The Virginia Department of Transportation (DOT ) and Fairfax County have sued the U.S. Environmental Protection Agency (EPA) for allegedly requiring the state to set total maximum daily loads (TM DLs) under the Clean Water Act (CW A) for a sediment-impaired stream based on the flow of water rather than the discharge of sediment. Virginia DOT v. EPA, No. N/A (E.D. Va. filed 7/12/12).

The complaint argues that EPA is authorized under the CW A to regulate water quality from the discharge of sediment, a pollutant, not water quantity. The EPAapproved TM DL for Virginia calculates the maximum amount of each pollutant that can be discharged into a given water body without adversely affecting water quality standards for those pollutants. The TM DL established by EPA for Accotink Creek watershed in Fairfax County, however, uses flow and volume as a surrogate for sediment, which plaintiffs allege violates the CW A and the Administrative Procedure Act (APA) by attempting to regulate water quantity through guidance rather than rulemaking. The complaint seeks an order declaring that EPA’s actions violate the CW A and the APA and enjoining EPA from regulating water flow via TM DLs.