EPA’s Authority to Set TMDLs Is Limited: Be Careful What You Wish For

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Last week, in Virginia Department of Transportation v. EPA, Judge Liam O’Grady struck down EPA’s attempt to set a TMDL for the Accotink Creek in Virginia based on the rate of total stormwater discharge to the Creek, rather than on the amount of sediment in the stormwater discharge.  To Judge O’Grady, the case was a fairly simple exercise in step 1 analysis under Chevron (busy week for Chevron analyses).  EPA is supposed to impose TMDLs – the total maximum daily load – of “pollutants.”  Since stormwater itself is not a pollutant, EPA may not regulate it.

The Court sees no ambiguity in the wording of this statute EPA is charged with establishing TMDLs for the appropriate pollutants; that does not give them authority to regulate nonpollutants.  The parties agree that sediment is a pollutant under 33 U.S.C. U.S.C. § 1362(6), and stormwater is not.  Then how does EPA claim jurisdiction over setting TMDLs for stormwater?

The decision may well be right, but that doesn’t mean it’s really a win for the regulated community.  EPA can still regulate sediment load.  That can be more difficult to measure and more difficult to police or attain.  Mightn’t there be circumstances under which EPA and the regulated entities would prefer to utilize the surrogate?  Ah, well.  Congress in its wisdom has apparently precluded such flexibility – whether it knew it was doing so or not.

The case bears some similarity to EPA’s efforts to allow interstate trading as part of the Transport Rule.  EPA is trying to utilize innovate ways to accomplished its universally acknowledged legislative objective, but the statutory language just won’t allow it.  Congress is so tied in knots that the concept of legislative fixes to these problems is almost laughable.  Except that nobody’s laughing.