The EPA washes out in Virginia

Runoff flowing into drain (Photo: Wikipedia)

Virginia Attorney General Ken Cuccinelli, R, won a significant victory against the U.S. Environmental Protection Agency on Jan. 3. A federal district court in Virginia ruled in favor of the state in a dispute over stormwater runoff in the case Virginia Deptartment of Transportation v. EPA. As Cuccinelli said, the "EPA was literally treating water itself -- the very substance the Clean Water Act was created to protect -- as a pollutant."

In a prime example of the unlawful and economically destructive positions taken by the EPA under outgoing administrator Lisa Jackson, the agency claimed that it could regulate the stormwater running into Accotink Creek, a 25-mile-long tributary of the Potomac River. Although the EPA was forced to admit that stormwater is not a pollutant, it still claimed the authority to regulate it, claiming it was a "surrogate" for sediment, which is a regulated pollutant.

Under the Clean Water Act, the EPA evaluates the water quality standards set by states for the discharge of pollutants into their lakes and rivers. It can either accept those standards or propose its own. In Virginia's case, the EPA established its own criteria for various pollutants for Accotink Creek ("total maximum daily loads") and set a limit in 2011 on the total maximum amount of stormwater that could flow into the creek daily.

But the court rejected the EPA's attempt to exert authority over stormwater runoff. It concluded that the EPA was trying to regulate something "over which it has no statutorily granted power ... as a proxy for something over which it is granted power."

The EPA claimed it could regulate stormwater because the Clean Water Act did not specifically "forbid it" from regulating stormwater. In other words, the EPA was arguing that its authority was unlimited except where Congress had specifically limited it. As the court 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."

Or as Attorney General Cuccinelli put it more colorfully, "logic like that would lead the EPA to conclude that if Congress didn't prohibit it from invading Mexico, it had the authority to invade Mexico." This assertion of governmental power violates the most fundamental principles of our system of limited government.

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