislative record shows that Senator Randolph, Chairman of the Senate committee that amended the CWA in 1972, explained, “We have written into law precise standards and definite guidelines on how the environment should be protected. We have done more than just provide broad directives [for] administrators to follow.” Although dicta to the court’s ruling, these citations to the legislative history of the CWA may prove valuable to others examining the scope of EPA’s authority to regulate pollutants, implying – as the Virginia DOT court found – that Congress did not intend anything more or less than what is written in the statute.[15] In other words, EPA very likely does not have authority to regulate flow without action by Congress to amend the CWA.

The Virginia DOT decision does not, however, affect states’ authority to regulate stormwater flow. States may write their own laws or regulations or develop TMDLs under state laws limiting flows. The validity of such restrictions would be determined under state law.

EPA has until March 3, 2013 to appeal the Virginia DOT decision but has not announced whether it will do so. The decision is currently direct authority only in the Eastern District of Virginia where the case was heard. However, the decision is persuasive authority throughout the country and is likely to cause EPA to broadly evaluate whether it can regulate stormwater flow. To the extent EPA was considering incorporating flow regulation into nationwide stormwater permits, the decision may most immediately affect the agency’s development of its national post-construction stormwater rule, currently scheduled to be proposed in June 2013.

For more information on the Clean Water Act and Marten Law’s Water Quality and Water Resources practices please contact Jeff Kray.

See more at: http://www.martenlaw.com/newsletter/20130220-epa-stormwater-regulations