Virginia Federal Court Overturns EPA Stormwater Mandate

Tuesday, January 15, 2013 - 01:45 by Tony Rutherford HuntingtonNews.Net Reporter

A federal judge in Virginia has overturned the Environmental Protection Agency's definition of "stormwater" as a pollutant. The ruling from the Eastern District of Virginia Alexandria Division frees Virginia communities of $300 million dollars in unfunded storm water mandates.

The ruling may now impact the EPA's mandate which would cost the City of Huntington $800 million dollars to replace the current Combined Sewer System with separate one's for sewage and stormwater.

Judge Liam O’Grady wrote, “The EPA is authorized to set Total Maximum Daily Loads [TMDL’s ] to regulate pollutants, and pollutants are carefully defined. Stormwater runoff is not a pollutant, so the 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 within the ambit of EPA’s TMDL authority. Whatever reason EPA has for thinking that a 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.”

During Monday night's Huntington City Council meeting, activist Tom McCallister asked council chairman Mark Bates about the ruling. Bates suggested that the administration would soon respond to the ruling.

Both Huntington and the Virginia District Court are within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit.