Wednesday, January 2, 2013

Is water a pollutant?

The Cuccinelli Compass: A Grassroots Update
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Dear Fellow Virginians,

Let's start 2013 Compasses with a look back on an important item from 2012 that's still hanging out there. On Friday, December 14th, I argued a Clean Water Act case against the EPA in federal court in Alexandria. My client is VDOT, and the co-Plaintiff on our side of the case is the Democrat Board of Supervisors of Fairfax County (Fairfax). The defendant is the Environmental Protection Agency (EPA).

It's been busy through December, so I'm only getting to finish this Compass now.

This case against the EPA represents another example of illegal federal overreach that, if left unchecked by the courts, will cost Fairfax approximately $250 million and VDOT approximately $70 million.

One of the Democrat members of the Fairfax Board of Supervisors voted against getting in the case solely because he didn't want to be in a case on my side... even though we're right. He put partisanship above doing his job on behalf of the people of Fairfax.

Thankfully for Virginia, the rest of the Fairfax Board made their decision based on the fact that the EPA was violating the law to the great detriment of Fairfax.

The Accotink Creek
The case involves how to take environmental care of the Accotink Creek in Fairfax County. The Accotink is near Mount Vernon and it has a sediment problem, and the nature of the problem is important to the case.

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 EPA's problem began when they 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.

Thus, what we are doing with a TMDL is setting a total maximum limit for the amount of a particular pollutant going into a waterway in any given day. "Load" refers to the amount of the pollutant.

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.

Okay, so let's turn this into an example.

Hypothetical TMDL, Not The Accotink Case
A TMDL is set for the Reallywet River that limits nitrogen entering the river to 10 pounds per day. In our hypothetical Reallywet River watershed, there are three point sources, two factories and a city's sewage treatment plant. The TMDL for the Reallywet would also allocate the nitrogen load among the sources, saying for example, that factory #1 gets allocated 2 pounds of nitrogen per day, factory #2 gets an allocation of 5 pounds per day, and the city's treatment plant gets an allocation of 3 pounds of nitrogen per day.

As you can see, the TMDL sets the total load for the pollutant - nitrogen - and then allocates that pollutant among the point sources.

The Problem In This Case
Back to the Accotink... in this case, the EPA issued a TMDL for the Accotink, in which they limited the amount of water that could flow into the Accotink on the rainiest day of the year.


If you've been following along, you might ask yourself: "How can they limit water? Water isn't a pollutant." You would be right!

Remember, TMDLs are to limit pollutants. EPA could write a TMDL that limits sediment flowing into the Accotink, but that's not what they did.

EPA's legal problem in this case is that they are treating water like a pollutant.

Why would they do this? Well, they properly note that there is a problem with sediment already in the Accotink, and on those occasions when there is a high volume of water flowing into the Accotink, the sediment already in the creek is stirred up.

However, EPA isn't allowed to use what's called a "surrogate" for a pollutant. Especially when the so-called surrogate is water - the very thing we're supposed to be keeping clean! You know, under the Clean WATER Act?!

To be clear, we say EPA can't use a surrogate for a pollutant, and they've never done it since the Clean Water Act was enacted.

EPA doesn't exactly say that they're using water as a surrogate. What EPA says is that they're "addressing" sediment by limiting the volume of water going into the Accotink...

Sound like word games to you? Yeah, to us too.

So, to recap their argument, 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). We (Virginia and Fairfax County) say 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.

We are awaiting a ruling by the federal district court in Alexandria.

What If We Lose?
I mentioned at the outset that if the EPA's TMDL is left standing by the courts, it will cost Fairfax approximately $250 million to reduce its share of the flow of water into the Accotink, and it will cost VDOT approximately $70 million to reduce its share of the flow of water into the Accotink.

Over $300 million for one creek! This would be 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.

Let's focus on VDOT, because it's easier.

VDOT is in this case because of rainwater runoff from I-495, the beltway. VDOT doesn't own other land that it can use for remediation, etc. So, how will it reduce the flow of rainwater by half?

VDOT will have to buy or take (using the power of 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.

So, people's homes and businesses will be wiped out, with families and workers displaced, so the EPA can try to control the flow of water under the Clean Water Act.

If this sounds crazy, we're on the same page. Hopefully the court will be too. We should know in the next few weeks.

Looking Ahead
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 (has 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, 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.

Hopefully we'll stop this EPA power grab. We should know in the next couple of weeks. A lot is at stake.

Of course, as soon as we have a ruling, I'll let you know.

One Last Note
It occurred to me on the morning of December 14th, that while I have been involved in many federalism fights in my first three years as Virginia's Attorney General, this was the first time that all three levels of government - federal, state, and local - were all parties in the same lawsuit, with Virginia and Fairfax teaming up to resist the overreach of the EPA.

Like I said, when we hear the outcome, I'll let you know!

Happy New Year!


Ken Cuccinelli II
Attorney General of Virginia

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