The Register-Herald, Beckley, West Virginia

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May 16, 2013

Raleigh officials studying Virginia stormwater ruling

It’s unclear whether judge’s ruling could affect local fees

BECKLEY — Raleigh County authorities are examining a federal judge’s ruling in Virginia that held the Environmental Protection Agency exceeded its powers by trying to regulate stormwater runoff in a creek.

Before anyone gets hopes up that the special fees imposed on a specific region in this county are going to disappear, Jeremiah Johnson, operations manager for the Beckley Sanitary Board, said the case isn’t about stormwater charges.

“The ruling really has nothing to do with stormwater fees,” Johnson said Wednesday.

Beckley City Attorney Bill File agreed with that assessment.

“It was a fairly limited issue that was dealt with in that case that has absolutely no bearing on the city of Beckley’s stormwater law,” File said.

Beckley falls within the purview of the Clean Water Act which Congress enacted in 1987, directing the EPA to regulate urban stormwater, the attorney explained.

“This case in Virginia did not change any provisions of the section that we’re under,” File said.

“It didn’t deal with stormwater fees or anything of that nature. I don’t think that case would have any bearing really on the program in the city of Beckley.”

At the outset of the ruling, Bill Roop, attorney for the Raleigh County Commission, said residents served in the Piney Creek Watershed Association might be looking at smaller bills down the road, although he quickly acknowledged that he hasn’t had time to examine the decision.

“We believe that ruling — and I haven’t got a copy of the case — showed that the charges are inappropriate at this point in time,” Roop said.

In his decision, U.S. District Judge Liam O’Grady ruled in favor of the Virginia Department of Transportation and the Fairfax County Board of Supervisors in their challenge of the EPA’s restrictions on the flow of stormwater into Accotink Creek.

“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it,” the judge said.

Yet, Johnson said the legal dispute in Virginia concerned the total maximum daily load (TMDL) and how those are written by the EPA. Under the Clean Water Act, he explained, a TMDL must be developed for the water quality of a segment of a stream affected by runoff.

In the Virginia case, the Department of Transportation filed a federal lawsuit, questioning the validity of the water quality improvement plan. The reason for the challenge is that the EPA used flow as a proxy or surrogate for the pollutant.

“It is easier to regulate flow than it is to regulate the pollutant,” Johnson said.

“Basically, the EPA’s hand was called, similar to their hand being called here in West Virginia on a number of things.”

Johnson said the stormwater runoff fees will remain in force.

“That case doesn’t set a federal precedent that would overturn any stormwater fees that many communities across the country, including Beckley, have in place to operate stormwater facilities,” he said.

On the other hand, Johnson pointed out, there are some legal cases pending on the legality of imposing stormwater fees.

Virginia’s own attorney general, Ken Cuccinelli, said the judge’s decision would translate into an annual savings in excess of $300 million to taxpayers there.

Roop said the Piney Creek association serves residents in a large swath of the county, engulfing Crossroads Mall, Cranberry, Prosperity and Maxwell Hill.

Each quarter, residents and businesses there get a bill for stormwater which is separate from monthly sewage charges, Roop explained.

“Some people are struggling to pay that,” he said.

“People on fixed incomes. They live from month to month. That’s the big thing.”

The amount of stormwater charges in this region depend on how large an area is involved per customer. For instance, a business would pay far more assuming it has a parking lot and other amenities on its property.

Roop earlier said the Beckley Sanitary Board would have to scrutinize the federal court ruling and devise guidelines in accordance with what the judge said to see if such charges are improper.

“I should be able to talk more about it at the commission meeting (next Tuesday),” Roop said.

“I’m sure they’ll ask me for the record.”

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