The federal district court for the Eastern District of
Virginia ruled last week in Virginia Department of Transportation v. US EPA that EPA could not set a total maximum
daily load (TMDL) for storm water flow.
The TMDL had been developed using a flow limitation in Accotink Creek as
a proxy for sediment, which it believed (perhaps correctly) was causing
excessive sedimentation in the creek, resulting in harmful impacts on benthic life. The court ruled that EPA could not use flow in
the stream, which is not a pollutant under the Clean Water Act, to regulate a
pollutant such as sediment.
Some news outlets have reported that the court forbade EPA
from limiting one pollutant as a surrogate for another. That is incorrect. The court did not prohibit the use of one pollutant
as a surrogate for another (e.g., TSS as a surrogate for sedimentation). Rather, it rejected the limitation of one
measurable parameter that is not a pollutant ( stream flow) as a substitute for
a pollutant (sediment).
Some WVNPDES permits contain
surrogate limits, and these are not per
se prohibited under the court’s
decision.
No comments:
Post a Comment