A federal judge has ruled that the Environmental Protect Agency overstepped its authority when it determined that water itself is a pollutant and could not be allowed into several Virginia streams.
The ruling was applauded by Attorney General Ken Cuccinelli who estimated the decision could save Virginia taxpayers more than $300 million.
“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it…,” wrote the judge, Liam O’Grady. “Claiming that stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of EPA’s … authority.
“EPA cannot be allowed to exceed its clearly limited statutory authority.”
The EPA had told the state that it must cut the flow of water to address the flow of sediment along the bottom of Accotink Creek.
“In regulating the flow rate of stormwater into the creek, the agency was trying to regulate water itself as a pollutant, rather than the sediment. The attorney general challenged the EPA’s action as exceeding the agency’s legal authority to regulate pollutants under the Clean Water Act. These restrictions also would have diverted public funds that could be spent more effectively on stream restoration for Accotink Creek and other waterways in the region,” the AG’s office said in a statement.
The judge ruled that federal law doesn’t not allow the EPA to do what it wanted. While the Clean Water Act lets the agency establish Total Maximum Daily Loads for pollutants – water “is not a pollutant under the CWA.”
“The court sees no ambiguity in the wording of [the federal Clean Water Act]. EPA is charged with establishing TMDLs for the appropriate pollutants; that does not give them the authority to regulate nonpollutants,” O’Grady said.
“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,” said Cuccinelli. “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. This incredibly flawed thinking would have allowed the agency to dramatically expand its power at its own unlimited discretion. Today, the court said otherwise.”
Cuccinelli noted the EPA also wanted to regulate water flow because it was a “surrogate measure for regulating sediment.” But the judge said, “EPA may not regulate something over which it has no statutorily granted power … as a proxy for something over which it is granted power.”
The judge had a suggestion for a resolution to the situation.
“If the sediment levels in Accotink Creek have become dangerously high, what better way to address the problem than by limiting the amount of sediment permitted in the creek?” he wrote.
“EPA was literally treating water itself – the very substance the Clean Water Act was created to protect – as a pollutant,” the attorney general noted. “This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement. And it was likely to do more harm than good, as its effectiveness was unproven and it would have diverted hundreds of millions of dollars Fairfax County was already targeting for more effective methods of sediment control.”
He wrote, “They [the EPA] basically want to stop water from flowing but most worrisome is that the EPA can just hand down a regulation and force the state to buy up private property for new water facilities and it might not even work, meaning more costs in the future.”
He continued, “Wait, doesn’t the EPA instead make demands when pollutants go into water? They control how much water nature produces now too?”
He explained that the genesis of the strategy that’s odd even by Washington standards was another lawsuit over the sediment in the creek, where the EPA simply established a timeline for the state and county to act – even though the state and county did not have access to the lawsuit.
The result is that the EPA was claiming the water in the creek now is itself a pollutant.
“The EPA has declared water, the substance the Clean Water Act was created to protect, a pollutant – and it is getting the federal government dragged into court,” Campbell wrote. “They are requiring Fairfax County, Va., to artificially control the flow of water in Accotink Creek watershed because that is their solution to managing sediment; too much water is a pollution problem, they claim, and it needs to be fixed.”
State and county officials filed the lawsuit against the EPA last summer over what has been described in the arguments as the overreach of the federal government.
WND reported in 2007 that the Food and Drug Administration determined that vitamins, supplements, herbs and other natural substances, including water when it is used to “treat” dehydration, should be classified as drugs.
The proposal came in that year’s “Complementary and Alternative Medicine Products and Their Regulation by the Food and Drug Administration” report.
Citizens groups immediately protested the concept that bottled water when used to “treat” thirst or dehydration would be regulated as a drug.
One sarcastic critic noted that massage therapists actually use hot rocks on occasion as part of their therapies, and said, “The FDA will actually look at a pile of rocks and declare, ‘Those are medical devices.’”