The goal of the federal Clean Water Act (CWA) is to restore and maintain the chemical, physical and biological integrity of our nation’s waters. To date, the CWA has been effective in improving water quality in many water bodies. The water quality benefits from limiting discharges of pollutants from industrial facilities, municipal wastewater treatment facilities and, to a lesser extent, construction sites and municipal separate storm sewer systems (MS4s), continue to be realized. But despite these achievements, controlling pollution carried by stormwater run-off remains a vexing problem.
Litigation concerning the continuing impairment of the water quality of the Accotink Creek, a 20-mile tributary of the Potomac River in Virginia, illustrates the challenges that the U.S. Environmental Protection Agency faces in regulating stormwater-related pollution. Va. Dep’t of Transp. v. EPA, C.A. 1:12-cv-775 (E.D. Va. Jan. 3, 2013) (VDOT), involved a total maximum daily load (TMDL) that the EPA established to address excess sedimentation in the creek. The EPA determined that stormwater carried the sediment to the creek, and chose to regulate stormwater flow as a surrogate for sediment.
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