Last year, the U.S. Environmental Protection Agency ordered a 50 percent reduction in the amount of water -- including rain and snow -- that enters Fairfax County's Accotink Creek, which meanders 23 miles before emptying into the Potomac River. It's now up to Alexandria District Judge Liam O'Grady to decide whether water can be regulated as a "pollutant."
Congress passed the Clean Water Act in 1972 to keep pollutants out of water. But water itself is now the culprit, the EPA claims. If this makes no sense to you, join the club.
Compliance with the new regulation would cost the county $500 million, with no guarantee that the real problem -- sediment that's already in the creek -- would ever be addressed. So the Democratic majority on the Fairfax Board of Supervisors reluctantly agreed to team up with their political nemesis, Republican Attorney General Ken Cuccinelli, who sued the EPA on behalf of the Virginia Department of Transportation for its admittedly "non-conventional" interpretation of the CWA.
Filed in July, the lawsuit accused the federal agency of a "massive expansion" of its regulatory power by using water as a surrogate for sediment (which the EPA does have authority to regulate) and issuing a Total Maximum Daily Load for water flowing into the creek. This has never been done in the four decades since the Clean Water Act passed.
The EPA claimed in court filings that the regulation of water as a pollutant "is in harmony with the broader purposes of the Clean Water Act." Does that mean that the EPA has jurisdiction to regulate the flow of air under the Clean Air Act, as well?
During oral arguments last month, Cuccinelli pointed out that VDOT and Fairfax County would be forced to condemn a significant amount of private property surrounding the creek to comply. The regulation would also effectively prevent any new construction in the creek's 52-square-mile watershed, which runs right through the heart of the county. Supervisor John Cook, R-Braddock, summed it up best: "When people talk about federal agencies running amok, this is exactly what this looks like."
If Judge O'Grady upholds the EPA's "creative" interpretation, its encroachment will spread to every jurisdiction in the nation, imposing costly and unnecessary burdens on local governments and choking off economic development, all without actually cutting down on pollutants.
Birds gotta fly, fish gotta swim, and rainwater still gotta flow into creeks. That's something even the power-hungry EPA doesn't have the power to change.