• Stormwater Flow Not a “Pollutant” Under Clean Water Act and EPA May Not Regulate it as a Surrogate, Federal Court Holds
  • January 8, 2013 | Author: Kim K. Burke
  • Law Firm: Taft Stettinius & Hollister LLP - Cincinnati Office
  • The United States District Court for the Eastern District of Virginia recently granted judgment on the pleadings against EPA and held that EPA lacked the authority under the Clean Water Act to regulate stormwater flow as a surrogate for regulating the Total Maximum Daily Load (TMDL) for sediments.1

    EPA argued that using stormwater flow as a surrogate for measuring sediment impact on Accotink Creek in Virginia was a legitimate exercise of the EPA’s authority under the Clean Water Act. The district court disagreed following the U.S. Supreme Court’s two-part analysis of agency authority enunciated in Chevron, USA, Inc. v. NRDC, Inc., 467 U.S. 837 (1984). In fact, the court concluded that it need not even reach the second prong of the Chevron analysis because it is unambiguous that stormwater is not a pollutant under the Clean Water Act2 and, as such EPA may not regulate it.

    The text of the statute in question provides:

    Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies... (emphasis original).

    Slip Op. at p. 4.

    All parties to the litigation agreed that stormwater was not a “pollutant” under the Clean Water Act, but EPA nevertheless argued that it had authority to regulate surrogates that measure pollutants, such as stormwater flow. EPA urged the court to adopt a finding that the surrogate approach “should be allowed because the statute does not forbid it . . . [.]” This argument was rejected by the court:

    The language of § 1313(d)(1)(C) is clear. EPA is authorized to set TMDLs to regulate pollutants, and pollutants are carefully defined. Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it via TMDL. Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater with the ambit of EPA’s TMDL authority. Whatever reason EPA has for thinking that stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority.

    Slip Op. at p. 9.

    The district court’s opinion may also shed light on the viability of EPA’s regulations that had been promulgated in furtherance of its efforts to use surrogates for TMDLs. Here, EPA argued that its regulations authorizing TMDLs to be “expressed in terms of either mass per time, toxicity, or other appropriate measure” were proof that the Clean Water Act authorized the regulation of stormwater flow. The district court called this “mere bootstrapping,” and in doing so called into question the legality of these regulations because “[t]o the extent the regulations allow EPA to set TMDLs for nonpollutants, they exceed the statutory authority of EPA.” Slip Op. at p. 7.

    1Virginia Department of Transportation, et al. v. United States Environmental Protection Agency, et al., No. 1:12-CV-775 (E.D. Va. Jan. 3, 2013). A copy of the Slip Opinion is linked here. In granting judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the court found that EPA could offer no set of facts that could overcome its lack of statutory authority to regulate stormwater as a pollutant.

    2“Pollutant” is statutorily defined at 33 U.S.C. § 1362(6).