Last week, a federal court ruled on a stormwater question many cities and states have been closely following for the last six months. The court found EPA exceeded its authority in attempting to control the flow of water to a Virginia’s Accotink Creek as a means to manage sediment pollution. The lawsuit against EPA was filed last July by the state of Virginia and Fairfax County.
Beyond its consequences for this watershed, the case has been of interest for its larger implications for stormwater management. The lawsuit contended that EPA was attempting to use stormwater flow as a “surrogate” for the actual pollutant, in this case sediment, but that EPA has no authority to regulate stormwater flow because water, in itself, is not a pollutant.
As summarized by attorneys for the plaintiffs and in the press (almost every article on the verdict has included this quote by Virginia’s attorney general: “EPA was literally treating water itself — the very substance the Clean Water Act was created to protect — as a pollutant”), the lawsuit seems almost nonsensical; of course water is not a pollutant. However, the logic behind EPA’s attempt at regulating flow follows very closely with what EPA and many local stormwater programs have already been doing, and what was already enacted as law several years ago in Section 438 of the Energy Independence and Security Act. Section 438 requires new federal facilities over a certain size to meet predevelopment hydrology—essentially, to limit the amount of runoff leaving the site—and many jurisdictions are adopting the same standards for other new construction and for redevelopment. By reducing the volume of runoff, we automatically reduce the amount of pollutants.
The Virginia case focuses less on the amount of runoff leaving a given site—which would be easier to regulate—than on the amount of water flowing into a particular waterbody. But, as noted in this summary published shortly after the lawsuit was filed, complying with EPA’s regulation would have meant retaining runoff onsite from all new development and redevelopment—expensive, perhaps, but not so different from what is happening in other places.
Many of the argument surrounding the case have focused on the limits of EPA’s authority. Virginia’s attorney general, Ken Cuccinelli, who has challenged other EPA efforts like the attempt to control greenhouse gases, said in a statement, "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. 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."
What do you think of last week’s ruling? Do you think we’ll be seeing similar lawsuits in other regions?
*********************************************************************************
FORESTER UNIVERSITY - UPCOMING CLASSES
Foundation Flood Vent Technology—Weathering the Storm and Improving Building Sustainability, Durability, and Performance
Presenter: Gary H. Hall, P.E.
President, GHH Engineering Inc.
Wed., Jan. 23th @ 2 p.m. EST / 11 a.m. PST
Protect your buildings and homes from flood damage! Join Gary H. Hall, PE to explore the importance and key installation elements of foundation flood vents complying with the Building Codes and FEMA Regulations, and how they can effectively prevent major damage to buildings due to flooding improving building sustainability, durability, and performance long-term.
[Read full description.]
FREE WEBINAR!
Smart Hydraulic Solutions—
Gain a Competitive Advantage with Your Refuse Collection Equipment
Presenters:
Phil Dybing, Program Manager
Eaton Corporation
Scott Kanne, Executive Vice President
Wayne Engineering
Thurs., Jan. 24th @ 2 p.m. EST / 11 a.m. PST
Stop leaving money at the curb! Join Phil Dybing and Scott Kanne to explore how to drastically reduce your fleet’s fuel consumption and related CO2 emissions, run quieter, increase productivity, and improve truck up-time. In this webinar Dybing and Kanne will discuss the challenges in refuse collection equipment, the opportunities available in smart hydraulic solutions, and how to implement these in your fleet. This session will also include a real-world case study of the country’s fastest growing refuse body OEM, illustrating the positive impact these solutions can have in today’s competitive environment.
[Read full description.]
Green Infrastructure and Community Design—Rainwater Management
Presenter: Paul Crabtree, P.E., CNU-A
President, Crabtree Group Inc.
Thurs., Feb. 7th @ 2 p.m. EST / 11 a.m. PST
Is your rainwater management design effective? Join Paul Crabtree to discuss how rainwater management based on good urban design principles can help to harmonize urban man and nature. This webinar includes discussion of: effective rainwater management design, the importance of settlement patterns, the use of scales (e.g., watershed), consideration of per-acre and per-capita impacts, harmonization of context-sensitive design and regulations with good urban design, community-based and shared BMPs, and hydrology science vs. negotiated settlements.
[Read full description.]
Voodoo Hydrology—Pitfalls of Urban Hydrology Methods & What You Need to Know
Presenter: Andy Reese, P.E., LEED AP
Vice-President, AMEC Environment & Infrastructure
Thurs., Feb. 21st @ 2 p.m. EST / 11 a.m. PST
Understand your urban hydrology! Join Andy Reese, PE, LEED AP, as he exposes the black box of urban hydrology and explores its common stormwater methodologies! In this webinar, Andy will, with his normal humor, “lay bare” the key elements, assumptions, and most common misuses of popular urban stormwater methodologies, as well recommendations for proper application of each.
[Read full description.]