In 2012, Attorney General Ken Cuccinelli filed suit on behalf of the Virginia Department of Transportation (VDOT) and the Fairfax County Board of Supervisors against the EPA for over stepping its authority by treating water flow into the Accotink Creek in Northern Virginia as a pollutant.
The Accotink is near Mount Vernon and it has a sediment problem, and the nature of the problem is important to the case. But the problem with the Accotink is not sediment getting washed into the Accotink, rather, the problem is the sediment that’s already in the creek.
The problem began when the EPA issued what is called a “TMDL” for the Accotink. “TMDL” stands for Total Maximum Daily Load. TMDLs get issued to address pollutants, things like sludge or dredging material, or traditional polluting chemicals like nitrogen. The EPA TMDL for the Accotink limits the amount of water that could flow into the Accotink on the rainiest day of the year.
One way to think of a TMDL is like a budget for a pollutant. So, a TMDL would normally set a total limit on a pollutant for a waterway for all sources of that pollutant combined. Then, the TMDL would specify which point sources (e.g., factories, storm sewer systems, etc.) get allocated particular portions of the load.
Remember, TMDLs are to limit pollutants. The EPA could write a TMDL that limits sediment flowing into the Accotink, but that’s not what they did. Water isn’t a pollutant but the EPA is treating water flowing into the Accotink like a pollutant. This has never been done since the Clean Water Act was made law.
The EPA says that even though the TMDL they issued was to control the volume of water that flows into the Accotink Creek, it’s really a TMDL for sediment (an actual pollutant). Apparently they were unable to spell pollutant when the TMDL was written.
Virginia argued that the EPA’s TMDL for the Accotink Creek by its own terms limits water – not a pollutant – and regulating water itself (or any other non-pollutant) is beyond the legal authority of the EPA.
An EPA win would have cost Virginians at least $300 million for one creek on top of the approximately $200 million that Fairfax County is already spending on environmental remediation in the Accotink watershed (a “watershed” is the whole geographic area where rain falls and flows into a particular waterway, in this case, the Accotink Creek). While those are huge amounts of money – especially if you consider that the Accotink is only one of thirty watersheds in Fairfax County alone – what’s really astounding is to consider the real-world options for Fairfax and VDOT.
VDOT was party to this case because of rainwater runoff from I-495. VDOT doesn’t own other land that it can use for remediation, so, in order to reduce the flow of rainwater by half, they would have to buy or take through eminent domain, homes and businesses along the beltway, evict the people living or working there, and either knock down the homes and plant grass (so the water soaks into the ground instead of flowing into the Accotink) or build holding ponds to catch the water and release it later and more slowly into the Accotink Creek.
The federal courts recognize the absurdity of the EPA’s overreach and ruled in favor of Virginia. Even more important than the money saved, is the reaffirmation that federalism works. Our Founders understood that the government closest to the people works best.
We’ve won this battle, but the war is far from over!
If the EPA is allowed to exercise this massive power to regulate storm water as expansively as it is attempting in the Virginia/Fairfax case, then EPA will have forced its way into local land use decisions. Land use planning is and has always been a power reserved to the states. With most states – including Virginia – in turn placing that authority with local governments.
If we lose this case, the EPA will have created for itself a power to veto many local land use decisions, which in turn will bring economic development to a screeching halt in many areas. This would be very, very bad for our economy.
It would also be one more blow to liberty, as the federal government continues to accumulate more and more power at the expense of our state and local governments.
Rretta, it’s been nearly a year since you’ve written this article. I stumbled upon it whilst researching a loosely related topic for my thesis. I would just like to commend you (sincerely!!) for identifying a situation you have an issue with, doing a little bit of research, and posting it here.
However, I would recommend that, in the future, you might want to look at the science/math/reasoning behind why the EPA would write such a TMDL. (I do understand, of course, that there is a bit of a time constraint in journalism.) I am not criticizing you, I just wanted to give you some information that might be of interest to you 🙂 They did not write a TMDL making water a pollutant. Actually, the very definition of a TMDL includes both the concentration of the pollutant and the flow (VOLUME of water over time) of water. So for EVERY TMDL written, the volume of water discharged into a stream/creek/river/bay is technically being regulated. But the volume of water only starts to make a difference when the pollutant concentration is already relatively low (when it’s nearly impossible to make the concentration any lower without stopping all use of industrial or fertilizer chemicals, for example…which would be dumb) because then the only way to limit/reduce pollutants entering the creek would be to reduce the volume of water (containing the pollutant) going into it.
Another reason for regulating the amount of water going into the stream is that when there’s a lot of water gushing into and through creeks, it dislodges sediment, erodes banks, and in general INCREASES sediment downstream. So, in the end, there’s even more sediment and other crap flowing into the Chesapeake Bay = a forever polluted Chesapeake. Therefore, if the sediment is IN the creek, as you say the problem is, then that’s even more reason to regulate runoff into the stream.
Besides the increase of sediment…eroding banks. Yeah, it really happens. Here, where I live, and up in DC’s Rock Creek, there are 20-ft high, straight-cut stream banks. Sewer pipelines are exposed. Not something you want in your backyard. In some parts of the country, the eroded banks compromise the stability of the road (see Youtube). It might look all calm on a regular sunny day, but during storms, you can see the destruction and impact of allowing high volumes of water into a creek.
The EPA is simply trying to combat a problem before it happens, instead of having to deal with a muddy stream and eroded banks AFTER the fact. Restoration efforts are great, and will fix banks, and make the creek look beautiful again…until all that unregulated water eventually erodes everything all over again. If you replace the ceiling tile damaged, and turned brown, by water leaking through the roof, but don’t patch the leaky roof…you’re just gonna have to keep spending money to replace that tile over an over! That’s a waste of money. And that’s a hard lesson if you’re spending $4 million on a stream restoration (or, in this case, $200 mil for the whole watershed)…only to have to spend that amount again when the restoration deteriorates.
Also, grass sucks at absorbing water. It might as well be pavement, seriously.
I do agree that the EPA shouldn’t invade state and local matters, but Virginia and local governments need to step it up if they want their great grandchildren to take pride in beautiful Virginia land. And that starts with us.
Honestly, I’m disappointed in VDOT. I was always proud that they took such good care of our roads, cared about quality of work, and collaborated with private transportation companies on cutting edge sustainable roadway design (meaning, they voluntarily constructed wetlands and other stormwater practices around roadways to reduce water runoff into the nearby streams). Fairfax? That’s a whole other can of worms. Who knows what they’ve been thinking lately.
The EPA is not trying to circumvent problems before they happen, they are making an end-run around Congress and State legislators to gain federal jurisdiction over bodies of water such as ditches and ponds in an attempt to gain even more control over land and landowners. Perhaps states could do more but they can only work within a budget. In todays economy it is outrageous to expect taxpayers to fork over even more hard earned money to pay for a preceived problem. For those that are concerned about run-off in ditches, I am sure that the states would be happy to accept donations earmarked for water projects.