More Clean Water In The Courts – The Accotink Creek Decision
Recently we described the results of the Supreme Court’s decision in Los Angeles County Flood Control District v. Natural Resources Defense Council (NRDC), which was a narrow one. Another Clean Water Act case, Virginia Department of Transportation vs. Environmental Protection Agency [PDF] addresses the cleanup of Accotink Creek, a tributary to the Potomac River in Fairfax County, the City of Fairfax and the Town of Vienna, Virginia. Decided by the Eastern District of Virginia in favor of the state DOT (and local governments), the case also has a limited holding.
Accotink Creek is one of many of our streams and rivers that has yet to meet water quality standards established in all states starting in the 1970s to protect our waters for swimming, fishing and drinking. Under the Clean Water Act section 303(d), waters that fail to meet such standards then need to be cleaned up by setting a pollution budget, known as a ‘total maximum daily load’ (TMDL).Since 1996, Accotink Creek has been officially listed as failing to meet water quality standards based on aquatic life, and the Environmental Protection Agency (EPA) was finally forced to establish a TMDL for the Creek after Virginia failed to do so.
TMDLs are one of the Clean Water Act’s key tools to achieve a comprehensive approach to cleaning up water pollution by addressing both point sources (e.g. storm sewers) and non point sources (e.g. polluted runoff from farms). The clean up plan for the Chesapeake Bay, for instance, is driven by a TMDL to improve nutrient polluted waters. But because a TMDL does require a wider range of groups and people to take responsibility for the pollution they generate, the process for listing waters as needing a TMDL (the 303(d) list) and implementing them has become controversial and dogged by feet dragging efforts in many places.
So back in Accotink Creek, EPA studied and analyzed water quality data and determined that “sedimentation caused by excessive stormwater runoff” [PDF] was the most probable cause of water quality violations. EPA then established a relationship between stormwater flow and sediment, and chose to set limits on stormwater flow necessary to reduce sediment as part of the TMDL, using what’s referred to as a “surrogate” approach.
In doing so, the Agency shifted from using the traditional pollutant of concern approach and setting specific limits on sediment, to a more innovative approach that makes sense given the relationship between stormwater runoff and sediment. This approach, while not the norm, has been used successfully in a number of states. Moreover, this approach is consistent with EPA’s regulations that state that a TMDL “can be expressed in terms of either mass per time, toxicity, or other appropriate measure.”
So what’s the problem? It turns out that the state and local governments specifically opposed the surrogate approach, and decided to challenge it in court. It should be emphasized that the plaintiffs did not disagree with EPA’s science – they recognized that sediment was the problem and that there was a relationship between stormwater flow and sediment. The legal claim was that the Clean Water Act’s TMDL provisions require control of a “pollutant” (like sediment), which is specifically defined under the law, and does not specifically allow surrogates to be used as part of a TMDL. The judge using a narrow reading of the law agreed with the plaintiffs, and ruled that EPA could not use surrogates for “non pollutants” (like stormwater runoff that carries pollutants) under section 303.
While the ruling sends this specific TMDL back to the drawing board, some have argued that EPA had a much stronger case than the opinion would imply, perhaps supporting an appeal by the Agency. In the meantime, the ruling does not affect many places like Delaware that have chosen to regulate stormwater as a pollutant, nor does it affect EPA’s upcoming updates to the post-construction stormwater rule, which fall under a completely different section of the Act (section 402).
Although some local and state governments and industry groups are claiming major implications for the stormwater rule, section 402 specifically grants EPA the authority to issue permits for discharges of municipal stormwater, provided such permits include “controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and systems, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants” (emphasis added). EPA’s consideration of setting a retention-based performance standard for post-construction runoff is well within its authority.
At its heart, this case was driven by questions about the best ways to invest in clean water for our rivers and for our communities. Places like Richmond, Virginia, named the best river town by Outside magazine, have benefited from improvements in the James River that wouldn’t have occurred without a strong Clean Water Act. Many of the approaches associated with controlling stormwater flow that are objected to, like requiring homeowners and businesses to control water on-site, may be the smartest and most cost-effective way for communities to allocate clean up costs. While this TMDL might come back with limits on sediment instead of stormwater flow, there’s still a requirement to clean up Accotink Creek.