EPA’s 'Save the Worms' Campaign to Cost Fairfax County Taxpayers Approximately $200M

The story of why Fairfax County was forced to sue the EPA.

On July 12, 2012, the Fairfax County government and the Virginia Department of Transportation sued the EPA in federal court in Alexandria asking that the EPA be prevented from imposing a costly plan that the EPA hopes will increase the worm population in the Accotink Creek watershed.  The EPA’s plan will cost Fairfax County taxpayers an estimated $110-$215M according to the complaint.  The gist of the lawsuit is the EPA says it has the right to determine exactly how much water flows into Accotink Creek as opposed to regulating the amount of pollutants that flow into the creek.  (See the complaint attached with the article.)  The EPA has ruled that the decrease in water flow is the responsibility of both Fairfax County and the Virginia Department of Transportation which will each be responsible for about 50% of the water flow reduction. 

Unfortunately, the story behind this lawsuit will require going into some less than scintillating details about environmental law. 

Under the Clean Water Act, states are required to identify impaired rivers and establish timelines to clean up those rivers.  If any state fails to act, the EPA is supposed to set up a timeline.  In 1996, the Commonwealth of Virginia made submissions to the EPA under the Clean Water Act that were objected to by the American Canoe Association as being inadequate.  When the American Canoe Association subsequently filed suit, the EPA decided to settle and entered into a consent decree. (Consent Decree, American Canoe Ass’n, Inc. v. EPA,, No. 98-979-A (E.D. Va. June 11, 1999).  This consent decree, which the EPA never showed to Virginia officials before signing it, established schedules that Virginia, and by extension Fairfax County, has to comply with.  In my opinion, the EPA deliberately settled a suit it didn’t have to in order to impose timelines upon Virginia that it never could have imposed if the EPA had to go through the normal regulatory process.

At any rate, the Accotink Creek was listed in the EPA consent decree because it has “benthic impairment,” e.g. a lower than expected amount of invertebrate organisms, such as insects, crustaceans, snails, or worms which live on the bottom of streams and rivers and are large enough to be seen with the naked eye.  Everyone agrees that the problem here is that too much sediment flows into the Accotink Creek, or at least too much for the worms.  Incidentally, sediment is considered a pollutant under the Clean Water Act.    

Fairfax County is already trying to reduce the amount of pollutants, including sediment, flowing into the Accotink Creek but that isn’t good enough for the EPA.  The EPA has come up with the novel idea that the water itself is a “surrogate” for pollution and that the volume of water flow can thus be regulated.  The EPA believes reduced water flow means more worms.  Fairfax County responds in its complaint that “simply returning Accotink Creek’s flow rate to a presumed representation of predevelopment levels, as would be required under the [EPA’s plan], has in no way been demonstrated by EPA to meet the target required by law—a balanced, indigenous population of benthic organisms in Accotink Creek.”  (Complaint p. 34). 

According to the complaint, Fairfax County estimates that it already expected to spend $295M to address the sediment issue and that to meet the EPA’s “mandatory flow reductions, Fairfax County estimates that it will cost the County an additional $110 million to $215 million in compliance costs, for a total of approximately $405 million to $510 million.”  (Complaint, p. 12).

On its website, the Fairfax County government notes that “to achieve the approximately 50 percent flow reduction called for in the [EPA] rules for a developed watershed such as Accotink, 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.”

The Virginia Department of Transportation notes that the “reduction in flow as demanded by EPA in a highly urbanized area cannot be achieved by VDOT through retrofitting existing stormwater management structures due to functionally impervious soils, the presence of environmentally sensitive areas, and the public safety needs of maintaining the structural integrity of building foundations, roadways, bridge abutments, and retaining walls. Consequently, efforts to achieve such a reduction in stormwater flow as demanded by EPA would require significant public takings of private property in order to build numerous new stormwater management structures.”  (Complaint, p. 8).

 With regard to the lawsuit, Board of Supervisors Chairman Sharon Bulova stated “we are absolutely committed to maintaining and improving, water quality in Fairfax County and the Chesapeake Bay. However, we believe that regulations, whether federally or state imposed, must effectively address the targeted problem and be fiscally sound and realistic.”  Supervisor John C. Cook (Braddock) used language that was a bit stronger.  He stated that “[w]hen people talk about federal agencies running amok, this is exactly what this looks like.  The EPA’s overreach is so extreme that the Democrats on the board realized that, even in an election year, they had to do this for the county.” 

The sole Supervisor to vote against the lawsuit was John W. Foust (Dranesville).  According to a July 13, 2012 Washington Post article, Supervisor Foust said he objected because he did not want to be a co-plaintiff with Virginia State Attorney General Ken Cuccinelli’s office because he believes Cuccinelli has initiated politically motivated cases in the past. Foust also said he felt the county would be better able to control its destiny in the legal action by filing a separate lawsuit.

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Dave Webster January 04, 2013 at 04:27 PM
James, A copy of the opinion is now available for viewing with the article. Incidentally, Supervisor Foust never responded to a question in a McLean Patch article as to why he thought his personal political vendetta against Ken Cuccinelli trumped the concerns of Fairfax County taxpayers.
michael hargadon January 07, 2013 at 01:08 AM
Dave, Unfortunately, as I see it politics of late is more about optics then policy. The good news, the greater the sunlight the more ridiculous the optics. Thanks.
David Karmol January 07, 2013 at 02:17 PM
I'm very disappointed to see that Supervisor Foust, who I had previously considered to be generally reasonable, would take such a political stance, without regard to the taxpayers. Whatever his reasons, either filing a separate lawsuit, or not suing the EPA, would BOTH cost us taxpayers a lot of extra money. So much for any claim Foust cares about the taxpayers. Just another biog spender, with our money.
Dudley Caswell January 07, 2013 at 06:51 PM
It is amazing, but not surprising, that Supervisor Foust was the lone holdout from the rest of the board of supervisors aligning with and supporting AG Ken Cuccinelli against the EPA effort for classifying storm water as a pollutant. He is evidently so detached from reality that I believe his personal dislike for Cuccinelli would cause him to support a benefit package for ‘Americans with no disabilities’ if that went against the AG. Guess it doesn’t matter to Foust that millions of dollars would be unnecessarily spent as long as his personal views of an individual were compromised. I thought that as Supervisor, to honor the oath of office would cause unprejudiced action in representing constituents over and above predilections of personalities. To me, Mr Foust is evidently not a thought-provoking professional, but a small-minded power-wielder for selfish interests.
Bob McMahan January 08, 2013 at 04:09 AM
Johnny Foust is singing his usual song about "sustainable" development. He has said that single family houses are "unsustainable". He thinks that about cars owned by the peasantry as well. He will be happy, apparently, when we are all living in Stalinist style apartment buildings


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