This past week, a federal judge in Virginia contemplated that question and decided the answer is "No." In what could be a far-reaching decision about the scope of regulatory authority of the Environmental Protection Agency (EPA), the court decided that EPA only has jurisdiction to control pollutants. Since water is not a pollutant under the Clean Water Act (CWA), stormwater volume/flow not only isn't regulated, it isn't even regulable (if that's a word). EPA simply doesn't have authority.
The case stemmed from a situation where EPA wanted to regulate sediment flowing into a creek (a tributary of the Potomac). Sediment is a potential pollutant. However, EPA instead set restrictions on stormwater flow into the creek and argued that stormwater flow/volume is a surrogate for sediment. The judge struck down that strategy and ruled that EPA cannot regulate surrogates of pollutants; it must regulate the actual pollutant.
This is a big deal because this type of surrogate regulatory strategy is pervasive. The surrogate mentality is central to our new CAOs, for example. The buffer strategy for the CAOs is based completely on surrogates. Flow is used as a surrogate for pollution to first decide which buffer-sizing category to use. Then, the specific buffer to be applied to a particular property is based on graphs of pollutant attenuation from the Mayer paper, where nitrogen was used as an "all-pollutants" surrogate. In fact, nothing about the CAO buffer strategy is based on actual pollutants. The "site specific" buffer calculations are derived entirely from suppositions about whether we look like a polluter based on surrogate presumptions.
And despite heavy criticism of the questionable validity of that strategy at the time, the County and their consultants pressed ahead. Now, the Virginia court decision adds weight to the substantial "on the record" criticism of our County's methodology.
Our society recognizes that it is wrong to profile African Americans as crime suspects just because some African Americans commit crimes. It's wrong to say all Irish are drunks; all homosexuals are deviants; all Scots are cheap. However, we passed CAOs that say that all homeowners are polluters; all people are detrimental to the environment.
We passed a 155-page ordinance that says everyone is guilty because, based on surrogates and our profile, we look guilty.
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