The Eastern Virginia Federal Court ruling on Accotink Creek will stand. The U.S. Environmental Protection Agency (EPA) had until March 4 to appeal the decision but did not. The case, Virginia Department of Transportation v. EPA, focused on EPA’s decision to use excessive stormwater runoff as a surrogate for benthic impairments.  On Jan. 3 the court ruled that stormwater runoff is not a pollutant as defined by the Clean Water Act and therefore could  not be regulated in the Accotink Creek total maximum daily load (TMDL).

The lack of appeal may signal that EPA is not confident in the success of an appeal based on the technical merits of the case.  Another consideration is the potential geographic and programmatic scope of the ruling.   EPA may view this case as being limited to the state of Virginia and the TMDL program.   If this view is correct, the ruling would not impact EPA’s ability to regulate flow under the National Pollutant Discharge Elimination System program.  See the Bloomberg News Report article for more information.