On January 3, 2013, Judge Liam 0'Grady ruled in favor of the plaintiffs in the Accotink Creek Watershed TMDL lawsuit. As discussed in Field Notes, Vol. 20, No. 8, The Commercial Real Estate Development Association (NAIOP), NAIOP Northern Virginia, National Association of Homebuilders (NAHB) and Northern Virginia Association of Realtors (NVAR) filed a motion to intervene October 18, 2012 on the lawsuit between Fairfax County/VDOT vs. EPA, which challenged a massive expansion of the Environmental Protection Agency's regulatory power regarding total maximum daily loads (TMDLs). NAIOP Northern Virginia, along with the NAHB and the NVAR, was permitted to intervene in the lawsuit earlier this fall on behalf of the private sector landowners within the Accotink watershed.

Arguments were heard by Judge O'Grady on December 14 from attorneys representing VDOT, Fairfax County, NAIOP Northern Virginia, NAHB and NVAR. The Order and supporting Memorandum Opinion issued by Judge O'Grady vacated the Accotink TMDL program and remanded it back to the EPA for reconsideration. The judge agreed with the plaintiffs that water itself is not a pollutant and that the EPA does not have the authority to regulate water as a pollutant.

The EPA has the right to appeal Judge O'Grady's ruling or to formulate a new TMDL for the Accotink Watershed.

Hopefully, EPA will instead restart the Accotink TMDL process versus continuing litigation and work with the affected stakeholders to find a practicable and cost-effective solution to improving water quality in the region.

For more information on the Accotink lawsuit, please contact Mike Rolband.