Jessica M. Karmasek Mar. 5, 2013, 3:00pm

RICHMOND, Va. (Legal Newsline) -- Virginia Attorney General Ken Cuccinelli said Monday the U.S. Environmental Protection Agency has informed his office it will not appeal a court ruling deeming it illegal for the agency to regulate stormwater as a pollutant in the state.

The deadline for filing the appeal was Monday, according to the Attorney General's Office.

Last month, Judge Liam O'Grady of the U.S. District Court for the Eastern District of Virginia ruled the EPA illegally overreached its authority by attempting to regulate water itself as a pollutant by imposing restrictions on the flow of stormwater into Fairfax County's Accotink Creek.

"Stormwater runoff is not a pollutant, so the EPA is not authorized to regulate it via TMDL (total maximum daily loads)," he wrote in the nine-page memorandum opinion, filed Jan. 3. "Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of the EPA's TMDL authority.

"Whatever reason the EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, the EPA cannot be allowed to exceed its statutory authority."

Basically, O'Grady ruled that the EPA could regulate pollutants such as a sediment within stormwater, but not the water itself.

The agency had issued an edict that would have cut the flow of water into the creek by nearly half, in an effort to address the impacts of stormwater flow on the bottom and sides of the creek.

Cuccinelli said Monday state taxpayers will save nearly $300 million in unnecessary costs to regulate the flow of water rather than regulating the pollutants, now that the EPA has decided it will not appeal and the court ruling stands.

According to the Attorney General's Office, the additional compliance costs under the agency's plan were estimated at upwards of $215 million for Fairfax County and $70 million for the Virginia Department of Transportation.

"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 in a statement.

"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 attorney general said compliance with the EPA mandate would likely have resulted in the county and VDOT having to take private homes and businesses near the watershed to acquire enough land to build water retention facilities to keep stormwater from flowing into the creek.

"This would also 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," he explained.

Cuccinelli argued on behalf of VDOT in December.

From Legal Newsline: Reach Jessica Karmasek by email at

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