A federal district judge Thursday shot down a “novel” EPA attempt to regulate the flow of water as a pollutant, stopping dead in its tracks what otherwise would have been a major regulatory expansion.
The ruling by U.S. District Judge Liam O’Grady handed a significant legal victory to Virginia Attorney General Kenneth T. Cuccinelli II, who is running for governor of the Commonwealth.
Cuccinelli personally argued the case before O’Grady on Dec. 14, warning the EPA’s attempt to regulate the flow of water into state waterways would amount to a “tremendous expansion” of its regulatory power.
Water as a pollutant being regulated under the Clean Water Act?
"EPA's thinking
here was that if Congress didn't explicitly prohibit the agency from
doing something, that meant it could, in fact, do it," said Cuccinelli
in his statement.
"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 incredibly flawed thinking
would have allowed the agency to dramatically expand its power at its
own unlimited discretion. Today, the court said otherwise.”
...the Accotink TMDL would have ordered state and local officials to reduce almost by half the amount of stormwater that would flow into the creek. That influx, the EPA said, was stirring up sediment in the waterway, and harming worms and insects that help keep the creek clean.
But O’Grady said the EPA needs congressional authorization in order to issue such regulations.
"Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it," O'Grady said.
Perhaps the EPA was emboldened by the EPA being given the right to treat a significant component of the atmosphere (carbon dioxide) as a pollutant. I expect to see EPA continue enforcement on this as they appeal it to the Supreme Court.
If I could treat storm water that is tainted with high levels of phosphorus, nitrogen, and fecal coliform as "pollution" legally, it might solve a LOT of my problems protecting Indian River lagoon. I do not like arbitrary governmental intrusion or regulations any more than anyone else, however, for me, this had potential as a tool. I deal with massive polluted fresh water discharges from Okeechobee Lake that overwhelm the St. Lucie estuary. Setting aside the P and N, the amount of fresh water storm water kills everything salt dependent that cannot run, turning our estuary into a desert. So, even clean storm water can be a pollutant given the proper circumstances.
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