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Cuccinelli successfully defeats EPA’s attempt to classify water as a pollutant

[1]There’s a joke among geeks that dihydrogen oxide is one of the most dangerous chemicals on the planet.

It has been said that it can obscure one’s vision; you can be burned by it at even modest temperatures, by chemistry standards; when it is frozen, it causes even the largest vehicles to lose control – and sometimes you don’t even know of its presence; and, you can suffocate from it.

Yep, water is truly dangerous and should be regulated, right?

Of course, on its surface, this is truly absurd. However, don’t tell that to the EPA.

In Fairfax County, the EPA wanted to regulate the amount of water flow into the Accotink Creek because, apparently, it stirs up too much existing sediment on the bottom of the creek bed. This, once again, arbitrary decree from the federal government could have cost Virginia taxpayers in excess of $300 million.

Attorney General Ken Cuccinelli explains from his newsletter [2]:

“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.


“[The] 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.”

In other words, the EPA wanted to treat water as a surrogate measure to control sediment that is already there, permissible, in their opinion, under the Clean Water Act.

Read that again.

And Virginia taxpayers would be on the hook for a big bill if the EPA was able to get their way.

Thankfully, yesterday in the United States’ Eastern District Court for Virginia, Judge Liam O’Grady issued the opinion that the EPA was wrong and had exceeded its authority.

“The Court sees no ambiguity in the wording of [the federal Clean Water Act]. EPA is charged with establishing TMDLs for the appropriate pollutants; that does not give them the authority to regulate nonpollutants,” O’Grady said.

Additionally, with respect to the surrogate issue, the court ruled “[The] EPA may not regulate something over which it has no statutorily granted power… as a proxy for something over which it is granted power.” He continued, “If the sediment levels in Accotink Creek have become dangerously high, what better way to address the problem than by limiting the amount of sediment permitted in the creek?”

Without a doubt. The water flow is merely stirring-up the bottom of the creek – a phenomenon that has existed as long as water has flowed. Which has been its entire existence.

Cuccinelli’s reaction to the ruling is classic:

“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. “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.”

Governor Bob McDonnell added:

“Protecting the environment is of the utmost importance to our Administration. Since taking office we’ve conserved over 120,000 acres of open space and we are continuing to make major progress in the longstanding, bipartisan effort to improve the health and vitality of the Chesapeake Bay. The Commonwealth adheres to very stringent standards to keep our waterways clean. Virginia major wastewater facilities exceeded pollution reduction goals in 2011 by more than 2,000 percent for nitrogen and more than 450 percent for phosphorus. In fact, in Virginia’s activities in 2011 prevented 2.5 million pounds of nitrogen from entering streams and lakes. However, regulating water flow through unnecessary mandates is unlawful and wasteful and penalizes Virginia taxpayers while creating an undue burden for the Commonwealth.

“This ruling today is a testament to Attorney General Ken Cuccinelli’s good work to fight back on economically harmful, and unnecessary, regulations. The ruling will save millions of dollars now and much more in the future. It is a positive victory for the taxpayers of Virginia.”

Kudos to Attorney General Cuccinelli for once again limiting federal overstretch, saving Virginia taxpayers money, and combating the absurd.