Virginia AG announces legal victory against EPA

RICHMOND, Va. (Legal Newsline) - Virginia Attorney General Ken Cuccinelli announced a legal victory on Thursday against a federal environmental agency after a judge agreed that attempting to regulate water itself as a pollutant exceeded the agency's authority.

The U.S. Environmental Protection Agency previously issued an edict that would cut the flow of water into Fairfax County's Accotink Creek by close to half in an attempt to address sediment flow on the bottom of the creek. Cuccinelli alleged that the EPA's action was an attempt to regulate water itself as a pollutant, exceeding the agency's legal pollutant regulation authority under the Clean Water Act.

The ruling could allow public funds to be spent on stream restoration for Accotink Creek. It could also save taxpayers in Virginia more than $300 million in costs.

"EPA was literally treating water itself - the very substance the Clean Water Act was created to protect - as a pollutant," Cuccinelli said. "This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement. And it was likely to do more harm than good, as its effectiveness was unproven and it would have diverted hundreds of millions of dollars Fairfax County was already targeting for more effective methods of sediment control."

The Clean Water Act gives the EPA the authority to establish total maximum daily loads of acceptable pollutant discharge levels into particular waterways.

Judge Liam O'Grady agreed with Cuccinelli, who was representing the Virginia Department of Transportation, and Fairfax County and said that the Clean Water Act did not grant the EPA authority to regulate the water.

"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," Cuccinelli said. "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."

Fairfax County and VDOT filed the litigation against the EPA in July.