Cape Gazette
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DNREC says Virginia stormwater case  will have little impact

Judge: EPA cannot regulate stormwater runoff
By Kara Nuzback | Jan 18, 2013

Controlling stormwater runoff is a topic of debate in Sussex County.  During a public hearing to review regulations imposed by Delaware Department of Natural Resources and Environmental Control, Positive Growth Alliance Executive Director Rich Collins cited a recent victory in Virginia against United States Environmental Protection Agency.

On Jan. 3, the U.S. District Court for the Eastern District of Virginia ruled EPA could not regulate stormwater runoff, which is not considered a pollutant, even if the runoff is a vehicle for sediment, which is a pollutant.

The case was rooted in Accotink Creek, in Fairfax County, Va., where organisms living in the creek were declared unhealthy.  Under the Clean Water Act, EPA was required to set a maximum amount of pollutants that could be added to the creek per day.

“On April 18, 2011, EPA established a TMDL (total maximum daily load) for Accotink Creek, which limited the flow rate of stormwater into Accotink Creek to 681.8 ft.3/acre-day,” court documents say.

According to the decision, written by U.S. District Judge Liam O’Grady, the EPA’s TMDL was meant to regulate the amount of sediment – a pollutant – in the creek.  “EPA refers to stormwater flow rate as a surrogate for sediment,” he wrote.

Both parties in the lawsuit agreed stormwater itself is not a pollutant.  O’Grady said, “EPA may not regulate something over which is has no statutorily granted power – annual loads or nonpollutants – as a proxy for something over which it is granted power – daily loads or pollutants.”

As a result of O’Grady’s decision, EPA could not force the state to spend millions of dollars to regulate stormwater runoff.

In a statement after the ruling was issued, Virginia Gov. Bob McDonnell said the decision saved taxpayers more than $300 million. “Over time the regulation would have impacted numerous other projects, costing even more and having a negative impact on future job creation,” McDonnell said.

At the Jan. 7 DNREC hearing, Collins said he hoped the case would have an impact on stormwater regulations in Delaware.

DNREC Division of Watershed Stewardship Director Frank Piorko says it won’t.

Piorko said DNREC operates under state requirements, some of which are identical to federal requirements.  “If the EPA went away tomorrow, we would still have stormwater regulation,” he said.

According to Delaware’s Administrative Code, stormwater runoff is considered a source of pollution to waters of the state, and DNREC imposes a number of regulations on stormwater runoff.

“It is the overall goal of the department to utilize stormwater management as a means to minimize water quantity and water quality impacts due to land-disturbing activities and to mimic pre-development hydrology, to the maximum extent practicable, in regards to the rate, volume and duration of flow,” the Administrative Code states.

Randy Greer, an engineer for the division’s Sediment and Stormwater program, said

Delaware sediment and stormwater law gives DNREC broad authority to manage stormwater, and it is not limited to the discharge of pollutants. “Therefore, this decision does not appear to have any direct impact on the state stormwater regulations,” Greer said in an email.

Greer said he could not speculate about whether the decision could be used against DNREC in possible litigation that challenges its stormwater regulations.  “But my observation has been that the courts typically rule along relatively narrow lines,” he said.

O’Grady’s decision was based on EPA's authority to control the discharge of pollutants, Greer said.  “From this non-lawyer's perspective, that does not necessarily set a precedent for states, such as Delaware, that have taken a broader approach to regulate the negative impacts associated with urban stormwater runoff beyond just the discharge of pollutants.”

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