Bacon's Rebellion

Democracy Thrives in Sunlight

EPA Bows to Cuccinelli on Accotink Stink

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by

James A. Bacon
in , ,

Accotink Creek. Photo credit: Connection Newspapers.

Chalk up another victory for Attorney General Ken Cuccinelli in his ongoing campaign against federal overreach. It looks like he has won his lawsuit against the Environmental Protection Agency (EPA) for attempting to regulate storm water flowing into Fairfax County’s Accotink Creek.

In January, federal judge Liam O’Grady accepted Cuccinelli’s argument that the EPA had surpassed its authority by trying to regulate storm water on the grounds that water (as opposed to the sediment it carried) was a pollutant. An EPA edict would have cut the flow of water into the creek by half at an estimated cost of $300 million to Virginia and Fairfax County taxpayers.

EPA officials informed Cuccinelli’s office that it would not appeal the case. Stated Cuccinelli in a press release:

This would also have been a dangerous precedent for Virginia, as the EPA could have demanded this solution in localities across the commonwealth at an enormous price tag to Virginia and its residents, with no proof that the EPA’s solution would work.

Bacon’s bottom line:

Maybe this will stifle talk that Cuccinelli is a fruitcake whack job for resisting policies that would effectively convert the 50 states into administrative sub-units of the federal government. He hasn’t won every battle, but he’s got a pretty good batting average.

— JAB

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40 responses to “EPA Bows to Cuccinelli on Accotink Stink”

  1. reed fawell III Avatar
    reed fawell III

    Ken Cuccinelli has saved Virginia’s taxpayers a boatload of money. His book is worth a read on this issue alone, it would appear.

    1. reed fawell III Avatar
      reed fawell III

      Looks like he’s also been filling up the Harvard Law Review with legal scholarship on public policy and federal state relations as well. Interesting.

  2. larryg Avatar
    larryg

    this has ZERO to do with Obama. This has been through the last few POTUS an issue involving what agencies should regulate storm water.

    Cuccinelli has not “saved” anything because ask yourself if Accotink Creek is actually polluted.

    If Accotink Creek is really polluted (and it is) what does this mean?

    does it mean that EPA will not regulate and Virginia will ignore?

    in the end.. what was accomplished here?

  3. DJRippert Avatar
    DJRippert

    This is a much longer story than either Jim Bacon or Ken Cuccinelli will admit. Accotink Creek was dammed to make Lake Accotink. The engineering was crappy and the creek is an overflow disaster. Mud and debris from Jim Bacon’s beloved Beltway HOT lanes wash into Accotink Creek and then into the Potomac and Bay every time it rains.

    VDOT and Fairfax County made a mess and Jim and Kookinelli don’t think they should pay to fix the mess.

    User pays? Not when it’s Tea Party time.

    As for Cuccinelli being a fruitcake … more of a megalomaniac and pathological liar.

    Water is not a pollutant? It’s usually not a weapon either. But boy it would be fun to take one of those high powered fire hoses to the nearest Tea Party quacks.

    1. James A. Bacon Avatar
      James A. Bacon

      I totally agree with you that someone needs to clean up the mess at Accotink Creek. The question is, who is responsible? Does the fact that the creek needs fixing justify an extra-constitutional power grab by EPA? Or should NoVa residents seek redress from the state?

      1. DJRippert Avatar
        DJRippert

        extra-constitutional?

        Man, you’ve wasted too much time reading Kookinelli’s book.

        The EPA may have exceeded the statutory authority they cited in bringing the suit. However, I am baffled at the constitutional problem.

        Do you believe that the Clean Water Act is unconstitutional?

        If the Clean Water Act was somehow amended to include heinous filthy runoff from incompetent engineering would you then consider it to be unconstitutional?

        NoVa residents shouldn’t seek redress from anybody. They should pay to clean up that filthy mess. Maybe we could raise the cigarette tax. Oh wait, the Imperial Clown Show in Richmond capped that tax for counties.

        1. James A. Bacon Avatar
          James A. Bacon

          The Clean Water Act is constitutional. The Clean Water Act did not declare “water” to be a pollutant. The EPA’s effort to define it as such it outside the law. Amend the Clean Water Act to declare sediment-bearing water a pollutant, and the EPA can come back to Virginia and force us to clean it up. But the EPA can’t just make up a brand new doctrine just because it doesn’t want to trouble itself to go back to Congress.

          1. DJRippert Avatar
            DJRippert

            The EPA has been regulating storm water runoff for years.

            The judge’s decision stated, in part, “Both parties agree that sediment is a pollutant and stormwater is not.”.

            The EPA tried to regulate stormwater as a surrogate for the sediment. There is no doubt in anyone’s mind that the excessive stormwater carries sediment into Accotink Creek.

            The EPA will be back with a suit that directly attacks the sediment.

            Cuccinelli accomplished nothing. However, as always, he brayed. In this case, he brayed about water being a pollutant and never advanced an alternative for the actual problem – shoddy VDOT engineering allowing sediment to mix with stormwater and pour into the Accotink Creek , the Potomac River and the Chesapeake Bay.

            Cuccinelli is unfit to govern. He reached his Peter Principle maximum as Attorney General.

  4. DJRippert Avatar
    DJRippert

    Here’s a video of HOT lanes sediment flowing into Accotink Creek.

    http://www.youtube.com/watch?v=MvuhUaUETF0

  5. reed fawell III Avatar
    reed fawell III

    Larry asks: “in the end.. what was accomplished here?”

    Answer:

    It means an agency of the Federal Government of the United States was halted by a court of proper jurisdiction from engaging in an illegal act.

  6. DJRippert Avatar
    DJRippert

    This is what Accotink Creek looks like after a standard issue summer thunderstorm. Note the endless HOT lanes lumber and debris just floating by. Yeah, Jim – Cuccinelli is a genius. No issue here.

    http://www.youtube.com/watch?v=znJosGpytwo

  7. James A. Bacon Avatar
    James A. Bacon

    You’ve convinced me that there’s a real problem that needs to be addressed. You have not convinced me that the EPA has the constitutional authority to declare water to be a pollutant and impose a costly solution upon the state.

    1. DJRippert Avatar
      DJRippert

      The state was who screwed up Accotink Creek and the runoff from the man-made reservoir (called Lake Accotink) in the first place. Who should pay to clean it up? Gnomes?

      I have no idea why you think the EPA has any constitutional authority. It may have statutory authority however.

      The water dislodges sediment previously trapped in wetlands around the creek. The sediment flows into the Potomac and then into the Chesapeake Bay.

      Claiming that the EPA doesn’t have the authority to regulate incompetent engineering that funnels water onto sediment thereby releasing the sediment is pretty lame. But then, looking for loopholes is Ken “the professional politician” Cuccinelli’s only observable skill.

      Meanwhile, the EPA will re-file the suit invoking different statutory language from its charter. They didn’t appeal because they don’t need to appeal.

  8. DJRippert Avatar
    DJRippert

    Of course, if there is a tropical storm instead of a simple thunderstorm you can really see how absurd the EPA’s position is. Ken Cuccinelli is a pathological liar.

    http://www.youtube.com/watch?v=YO7WhFapzXU

  9. James A. Bacon Avatar
    James A. Bacon

    In what way is Cuccinelli a “pathological liar?”

    Somehow, both the federal court judge and the EPA appear to have missed that.

    1. DJRippert Avatar
      DJRippert

      He portrays the matter as the EPA trying to regulate water as a pollutant. He brusquely dismisses the matter as federal over-reach. However, he fully knows the disaster of that creek. At the least, he is lying by omission pretending that this is just federal bureaucracy run amok. Maybe he needs to head back to Gonzaga and re-take the mandatory ethics class they teach at this school. Only this time he should try to stay awake. Lying by omission is lying in the Catholic faith. Period.

  10. reed fawell III Avatar
    reed fawell III

    Don – he’s a genius to extent he stopped the Federal Government from an illegal act. That’s no excuse for an unhealthy fetid creek. So if it is lets us make Virginia fix it. But I take a dirty creek over a lawless government. And here the government was found to be operating outside the law.

    1. DJRippert Avatar
      DJRippert

      The EPA is meant to enforce the Clean Water Act. Does that look like clean water to you? He stopped nothing. The EPA will refile under a different section of their statutory authority. As usual, Cuccinelli has done nothing but waste time and taxpayer money.

      1. reed fawell III Avatar
        reed fawell III

        Don, should EPS refile via a pertinent and duly enforceable section of the Statute then fine, they are acting lawfully. No problem.

        But why did they not do so the first go round. Was it simple error? Was it sloppy legal work? Was it an effort under the “Bad Facts Make Bad Law Theory” to illegally expand an irrelevant statutory section so as to gain advantage somewhere else (such as jurisdiction or burdens of proofs). I have absolutely no idea. But there’s no good reason for it.

        Governments need to follow the law. That includes Attorneys General. And those Attorney Generals who go out of their way to insure that other government agencies, state or federal, follow the law do us all a huge public service. Often it takes courage. So many don’t. And everybody loses.

        And irrespective of how later facts may emerge, so far what I can see is that an Attorney General stopped a Federal Agency from acting without proper legal authority. Had that agency won its case as it presented that case, the law would have been twisted out of shape from its proper construction. And we all would have been worse off for it.

        1. DJRippert Avatar
          DJRippert

          As Attorney General I am fine with Cuccinelli’s suit. As a candidate for governor I am not. As always Cuccinelli has no idea what to do. Just like transportation. In both the case of sediment in Accotink Creek and transportation funding in Virginia – there is a problem. You would think that a candidate for governor would be able to say what he would do about these problems instead of just saying “No” over and over again – like some kind of demented parrot.

          Cuccinelli’s actions have nothing to do with courage. He is a little twerp – nerd who searches for loopholes to prevent progress. The only thing unusual in this case is that he finally got a judge to agree with something he did.

          Meanwhile, the sediment continues to pour into the Accotink Creek.

          What does candidate Cuccinelli thinks should be done about that?

          (sounds of crickets chirping)

  11. DJRippert Avatar
    DJRippert

    Here are 74 videos documenting the VDOT caused pig sty in the Accotink Creek. This isn’t just the HOT lanes project. The Fairfax County expansion project is a mess as is the Beltway widening project.

    http://www.youtube.com/user/friendsofaccotink

  12. larryg Avatar
    larryg

    DJ has thoroughly exposed the hypocrisy of Cuccinelli and the State of Virginia on this issue.

    Virginia could have fixed the problem to start with and not have EPA involved in it at all.

    Cuccinelli could have said – that Virginia will fix the problem and EPA is overstepping it’s authority because Virginia is going to take care of it.

    but none of that happened and it really does expose the hypocrisy of both Virginia and Cuccinelli.

    it demonstrates clearly how Cuccinelli would operate. He would tell EPA to stay out and he would just continue to ignore the problem.

    If Reed worries about “anti-govt” … this is it guy. this is how Virginia handles these kinds of issues.

    where did the Bay Cleanup come from? No Virginia. Will this be Cuccinelli’s next target? Won’t surprise me.

  13. Peter Galuszka Avatar
    Peter Galuszka

    Somehow the Accotink issue has not yet embraced people familiar with environmental issues that are far more profoundly troubling. After failing badly after suing Ocabamcare (his lawsuit was dismissed before the others from AGs were found mostly unconstitutional), Cuccinelli also missed at Michael Mann of global warming. Now all you nice, fine conservatives ( I can name you if you wish) are trumpeting this little creek. Please explain to me why this is a huge legal victory. I can think of dozens more important issues. You are preaching to yourselves. Enjoy!

    1. reed fawell III Avatar
      reed fawell III

      In government nothing is more important and difficult than safe guarding the rule of law. And how that happens between states and the central government is a huge key to that imperative. And its never one “little creek.” It’s why Lincoln was by far our greatest President.

  14. larryg Avatar
    larryg

    what this creek proves is that with Conservatives, it’s about ideology – not substance.

    Virginia was fine ignoring this creek – and the Cooch made his own statement that was not about the creek at all but about ideology.

    this is the kind of governance, he would provide.

    actually it’s starting to look like with the Cooch that governance would be an oxymoron.

    I’m convinced he is putting out a message to all of Virginia and basically telling us all – this is the kind of Gov he will be. He’s telling us.

  15. DJRippert Avatar
    DJRippert

    If anybody wants to understand this matter beyond Kookinelli’s pathetic and untruthful statement that the EPA is trying to regulate water as a pollutant:

    http://lawprofessors.typepad.com/environmental_law/2013/01/an-important-stormwater-case-and-its-not-the-one-youre-thinking-of.html

  16. TMT Avatar
    TMT

    So how come the Fairfax County Board of Supervisors voted to join the lawsuit? A bunch of mindless, drooling bureaucrats at the EPA tried to extend the Agency’s jurisdiction from pollutants to storm water volume. Had the EPA prevailed, it would have cost taxpayers hundreds of millions of dollars. The Supervisors stood up for their constituents and defeated an agency out of control.

    1. DJRippert Avatar
      DJRippert

      Not all of the Fairfax County BoS voted to join the suit. The majority who did vote to join the suit have decided that the county and the state have made such an appalling mess of Accotink Creek that it would cost too much to fix. So, they are just going to bury their heads in the sediment and look for legal loopholes to avoid taking any action on the ridiculous stormwater runoff problem created by the local and state government.

      The only reason the EPA wrote the TDML for the Accotink Creek was because the state of Virginia refused to do so, despite being required to do so by the Clean Water Act.

      The court ruled that the EPA can’t use stormwater as a proxy for sediment pollution although the stormwater is an excellent proxy for sediment pollution. Fine. The EPA’s next move will be to file suit on the sediment pollution itself.

      There was no over-reach. There is a real problem with a real pollutant – sediment. The county, the state and the court didn’t like the process used by the EPA to get to rules limiting the pollutant.

      Nobody debates that … :

      1. Accotink Creek is a mess caused by human activity.
      2. stormwater carries a pollutant called sediment into the Accotink Creek.
      3. the pollutant called sediment is carried by an excess of stormwater.
      4. the negligence over many years that caused the stormwater problem will be very expensive to fix

      Cuccinelli accomplished nothing. He is a paper pushing bureaucrat whose short non-political working life was dedicated to rent seeking for his clients using the morass of regulations he claims to despise.

      The man is a fraud.

  17. larryg Avatar
    larryg

    the other interesting thing about the EPA is that it works similarly to other issues between the Feds and the States – in that if Virginia follow the law with regard to managing it’s waterways – EPA does not get directly involved.

    It works similarly to things like Interstate highway design and operations – the Feds do not get involved if Virginia maintains according to the standards.

    Education and health care are two more where the States are allowed to run their own programs – as long as they meet the standards.

    In Virginia, we’d have mercury, acid rain, and pollutants from power plants and sewage outflows as well as storm water runoff in much, much worse terms if it were not for the EPA.

    Virginia would simply choose to not deal with many of these issues. They have a track record of not doing so.

    Cuccinelli is literally re-litigating states rights.. and using the EPA as his surrogate.

    Reed talks about leadership. Yes.. Va has NOT led on these issues. they had to be drug into doing what needed to be done and what Cuccinelli is saying – and has said – is that it’s none of the Feds business and this is how he’s going to fight it – not just on this creek but overall against the EPA, overall against ObamaCare, overall against MedicAid and who knows what other things if he becomes Gov and has even more power.

    I understand and realize that he represents a certain percentage of people who do believe he is right – Reed is probably one.

    but the bigger question is – if everyone would know this – would they agree that this should be how Cuccinelli should “lead” and “govern”?

    it’s an honest question and I’ll admit that the numbers that would support it might be more than 40%.. perhaps even 50% or more in the rural parts of Va.

    but the public should be well aware of it with regard to him and he should be clear about his intentions on these issues if he were to be elected.

  18. TMT Avatar
    TMT

    And so was the majority Democratic Fairfax County Board of Supervisors. This issue is much broader than politics and states rights. It’s about a federal agency that doesn’t respect the limits of its jurisdiction.

    1. DJRippert Avatar
      DJRippert

      Wrong. It has jurisdiction over sediment pollution. The EPA used stormwater as a proxy for sediment pollution because it is a good proxy. However, due to a technicality, that proxy was disallowed by the court. The fact remains that the excessive stormwater caused by faulty design and poor land use planning carries a pollutant called sediment into the Accotink Creek.

      Cuccinelli proved nothing with this. He did not slay some federal dragon. He achieved a temporary reprieve for the county and state by using a loophole that does not allow the EPA to regulate stormwater borne sediment by measuring the stormwater itself.

      The county and state would be well advised to start thinking about how they want to fix the mess they caused before they get slapped with a lawsuit directly addressing the sediment. And I’ll give you a hint: If you want to reduce the sediment pollution you better figure out how to reduce the stormwater.

      1. TMT Avatar
        TMT

        Last summer, Jim Patteson, the head of Fairfax County’s Department of Public Works and Environmental Services, said “This is a new type of stormwater enforcement action. While we are not sure why we and a handful of localities in the country were selected, we feel an obligation to other municipalities, businesses and entities to ensure that enacted regulations are fair, attainable and environmentally sound.”

        Sharon Bulova said, “We believe that regulations, whether federally or state imposed, must effectively address the targeted problem and be fiscally sound and realistic.” She added the County “includes more than $300 million in wastewater system improvements and dedicated annual funding for stormwater system improvements since 2006. In 2009 the county instituted a dedicated tax for stormwater and has since increased it to a current rate of $.02/$100 assessed value or $100/year for the median home. The countywide tax funds the $40 million budgeted stormwater program in Fiscal Year 2013. Fairfax County has been recognized at the state and national levels for outstanding water quality facilities, staff and programs.”

        Even though he didn’t vote to join the lawsuit with VDOT, Supervisor John Foust later said the lawsuit saved Fairfax County taxpayers at least $200 million annually. That’s ten cents on the real estate tax rate. Had the EPA won, Fairfax County also said, “homeowners as well as commercial property owners will be required to capture and retain, reuse and/or infiltrate stormwater runoff from their roof, driveway and other impervious areas on their property. Any new impervious areas, such as home additions or new development, could be required to retain all stormwater runoff from any expanded impervious area.” Those are outrageous burdens, well beyond the much stronger storm water runoff restrictions accepted by the Tysons landowners. Hats off to the State and the County.

        It’s not like Fairfax County does nothing on storm water management. VDOT is also a bear. I’ve sat through a couple of meetings where VDOT has discussed what it requires for storm water in connection with road projects.

        1. DJRippert Avatar
          DJRippert

          When the Beltway was built there was no effective stormwater runoff plan. None. Over the years, Fairfax County granted permission for people to build homes on the land that could have been used as catchment areas for the runoff. Then, for decade after decade Fairfax County watched as the problem grew worse and did nothing. Disgusting people destroying the environment.

          Virginia was required by the Clean Water Act to develop a TDML for Accotink Creek. Of course Virginia couldn’t be bothered. The mess made by the state and county was so bad that any reasonable TDML would have pointed out the depth of the fiasco.

          The statement that all Fairfax County homeowners would be required to retain all stormwater is inaccurate. The EPA suit concerned Accotink Creek, not all of Fairfax County. Beyond that, there are many ways to handle runoff at the municipal level. Saying that all homeowners would have to retain all stormwater is like saying that all homeowners would have to maintain sewage treatment plants on their property.

          The state and county’s inept handling of the Accotink watershed in Fairfax County creates a situation where runoff dramatically harms a body of water well past the borders of Fairfax County.

          Apparently, you think it’s OK for us to live like filthy pigs doing serious harm to localities downriver. I don’t. Someone should tell Ken Cuccinelli and the Tea Party that real conservatives (or real men for that matter) acknowledge their mistakes and correct them – even of the correction is difficult or expensive.

          Ken Cuccinelli’s opinion is just like Fairfax County’s opinion and the state’s – Yeah, we’re trashing the water through our own incompetence but we have no intention to do anything about it.

          Disgraceful.

          1. larryg Avatar
            larryg

            It’s hypocritical to say you want to clean up the Bay then do this kind of thing with creeks like this.

            This is a good part of the problem that is adversely affecting the bay.

            The EPA is telling us this and what is our answer?

            Cuccinelli’s response is ” it’s none of EPAs business” and yes.. we will live like pigs whilst singing “Save the Bay, Save the Bay”.

            Remember when I’ve been saying that you have to measure what it’s the river at various points to see where the problems are and where they are more severe?

            If you took an air photo of the mouth of Accotink after a typical rain event – you’d SEE a plume of nasty runoff on it’s way to the Bay.

            Why don’t we measure? This is why.

  19. larryg Avatar
    larryg

    the interesting thing is how people who support the Chesapeake Bay cleanup react to this issue.

    you want to know the truth? You can’t stand the truth.

    Accotink Creek is an example of why the Bay is in serious trouble and why billions of dollars is said to be the cost of cleaning up.

    yet look how we deal with it.

    At the Bay level – it’s Mom and Apple Pie

    at the Accotink level, it’s that nasty no good EPA and their boss Obama.

    you wanna know what Washington and Richmond are broke?

    this is party of the reason..right here…

  20. TMT Avatar
    TMT

    A federal agency should operate within the bounds of its enabling legislation as passed by Congress. It must also take action in ways permitted by the Administrative Procedure Act and other applicable laws. When they don’t, their actions are generally rejected by the courts. It’s a reasonable and fair system.

    The EPA went beyond its legal authority and, as such, was reversed by a federal district court.

    More from Sharon Bulova. “In a statement, Sharon Bulova (D), chairman of Fairfax’s Board of Supervisors, said the decision is ‘strong validation’ of the county’s ‘sound and successful strategy for addressing our clean water goals.’

    “’I am pleased to be able to put this legal battle behind us so we can focus on addressing improvements to our watersheds and water quality,’ she added.”

    1. DJRippert Avatar
      DJRippert

      Really? That’s what that windbag Sharon Bulova said? A court finding that the EPA could not use a stormwater proxy for use in setting limits on stormwater borne sediment pollution represents a strong validation of the county’s sound and successful strategy for addressing our clean water goals?

      Ms. Bulova must be auditioning for a spot in The Imperial Clown Show in Richmond. In Richmond, the clowns in the General Assembly can make ridiculous claims about so-called successes in spite of observable evidence to the contrary. That’s because the state is big and only a limited percentage of the population can observe the absurdity of the legislator’s lies.

      But Fairfax County is not big. And thousands of Fairfax citizens have been to Accotink Creek. They have seen the devastating runoff problems. They have filmed the devastating runoff problems. I have posted numerous of those videos in this comments section.

      As you watch stormwater borne lumber float into the Accotink Creek and then into the Potomac River does it appear to you that Fairfax County has a sound and successful strategy for achieving our clean water goals? The Accotink Creek is the second largest watershed in Fairfax County. It is a mess and Ms. Bulova is just a typical politician making up false statements to server her political purposes.

      She sounds like she is ready to graduate to The Imperial Clown Show in Richmond. Frankly, the sooner the better.

  21. Richard Avatar
    Richard

    The only principle that this case illustrates is that you can get away with polluting other people’s water if you have a lawyer who can find some technicality to get you out of paying for it. It also indicates that the Cooch has some real lawyers in his office.

    1. DJRippert Avatar
      DJRippert

      Oh, Cooch is a fine lawyer. He pushes paper and debates the number of angels who can dance on the head of a pin with the best of them.

      However, he doesn’t have the first clue about how to govern. No ideas at all. None.

    2. larryg Avatar
      larryg

      that’s correct. this is all about the “technicality” that storm water has pollutants in it (or not) and what did Fairfax do? Well at the same time they are touting their support of the Chesapeake Bay cleanup they are hiding behind a technicality to truly address some of the root causes of the Bay’s degradation.

      so what are the “clean water goals” of Fairfax when they evade and run away from problems like this?

      this is so hypocritical one has to hold their nose….

      Fairfax supported development that shorted protection of the Bay and now they want to not pay for it…

      Does Fairfax say they are going to establish a storm water authority to deal with it and therefore they don’t need the Feds “interfering”?

      stinks to high heaven TMT..

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