January 25


Written by Justin Gifford, General Counsel, EnviroForensics

In an attempt to employ best practices in managing stormwater runoff in Virginia, the U.S. Environmental Protection Agency (EPA) found itself on the wrong end of a federal district court’s ruling on January 3. Although charged with overseeing the environment, naturally a science-heavy directive, the EPA (and state-level regulatory agencies) found their hands tied by strictly worded legislation that has little room for innovation.

Ruling for the U.S. District Court for the Eastern District of Virginia on a motion for judgment on the pleadings, District Judge Liam O’Grady held that while the EPA is granted the authority by Congress to regulate the discharge of pollutants into impaired waters in the form of Total Maximum Daily Loads (TMDL’s), it can’t use proxies in favor of the pollutants it has the authority to regulate.

Having identified Accotink Creek, a tributary of the Potomac River as an impaired waterway under the Clean Water Act (CWA[i]), the EPA needed to set TMDL’s for sediment flow into the creek. Both plaintiff, the Virginia DOT and EPA agreed that sediment is a pollutant and within EPA’s authority to regulate. The conflict arose when, instead of following Congressionally-mandated use of TMDL’s, the EPA chose to issue limits utilizing daily stormwater flow rates as a surrogate for sediment mass. Although there were challenges to the TMDL on other grounds, the court’s analysis focused solely on whether the CWA authorized the EPA to regulate a pollutant by establishing a non-pollutant TMDL.

Complaints of this type are brought under the Administrative Procedures Act (APA[ii]); when a question of statutory interpretation arises, Chevron U.S.A. v. NRDC, Inc.[iii] controls with its two-part test: Did Congress address the “precise question at issue[iv];” if not, is the agency’s interpretation of the statute permissible[v], which is to say that it is not an abuse of discretion on the part of the agency.

In its examination of several other cases where the EPA had strayed from the specific language of the statute, the court found consistent ruling even in instances where the Agency’s actions stayed closer to Congress’s intent[vi] and were yet impermissible. Finding no ambiguity in the sections of the CWA that requires the establishment of TMDLs, the court held that the EPA does not have the power to regulate non-pollutants as a surrogate for a pollutant and was therefore acting beyond its authority.

While a fairly academic and straightforward examination of complaints brought under the APA when legislative intent is clear, Virginia DOT v. EPA brings up the interesting conflict that arises when best practices, particularly of a scientific nature, butt heads with specifically worded statutes. Although specifically worded statutes can cut down on fractious rulings between courts, they can also negatively impact an administrative agency’s ability to implement new methods that are more efficient, reflect the best science of the day, or are less financially burdensome on stakeholders.

[i] 33 U.S.C. §1251 et seq.
[ii] 5 U.S.C. 500 et seq.
[iii] 467 U.S. 837 (1984)
[iv] Id. at 842
[v] Id. at 843
[vi] See: Friends of the Earth, Inc. v. EPA 446 F.3d 140 (D.C. Cir. 2006); EPA established maximum loads of pollutants in terms of seasonal and annual loads, which was a more effective approach only to have its actions overturned since Congress was clear that the loads were to be daily.