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“EPA is literally treating water itself -- the very substance the Clean Water Act was created to protect -- as a pollutant,” the lawsuit says.
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EPA Wants to Regulate Water
As a Pollutant in Virginia

The Washington Post
Fairfax County and the state of Virginia have accused the U.S. Environmental Protection Agency of “massive” and expensive regulatory overreach in its attempts to control sediment buildup in the Accotink Creek watershed, according to a lawsuit filed Thursday.

The lawsuit -- which was filed by the county and by Virginia Attorney General Ken Cuccinelli’s (R) office in federal court in Alexandria on behalf of the Virginia Department of Transportation -- says the federal agency has gone too far by requiring the county to control the flow of water itself as a way of managing sediment discharges.

If the county were to comply with the EPA, the financial impact on homeowners and property owners would also be significant, county officials said. Building any new impervious surface, for example, including a home addition or new residential development, would require taking steps to retain all storm water runoff from the expanded area.

Although county officials have talked about increasing tensions for some time with the EPA over managing the Accotink Creek watershed, the Democratic-led Board of Supervisors wrestled with taking legal action against the federal agency or teaming with arch-conservative Cuccinelli, particularly in an election year when Virginia is a swing state and the EPA has been a periodic campaign issue. But board members, meeting in closed session during the board’s regular meeting Tuesday, said they thought that the county had to take legal action, and felt that joining with the state would strengthens the board’s case, officials said.

“A political body could make a decision based on politics and how things look, or they could do what’s right for Fairfax County. That’s what we’re doing here,” Board of Supervisors Chairman Sharon S. Bulova (D) said. “We happen to be intertwined with the the Commonwealth of Virginia on this. It would be very difficult for us to challenge the EPA on something we just think is wrong, all by ourselves.”

The Accotink Creek watershed is Fairfax’s second largest, covering 52 square miles. The principal stream winds 23 miles before entering Accotink Bay on the Potomac River. The county has been in talks for several years with the EPA and had warned that conflicts over sediment management could lead to legal action.

In asking for declaratory judgment and an injunction, the state and county’s lawsuit argues that the EPA’s proposed restrictions on water flow exceed its authority under the Clean Water Act and would divert public funds that could be spent more effectively on restoring Accotink Creek and other waterways. They said the EPA would require the county to cut the flow of water by half at a cost that could reach as much as $500 million.

“EPA is literally treating water itself -- the very substance the Clean Water Act was created to protect -- as a pollutant,” the lawsuit says.


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