EPA won’t appeal ruling on Va. storm-water regulation

March 5, 2013

The Environmental Protection Agency will not appeal a federal district court’s ruling declaring it is illegal for the EPA to regulate storm water as a pollutant as it flows into Virginia waterways.

A federal judge ruled Jan. 3 that the EPA illegally overreached its authority in attempting to regulate water as a pollutant by imposing rules on the flow of storm water into Fairfax County’s Accotink Creek. Judge Liam O’Grady said the agency could regulate pollutants within water, like sediment, but not the water itself.

The EPA notified Gov. Robert F. McDonnell’s office and the county that it would not file an appeal ahead of the Monday deadline.

Attorney General Ken Cuccinelli II estimated that Virginia taxpayers will save nearly $300 million in costs associated with regulating the flow of water rather than regulating pollutants now that O’Grady’s ruling will stand, he said in a statement.

“Besides being illegal, the EPA restrictions also would have diverted public funds that could have been spent more effectively on stream restoration for Accotink Creek and other waterways in the region,” Cuccinelli said. “This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement.”

He also said that the EPA restrictions could have resulted in the county and transportation department seizing private homes and businesses to acquire land to build retention facilities to prevent storm water from flowing into the creek.

“This would have been a dangerous precedent for Virginia, as the EPA could have demanded this solution in localities across the commonwealth at an enormous price tag to Virginia and its residents, with no proof that the EPA’s solution would work,” said Cuccinelli, the likely GOP nominee in this year’s gubernatorial race.

McDonnell (R) said in a statement, “I applaud Attorney General Ken Cuccinelli for ardently fighting to prevent federal bureaucracy from costing Virginians hundreds of millions in unnecessary costs.

“His actions have prevented significant negative impacts on property owners.”

The case was initiated over the summer by the Department of Transportation and Fairfax after months of negotiations failed to yield a compromise. In December, Cuccinelli argued on behalf of the plaintiffs in district federal court.

The EPA said its decision not to file an appeal was based on the state’s and county’s statements to promptly “afford Accotink Creek the necessary protections for people’s health and the environment.”

In a statement, Sharon Bulova (D), chairman of Fairfax’s Board of Supervisors, said the decision is “strong validation” of the county’s “sound and successful strategy for addressing our clean water goals.”

“I am pleased to be able to put this legal battle behind us so we can focus on addressing improvements to our watersheds and water quality,” she added.

Corinne Reilly contributed to this report.

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