Fairfax County and the Virginia Department of Transportation (VDOT) filed suit against the Environmental Protection Agency (EPA) in federal district court (Eastern District of Virginia, Alexandria Division) last week. The lawsuit challenges new federal rules related to stormwater run-off in Fairfax County, specifically the Total Maximum Daily Load (TMDL) limits for the Accotink Creek, which flows through several magisterial districts, including Mason District.

At issue is EPA’s limit on the water flow in the creek, not what may be in the water, like sediment, refuse, or metals, but the water itself. In a discussion last weekend at the National Association of Counties annual conference in Pittsburgh, one presenter thanked Fairfax County for filing suit, noting, somewhat facetiously, that EPA is forcing localities to regulate rain. The county’s challenge, however, is not farcical. The EPA rules call for a 50 percent reduction in flow in the watershed, which already is heavily developed with neighborhoods, commercial centers, and roadways, including the Beltway.

While new development would be subject to the stricter stormwater regulations adopted by Fairfax County during the past decade, the challenge to reduce impervious surface in the already-developed areas could be draconian. In early discussions about the framework for the Accotink TMDL, I advised EPA’s Chesapeake Bay Program staff that the original proposal would require many long-time homeowners to remove their driveways and patios in order to meet the required reductions. EPA staff protested that was not their intent, but the regulations are little changed.

The federal Clean Water Act (CWA) addresses water quality standards, which are enforced by the EPA. However, EPA recently claimed authority also to control the quantity of water, or flow, which violates the CWA. In so doing, according to the joint lawsuit, EPA “sought to change a nearly 40-year history of CWA interpretation and implementation and radically expand the scope of its water quality jurisdiction to include water quantity as well, regardless of the presence of a discharge of ‘pollutants.'” The suit further notes other CWA violations and major technical deficiencies in the administrative record.

Fairfax County instituted dedicated annual funding for stormwater system improvements in 2006. In 2009, the county established a dedicated tax for stormwater, which has increased to a current rate of two cents per $100 assessed value, or about $100 per year for the average home. The countywide tax funds the $40 million budgeted stormwater program in Fiscal Year 2013, which began July 1. The stormwater program is an important component of the overall effort of local governments to restore local streams and, ultimately, the Chesapeake Bay. However, Chairman Sharon Bulova pointed out that, “regulations, whether federally or state imposed, must effectively address the targeted problem, and be fiscally sound and realistic.” The proposed TMDL limits on stormwater flow provide no reasonable assurance that targets can be obtained or that they will correct the underlying problem. The entire complaint can be accessed on-line at www.fairfaxcounty.gov/news/2012/updates.

Penny Gross is the Mason District Supervisor in the Fairfax County Board of Supervisors. She may be e-mailed at mason@fairfaxcounty.gov