United States District Court for the E.D. Virginia
The U.S. EPA developed a total maximum daily load (TMDL) for the Accotink Creek in northern Virginia. Unlike most TMDLs, which establish a set amount of pollutants that can enter a water body in a day (a load), this TMDL sets a flow rate for stormwater. EPA claimed that the flow rate is a "surrogate" for sediment.
EPA was expanding its authority by regulating flow. Such a regulation allows it to require builders to install devices that minimize flow, such as pervious pavement, and may even allow the agency to regulate the amount of impervious surface in the watershed (i.e. home sizes).
Fairfax County and the Virginia Department of Transportation (VDOT) filed a complaint on July 12, 2012, claiming that EPA cannot regulate flow, had violated the Administrative Procedure Act and had issued an arbitrary and capricious TMDL. In this matter, the VDOT and Fairfax County challenged the EPA's development of a TMDL for Accotink Creek. This TMDL, unlike most, required developers to control the amount of flow coming off a site, instead of a load per day.
Concerned that the county and VDOT might settle this litigation in a manner that disadvantages private property owners, the Commercial Real Estate Development Association (NAIOP) and NAHB filed a motion to intervene in the lawsuit on Oct. 19, 2012.
On Nov. 16, 2012, VDOT filed a brief claiming that EPA does not have authority to develop a "flow" TMDL. EPA responded on Dec. 5, 2012, and NAHB, NAIOP and other industry intervenors filed a reply brief on Dec. 12, 2012. The reply brief reinforced and expanded upon VDOT's argument that EPA lacked authority to regulate flow, and argued as well that EPA's interpretation of the statute should not receive Chevron deference. The motion was argued by Virginia Attorney General Ken Cuccinelli on Dec. 14, 2012.
On Jan. 3, 2013, the court granted VDOT's motion and held that EPA lacks the authority to issue a "flow" TMDL. This is an important win for NAHB and its members in that it stops in its tracks EPA's latest efforts to expand its authority under the Clean Water Act.
On Mar. 1, 2013, EPA sent a letter to VDOT stating its decision not to appeal the court's ruling. Thus, this important victory stands.