Sharon Bulova and her fellow Democrats on Fairfax County’s Board of Supervisors are hardly natural allies of Republican Attorney General Ken Cuccinelli. But they’ve nonetheless joined forces with him to protest the Environmental Protection Agency’s incredible dictum that water can be counted as a pollutant under the Clean Water Act.
In a federal lawsuit filed last Thursday in U.S. District Court in Alexandria, the Fairfax board and the Virginia Department of Transportation, represented by Cuccinelli’s office, accused the EPA of overstepping its authority by attempting to regulate the flow of H2O into the 52-square-mile Accotink Creek watershed.
The EPA set a “total maximum daily load” of water entering the creek in an attempt to reduce sediment buildup — one of four such limits on water imposed nationwide, all of which have been challenged in federal court. In this case, the maximum is half the current flow. Even the EPA admits this a “non-conventional” approach to reducing sediment — the actual pollutant. “EPA sought to change a 40-year history of CWA interpretation and implementation and radically expand the scope of its water quality jurisdiction to include water quantity as well, regardless of the presence of a discharge of ‘pollutants,’ ” the lawsuit alleges.
To halve the flow of water into the 23-mile Accotink Creek would require a herculean effort by government, residential and commercial property owners to capture and retain rain and snowmelt from their roofs and driveways. It would also make any new construction in a 52-square-mile section of Fairfax County prohibitively expensive. Even then, there is no guarantee that the $500 million cost would have the desired result of improving the creek’s aquatic life. Both VDOT and Fairfax County have already spent tens of millions of dollars managing stormwater runoff, and point out in the lawsuit that the money would be better spent restoring the creek and its tributaries than keeping water out of it.
This case could have legs. The Supreme Court recently agreed to hear a case challenging EPA authority to regulate muddy water running off logging roads in Oregon as if it were a chemical pollutant from a factory. For now, at least the agency’s classification of water itself as a pollutant has done the seemingly impossible: united Fairfax Democrats and their chief Republican nemesis under a single banner of commonsense opposition, during a pivotal presidential election year.
