Major Victory Against the EPA

NAHB, along with other industry-related groups, scored a big victory in court against the EPA earlier this year. The latest news is that the EPA has chosen not to appeal the ruling, meaning the victory against the EPA stands and becomes precedent for future cases.

Under the Clean Water Act, the EPA has the power to regulate pollutants in the waters of the United States. As a way of measuring pollutants in water, the EPA regulates the total maximum daily load ("TMDL") of each pollutant in the water.

The case in question came from Virginia, and specifically a tributary of the Potomac River, called Accotink Creek. The EPA determined that the sediment in Accotink Creek was harmful to certain organisms in the creek. Rather than regulate the actual sediment which was causing the problem, the EPA established a TMDL for Accotink Creek that regulated the flow rate of storm water, which could conceivably "carry" the sediment. The EPA claimed that the storm water was a "surrogate" for the sediment. Such a regulation could have allowed the EPA to require builders to install devices that minimize flow, such as pervious pavement, and to regulate the amount of impervious surfaces in the watershed (i.e. home sizes).

Fairfax County and the Virginia Dept. of Transportation sued the EPA, and NAHB intervened to join the fight against the EPA. The Virginia plaintiffs and NAHB argued that storm water is not a pollutant, and therefore the EPA had no authority to regulate its flow. The EPA’s authority is limited to regulating actual pollutants, not the "surrogates," which may transport the pollutants. The U.S. District Court for the Eastern District of Virginia agreed and ruled against the EPA. This case was decided in January of this year; so you may have already heard about this ruling. But on March 1, 2013, the EPA elected not to appeal this ruling. So the ruling stands.

This is a big victory for NAHB and our members