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Federal Court Chastises EPA for Exceeding its Legal Authority Under the Clean Water Act

January 14, 2013

Last Thursday, the United States District Court for the Eastern District of Virginia, joined a growing number of federal courts across the county that have ruled that the U.S. Environmental Protection Agency ("EPA") overstepped its legal authority and took unauthorized regulatory action to try to expand its powers under the Clean Water Act ("CWA").

In Virginia DOT v. EPA , [1] Judge Liam O'Grady of the federal court in Alexandria, Virginia, told EPA that it cannot regulate as it sees fit simply because Congress has not restricted it from doing so.  Under the guise of its CWA authority, the EPA was trying to reduce sediment pollution for Accotnik Creek, a tributary of the Potomac River, by limiting the amount of stormwater flowing into the Creek.  The CWA allows EPA to place daily limits on the amount of "pollution" (like sediment) entering the nation's waters.  Stormwater runoff, however, is not a pollutant listed in the CWA.

The EPA argued that stormwater was a "surrogate" for sedimentary pollution and could be regulated because the CWA (and Congress) had not explicitly forbidden such a regulatory scheme.  Virginia's Attorney General Ken Cuccinelli argued that Congress had only authorized the EPA to place limits on pollution itself, not surrogates of pollution.  The Court did not buy the EPA's argument and sided with the state.  It held that when Congress instructed the EPA to restrict the flow of "pollution," it meant actual pollution, not water.  The Court also chided EPA by asking what better way there could be to address sediment problems than by actually restricting the flow of sediment (as opposed to stormwater).

The EPA has tried to use this approach in four other situations around the country, and all have been legally challenged.  At this point, it is unclear whether the EPA might appeal the decision to the Court of Appeals.  Based on the logic of EPA's arguments, an appellate court reversal of the decision could be viewed as expanding EPA's regulatory authority far beyond the jurisdiction which Congress originally intended.  However, should the EPA lose on appeal or decide to forego appealing altogether, the decision could prevent future overreaching and cause the EPA to limit future "innovative" attempts at regulation.  The attorney general's office has claimed the decision will save Virginia's citizens an excess of $300 million in tax dollars.

For more information contact John A. Sheehan (202.572.8665 or ) or your Clark Hill Environment, Energy & Natural Resources representative.

[1] Va. DOT v. United States EPA , 2013 U.S. Dist. LEXIS 981 (E.D. Va. 2013).

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