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Virginia Department of Transportation v. EPA

Citation: 43 ELR 20002
No. 1:12-CV-775, (E.D. Va., 01/03/2013) (O'Grady, J.)

A district court held that EPA cannot regulate stormwater as a pollutant under the CWA. According to the court, the language of CWA §303(d)(1)(C) is clear. EPA may set TMDLs to regulate pollutants, and pollutants are carefully defined. Because stormwater runoff is not a pollutant under the Act, EPA may not regulate it via TMDLs. 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 EPA's TMDL authority. The court, therefore, held that EPA lacked authority when it used stormwater flow-based limits as a surrogate for sediments in establishing a TMDL for a creek in northern Virginia.