Cuccinelli Wins: EPA Gives Up On Making Water A Pollutant, Won't Appeal Ruling

March 4, 2013

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In a big win not just for Virginia Attorney General Ken Cuccinelli but for Virginia taxpayers (to the tune of $300 million), the EPA has decided it will not appeal a court ruling that prohibited it from regulating stormwater as a pollutant:

On January 3rd, federal judge Liam O’Grady accepted the arguments made by Attorney General Ken Cuccinelli and ruled that the EPA had 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. In a ruling that was the first of its kind in the nation, the judge said that under the Clean Water Act (CWA), the EPA could regulate pollutants such as sediment within stormwater, but not the water itself.

The EPA 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.

Now that the ruling stands, it is estimated that Virginia taxpayers will save nearly $300 million in unnecessary costs to regulate the flow of water rather than regulating the pollutants. The additional compliance costs under the EPA plan were estimated at upwards of $215 million for Fairfax County and $70 million for VDOT.

The EPA had argued that it had the right to regulat stormwater runoff because nothing specifically said the agency couldn’t. As Cuccinelli pointed out in January when the court ruled against the EPA:

“EPA’s thinking here was that if Congress didn’t explicitly prohibit the agency from doing something, that meant it could, in fact, do it,” Cuccinelli said in a statement.

“Logic like that would lead the EPA to conclude that if Congress didn’t prohibit it from invading Mexico, it had the authority to invade Mexico.”

The win is a boost for Cuccinelli in his run for Governor.