Fairfax County Sues EPA to Challenge Stormwater Rule


July 12, 2012

News Highlights

  • Suit challenges the EPA’s recently established rules governing Total Maximum Daily Load (TMDL) limits for Accotink Creek.
  • Proposed TMDL limits on stormwater flow provide no reasonable assurance that targets can be attained or that they will correct the underlying problem.
  • Rule also will directly affect homeowners and commercial property owners.

 Fairfax County and the Virginia Department of Transportation (VDOT) have filed a lawsuit against the U.S. Environmental Protection Agency (EPA) challenging new federal rules related to stormwater runoff in Fairfax County.

The suit was filed today in U.S. District Court for the Eastern District of Virginia, Alexandria Division. It challenges the EPA’s recently established rule governing Total Maximum Daily Load (TMDL) limits for Accotink Creek. The county believes the proposed TMDL limits on stormwater flow provide no reasonable assurance that targets can be attained or that they will correct the underlying problem. Left unchallenged, EPA’s new stormwater rule will require Fairfax County to sharply and substantially reduce all stormwater runoff across the Accotink Creek watershed.  

“Fairfax County has demonstrated a strong and unwavering commitment to water quality and environmental stewardship during the last six decades,” says Board of Supervisors Chairman Sharon Bulova. “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.”

“We don’t want regulations that set us up for failure,” emphasizes Board of Supervisors Vice Chairman and Environment Committee Chair Penelope Gross. “The county believes that a more comprehensive approach will provide the sustainable improvements needed to improve the habitat of our streams and lead to restoration of the bay. We continue to work together with the environmental community, homeowners and builders toward that.”

This rule also will directly affect homeowners and commercial property owners. To achieve the approximately 50 percent flow reduction called for in the TMDL 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. 

“This is a new type of stormwater enforcement action,” says James Patteson, director of Public Works and Environmental Services. “While we are not sure why we and a handful of localities in the country were selected, we feel an obligation to other municipalities, businesses and entities to ensure that enacted regulations are fair, attainable and environmentally sound.”

Fairfax County’s record includes more than $300 million in wastewater system improvements and dedicated annual funding for stormwater system improvements since 2006. In 2009 the county instituted a dedicated tax for stormwater and has since increased it to a current rate of $.02/$100 assessed value or $100/year for the median home. The countywide tax funds the $40 million budgeted stormwater program in Fiscal Year 2013. Fairfax County has been recognized at the state and national levels for outstanding water quality facilities, staff and programs.

Fairfax County has filed suit at this time because it must make any objections to the TMDL limits known before the Virginia Department of Conservation and Recreation (VA DCR) issues its stormwater permit to the county, which is likely to occur soon. If the county had not filed the lawsuit prior to VA DCR issuing the stormwater permit, case law indicates that the county may have lost its ability to object to the unattainable TMDL limits.

For more information, contact: Director of Public Works and Environmental Services  James W. Patteson, 703-324-5033, TTY 711.

View the full complaint.

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