Reaction to 2010 memo: lawsuits
There was a significant amount of pushback from the clean water and municipal government sectors on the 2010 memo.
EPA received comments on the memo and sent it to the Office of Management and Budget (OMB) for review. In the meantime, legal actions related to stormwater TMDLs surfaced.
Most notable was a federal court’s ruling in Virginia Department of Transportation v. EPA that EPA exceeded its authority in establishing a flow-based TMDL for Accotink Creek in Fairfax, Va. In this case, EPA Region 3 took over a sediment TMDL for the creek and applied streamflow as a surrogate for the pollutant of concern on the basis of the relationship between excessive runoff and sediment generated through stream erosion.
The flow-based version would have required a 50% reduction in the one-year discharge in a 50-square-mile watershed. Considering the watershed is dominated by poorly drained soils and is highly urbanized (80% built-out and 25% impervious land cover), the technical and economic capacity to meet this reduction was almost impossible. These challenges compelled Fairfax County and the Virginia DOT to sue EPA.
While the surrogate approach had been and continues to be used in elsewhere in the country, most notably EPA Region 1 (Northeast), there was no precedent for using flow or impervious cover as a surrogate for a pollutant of concern outside Region 1. In the Accotink Creek case, the judge simply stated that flow isn’t a pollutant and therefore can’t be limited via the TMDL program.
Some see the ruling as specific to the TMDL program and not within the context of MS4 permits. This view is based upon a “looser” definition for stormwater treatment associated with Section 402 of the CWA — the National Pollutant Discharge Elimination System (NPDES) — which states that stormwater discharges are “to be regulated to protect water quality.”
Others interpret the ruling more broadly. They question EPA’s authority to regulate flow, even through NPDES, even though 18 states use some type of retention-based performance standard in their MS4 program. In fact, the national rulemaking that EPA deferred in March 2013 would probably have established the first national performance standard for stormwater based upon some type of runoff retention requirement.
Next page: Final stormwater TMDL memo
