Cuccinelli says plan is an illegal land takeover, would cost Virginia an estimated 0 million plus
Attorney General Ken Cuccinelli argued in federal district court in Alexandria on behalf of the Virginia Department of Transportation (VDOT), and was joined by the Fairfax County Board of Supervisors, against the United States Environmental Protection Agency (EPA), seeking to block restrictions EPA intended to impose on the flow of water into the Accotink Creek watershed.
According to Cuccinelli the restrictions exceed the federal agency’s legal authority under the Clean Water Act (CWA) and divert public funds that could be spent more effectively on stream restoration for Accotink Creek and other waterways in the region.
“The EPA literally is treating water itself – the very substance the Clean Water Act was created to protect – as a pollutant,” the attorney general noted. “The EPA argued that Congress didn’t explicitly prohibit them from implementing these regulations, therefore allowing them to implement them at their own discretion. This mentality allows them to vastly and at their unlimited discretion expand their own power. Once again, the EPA has demonstrated massive regulatory overreach.
“The imposed regulatory costs are estimated at $250 million to Fairfax County and $70 million to VDOT. Additionally, compliance with these regulations would be very difficult and would impact the communities that live near the watershed and the Beltway,” Cuccinelli said. “This is a dangerous precedent for Virginia, as it could continue to happen in localities across the commonwealth at an enormous price tag to the state and its residents.”
The attorney general challenged a substantial expansion of the EPA’s regulatory power. At issue is the EPA’s departure from its CWA-authorized role of establishing Total Maximum Daily Load (TMDL) requirements, which establish the maximum acceptable levels of “pollutant” that may be discharged on a daily basis into particular watersheds and yet achieve water quality standards, to the EPA’s recently claimed authority to cap the quantity or flow of water itself into watersheds.
In 2011, the EPA established a TMDL for Accotink Creek. Rather than establish a TMDL for a pollutant, such as sediment, however, the EPA chose to issue a TMDL for a surrogate, being the actual flow of water.
