On July 12, 2012, the Fairfax County government and the Virginia Department of Transportation sued the EPA in federal court in Alexandria asking that the EPA be prevented from imposing a costly plan that the EPA hopes will increase the worm population in the Accotink Creek watershed. The EPA’s plan will cost Fairfax County taxpayers an estimated $110-$215M according to the complaint. The gist of the lawsuit is the EPA says it has the right to determine exactly how much water flows into Accotink Creek as opposed to regulating the amount of pollutants that flow into the creek. (See the complaint attached with the article.) The EPA has ruled that the decrease in water flow is the responsibility of both Fairfax County and the Virginia Department of Transportation which will each be responsible for about 50% of the water flow reduction.
Unfortunately, the story behind this lawsuit will require going into some less than scintillating details about environmental law.
Under the Clean Water Act, states are required to identify impaired rivers and establish timelines to clean up those rivers. If any state fails to act, the EPA is supposed to set up a timeline. In 1996, the Commonwealth of Virginia made submissions to the EPA under the Clean Water Act that were objected to by the American Canoe Association as being inadequate. When the American Canoe Association subsequently filed suit, the EPA decided to settle and entered into a consent decree. (Consent Decree, American Canoe Ass’n, Inc. v. EPA,, No. 98-979-A (E.D. Va. June 11, 1999). This consent decree, which the EPA never showed to Virginia officials before signing it, established schedules that Virginia, and by extension Fairfax County, has to comply with. In my opinion, the EPA deliberately settled a suit it didn’t have to in order to impose timelines upon Virginia that it never could have imposed if the EPA had to go through the normal regulatory process.
At any rate, the Accotink Creek was listed in the EPA consent decree because it has “benthic impairment,” e.g. a lower than expected amount of invertebrate organisms, such as insects, crustaceans, snails, or worms which live on the bottom of streams and rivers and are large enough to be seen with the naked eye. Everyone agrees that the problem here is that too much sediment flows into the Accotink Creek, or at least too much for the worms. Incidentally, sediment is considered a pollutant under the Clean Water Act.
Fairfax County is already trying to reduce the amount of pollutants, including sediment, flowing into the Accotink Creek but that isn’t good enough for the EPA. The EPA has come up with the novel idea that the water itself is a “surrogate” for pollution and that the volume of water flow can thus be regulated. The EPA believes reduced water flow means more worms. Fairfax County responds in its complaint that “simply returning Accotink Creek’s flow rate to a presumed representation of predevelopment levels, as would be required under the [EPA’s plan], has in no way been demonstrated by EPA to meet the target required by law—a balanced, indigenous population of benthic organisms in Accotink Creek.” (Complaint p. 34).
According to the complaint, Fairfax County estimates that it already expected to spend $295M to address the sediment issue and that to meet the EPA’s “mandatory flow reductions, Fairfax County estimates that it will cost the County an additional $110 million to $215 million in compliance costs, for a total of approximately $405 million to $510 million.” (Complaint, p. 12).
On its website, the Fairfax County government notes that “to achieve the approximately 50 percent flow reduction called for in the [EPA] rules for a developed watershed such as Accotink, homeowners as well as commercial property owners will be required to capture and retain, reuse and/or infiltrate stormwater runoff from their roof, driveway and other impervious areas on their property. Any new impervious areas, such as home additions or new development, could be required to retain all stormwater runoff from any expanded impervious area.”
The Virginia Department of Transportation notes that the “reduction in flow as demanded by EPA in a highly urbanized area cannot be achieved by VDOT through retrofitting existing stormwater management structures due to functionally impervious soils, the presence of environmentally sensitive areas, and the public safety needs of maintaining the structural integrity of building foundations, roadways, bridge abutments, and retaining walls. Consequently, efforts to achieve such a reduction in stormwater flow as demanded by EPA would require significant public takings of private property in order to build numerous new stormwater management structures.” (Complaint, p. 8).
With regard to the lawsuit, Board of Supervisors Chairman Sharon Bulova stated “we are absolutely committed to maintaining and improving, water quality in Fairfax County and the Chesapeake Bay. However, we believe that regulations, whether federally or state imposed, must effectively address the targeted problem and be fiscally sound and realistic.” Supervisor John C. Cook (Braddock) used language that was a bit stronger. He stated that “[w]hen people talk about federal agencies running amok, this is exactly what this looks like. The EPA’s overreach is so extreme that the Democrats on the board realized that, even in an election year, they had to do this for the county.”
The sole Supervisor to vote against the lawsuit was John W. Foust (Dranesville). According to a July 13, 2012 Washington Post article, Supervisor Foust said he objected because he did not want to be a co-plaintiff with Virginia State Attorney General Ken Cuccinelli’s office because he believes Cuccinelli has initiated politically motivated cases in the past. Foust also said he felt the county would be better able to control its destiny in the legal action by filing a separate lawsuit.