IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION


)
VIRGINIA DEPARTMENT OF )
TRANSPORTATION )
1401 E. Broad St. )
Richmond, VA 23219, and )
)
BOARD OF SUPERVISORS, )
FAIRFAX COUNTY, VIRGINIA )
12000 Government Center Pkwy. )
Fairfax, VA 22035 )
)
Plaintiffs, )
)
v. ) Civil Action No.
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, and )
LISA P. JACKSON, ADMINISTRATOR )
1200 Pennsylvania Ave., N.W. )
Washington, DC 20460, and )
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY REGION III, and )
SHAWN M. GARVIN, REGIONAL )
ADMINISTRATOR )
1650 Arch St. )
Philadelphia, PA 19103 )
)
Defendants. )
)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

The Virginia Department of Transportation (VDOT) and the Board of Supervisors of
Fairfax County, Virginia (Fairfax County or the County) (collectively, the State
Plaintiffs), by and through counsel, bring this action pursuant to the federal Clean Water Act
(CWA), 33 U.S.C. 1251 et seq., and the Administrative Procedure Act (APA), 5 U.S.C.
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551 et seq. and 5 U.S.C. 701 et seq., for declaratory and injunctive relief against the United
States Environmental Protection Agency, its Administrator Lisa P. Jackson, the United States
Environmental Protection Agency Region III, and Regional Administrator Shawn M. Garvin
(collectively, EPA or Defendants), and allege as follows:
NATURE AND PURPOSE OF ACTION
1. This case challenges a massive expansion of EPAs regulatory power, from its
CWA-authorized role of establishing Total Maximum Daily Load (TMDL) restoration plans
with maximum acceptable levels of pollutant discharges to meet water quality standards, to
EPAs recently claimed authority to control the quantity or flow of water itself and related land
use characteristics such as the amount of impervious cover (e.g., rooftops, roads, and parking
lots) in any given watershed. See Glossary of Acronyms (attached hereto for the Courts
convenience).
2. The final agency action at issue is EPAs establishment of the Total Maximum
Daily Load for Benthic Impairments in the Accotink Creek Watershed (the Accotink TMDL),
which was signed and issued by the Director of the Water Protection Division of EPA Region III
on April 18, 2011 (available at
http://www.epa.gov/reg3wapd/pdf/pdf_tmdl/AccotinkPortfolio.pdf).
3. The Accotink TMDL is one of the first four so-called flow TMDLs established
by EPA anywhere in the United States. All were established in 2011 and have been appealed to
federal district courts.
4. Like most urban streams across the nation, Accotink Creek, which flows through
Fairfax County and drains into a tidal embayment of the Potomac River, has experienced both
the water quality and water quantity effects of urbanization, ranging from higher pollutant loads
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(water quality) to physical changes in stream condition, shape, size, and hydrology (water
quantity).
5. The Accotink TMDL purportedly was established to remedy a benthic
impairmentthe lack of a healthy benthic biological community (e.g., insects, worms, and other
species typically found on the bottom of non-impaired streams)due to excessive amounts of
sediment, which is a pollutant as defined in the CWA.
6. EPAs action in establishing the Accotink TMDL, however, violated the CWA
and the APA by unlawfully and arbitrarily limiting the flow of water in Accotink Creek as a
claimed surrogate for the pollutant sediment and by similarly limiting flows from the State
Plaintiffs drainage systems known under the CWA as Municipal Separate Storm Sewer Systems
(MS4s).
7. Desiring to push its jurisdictional envelope with an admittedly non-
conventional TMDL approach, and facing a deadline under a consent decree previously entered
by this Court, EPA assumed this effort to establish the Accotink TMDL from the
Commonwealth.
8. Notably, the Commonwealth determined the legal authority for a TMDL
regulating water quantity was lacking, despite operating under state law which is broader than
the CWA, and opted to first amend its own TMDL-related regulations through an open and
transparent rulemaking process.
9. EPA acknowledged no similar constraint and proceeded to act on a stated belief
that it possessed the legal authority to regulate the flow of water.
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10. In so doing, EPA sought to change a nearly 40-year history of CWA interpretation
and implementation and radically expand the scope of its water quality jurisdiction to include
water quantity as well, regardless of the presence of a discharge of pollutants.
11. Even if EPA were found to have the statutory authority to regulate the flow of
water through TMDLs and related National Pollutant Discharge Elimination System (NPDES)
discharge permits, which the State Plaintiffs fervently deny, the Accotink TMDL remains fatally
flawed due to other significant CWA and APA violations and major technical deficiencies that
lack a rational basis in the administrative record.
12. Among other errors, EPA acted beyond its authority and arbitrarily chose to
regulate a surrogate that is demonstrably inferior to the actual pollutant of concern (sediment),
implemented its flow approach by adopting a flawed numeric flow standard for Virginia without
observing required CWA and APA procedures, failed to establish the maximum loading
capacity as required for a TMDL, and significantly over-regulated the State Plaintiffs by
rejecting uncontroverted data and information on the size of the regulated area.
13. The State Plaintiffs share EPAs desire to improve stream characteristics such as
the makeup of the benthic organism population and, in fact, have made and continue to make
major water quality investments.
14. Disappointingly, the surrogate-based Accotink TMDL will cost more to
implement than the pollutant-based alternative while failing to restore the benthic community.
PARTIES
Virginia Department of Transportation
15. VDOT is an agency of the Commonwealth of Virginia that is responsible for
building, maintaining and operating Virginias roads, bridges and tunnelsthe third-largest
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state-maintained highway system in the country. VDOTs mission is to plan, deliver, operate
and maintain a transportation system that is safe, enables easy movement of people and goods,
enhances the economy, and improves quality of life. VDOT maintains all interstate, primary,
and secondary roads in Virginia, including in the Accotink Creek watershed. Accotink TMDL at
6-9.
16. During the public comment period for the challenged action, VDOT provided
extensive legal, policy, and technical comments on EPAs Draft Benthic TMDL Development
for Accotink Creek (the Draft Accotink TMDL), which EPA largely disregarded. See EPA,
Accotink TMDL, Response to Comments Document, available at
http://www.epa.gov/waters/tmdldocs/va/VA_AccotinkResponsetoComments3-24-2011.pdf (the
EPA Response).
17. Since the 1970s, erosion and sediment control plans have been a major
component of the activities undertaken by VDOT and, since the early 1990s, post-construction
stormwater best management practices (BMPs) have been an integral design component of all
roadway and facility construction plans regulated under the Virginia Stormwater Management
Act, Va. Code Ann. 10.1-603.1 et seq., and attendant regulations, 4 Va. Admin. Code 50-60-
10 et seq.
18. As a delegated administrator of its erosion and sediment control and stormwater
management programs, VDOT has produced numerous guidance documents, including Road and
Bridge Standards, Road and Bridge Specifications, and design, construction, and maintenance
directives. Many of these guidance documents are recognized as standard-setting and are used
by localities and private entities statewide to protect water quality.
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19. This year, VDOT expects to apply erosion and sediment control practices on
approximately 2,000 acres of disturbed area. Erosion and sediment control practices, which
include silt fences, storm drain inlet protection, slope drains, rock check dams, sediment traps,
dewatering structures and soil stabilization matting, are employed to protect surface waters by
intercepting and preventing sediment from leaving active construction sites, protecting exposed
soil until a vegetative cover can be established, and by decreasing the velocity of sheet flows or
channelized flows to prevent scour and erosion. VDOT also expects to install permanent water
quality BMPs to treat over 250 acres. These permanent water quality BMPs are employed to
protect soil from erosive forces, slow velocity of concentrated runoff, and encourage infiltration.
20. VDOT partners with various service and conservation groups to reforest areas of
state-owned property. Through this effort, over one million trees have been planted along
Northern Virginias roadsides. The resulting restoration of the tree canopy supports filtering of
air and stormwater, slows the erosive acceleration of stormwater runoff, and lowers stormwater
runoff temperatures from heated impervious surfaces. In a given year, VDOT expects to street
sweep over 8,000 acres in the Commonwealth. Street sweeping is a BMP recognized by EPA to
remove accumulated pollutants such as sediment, debris, trash, road salt, and trace metals, from
stormwater runoff and prevent the entry of such pollutants into surface waters.
21. VDOT has also partnered with localities to construct regional stormwater
management facilities. In Prince William County, VDOT assisted in the development of a large
regional facility constructed in conjunction with the Route 234 project. In Hanover County,
VDOT provided funds to construct two planned regional facilities intended to comply with the
water quality requirements of the I-95 Atlee/Elmont Interchange project. In Henrico County,
VDOT provided funds to the Countys Stream Restoration Fund to comply with the water quality
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requirements of the I-64/I-295 Interchange improvements. VDOT has also entered into
agreements with private entities for shared use of stormwater management facilities. In the City
of Chesapeake, VDOT preserved and utilized the existing wetlands to compensate for a portion
of the Route 17 projects water quality impacts.
22. VDOTs research arm, the Virginia Center for Transportation Innovation and
Research, has conducted numerous environmentally progressive research projects, including a
pilot project in partnership with Fairfax County to evaluate the effectiveness of Low Impact
Development (LID) measures for potential use on linear highway projects. Other projects
have resulted in the evaluation and development of new and innovative practices in erosion and
sediment control, pollution prevention, and post construction stormwater management.
23. In Northern Virginia, VDOT has developed 85.5 acres of project-specific wetland
compensation, created 14.1 acre-credits in its own Great Oaks Mitigation Bank, purchased 30.24
acre-credits for advanced wetland mitigation, and purchased 2,085 linear-feet credits for
advanced stream mitigation. In Fairfax County alone, VDOT has created approximately 10 acres
of wetlands and restored 2,635 linear feet of streams to compensate for unavoidable impacts
from highway construction projects. VDOT also participates as a watershed advisory group
member to support Fairfax Countys development of watershed management plans.
24. VDOT continues to innovate in the area of pollutant management practices by
conducting research and requesting approval for pollutant removal efficiencies for vegetated
roadway shoulders and drainage ways; scheduling a pilot project for the installation of pervious
asphalt pavement on a portion of a Park and Ride lot in Prince William County; and participating
in a workgroup for the Sustainable Shoreline and Community Management Project sponsored by
the Northern Virginia Regional Commission.
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25. The Accotink TMDL assigns an aggregated MS4 and construction stormwater
wasteload allocation to VDOT, requiring a 50.5% reduction in the one-year, 24-hour flow rate
over an allocated 4,109.4 acres in the Accotink Creek watershed. Accotink TMDL at 6-9.
26. Such a 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.
27. In addition, since much of the stormwater flow from VDOT property into
Accotink Creek originates from adjacent properties, EPA is effectively forcing VDOT to
regulate runoff from property that it neither owns nor controls.
28. VDOT has coverage under the Virginia Stormwater Management Program
(VSMP) General Permit (Permit Number VAR040115) for Stormwater Discharges from Small
Municipal Storm Sewer Systems, which is a Phase II MS4 NPDES permit. The area of coverage
for VDOTs MS4 permit includes areas within the Accotink Creek watershed. Accotink TMDL
at 2-14 and B-1.
29. VDOT is, or imminently will be, adversely affected by EPAs Accotink TMDL
because EPA takes the position that 40 C.F.R. 122.44(d)(1)(vii)(B) requires that the terms and
conditions of NPDES permits for MS4s, such as VDOTs, must be consistent with any
applicable TMDL and the individual wasteload allocations contained therein, notwithstanding
the specific maximum extent practicable standard for pollutant reductions for MS4 permits set
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forth in CWA 402(p)(3)(B)(iii). See EPA, Accotink TMDL, Response to Comments
Document at Comment # 42, available at
http://www.epa.gov/waters/tmdldocs/va/VA_AccotinkResponsetoComments3-24-2011.pdf (the
EPA Response); see also Memorandum from James A. Hanlon, Director, EPA Office of
Wastewater Management, regarding Revisions to the November 22, 2002 Memorandum
Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm
Water Sources and NPDES Permit Requirements Based on Those WLAs at 3 (November 12,
2010) (the EPA Flow Memo) (attached hereto as Exhibit A).
30. The Accotink TMDL mandates stormwater flow rate reductions by VDOT that
VDOT estimates will cost $70 million or more to implement. However, these costly flow
reductions are not expected to achieve the desired healthy benthic population in Accotink Creek.
31. These adverse impacts, including the inevitable exorbitant costs associated with
implementation of this unlawful flow-based TMDL, constitute a concrete and particularized
injury to VDOT which is fairly traceable to EPAs action and which will only be redressed by a
favorable decision of this Court.
Fairfax County
32. Fairfax County is a political subdivision of the Commonwealth of Virginia.
33. During the public comment period for the Accotink TMDL, Fairfax County
provided extensive legal, policy, and technical comments on the Draft Accotink TMDL, which
EPA largely disregarded. See EPA Response.
34. Fairfax County has a long history of progressive environmental management,
including many water quality protection and restoration initiatives and activities that far exceed
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CWA requirements applicable to the County. This history dates at least back to the 1950s, when
the Fairfax County Park Authority began acquiring stream valley land for protection.
35. In the 1960s, in what became a model for Virginias subsequent Erosion and
Sediment Control Law, Fairfax County adopted its Erosion and Sediment Control Ordinance and
began to require new development to manage stormwater by reducing peak flow rates to pre-
development peak flow rates. Also in the 1960s, in anticipation of widespread development in
the Pohick Creek Watershed, Fairfax County strategically planned and built six large dams to
provide water quality and flood-protection benefits, among others, within the watershed.
36. In the 1970s, Fairfax County incorporated an Environmental Quality Corridor
Policy into its Comprehensive Plan to protect areas adjacent to streams from development.
37. In the 1980s, Fairfax County rezoned nearly 41,000 acres of its Occoquan River
Watershed to significantly reduce development densities for water quality improvement. At the
same time, the Board created a Water Supply Protection Overlay District, implementing water
quality BMPs on approximately 63,000 acres.
38. In the 1990s, Fairfax County adopted the Chesapeake Bay Preservation Ordinance
to protect areas along tributary streams as Resource Protection Areas (RPAs) and went above
and beyond state requirements by extending water quality BMP requirements to all areas in
Fairfax County through a voluntary countywide Resource Management Area designation. Then,
in 2003, Fairfax County significantly expanded the areas designated as RPAs to include smaller
perennial streams.
39. In 1998, Fairfax County launched an ambitious stream protection strategy
initiative focusing not only on chemical water quality but on the overall health of the aquatic
ecosystem. Based on the results of its initial study, the County undertook a watershed planning
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initiative from 2001 to 2011 to develop Watershed Management Plans for all thirty of its
watersheds.
40. In 2004, Fairfax County adopted an Environment Agenda that establishes goals
and procedures for water quality protection and environmental stewardship efforts. This led to
initiation of an Environmental Improvement Program, which is updated annually to address
environmental and policy needs and assist in decision making regarding environmental funding
and project planning.
41. In 2006, Fairfax Countys Public Facilities Manual (PFM) was revised to
require more stringent stormwater outfall analysis and design that minimizes impacts from
development. In 2007, the PFM was further revised to promote the use of LID techniques, and
subsequently many County-owned facilities and school system-owned facilities have been
retrofitted with innovative LID stormwater controls.
42. Fairfax County is committed to green building initiatives and smart growth
principles, including an emphasis on higher density development around transit stations.
43. Fairfax County was the first county in Virginia to establish a Tree Conservation
Ordinance, and the County recently amended its Comprehensive Plan to strengthen protection of
headwater streams. Fairfax County has established forty-two Agricultural and Forestal Districts,
all of which have conservation plans, maintain open space, and protect streams.
44. Fairfax Countys jurisdictional area includes the majority of Accotink Creek and a
significant portion of the Accotink Creek watershed.
45. The Accotink TMDL assigns an aggregated MS4 and construction stormwater
wasteload allocation to Fairfax County, requiring a 47.2% reduction to the one-year, 24-hour
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flow rate over an allocated 17,998.3 acres in the Accotink Creek watershed. Accotink TMDL at
6-9.
46. Fairfax County holds a Phase I MS4 permit (Permit Number VA0088587), which
applies to thousands of acres in the Accotink Creek watershed. Accotink TMDL at 2-14 and B-
1.
47. Fairfax County is, or imminently will be, adversely affected by EPAs Accotink
TMDL because EPA takes the position that 40 C.F.R. 122.44(d)(1)(vii)(B) requires that the
terms and conditions of NPDES permits for MS4s, such as the Countys, must be consistent with
any applicable TMDL and the individual wasteload allocations contained therein,
notwithstanding the specific standard for MS4 permits set forth in CWA 402(p)(3)(B)(iii). See
EPA Response at Comment # 42; see also EPA Flow Memo at 3; Accotink TMDL at 8.2 and
8.3.
48. If the Accotink TMDL were established in the typical manner, i.e., as a TMDL for
the pollutant of concern (sediment) rather than EPAs illegal and improper surrogate (flow),
Fairfax County estimates that it would cost the County $295 million to address the sediment
TMDL.
49. To meet the Accotink TMDLs 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.
50. Fairfax County is injured by the Accotink TMDLs mandated flow rate
reductions, by the associated costs of compliance with the mandated flow reductions, and by the
needless significant increase in its compliance costs to address the benthic impairment in
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Accotink Creek as a result of the Accotink TMDL and the MS4 permit conditions that will
imminently result from the Accotink TMDL.
51. The County, its residents, and its environment are also injured in that the
Accotink TMDL will force the County to divert approximately $110 million to $215 million of
its finite resources to use EPAs unlawful means (flow reduction) rather than a more cost-
effective and direct approach to addressing the habitat needs of benthic organisms.
52. These adverse impacts, including the inevitable exorbitant costs associated with
implementation of this unlawful flow-based TMDL, constitute a concrete and particularized
injury to Fairfax County which is fairly traceable to EPAs action and which will only be
redressed by a favorable decision of this Court.
The Federal Defendants
53. Defendant United States Environmental Protection Agency is the federal agency
primarily responsible for overseeing the implementation of the CWA, including the review,
approval, and, if necessary, direct establishment of TMDLs in the states, including Virginia.
54. Defendant Lisa P. Jackson is the Administrator of the United States
Environmental Protection Agency and, as such, is charged with the supervision and management
of all decisions and actions of the agency, including those taken pursuant to the CWA in
Virginia. She is sued in her official capacity only.
55. Defendant United States Environmental Protection Agency Region III is one of
ten regional offices of Defendant United States Environmental Protection Agency and is the
regional office with jurisdiction including Virginia and Accotink Creek.
56. Defendant Shawn M. Garvin is the Regional Administrator of the United States
Environmental Protection Agency Region III and is sued in his official capacity only.
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JURISDICTION AND VENUE
57. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331 because State Plaintiffs claims arise under the laws of the United States, and pursuant to
the APAs provisions for judicial review of final agency action at 5 U.S.C. 701-706. See also
Friends of the Earth v. EPA, 333 F.3d 184, 189 (D.C. Cir. 2003) ([O]riginal jurisdiction over
EPA actions not expressly listed in [33 U.S.C. ] 1369(b)(1) lies . . . with the district court.).
58. The declaratory and injunctive relief requested is authorized by 28 U.S.C.
2201 and 2202, and by 5 U.S.C. 701-706, including immediate postponement of the effective
date of the Accotink TMDL to preserve the status and rights of the State Plaintiffs and their
respective MS4 NPDES permits pending the conclusion of this litigation, as authorized by 5
U.S.C. 705.
59. Venue is appropriate in this judicial district pursuant to 28 U.S.C. 1391(e) and 5
U.S.C. 703 because EPA is an agency of the United States, Plaintiff VDOTs roads and
highways and its MS4 affected by the Accotink TMDL are located in this district, Plaintiff
Fairfax County and its MS4 affected by the Accotink TMDL are located in this district, and a
substantial part of the events giving rise to the claims occurred within this district.
STATUTORY AND REGULATORY BACKGROUND
60. Congress enacted the CWA in 1972 with a goal to restore and maintain the
chemical, physical and biological integrity of the Nations waters. CWA 101(a), 33 U.S.C.
1251(a).
61. The CWA is an exercise in cooperative federalism and explicitly recognizes the
primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan
the development and use (including restoration, preservation, and enhancement) of land and
15
water resources, and to consult with the Administrator in the exercise of his authority under [the
CWA]. CWA 101(b), 33 U.S.C. 1251(b); see Arkansas v. Oklahoma, 503 U.S. 91, 101
(1992); New York v. United States, 505 U.S. 144, 167 (1992); United States v. Cooper, 482 F.3d
658, 667 (4th Cir. 2007).
62. In Virginia, most CWA-related programs and activities, whether regulatory or
non-regulatory in nature, are administered by the Department of Environmental Quality and its
associated State Water Control Board (collectively, DEQ) or the Department of Conservation
and Recreation and its associated Soil and Water Conservation Board (collectively, DCR).
Water Quality Standards
63. The CWA requires states to establish and periodically review and revise water
quality standards, which include designated uses for water bodies in the state, as well as
narrative and/or numeric water quality criteria that define the water quality conditions
considered to be protective of the uses designated by the state. CWA 303(a)-(c), 33 U.S.C.
1313(a)-(c); 40 C.F.R. 130.3, 131.2, and 131.3(i).
64. Designated uses are those uses specified in water quality standards for each
water body or segment, whether or not those uses are being attained. 40 C.F.R. 131.3(f); 9 Va.
Admin. Code 25-260-5.
65. The Commonwealth, acting through DEQ, has currently designated all Virginia
waters for the following uses as part of its EPA-approved Water Quality Standards Regulation:
recreational uses, e.g., swimming and boating; the propagation and growth of a balanced,
indigenous population of aquatic life, including game fish, which might reasonably be expected
to inhabit them; wildlife; and the production of edible and marketable natural resources, e.g., fish
and shellfish. 9 Va. Admin. Code 25-260-10 (cited in Accotink TMDL at 1-6).
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66. Water quality criteria are elements of State water quality standards, expressed
as constituent concentrations, levels, or narrative statements, representing a quality of water that
supports a particular use. When criteria are met, water quality will generally protect the
designated use. 40 C.F.R. 131.3(b); 9 Va. Admin. Code 25-260-5.
67. The Commonwealth, acting through DEQ, has promulgated the following
narrative water quality criteria as part of its EPA-approved Water Quality Standards Regulation:
State waters, including wetlands, shall be free from substances attributable to sewage,
industrial waste, or other waste in concentrations, amounts, or combinations which contravene
established standards or interfere directly or indirectly with designated uses of such water or
which are inimical or harmful to human, animal, plant or aquatic life. 9 Va. Admin. Code 25-
260-20 (cited in Accotink TMDL at 1-6) (emphasis added).
Listing of Impaired Waters and Establishment of TMDLs
68. Each state is required to identify those waters within its boundaries for which
technology-based effluent limitations for point sources are insufficient to implement applicable
water quality standards, CWA 303(d)(1)(A), 33 U.S.C. 1313(d)(1)(A), and submit its 303(d)
list of such impaired waters to EPA for review and approval every two years, 40 C.F.R.
130.7(d).
69. Point source means any discernible, confined, and discrete conveyance
including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, landfill leachate collection
system, vessel, or other floating craft from which pollutants are or may be discharged . . . .
CWA 502(14), 33 U.S.C. 1362(14) (emphasis added); see also 40 C.F.R. 122.2; 9 Va.
Admin. Code 25-31-10.
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70. EPA is required to publish an identification of pollutants suitable for maximum
daily load measurement. CWA 304(a)(2)(d), 33 U.S.C. 1314(a)(2)(D) (emphasis added).
71. Pollutants are defined in the CWA, as well as EPAs implementing regulations
and Virginias Water Quality Standards Regulation, to mean dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into water. CWA 502(6), 33 U.S.C.
1362(6); see also 40 C.F.R. 122.2; 9 Va. Admin. Code 25-31-10. This definition includes
many specific substances, but not the flow of water. See CWA 502(6), 33 U.S.C. 1362(6);
see also 40 C.F.R. 122.2; 9 Va. Admin. Code 25-31-10.
72. In 1978, pursuant to CWA 304(a)(2)(d), 33 U.S.C. 1314(a)(2)(D), EPA
identified all pollutants as suitable for TMDL calculations. 43 Fed. Reg. 60665 (Dec. 28, 1978)
(All pollutants, under the proper technical conditions, are suitable for the calculation of total
maximum daily loads.).
73. Each state is required to establish a TMDL for those pollutants identified by EPA
pursuant to CWA 304(a)(2)(d), 33 U.S.C. 1314(a)(2)(D), for each water identified on its
303(d) impaired waters list. CWA 303(d)(1)(C), 33 U.S.C. 1313(d)(1)(C); 40 C.F.R.
130.7(c)(1).
74. States must submit TMDLs to EPA for EPAs approval. CWA 303(d)(2), 33
U.S.C. 1313(d)(2). If EPA disapproves a states TMDLs, the EPA Administrator must
establish such loads for such waters as [EPA] determines necessary to implement the water
quality standards applicable to such waters. Id.
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75. A TMDL for a pollutant must be established at a level necessary to implement
the applicable water quality standard(s) with seasonal variations and a margin of safety which
takes into account any lack of knowledge concerning the relationship between effluent
limitations and water quality. CWA 303(d)(1)(C), 33 U.S.C. 1313(d)(1)(C); 40 C.F.R.
130.7(c)(1).
76. According to EPAs implementing regulations, a TMDL is comprised of
wasteload allocations (WLAs) for point sources and load allocations (LAs) for nonpoint
sources and natural background pollutant loads. 40 C.F.R. 130.2(i).
77. Wasteload allocation is defined as [t]he portion of a receiving waters loading
capacity that is allocated to one of its existing or future point sources of pollution. 40 C.F.R.
130.2(h).
78. Load allocation means [t]he portion of a receiving waters loading capacity
that is attributed either to one of its existing or future nonpoint sources of pollution or to natural
background sources. 40 C.F.R. 130.2(g).
79. Loading capacity is defined as [t]he greatest amount of loading that a water
can receive without violating water quality standards. 40 C.F.R. 130.2(f) (emphasis added).
80. Load or loading means an amount of matter or thermal energy that is
introduced into a receiving water; to introduce matter or thermal energy into a receiving water.
40 C.F.R. 130.2(e).
81. In other words, a TMDL establishes a water bodys loading capacity, which is
the maximum amount of a pollutant that can be introduced into a water body per day without
violating water quality standards. See 40 C.F.R. 130.2 (e)-(i).
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82. EPAs implementing regulations provide that TMDLs may be established using
a pollutant-by-pollutant or biomonitoring approach (e.g., directly measuring aquatic life), 40
C.F.R. 130.7(c)(1)(i), for all pollutants preventing or expected to prevent attainment of water
quality standards. 40 C.F.R. 130.7(c)(1)(ii) (emphasis added). The regulations do not purport
to authorize the use of non-pollutant surrogates.
83. In contrast to the definition of pollutants for which a TMDL is required, the
CWA defines pollution more generally and more broadly to include the man-made or man-
induced alteration of the chemical, physical, biological, and radiological integrity of water.
CWA 502(19), 33 U.S.C. 1362(19).
84. This statutory distinction between pollutant and pollution is fundamental to
the structure and scope of the CWA, which makes pollutants the authorized focus of the TMDL
program and NPDES permits. See, e.g., CWA 303(d)(1)(C), 33 U.S.C. 1313(d)(1)(C) (Each
State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in
accordance with the priority ranking, the total maximum daily load, for those pollutants which
the Administrator identifies under section 1314(a)(2) of this title as suitable for such
calculation. (emphasis added)); CWA 402(p)(3)(B)(iii), 33 U.S.C. 1342(p)(3)(B)(iii)
(Permits for discharges from municipal storm sewers . . . shall require controls to reduce the
discharge of pollutants to the maximum extent practicable . . . . (emphasis added)).
85. The flow or discharge of water itself, whether comprised of stormwater or
otherwise, is not a pollutant. See CWA 502(6), 33 U.S.C. 1362(6); 9 Va. Admin. Code
25-31-10. EPA itself concedes that it does not believe that flow, or lack of flow, is a pollutant
as defined by the CWA Section 502(6). See Guidance for 2004 Assessment, Listing, and
20
Reporting Requirements Pursuant to Sections 303(d) and 305(b) of the Clean Water Act at 8
(July 21, 2003) (relevant excerpts attached hereto as Exhibit B).
86. Furthermore, neither the CWA nor EPAs implementing regulations provide
express authority to regulate the discharge of water alone as a surrogate for a defined pollutant.
NPDES Permit Program
87. The CWA prohibits the discharge of pollutants by point sources to waters of
the United States unless authorized by an NPDES permit. CWA 301(a), 33 U.S.C. 1311(a);
CWA 402, 33 U.S.C. 1342.
88. Point sources include certain MS4s subject to EPAs so-called Phase I and Phase
II stormwater NPDES regulations, including State Plaintiffs MS4s in the Accotink Creek
watershed. See 40 C.F.R. 122.26.
89. Storm water, or stormwater, is defined as storm water runoff, snow melt
runoff, and surface runoff and drainage. 40 C.F.R. 122.26(b)(13).
90. Medium MS4s in cities and counties with populations of 100,000-249,999, and
large MS4s in cities and counties with populations of at least 250,000 (including Fairfax
Countys MS4), are regulated under the Phase I stormwater regulations. See id.
91. Small MS4s (including VDOTs MS4) in urbanized areas are regulated under the
Phase II stormwater regulations. See id.
92. With respect to stormwater, the CWAs NPDES permit program is limited to
addressing the discharge of pollutants. CWA 402(p), 33 U.S.C. 1342(p); CWA 502(12),
33 U.S.C. 1362(12) (The term discharge when used without qualification includes a
discharge of a pollutant, and a discharge of pollutants.). Thus, stormwater must contain a
pollutant in order to be regulated by an NPDES permit.
21
93. For point source stormwater discharges, NPDES permits require controls to
reduce the discharge of pollutants to the maximum extent practicable, which may include various
practices, techniques, methods, and other provisions. CWA 402(p)(3)(B)(iii), 33 U.S.C.
1342(p)(3)(B)(iii).
94. In Virginia, DCR is authorized by EPA to administer the NPDES permit program
as to stormwater discharges from MS4s. DCR-issued NPDES permits are known as VSMP
permits and are authorized as a matter of state law under the Virginia Stormwater Management
Act, Va. Code Ann. 10.1-603.1 et seq., and the VSMP Permit Regulations, 4 Va. Admin. Code
50-60-10 et seq.
95. Notwithstanding the specific compliance standard of the CWA applicable to
urban stormwater runoff through MS4s established by Congress at 33 U.S.C. 1342(p)(3)(B)(iii)
(a maximum extent practicable level of pollutant control), EPA takes the position that NPDES
permits for MS4s must contain water quality-based effluent limitations consistent with the
assumptions and requirements of any available wasteload allocation in a TMDL and that EPA
has the authority to object to the issuance of an NPDES permit that is inconsistent with WLAs
established for that point source. Accotink TMDL at 8-2 to 8-4; see also EPA Response at
Comment # 42; EPA Flow Memo at 3 (citing 40 C.F.R. 122.44(d)(1)(vii)(B)). Hence,
according to EPAs interpretation, the WLAs for Fairfax County and VDOT established in the
Accotink TMDL must be included in their MS4 permits.
96. While this EPA position may apply to traditional point source discharges from
wastewater treatment plants and industrial manufacturing facilities regulated under federal law,
MS4s are instead subject to a statutory, MS4-specific compliance standard enacted by Congress
in 1987, subsequent to EPAs adoption of 40 C.F.R. 122.44(d)(1)(vii)(B). CWA
22
402(p)(3)(B)(iii), 33 U.S.C. 1342(p)(3)(B)(iii) (Permits for discharges from municipal storm
sewers . . . shall require controls to reduce the discharge of pollutants to the maximum extent
practicable . . . . (emphasis added)).
FACTUAL BACKGROUND
American Canoe Association v. EPA Consent Decree
97. In 1998, the American Canoe Association and the American Littoral Society filed
a lawsuit in this Court against EPA for allegedly failing to fulfill its non-discretionary duty under
CWA 303(d) to disapprove Virginias constructive non-submission of TMDLs and for EPA
failing to establish TMDLs itself for impaired waters in Virginia. See American Canoe Assn,
Inc. v. EPA, 30 F. Supp. 2d 908, 911-12, 919 (E.D. Va. 1998).
98. That litigation was resolved by a Consent Decree entered by this Court in 1999,
which included a schedule for development of TMDLs in Virginia. Consent Decree, American
Canoe Assn, No. 98-979-A (E.D. Va. June 11, 1999) (the Consent Decree) (relevant excerpts
attached hereto as Exhibit C).
99. While Virginia was not a party to the Consent Decree and is not directly regulated
thereby, the Consent Decree set forth EPAs expectation that TMDLs for each listed water
(including Accotink Creek) and associated pollutant be completed by Virginia by May 1,
2010. Id. at 11 and at Attachment A at 4.
100. Under the heading of Pollutant, Attachment A of the Consent Decree does not
list water or the flow of water, and in no way expands EPAs legal authority to regulate the
flow of water. Id. at Attachment A at 4.
23
101. In the event that Virginia failed to develop the TMDLs by May 1, 2010, the
Consent Decree required EPA to establish all of the identified TMDLs by May 1, 2011, i.e.,
within only twelve months of Virginias deadline. Id. at 11.
102. Although EPA was required to establish a TMDL for the pollutant(s) impairing
Accotink Creek by May 1, 2011, EPA was neither required nor authorized by the Consent
Decree to regulate the flow of water into Accotink Creek. See id.
EPAs New Non-Conventional TMDL Model for the Mid-Atlantic Region
103. Upon information and belief, EPA encouraged DEQ to adopt a flow TMDL for
Accotink Creek, which would regulate the flow of water rather than a traditional pollutant
regulated by the Clean Water Act.
104. DEQ, however, declined to issue a flow TMDL without first conducting a
rulemaking in accordance with the Virginia Administrative Process Act, Va. Code 2.2-4000 et
seq., to establish flow TMDL-related implementing regulations under the statutory authority of
the Virginia State Water Control Law, Va. Code Ann. 62.1-44.2 et seq., and the Virginia
Stormwater Management Act, Va. Code Ann. 10.1-603.1 et seq. Those Virginia statutes are
broader than the federal CWA in many significant respects, including the management of flow
and other water quantity issues, as well as non-pollutant water quality issues. Nevertheless,
DEQ recognized that, even under its significantly broader state statutory authority, notice and
comment rulemaking was a necessary prerequisite to issuing a flow TMDL. See Agency
Background Document available at
http://www.townhall.state.va.us/L/viewstage.cfm?stageid=5168&display=general (DEQ
Background Document); 25 Va. Reg. Regs. 4,466 (August 31, 2009); Letter from Jon M.
24
Capacasa, Director, EPA Region III Water Protection Division, to Ellen Gilinsky, Director, DEQ
Division of Water Quality Programs (Undated) (attached hereto as Exhibit D).
105. In 2009, DEQ issued a Notice of Intended Regulatory Action pursuant to its broad
state-law authority to correct or reduce the alteration of the physical, chemical or biological
properties of any state waters due to flow. DEQ Background Document; 25 Va. Reg. Regs.
4,466 (August 31, 2009).
106. EPA was not deterred by the narrower scope of its authority under the CWA or
(even assuming EPA has authority to regulate flow) by APA rulemaking requirements. In its
undated letter to DEQ (Exhibit D), EPA commended DEQ on its efforts to develop a non-
conventional TMDL that would use the volume and velocity (i.e., flow) of urban runoff and
announced EPAs belief that this non-conventional approach would be consistent with the
Clean Water Act and its implementing regulations, despite the lack of express statutory
authority and the obvious constraints described above related to the regulation of pollutants as
defined by the CWA itself. Notably, in the letter, EPA did not cite any statutory or regulatory
authority for this belief.
107. In the undated EPA letter, EPA recognizes that DEQ may face a scheduling
problem due to DEQs need to adopt regulations governing water flow and states that EPA will
take over development of the Accotink TMDL to meet the Consent Decree deadline. Id.
108. On April 18, 2011, as EPAs twelve-year compliance period under the 1999
Consent Decree was drawing to a close, EPA issued the Accotink TMDL to regulate the flow of
water.
109. In so doing, EPA effectively short-circuited the public participation safeguards of
the Virginia Administrative Process Act that DEQ was honoring. See id. Instead, EPA decided
25
to proceed with its own non-conventional TMDL based on authority that EPA believes it
may possess, despite the plain language of the CWA to the contrary. Id.
110. Upon information and belief, prior to 2011, EPA had never established a flow
TMDL in the nearly forty years since the 1972 enactment of the TMDL provisions in CWA
303(d), and EPA intends this new manner of regulation to serve as a model for TMDLs to be
developed and implemented in watersheds throughout the [Mid-Atlantic EPA] Region . . . .
EPA Region III, Water Info Newsletter, Vol. 3, Iss. 1, at 4 (March 2009) (relevant excerpts
attached hereto as Exhibit E).
111. Even if EPA were correct in its belief that it has the statutory authority to regulate
the flow of water, EPA should have followed the example of Virginia and engaged in notice and
comment rulemaking in accordance with 5 U.S.C. 553 prior to implementing such a drastic
change in its existing regulations or their implementation, particularly since EPA intends to use
this approach as a prototype for the entire Mid-Atlantic region, if not nationally. However, EPA
failed to carry out the requisite APA rulemaking procedures.
Accotink Creeks Benthic Impairment
112. DEQ and EPA consider Accotink Creek to be impaired because it does not fully
support the designated use of propagation and growth of a balanced, indigenous population of
aquatic life, specifically benthic macroinvertebrates or simply benthics. 9 Va. Admin. Code
25-260-10.
113. Benthic macroinvertebrates are invertebrate organisms, such as insects,
crustaceans, snails, or worms, which live on the bottom of streams and rivers, are large enough to
be seen with the naked eye, and are often extremely sensitive to pollutants, according to DEQ.
See
26
http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs/WaterQualityM
onitoring/BiologicalMonitoringOverview.aspx (last visited June 25, 2012).
114. DEQ has not adopted numeric water quality criteria for benthic organisms and
instead interprets its aquatic life designated use, and more specifically the health of the benthic
macroinvertebrate population, by means of the Virginia Stream Condition Index (VSCI). See
Accotink TMDL at 3-4.
115. DEQ considers a VSCI score of 60 or greater to represent aquatic life use
attainment and a score below 60 to be indicative of aquatic life use (benthic) impairment.
Accotink TMDL at 3-4.
116. Based on data collected at various monitoring locations within Accotink Creek at
various times between 1994 and 2008, the long-term average VSCI score for Accotink Creek is
approximately 30. Accotink TMDL at 3-10.
117. To determine the cause of this benthic impairment, the Accotink TMDL includes
a stressor identification analysis, which identified many possible stressors, including
nutrients (nitrogen and phosphorus) that exceed screening values (Accotink TMDL at 4-3);
toxicity of the water in the creek to living organisms (Accotink TMDL at 4-4); various metals,
pesticides, and other organic contaminants, including heptachlor epoxide, PCBs, dieldrin,
chlordane, mercury, and arsenic, all of which exceeded screening values for fish tissue (Accotink
TMDL at 4-4 to 4-5); and excessive sediment (Accotink TMDL at 4-5 to 4-6).
118. Despite these numerous contributing causes to the benthic impairment, EPA
selected sediment alone as the most probable stressor and the pollutant of concern. Accotink
TMDL at 5-1.
27
EPAs Preference for an Inferior Surrogate for the Pollutant
119. According to EPAs website, EPA has approved or established 3,691 TMDLs for
the pollutant actually at issue here (sediment) since 1995. EPA, National Summary of Impaired
Waters and TMDL Information, National Cumulative TMDLs by Pollutant,
http://ofmpub.epa.gov/tmdl_waters10/attains_nation_cy.control?p_report_type=T (last visited
June 25, 2012).
120. Upon information and belief, EPA has historically interpreted and applied the
CWA to exclude the regulation of the quantity of water alone (including flow rate, volume, and
velocity) by TMDLs and NPDES permits and had never established a TMDL for flow prior to
2011.
121. Among the EPA-approved sediment TMDLs are TMDLs for Popes Head Creek,
Bull Run, and Difficult Run in Fairfax County, Virginia, each of which has an aquatic life
impairment similar to Accotink Creek. None of these TMDLs regulate the flow of water.
122. Attachment A of the Consent Decree lists 111 water bodies as impaired for
benthics, in addition to Accotink Creek. All of these TMDLs were due to be approved or
established by EPA by May 1, 2011, and none of these impairments were addressed by
regulating flow. Instead, upon information and belief, EPA established or approved TMDLs for
pollutants for these impairments, as required by the CWA.
123. Nevertheless, upon information and belief, EPA selected the Accotink Creek
watershed area of Virginia and certain watersheds in Missouri to drastically change and expand
EPAs national TMDL regulatory program. EPA took this action without adhering to
rulemaking procedures and instead merely issued a guidance document (the EPA Flow Memo) to
justify its approach. EPA now seeks to apply the authority presumed in this guidance document
28
through individual TMDLs. EPA asserts the regulatory power to control the flow of clean water,
and by implication, land use and the amount of impervious cover (e.g., buildings and roads)
from which the stormwater flows run off.
124. EPA recognized the problems of addressing benthic impairments through
regulating pollutants alone in its Response to Comments, citing to the 2008 National Research
Council Report Urban Stormwater Management in the United States. EPA Response at
Comments # 22, 25, and 42. That Report itself, however, notes, Even though pollutant is
defined broadly in the Act to include virtually every imaginable substance added to surface
waters, including heat, it has not traditionally been read to include water volume [33 U.S.C.
1362(6)]. National Research Council, Urban Stormwater Management in the United States 50
(2008). The Report further notes, [s]ince the primary federal statutethe CWAis concerned
with limiting pollutants into surface waters, the volume of discharges are secondary and are
generally not regulated at all. Id. at 119 (emphasis added).
125. In light of the limitations of its existing authorities, EPA impermissibly
established the flow TMDLs to expand its regulatory reach beyond its previously, and
commonly, understood limitations. EPA understood, and understands, that it does not have the
legal authority to regulate the flow of water.
126. Upon information and belief, EPA has based the four flow TMDLs it has
established on guidance written by EPA staff and issued in final form on December 28, 2010 and
on the non-conventional approach set forth therein. See EPA Flow Memo.
127. The EPA Flow Memo encourages TMDL writers to use numeric parameters
acting as surrogates for pollutants and specifically recommends stormwater flow volume or
29
impervious cover as surrogate pollutant parameter[s], which itself is a misleading name given
that neither flow nor impervious cover is a pollutant. EPA Flow Memo at 2, 5.
128. Upon information and belief, the EPA Flow Memo generated such a national
controversy that EPA subsequently agreed to an informal comment process on its already final
memorandum. During that comment process, many parties objected to the legality and
appropriateness of EPAs planned regulatory program expansion, by guidance, for the control of
the flow of water. As of this time, EPA has yet to issue revised guidance.
129. It is unknown to the State Plaintiffs whether EPAs revised guidance will retain
flow or impervious cover as a surrogate pollutant parameter. However, even if it will, such
guidance cannot amend the statutory requirement that TMDLs are maximum loads of
pollutants, rather than the volume, velocity, or flow rate of water.
130. The EPA Flow Memo recommends, pursuant to 40 C.F.R. 122.44(d)(1)(vii)(B),
that the permitting authority (EPA or a state agency such as DCR) impose effluent limits and
conditions in MS4 NPDES Permits consistent with the TMDL, i.e., permit limits on the flow of
stormwater that may be conveyed by and discharged from an MS4 drainage system. The State
Plaintiffs dispute that such federal statutory or regulatory authority exists.
131. Each of EPAs three flow TMDLs established for water bodies in Missouri have
been appealed to the United States District Court for the Western District of Missouri, Southern
Division.
132. In City of Columbia, Missouri et al. v. EPA, No. 2:11-cv-04155 (W.D. Mo.), EPA
has agreed to an extensive settlement agreement styled as a Collaborative Adaptive Management
Implementation Schedule and Agreement for Hinkson Creek TMDL.
30
133. The City of Springfield, Missouri et al v. EPA, No. 6:11-CV-03383 (W.D. Mo.)
case regarding EPAs other two flow TMDLs is at a preliminary stage and ongoing.
134. EPAs choice of flow as a surrogate is especially problematic because flow
accounts for only 75% or less of the identified sediment problem. See Accotink TMDL at 4-7,
Figure 4-1. Therefore, there is no rational basis for EPA to choose this surrogate, given that the
Accotink TMDL itself and the public comment made to EPA demonstrate flow regulation to be
inferior or ineffective as compared to the direct regulation of the real pollutant at issue
(sediment). See id.; EPA Response at Comments # 4, 6, 10, 21, 23, 30, and 49.
135. Flow is an unnecessary, unjustified, and inferior surrogate that never should have
been selected for Accotink Creek. The result is that the State Plaintiffsand all Virginians
are left with a non-conventional TMDL leading to higher costs and worse water quality results
than a traditional, lawful TMDL addressing a pollutant of concern.
136. EPAs concept of regulating a surrogate, as encouraged in the EPA Flow Memo
and applied in the Accotink TMDL, appears to know no bounds or criteria for its application,
opens the door to regulating any number of land uses and human activities such as existing
buildings and roads (impervious cover), and expands EPAs TMDL and NPDES permit
jurisdiction far beyond the management of pollutants authorized by the CWA.
137. Regulation of the flow of water or any other non-pollutant or human activity
based on an alleged correlation to a CWA pollutant contravenes the clear congressional intent to
limit EPAs regulatory authority to the control of only the substances specifically enumerated in
the definition of pollutant. See CWA 303(d)(1)(C), 502(6), 33 U.S.C. 1313(d)(1)(C),
1362(6). EPA has no authority to arbitrarily expand the list of pollutants set by statute or to
31
eviscerate the CWAs explicit distinction between pollution and pollutant, as EPA has done
in the Accotink TMDL. See CWA 502(6), (19), 33 U.S.C. 1362(6), (19).
138. Although EPA frequently claims in the TMDL to be regulating flow as a
surrogate for the pollutant sediment, elsewhere in the TMDL EPA admits that it is actually
regulating flow itself because high flows scour the creeks banks and bottom. See, e.g., Accotink
TMDL at 4-5 to 4-8. To the extent that EPA is regulating flow because it believes that the flow
or quantity of water, in and of itself, is the problem, EPA is not applying a surrogate approach
at all, and instead is directly regulating a non-pollutant in excess of EPAs statutory authority.
EPA literally is treating water itselfthe very substance the Clean Water Act was created to
protectas a pollutant.
EPAs Flawed Numeric Flow Criterion
139. The Accotink TMDL next sets about determining and adopting a permissible flow
rate to define the total maximum daily flow that EPA will allow in Virginia streams from MS4
drainage systems. Accotink TMDL at 5-11 to 5-20.
140. EPA has calculated and adopted a generally applicable Non-impaired Composite
Unit-Area Flow Rate of 681.8 ft
3
/acre-day (the Numeric Flow Criterion). See Accotink
TMDL at 5-19 to 5-20.
141. EPA adopted the Numeric Flow Criterion (681.8 ft
3
/acre-day) based on two
reference streams that together became the de facto water quality standard for Accotink Creek.
See Accotink TMDL at 5-4, 6-11.
142. The chosen reference streamsthe rather pristine rural streams of Buffalo Creek
and Catoctin Creekare both fundamentally different from Accotink Creek in many respects
32
(e.g., different eco-regions, physiographic conditions, soils, and watershed shape, slope, and
size). See Accotink TMDL at 5-5 to 5-9.
143. Buffalo Creeks very low natural flow skews the resulting Numeric Flow
Criterion to a significantly lower level than would result from consideration of Catoctin Creek
alone or other streams.
144. The chosen reference streams are non-representative of even a pristine Accotink
Creek and are an inappropriate basis for setting the total maximum daily flow allowed to
discharge from the State Plaintiffs MS4s.
145. The reference streams both significantly exceed Virginias definition of aquatic
life use attainment (i.e., a VSCI score of 60 or greater) and, therefore, fail to define the
maximum loading capacity of the TMDL for Accotink Creek (i.e., the highest flow tolerable
under the aquatic life use water quality standard).
146. EPA made no meaningful effort to determine the true maximum loading
capacity of Accotink Creek in the TMDL.
147. EPA uses the Numeric Flow Criterion to model a flow rate that EPA believes
would protect a hypothetical pristine stream from impairment, but neither the criterion nor the
Accotink TMDL itself provide any information predicting the in-stream effects of meeting this
criterion in Accotink Creek, which is already impaired.
148. The State Plaintiffs and others commented on these major deficiencies associated
with the reference streams, but the final Accotink TMDL and the EPA Response summarily
dismiss these significant issues and, thus, fail to establish a rational connection between these
facts and decisions EPA made. See, e.g., EPA Response at Comments # 140 (Fairfax County),
141 (VDOT), and 142 (Virginia DCR).
33
149. Nevertheless, EPA used the in-stream flow rates of the reference streams to adopt
the Numeric Flow Criterion for Accotink Creek and for establishing WLAs for MS4 discharges
thereto.
150. The Numeric Flow Criterion is a generally applicable numeric criterion based on
a defined, non-urban, pre-development flow condition from other watersheds (i.e., not specific to
Accotink Creek).
151. The Numeric Flow Criterion is applied in Accotink Creek as a binding legal norm
and would necessarily govern permissible flow rates under EPAs new model TMDL approach
that EPA intends to use for other urban streams in Virginia. See Exhibit E.
152. Just as EPA never subjected its expansion of the TMDL program to the public
safeguards of APA notice and comment rulemaking under 5 U.S.C. 553, EPA similarly evaded
the CWA and APA procedural requirements that apply to EPAs adoption of a Numeric Flow
Criterion on behalf of the Commonwealth of Virginia.
153. The Numeric Flow Criterion was adopted by EPA for Virginia in violation of the
terms and procedures set forth in CWA 303(c)(4)(B), 33 U.S.C. 1313(c)(4)(B), for the
adoption of such criteria. EPAs action denied Virginia the state primacy that it is assured by the
CWA. See, e.g., CWA 101(b), 33 U.S.C. 1251(b) (It is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources, and to consult with the
Administrator in the exercise of his authority under this chapter.); CWA 303(c), 33 U.S.C.
1313(c) (adoption of water quality standards); CWA 303(d), 33 U.S.C. 1313(d)
(identification of impaired waters and establishment of TMDLs).
34
154. EPAs action denied the State Plaintiffs and the public generally the important
procedural safeguards assured by the APA, not to mention appropriate transparency and
accountability.
Flow Reduction Will Not Meet Water Quality Standards
155. Even if the Numeric Flow Criterion had been within EPAs authority, technically
appropriate, and lawfully adopted, the Accotink TMDL would still be arbitrary and unlawful
because it completely fails to take account of the physical characteristics of Accotink Creeks
channel and its now urban watershed, which have changed materially and irreversibly since
colonial times due to land clearing and development (e.g., a deeper, wider channel that has cut
lower into the surface and become more divorced from its flood plain).
156. As the State Plaintiffs and others commented during the TMDL development
process, simply returning Accotink Creeks flow rate to a presumed representation of pre-
development levels, as would be required under the Numeric Flow Criterion, has in no way been
demonstrated by EPA to meet the target required by lawa balanced, indigenous population of
benthic organisms in Accotink Creek. See, e.g., EPA Response at Comments # 12, 13, 14, 19,
23, 30, 49, 51, 55 and 57. Instead, all that will result is that the same severely changed creek bed
will have less water at the selected 1-year, 24-hour flow condition.
157. The biological objective of a balanced, indigenous population of benthic
organisms in Accotink Creek is the statutory linchpin of the Accotink TMDL, yet it is
completely overlooked by the TMDL documentation, and a rational relationship is never
established between the Numeric Flow Criterion of 681.8 ft
3
/acre-day and the restoration of
Accotink Creek and its aquatic life.
35
158. Aquatic life use attainment is not possible without a comprehensive approach
completely ignored herethat takes into account the physical changes to the channel itself in
combination with changes to the amounts of sediment and patterns of flow delivered from the
watershed to the creek. See, e.g., EPA Response at Comments # 12, 13, 14, 19, 23, 30, 49, 51, 55
and 57.
159. Failure to consider all three in combination, and instead focusing on making just
one of the three factors (flow) behave like two rural reference streams, means that there is no
rational basis to conclude that the Accotink TMDL is designed to achieve the aquatic life use
other than by coincidence or accident.
160. If all three factors were actually considered in combination, EPAs particular
Numeric Flow Criterion of 681.8 ft
3
/acre-day would have no special biological relevance and
need not control over any other adequate balance of the three factors.
161. The State Plaintiffs and others commented on this major issue and concern
whether the Accotink TMDL is actually designed to restore the habitat needed to support a
balanced, indigenous population of benthic organisms in Accotink Creekyet the final Accotink
TMDL and the EPA Response utterly fail to address this point. See, e.g., EPA Response at
Comments # 12, 13, 14, 19, 23, 30, 49, 51, 55 and 57.
162. The Accotink TMDL contains indisputable errors of fact as well as statistical
errors central to the determination of the TMDL and related WLAs.
163. For example, in calculating the MS4 WLA in the Accotink TMDL, EPA relied
upon the unfounded assumption that 90% of the acreage of all land uses in the watershed drain
to a permitted stormsewer. EPA Response at Comment # 188. EPA provided no analysis in the
TMDL document to support this assumption. See EPA Response at Comment # 189.
36
164. On information and belief, significantly less than 90% of developed lands in
Fairfax County drains through the MS4. Id. For example, and of particular concern to Fairfax
County, the Accotink TMDL over-regulates the County by assigning approximately 18,000 acres
as the allocated area for the point source MS4 WLA, Accotink TMDL at 6-9, Table 6-7, rather
than the Countys actual MS4 area of 10,600 acres, EPA Response at Comment # 188. This
error nearly doubles the Countys burden and responsibility under the Accotink TMDL, and
illustrates the weakness of the entire Accotink TMDL. Id.
165. VDOT expressed similar concerns in its comments regarding EPAs assumptions
for its MS4 drainage area. EPA Response at Comment # 190.
166. Although the State Plaintiffs and others commented regarding these errors and, in
the case of Fairfax County, even provided the correct data based on an actual MS4 drainage area
delineation, EPA declined to fix these clear errors. See, e.g., EPA Response at Comments # 188,
189, 190, 191, 192, and 193.
167. For all of the above reasons, EPA failed to establish the Accotink TMDL at a
level necessary to implement applicable water quality standards as required by CWA
303(d)(1)(C).
CLAIMS FOR RELIEF
COUNT I
EPAs Accotink TMDL Exceeds EPAs Statutory Authority and Violates the CWA
Because Flow Is Neither a Pollutant Nor a Permissible Surrogate

168. The State Plaintiffs hereby incorporate by reference and re-allege all preceding
paragraphs of this Complaint as if set forth in this Count I.
169. Agency action, findings and conclusions must be held unlawful and set aside if
found to be, among other things, ultra vires, in excess of statutory jurisdiction, authority, or
37
limitations, or short of statutory right, 5 U.S.C. 706(2)(C); or arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law, 5 U.S.C. 706(2)(A).
170. Pursuant to the CWA and EPAs implementing regulations, a TMDL must be
established for a pollutant in an impaired water at a level necessary to implement the
applicable water quality standards. CWA 303(d)(1)(C), 33 U.S.C. 1313(d)(1)(C); see also
40 C.F.R. 130.7(c)(1) and (d)(2).
171. Neither the CWA nor EPAs implementing regulations authorize EPA to regulate
the flow of water (including volume, velocity, and flow rate) in, or that may be introduced into, a
receiving water because the flow of water, by itself, is not a pollutant.
172. Moreover, neither the CWA nor its implementing regulations expressly authorize
EPA to regulate a surrogate in the place of a pollutant.
173. EPA violated the CWA 303(d) and its own implementing regulations, exceeded
its authority, and acted in an ultra vires manner in establishing the Accotink TMDL because
EPA chose to regulate the non-pollutant flow.
COUNT II
EPAs Accotink TMDL Is Unlawful Because EPA Adopted the
Flow Requirements in Contravention of Required CWA and APA Procedures

174. The State Plaintiffs hereby incorporate by reference and re-allege all preceding
paragraphs of this Complaint as if set forth in this Count II.
175. Agency action, findings, and conclusions must be held unlawful and set aside if
taken without observance of procedure required by law. 5 U.S.C. 706(2)(D). In addition, the
reviewing court shall compel agency action unlawfully withheld or unreasonably delayed. 5
U.S.C. 706(1).
38
176. Like Virginia, EPA was required to adopt its new non-conventional, model
approach to TMDL regulation of non-pollutant surrogates (including the flow of water) by
amending its TMDL regulation, 40 C.F.R. Part 130, in accordance with the public safeguards
and requirements of notice and comment rulemaking, 5 U.S.C. 553, because (a) EPAs
regulations do not provide for regulating flow or other non-pollutants, and (b) for nearly 40 years
EPA has interpreted and applied the CWAs TMDL and NPDES permit programs as not
regulating the flow of water. EPA violated the CWA and the APA by failing to engage in
rulemaking before addressing flow in a TMDL.
177. EPA violated the CWA by adopting the Numeric Flow Criterion without
observance of the procedures required by CWA 303(c), 33 U.S.C. 1313(c), for the adoption
of water quality standards for a state.
178. EPA violated the APA by adopting the Numeric Flow Criterion, which is a rule
within the meaning of 5 U.S.C. 551(4), with force and effect of law, without observance of the
public safeguards and requirements of notice and comment rulemaking under 5 U.S.C. 553.
COUNT III
Even If EPA Has the Authority to Regulate Flow and Adopt the Numeric Flow
Criterion, the Accotink TMDL Is Contrary to Law and Arbitrary and Capricious

179. The State Plaintiffs hereby incorporate by reference and re-allege all preceding
paragraphs of this Complaint as if set forth in this Count III.
180. Agency action, findings and conclusions must be held unlawful and set aside if
found to be, among other things, arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, 5 U.S.C. 706(2)(A); ultra vires, in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right, 5 U.S.C. 706(2)(C); without observance of
39
procedure required by law, 5 U.S.C. 706(2)(D); or unsupported by substantial evidence, 5
U.S.C. 706(2)(E).
181. Even assuming that EPA has the authority to regulate flow as a surrogate, EPA
violated the CWA and the APA by establishing a non-conventional TMDL with an inferior
surrogate, which will lead to higher implementation costs and worse water quality results.
182. EPA violated the CWA and the APA by adopting the Numeric Flow Criterion
based on two reference streams that provide an inappropriate basis for regulating Accotink
Creek, the parties in the Accotink Creek watershed, and the maximum flow rate for discharges
from the State Plaintiffs MS4s.
183. EPA violated the CWA and the APA by failing to determine, or even attempting
to determine, the maximum loading capacity of the TMDL for Accotink Creek.
184. EPA violated the CWA and the APA by incorrectly and unreasonably
determining the acreage and associated obligation for Reduction to the one-year, 24-hour Flow
for the State Plaintiffs MS4s-regulated areas.
185. EPA violated the CWA and the APA by failing to take into account stressor
pollutants other than sediment and physical changes other than flow to Accotink Creeks channel
and watershed, which have changed materially and irreversibly over time, such that there is no
rational basis to conclude that the Accotink TMDL will meet its target of a balanced, indigenous
population of benthic organisms simply by reducing stormwater flow.
186. EPA violated the CWA and the APA by unlawfully imposing upon MS4
permittees the inapplicable requirement of 40 C.F.R. 122.44(d)(1)(vii)(B) that effluent limits
in permits be consistent with the assumptions and requirements of any available wasteload
allocation in an EPA-approved TMDL and further establishing that EPA has the authority to
40
object to the issuance of an NPDES permit that is inconsistent with WLAs established for that
point source. Accotink TMDL at 8-2 to 8-4.
187. For the reasons stated herein, as well as for all of the reasons set forth in the
comments on the Draft Accotink TMDL, which are hereby incorporated by reference, the
Accotink TMDL is contrary to law and is arbitrary and capricious, in violation of the CWA and
APA.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Immediately postpone the effective date of the Accotink TMDL pending the
conclusion of this litigation, as authorized by 5 U.S.C. 705, to preserve the status and rights of
the State Plaintiffs and their respective MS4 NPDES permits and to prevent the imminent harm
to State Plaintiffs that would result from incorporation of the costly flow rate reductions
mandated by the Accotink TMDL into State Plaintiffs MS4 NPDES Permits;
2. Declare that EPAs action in establishing the Accotink TMDL is unlawful
because it is in excess of EPAs statutory authority and ultra vires; violates the Clean Water Act
and the Administrative Procedure Act; is arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law; and was adopted without observance of required
procedures, including that:
(a) EPA lacks the statutory authority under the CWA to regulate the flow of
water in the Accotink TMDL because the flow of water is neither a pollutant nor a
permissible surrogate for a pollutant;
41
(b) EPA violated the APA and CWA by regulating the flow of water and
imposing the Numeric Flow Criterion in the Accotink TMDL without observance of
required procedures;
(c) It was arbitrary, capricious, and contrary to law for EPA to base the
Accotink TMDL on an inferior surrogate, inappropriate reference streams, and
incorrect MS4 acreage determinations; for EPA to fail to determine the maximum loading
capacity of the creek and fail to take into account significant factors other than flow; and
for EPA to adopt MS4 permitting requirements contrary to the CWAs maximum extent
practicable standard for MS4s; and
(d) Establishment of the Accotink TMDL was unlawful for any additional
reasons set forth in this Complaint or the administrative record or to be demonstrated to
this Court;
3. Vacate the Accotink TMDL or, in the alternative, remand the Accotink TMDL to
EPA for reconsideration in light of the Courts decision;
4. Enjoin EPA from regulating the flow of water via TMDLs and NPDES permits;
5. Enjoin EPA from enforcing, requiring the Commonwealth of Virginia to enforce,
or otherwise acting pursuant to the Accotink TMDL; and
6. Grant such other relief as may be necessary and appropriate or as the Court deems
just and proper, including all fees and expenses herein incurred.
DATED: July 12, 2012

Glossary of Acronyms

1
APA: Administrative Procedure Act (5 U.S.C. 551 through 559).
BMPs: Best Management Practices. Methods, measures, or practices determined to be
reasonable and cost-effective means for a landowner to meet certain generally nonpoint source,
pollution control needs. BMPs include, but are not limited to, structural and nonstructural
controls and operation and maintenance procedures. See 40 C.F.R. 130.2(m); Va. Code Ann.
10.1-603.15.1; 9 Va. Admin. Code 10-20-40.
CWA: The Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or
Federal Water Pollution Control Act Amendments of 1972) (33 U.S.C. 1251 through 1387).
DCR: Virginia Department of Conservation and Recreation (Va. Code Ann. 10.1-100
through 10.1-104.6) and its associated Soil and Water Conservation Board (Va. Code Ann.
10.1-502 through 10.1-505). Authorized to administer the NPDES permit program as to
stormwater discharges from MS4s. See Va. Code Ann. 10.1-603.2:1.
DEQ: Virginia Department of Environmental Quality (Va. Code Ann. 10.1-1182 through
10.1-1197.11) and its associated State Water Control Board (Va. Code Ann. 62.1-44.7
through 62.1-44.15:5.2). Responsible for carrying out the mandates of the State Water Control
Law (Va. Code Ann. 62.1-44.2 through 62.1-44.34:28), as well as meeting Virginias
obligations under the CWA.
EPA: United States Environmental Protection Agency.
LA: Load allocation, the portion of a receiving waters loading capacity that is attributed either
to one of its existing or future nonpoint sources of pollution or to natural background sources.
Load allocations are best estimates of the loading, which can range from reasonably accurate
estimates to gross allotments, depending on the availability of data and appropriate techniques
for predicting the loading. Wherever possible, natural and nonpoint source loads should be
distinguished. See 40 C.F.R. 130.2(g); 9 Va. Admin. Code 25-720-10.
LID: Low Impact Development, a comprehensive land planning and engineering design
approach to stormwater management with a goal of maintaining and enhancing the pre-
development hydrologic regime of urban and developing watersheds. Includes the use of porous
pavers and landscaping.
MS4s: Municipal Separate Storm Sewer Systems, including roads with drainage systems,
municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains
designed or used for collecting or conveying stormwater, that are not a combined sewer and not
part of a publicly-owned treatment works. See 4 Va. Admin. Code 50-60-10.
NPDES: National Pollutant Discharge Elimination System. The CWAs NPDES program
requires permits for the discharge of pollutants from any point source into waters of the
United States. See CWA 402, 33 U.S.C. 1342; 40 C.F.R. 122.1(b).
2
RPAs: Resource Protection Areas, a designation made, pursuant to the Chesapeake Bay
Preservation Act (Va. Code Ann. 10.1-2100 through 10.1-2115), by Fairfax County and other
Virginia local governments of lands adjacent to water bodies with perennial flow that have an
intrinsic water quality value due to the ecological and biological processes they perform or are
sensitive to impacts which may result in significant degradation to the quality of state waters.
See 9 Va. Admin. Code 10-20-40, 10-20-80.
TMDL: Total Maximum Daily Load, the sum of the individual wasteload allocations (WLAs)
for point sources, load allocations (LAs) for nonpoint sources and natural background loading,
plus a margin of safety (MOS). TMDLs can be expressed in terms of mass per time, toxicity, or
other appropriate measures that relate to a states water quality standard. See 40 C.F.R.
130.2(i); 4 Va. Admin. Code 50-60-10; 9 Va. Admin. Code 25-720-10.
VDOT: Virginia Department of Transportation. Responsible for building, maintaining and
operating Virginias roads, bridges and tunnels. See Va. Code Ann. 33.1-1 through 33.1-
223.9.
VSCI: Virginia Stream Condition Index. Based on data collected at monitoring locations, a
long-term average score is developed for each water body. A VSCI score of 60 or greater
represents aquatic life use attainment, whereas a score below 60 indicates aquatic life use
(benthic) impairment.
VSMP: Virginia Stormwater Management Program. See Virginia Stormwater Management
Act, Va. Code Ann. 10.1-603.1 through 10.1-603.15, and the VSMP Permit Regulations, 4
Va. Admin. Code 50-60-10 through 50-60-1240.
WLA: Wasteload Allocation, the portion of a receiving waters loading capacity that is
allocated to one of its existing or future point sources of pollution. WLAs constitute a type of
water quality-based effluent limitation. See 40 C.F.R. 130.2(h); 4 Va. Admin. Code 50-60-
10; 9 Va. Admin. Code 25-720-10.





Exhibit A
Denise Keehner, Director
Office of Wetlands, Ocean
James A. I-[anion, Direct (' FROM:
Office of Wastewater
/
MEMORANDUM
SUBJECT: Revisions to the November 22, 2002 Memorandum "Establishing Total
Maximum Daily Load (TMDL) Waste d Allocations (WLAs) for Stonm
Water Sources and NPDES Pe9J1it'R s Based on Those WLAs"
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHI NGTON. D.C. 20460
NOV 12 2010
OFFICE OF
WATER
TO: Water Management Divi sion Directors
Regions I - 10
This memorandum updates aspects of EPA's November 22, 2002 memorandum
from Robert H. Wayland, III , Director of the Office of Wetlands, Oceans and
Watersheds, and James A. Hanlon, Director of the Office of Wastewater Management, on
the subject of "Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations
(WLAs) for Stann Water Sources and NPDES Permit Requirements Based on Those
WLAs" (hereafter "2002 memorandum").
Background
Section III of the 2002 memorandum "affirm[ed] the appropriateness of an
iterative, adaptive management best management practices (BMP) approach" for
improving stormwater management over time as permitting agencies, the regulated
community, and other involved stakeholders gain more experience and knowledge. Since
2002, States and EPA have obtained considerable experience in developing TMDLs and
WLAs that address storm water sources. The technical capacity to monitor storm water
and its impacts on water quality has increased. In many areas, monitoring of the impacts
of storm water on water quality has become more sophisticated and widespread. Better
information on the effectiveness of stormwater controls to reduce pollutant loadings and
address water quali ty impairments is now available. In many parts of the country,
permitting agencies have issued several rounds of permits for Phase I municipal separate
storm sewer systems (MS4s), Phase II MS4s, and stormwater discharges associated with
industrial activity, including stormwater from construction activities. Notwithstanding
these developments, storm water discharges remain a significant cause of water quality
Inlemel Address (URL) _ hUp:llwww.epa.gov
RecycledlRecydable _ Prinlad wilh Vegetable Oil Based Inkson 100% PostCO<1sumer. Process Chlorine Free Recycled Paper
2
impairment in many places, highlighting a continuing need for more useful WLAs and
better NPDES permit provisions to restore impaired waters to their beneficial uses.
With this additional experience in mind, EPA is updating and revisi ng the
following four elements of the 2002 memorandum to better reflect current practices and
trends in permits and WLAs for stonnwater discharges:
Providing numeric water quality-based effluent limitati ons in NPDES permits for
storm water discharges;
Disaggregating storm water sources in a WLA;
Using surrogates for pollutant parameters when establishing targets for TMDL
loading capacity; and
Designating additional stonnwater sources to regulate and treating load
allocations as waste load all ocations for newly regulated storm water sources.
EPA is currently reviewing other elements of the 2002 memorandum and wi ll
consider making appropriate revisions in the future.
Providing Numeric Water Effluent Limitations in NPDES Permits
for Stormwater Discharges
In today' s memorandum, EPA is revising the 2002 memorandum with respect to
water quality-based effluent limitations (WQBELs) in stormwater permits. Since 2002,
many NPDES authorities have documented the contributions of storm water discharges to
water quality impairment and have identified the need to include clearer permit
requirements in order to address these impairments. Numeric WQBELs in storm water
permits can clarify permit requirements and improve accountability and enforceability.
For the purpose of thi s memorandum, numeric WQBELs use numeric parameters such as
pollutant concentrations, pollutant loads, or numeric parameters acting as surrogates for
pollutants, such as such as storm water flow volume or percentage or amount of
Impervious cover.
The CWA provides that storm water permits for MS4 discharges shall contain
controls to reduce the discharge of pollutants to the "maximum extent practicable" and
such other provisions as the Administrator or the State determines appropriate for the
control of such pollutants. CWA section 402(p)(3)(8)(iii ). Under thi s provision, the
NPDES permitting authority has the discretion to include requirements for reduci ng
pollutants in storm water discharges as necessary for compliance with water quality
standards. Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166 (9th Cir. 1999).
Where the NPDES authority determines that MS4 discharges have the reasonable
potenti al to cause or contribute to a water quality standard excursion, EPA recommends
that, where feas ible, the NPDES permitting authority exercise its discret ion to include
numeric effluent limitations as necessary to meet water quality standards. The 2002
3
memorandum stated "EPA expects that most WQBELs for NPDES-regu!ated municipal
and small construction stonnwater di scharges will be in the form of BMPs, and that
numeric limitations will he used only in rare instances." Those expectations have
changed as the stormwater permit program has matured. EPA now recognizes that where
the NPDES authority determines that MS4 discharges and/or small construction
storm water discharges have the reasonable potential to cause or contribute to water
quality standards excursions, permits for MS4s andlor small construction stormwater
discharges should contain numeric effiuent limitations where feasible to do so. EPA
recommends that NPDES permitting authorities use numeric effluent limitations where
feasibl e as these types of effluent limitations create objective and accountable means for
controlling stormwater discharges.
The Clean Water Act (CWA) requires that permits for stormwater discharges
associated with industrial activity comply with section 30 1 of the Act, including the
requirement under section 301(b)(l)(C) to contain WQBELs for any discharge that the
permitting authority determines has the reasonable potential to cause or contribute to a
water quality standard excursion. eWA section 402(p)(3)(A), 40 eFR 122.44(d)(I)(iii).
When the permitti ng authority determines, using the procedures specified at 40 CFR
122.44(d)( I)(ii) that the discharge causes or has the reasonable potential to cause or
contribute to an in-stream excursion of the water quali ty standards, the permit must
contain effluent limits for that pollutant. EPA recommends that NPDES permitting
authorities use numeric effluent limitations where feasible as these types of effluent
limitations create objective and accountable means for controll ing stormwater discharges.
Where WQBELs in permits for storm water di scharges from MS4s, small
construction sites or industrial sites are expressed in the fonn of BMPs, the pennit should
contain objective and measurable elements (e.g. , schedule for BMP installat ion or level
ofBMP perfonnance). The objective and measureable elements should be included in
permits as enforceable provisions. Permitting authorities should consider including
numeric benchmarks for BMPs and associated monitoring protocols or specific protocols
for estimating 8MP effectiveness in stonnwater permits. These benchmarks could be
used as thresholds that would require the permittee to take additional action specified in
the permit, such as evaluating the effectiveness of the BMPs, implementing andlor
modifying BMPs, or providing additional measures to protect water quality.
If the State or EPA has established a TMDL for an impaired water that includes
WLAs for storm water discharges, permits for either industrial storm water discharges or
MS4 discharges must contain emuent limits and conditions consistent with the requirements
and assumpt ions of the WLAs in the TMDL. See 40 CFR 122.44(d)(I)(vii )(8). Where the
WLA ofa TMDL is expressed in terms ofa surrogate pollutant parameter, then the
corresponding permit can generally use the surrogate pollutant parameter in the WQBEL
as well . Where the TMDL includes WLAs for stonnwater sources that provide numeric
pollutant load or numeric surrogate pollutant parameter objectives, the WLA should,
where feasible, be translated into numeric WQBELs in the applicable stormwater
pennits.
4
The permitting authority's decision as to how to express the WQBEL(s), either as
numeric emuent limitations or BMPs, including BMPs accompanied by numeric
benchmarks, should be based on an analysi s of the specific facts and circumstances
surrounding the permit, and/or the underl yi ng WLA, including the nature of the
storrnwater discharge, available data, modeling results or other relevant information. As
discussed in the 2002 memorandum, the permit 's administrative record needs to provide
an adequate demonstration that, where a BMP-based approach to permit limitations is
selected, the BMPs required by the permit wi ll he sufficient to implement applicable
WLAs. Improved knowledge of BMP effectiveness gained since 2002 should be
reflected in the demonstration and supporting rationale that implementation of the BMPs
will attain water quality standards and WLAs.
EPA's regulations at 40 CFR 122.47 govern the use of compliance schedules in
NPDES permits. Central among the requirements is that the effluent Iimitation(s) must
be met "as soon as possible." 40 CFR 122.47(a)(I). EPA expects the permitting
authority to include in the permit record a sound rationale for determining that any
compliance schedule meets this requirement. Where a TMDL has been established and
there is an accompanying implementation plan that provides a schedule for an MS4 to
impl ement the TMDL, the permitting authority should consider the schedule as it decides
whether and how to establish enforceable interim requirements and interim dates in the
permit.
Lastly, NPDES permits must specify monitoring requirements necessary to
determine compliance with effluent limitations. See CWA section 402(a)(2); 40 C.F .R.
I 22.44(i). Where WQBELs are expressed as BMPs, the permit must require adequate
monitoring to determine if the BMPs are performing as necessary. When developing
monitoring requirements, the NPDES authori ty should consider the variable nature of
storm water as well the availability of reJiable and applicable field data describing the
treatment efficiencies of the BMPs required and supporting modeling analysis.
Disaggregating Stormwater Sources in a WLA
As stated in the 2002 memorandum. EPA expects TMDL authorities will make
separate aggregate allocations to NPDES-regulated storm water discharges (in the form
ofWLAs) and unregulated storm water (in the form of LAs). EPA also recognized that
the avai labl e data and informat ion usually are not detailed enough to determine waste load
allocations for NPDES-regulated storm water discharges on an outfall-specific basis.
EPA still recognizes that decisions about allocations of pollutant loads within a
TMDL are driven by quantity and quality of existing and readil y avail able water quality
data. However, today. TMDL writers may have better data or better access to data and,
over time, may have gained more experience since 2002 in developing TMDLs and
WLAs in a less aggregated manner. Moreover, since 2002, EPA has noted the difficulty
of establishing clear, effective, and enforceable NPDES permit limitations for sources
covered by WLAs that are expressed as single categorical or aggregated wasteload
allocations.
5
Accordingly, for all these reasons, EPA recommends that WLAs for NPDES
regulated stormwater discharges should be disaggregated into specific categories (e.g.,
separate WLAs for MS4 and industrial stormwater discharges) to the extent feasible
based on available data and/or modeling projections. In addition, these disaggregated
WLAs should be defined as narrowly as available information all ows (e.g., for MS4s,
separate WLAs for each one; and, for industrial sources, separate WLAs for different
sources or types of industrial sources or discharges.)
Where appropriate, EPA encourages permit writers to assign specific shares of the
wasteload allocation to specific permittees during the permitting process.
Using Surrogate for Pollutant Parameters When Establishing Targets for TMDL
Loading Capacity
Many waterbodies affected by stormwater discharges are listed as impaired under
Section 303(d} due to biological degradation or habitat alteration, rather than for specific
pollutants (e.g., metals, pathogens, sediment). Impairment can be due to pollutants where
hydrologic changes such as quantity of flow and variation in flow regimes are important
factors in their transport. Since the storm water-source impairment is usuall y the result of
the cumulative impact of multiple pollutants and physical effects, it may be difficult to
identify a specific pollutant (or pollutants) causing the impairment. Usi ng a surrogate
parameter in developing wasteload allocations for waters impaired by storm water sources
may, at times, be the appropriate approach for restoring the waterbodies.
In the 2009 report Urban Stormwater Management in the United States, the
National Research Council suggests: "A more straightforward way to regulate stormwater
contributions to waterbody impairment would be to use flow or a surrogate, like
impervious cover, as a measure of storm water loading ... Efforts to reduce stonnwater
flow will automaticall y achieve reductions in pollutant loading. Moreover, flow is itself
responsible for additional erosion and sedimentation that adversely impacts surface water
quality."
Therefore, when developing TMDLs for receiving waters where stormwater
sources are the primary source of impairment, it may be suitable to establi sh a numeric
target for a surrogate pollutant parameter, such as stormwater flow volume or impervious
cover, that would be expected to provide attainment of water quality standards. This is
consistent with the TMDL regulations that specify that TMDLs can be expressed in terms
of mass per time, toxicity or other appropriate measure (40 C.F.R. 130.2(i)}.
Where a surrogate parameter is used, the TMDL document must demonstrate the
linkage between the surrogate parameter and the documented impairment (e.g., biological
degradation). In addition, the TMDL should provide supporting documentation to
indicate that the surrogate pollutant parameter appropriately represents stormwater
pollutant loadings. Monitori ng is an essential undertaking to ensure that compliance with
the effiuent limitations occurs.
6
Recent examples ofTMDLs using flow or impervious cover as surrogates for
pollutants in setti ng TMDL loading targets include; the Eagleville Brook (eT) TMDL
and the Barberry Creek (ME) TMDL which used impervious cover as a surrogate; and,
the Potash Brook (VT) TMDL which used storm water flow volume as a surrogate.
Desie.nating Additional Stormwater Sources to Regulate and Treating Load
Allocations as Waste.cad Allocations for Newly Regulated Stormwater Sources
The 2002 memorandum states that "stonnwater discharges from sources that are
not currently subject to NPDES regulation may be addressed by the load allocation
component ofa TMDL." Section 402(p)(2) of the Clean Water Act (CWA) requires
industri al storm water sources, certain municipal separate stonn sewer systems, and other
designated sources to be subject to NPDES permits. Section 402(P)(6) provides EPA
with authority to identify additional storm water discharges as needing a permit.
In addition to the storm water discharges specifically identified as needing an
NPDES penmit, the CWA and the NPDES regulations allow for EPA and NPDES
authorized States to designate, additional stonnwater discharges for regulation. See
40 CFR 122.26 (a)(9)(i)(C), (a)(9)(i)(D), (b)(4)(iii), (b)(7)(iii), (b)(1 S)(ii) and
I 22.32(a)(2). Since 2002, EPA has become concerned that NPDES authorities have
generally not adequately considered exercising these authorities to designate for NPDES
permitting storm water discharges that are currently not required to obtain permit
coverage but that are significant enough to be identified in the load allocation component
of a TMDL. Accordingly, EPA encourages permitting authorities to consider designation
of stormwater sources in situations where coverage under NPDES permits would afford a
more effective mechanism to reduce poButants in stonnwater discharges than available
nonpoint source control methods.
In situations where a stormwater source addressed in a TMDL's load allocation is
not currently regulated by an NPDES permit but may be required to obtain an NPDES
permit in the future, the TMDL writer should consider including language in the TMDL
explaining that the allocation for the stormwater source is expressed in the TMDL as a
"load allocation" contingent on the source remaining unpermitted, but that the "load
allocation" would later be deemed a "waste load allocation" if the stonnwater discharge
from the source were required to obtain NPDES permit coverage. Such language, whi le
not legally required, would help ensure that the allocation is properly characterized by the
permit writer should the source's regulatory status change. This will help ensure that
effiuent limitations in a NPDES permit applicable to the newly permitted source are
consistent with the requirements and assumptions of the TMDL's allocation to that
source.
Such recharacteri zation of a load allocation as a wasteload allocation would not
automatically require resubmission of the TMDL to EPA for approval. However, if the
TMDL's allocation for the newly permitted source had been part ofa single aggregated
or gross load allocation for all unregulated storm water sources, it may be appropriate for
the NPDES permit authority to determine a waste!oad allocation and corresponding
7
effluent limitation specific to the newly permitted stormwater source. Any additional
analysis used to refine the allocation should be included in the administrative record for
the permit. In such cases, the record should describe the basis for
(1) recharacterizing the load allocation as a wastel oad allocation for this source and
(2) determining that the permit' s effiuent limitations are consistent with the assumptions
and requirements of this recharacterized wasteload allocation. For purposes of this
di scussion, it is assumed that the permit writer's additional analysis or recharacterization
of the load allocation as a wasteload all ocation does not change the TMDL's overall
loading cap. Any change in a TMDL loading cap would have to be resubmitted for EPA
approval.
If you have any questions please feel free to contact us or Linda Boomazian,
Director of the Water Permits Division or Benita Best-Wong, Director of the Assessment
and Watershed Protection Division.
cc: Association of State and Interstate Water Pollution Control Administrators
Water Quality Branch Chiefs, Regions 1 - 10
Permits Branch Chiefs, Regions 1 - 10




Exhibit B
Note: TMDL0103 represents a new nomenclature for AWPD guidance; TMDL represents the program, 01 represents the first in
the series of AWPD guidance documents in a particular year, and 03 represents the year.
July 21, 2003
MEMORANDUM
SUBJECT: Guidance for 2004 Assessment, Listing and Reporting Requirements Pursuant to
Sections 303(d) and 305(b) of the Clean Water Act; TMDL-01-03
FROM: Diane Regas, Director /s/
Office of Wetlands, Oceans, and Watersheds
TO: Water Division Directors
Regions 1 - 10
This memorandum transmits EPAs guidance for preparing the 2004 Integrated Report.
The Integrated Report is intended to satisfy the listing requirements of Section 303(d) and the
reporting requirements of Sections 305(b) and 314 of the Clean Water Act (CWA). This
guidance replaces and supercedes the following documents:
C Guidance for 1994 Section 303(d) Lists - Geoffrey H. Grubbs, November 26, 1993;
C National Clarifying Guidance for 1998 State and Territory Section 303(d) Listing
Decisions - Robert H. Wayland III, August 27, 1997;
C EPA Review of 2000 Section 303(d) Lists - Robert H. Wayland III, April 28, 2000;
C 2002 Integrated Water Quality Monitoring and Assessment Report Guidance - Robert H.
Wayland III - November 19, 2001; and
C Clarification of the Use of Biological Data and Information in the 2002 Integrated Water
Quality Monitoring and Assessment Report Guidance.
This guidance is intended to be used by States and Interstate Commissions (that prepare
305(b) reports) in the preparation of their 2004 Integrated Report. Building on the 2002
guidance, the 2004 guidance stresses the use of the same five reporting categories and
emphasizes the need for scheduling monitoring activities to ensure that future reports build on
increasingly robust data and information and continuing documentation of improved water
quality. In addition, the 2004 guidance emphasizes the need for each State to develop a
technically sound assessment methodology a thorough documentation and discussion of the
links between a States water quality standards (WQS) and the rationale on which their
assessment determinations are based. EPA believes that a transparent methodology, driving
scientifically-based assessment decisions, fits within the Agencys goal of an information-based
strategy to environmental protection.
TMDL-01-03
July 21, 2003
8
greater, unless a shorter time frame is required by a compliance schedule.
For nonpoint sources, the time frame for achieving the WQS may be difficult to
accurately predict; however, States have some flexibility in gauging whether the
attainment will occur quickly enough to justify including a water in Category 4B. EPA
suggests that the State provide a reasonable calculation that demonstrates that pollutant
reductions (resulting from the implementation of the other controls) will lead to
attainment of WQS. The degree of certainty may depend on how many sources must be
controlled and the degree of specificity of control that exists with respect to each source.
6. Which waters belong in Category 4C?
Waters should be listed in this subcategory when an impairment is not caused by a
pollutant. States should schedule these segments for monitoring to confirm that there
continues to be no pollutant-caused impairment and to support water quality management
actions necessary to address the cause(s) of the impairment.
Pollution, as defined by the CWA, is the man-made or man-induced alteration of
the chemical, physical, biological, and radiological integrity of water (Section 502(19)).
In some cases, the pollution is caused by the presence of a pollutant and a TMDL is
required. In other cases, pollution does not result from a pollutant and a TMDL is not
required. Elevated temperature that results from man-made thermal discharges does
require a temperature TMDL based on the protection or propagation of a balanced
indigenous population of shellfish, fish, and wildlife.
The following are two examples of pollution caused by pollutants. The discharge
of copper from an NPDES regulated facility is the introduction of a pollutant into a water.
To the extent that this pollutant alters the chemical or biological integrity of the water, it
is also an example of pollution. (Copper is not likely to cause an alteration to the waters
physical integrity). Similarly, actions that modify the landscape and may result in the
introduction of sediment into a water constitute pollution when sediment (which is a
pollutant) results in an alteration of the chemical, physical, biological or radiological
integrity of the water. TMDLs would have to be established for each of these waters.
EPA does not believe that flow, or lack of flow, is a pollutant as defined by CWA
Section 502(6). Low flow can be a man-induced condition of a water (i.e., a reduced
volume of water) which fits the definition of pollution. Lack of flow sometimes leads to
the increase of the concentration of a pollutant (e.g., sediment) in a water. In the situation
where a pollutant is present a TMDL, which may consider variations in flow, is required
for that pollutant.
F. Which waters belong in Category 5?
This category constitutes the Section 303(d) list that EPA will approve or disapprove
under the CWA. Waters should be placed in Category 5 when it is determined, in accordance
with the State's assessment and listing methodology, that a pollutant has caused, is suspected of
causing, or is projected to cause an impairment or threat. If that impairment or threat is due to a
pollutant, the water should be placed in Category 5 and the pollutant causing the impairment
identified.




Exhibit C




Exhibit D




Exhibit E

Lacqua e Vita,
La Vita e Acqua
Water is Life,
Life is Water
EPAs 2009
Philadelphia Flower
Show exhibit
wins
3 awards!






Exhibit photos:
www.epa.gov.region03


Green Exhibition
2009
March 14-15, 2009
PA Convention Cen-
ter
Philadelphia, PA



Welcome to the latest edition of WaterInfo a newsletter promoting the progress of
the Water Programs of the U.S. EPA Mid-Atlantic Region 3. This issue focuses on
the progress of the Healthy Waters Priority, specifically the Developing & Developed
Land Sector (Land Sector). This issue looks at innovative approaches to Green Infra-
structure, as well as Stormwater Management issues and Best Management Practices
all related to land and water issues. Articles include: greener clean-ups; how removing trash can
reveal natural treasures; and keeping it clean from source to stream. These and other articles
provide new and innovative ideas to restore and protect our water resources.
We hope you enjoy this issue!!

Join WaterInfo on the web in the Quickplace Forum - see page 7 for details

Jon M. Capacasa, Director John Randy Pomponio, Director
Water Protection Division Environmental Assessment & Innovation Division
March 2009
The Healthy Waters Land Sec-
tor has been very busy with ten
individual projects, spanning
almost every program.

Efforts include:

Using TMDL modeling to ad-
dress stormwater impacts in
urban streams

Coordinating with other federal
agencies and partners to adopt
smart growth and more ecol-
ogically-sensitive land manage-
ment practices

Working to preserve and pro-
tect the land and water in and
around growing population cen-
ters

Making the most of the
NPDES-Stormwater Program

Working with the Chesapeake
Bay Program Office to develop
and implement actions which
address water quality impacts

Supporting a national defini-
tion for Maximum Extent
Technically Feasible (METF);
implementing the rule and
integrating the 2007 Energy
Acts MEFT language into the
Land Development Strategy

Understanding how EPA can
best support states and local
governments to address the
effects of future land use
Seeking opportunities for in-
novative and creative use of
existing EPA tools and au-
IN THIS ISSUE
HEALTHY WATERS - Feat ure - Land Sect or
Event s
Volume 3, Issue 1

Green Infrastructure (GI)
Workshop
Exploring challenges...

See page 2
thorities, including Green
Remediation and Brownfields
projects

Communicating the latest in-
formation; identifying research
needs regarding development
and implementation of best
practices; hosting a regional
Science Workshop on Green
Infrastructure and Green Infra-
structure controls

Collaborating with PA, MD &
VA to develop and implement
new approaches to protect
high quality waters/ aquatic
ecosystems from the effects of
future land use

For more info, visit EPAs
Quickplace- Land Sector
Team
http://epaqpx.rtp.epa.gov/waterinfo
Not registered? See page 7
The Land Sector has been a
very busy Healthy Waters
Team and its far reaching
strategy spans almost every
program with 10 individual
project plans underway.
Green Infrastructure news.
The Region 3 Stormwater Program is
tasked with many important functions in
order to ensure that Clean Water Act
objectives of fishable and swimmable
waters are met. Among these functions
are reviewing and commenting on per-
mits, performing compliance inspections,
taking appropriate enforcement actions,
providing resources for assisting states
with their stormwater manuals, munici-
palities with the implementation of their
stormwater plans, and striving for the
highest standards of protection available.
The Stormwater Program is undertaking
several initiatives to further the efforts of
stormwater protection. These initiatives
include:
reviewing and commenting on the
many upcoming stormwater permits for
reissuance (MS4, Construction, and In-
dustrial)
implementing a stormwater permit-
particular focus on encouraging green
practices)
developing stormwater permit
review checklists
providing training and compliance
assistance to states and permittees
regarding MS4s
Implementing stormwater compli-
ance strategies with a focus on home
building, large retail development,
Ready-Mixed concrete operations,
and Phase 1 and Phase 2* MS4s
The Program has inspected:
26 homebuilding sites
11 retail development sites
4 Ready-Mixed concrete facilities
5 ports **

*MS4 Phase 1/Phase 2- size of system

**Office of Enforcement, Compliance and Envi-
ronmental Justice
P A G E 4
ting approach consistent with the re-
cent OIG report to maximize protection
of Chesapeake Bay from the impacts
of existing development and new con-
struction
developing tools and approaches
to assist stormwater permittees in en-
suring that discharges comply with
TMDLs
reviewing and providing assistance
in the development of an Effluent Limit
Guidelines (ELG) for stormwater con-
struction activities
reviewing and commenting on
state standards and manuals (with a
STORMWATER - Keepi ng i t Cl ean f rom Source t o St ream
stormwater flow by permitting the use
of Municipal Separate Storm Sewer
System (MS4) Best Management Prac-
tices. In addition, the techniques may
also be used to protect high quality
streams threatened by future land use
changes.

Accotink Creek




WA T E R I N F O N E WS L E T T E R
EPA and Virginia plan to develop the
stormwater TMDL in Accotink Creek
based on its 1998 Section 303(d) list-
ing due to failing to attain aquatic life
use for benthics. The Accotink Creek
watershed is a highly urbanized wa-
tershed with about eight miles of im-
paired streams. Stakeholders have
been actively involved in developing
this TMDL.










EPA is partnering with Virginia to de-
velop and implement a pilot Total Maxi-
mum Daily Load (TMDL) addressing im-
pairments attributable to stormwater that
can be imitated across the Region. This
pilot storm water
TMDL will provide allocations that repre-
sent reductions in the flow of stormwater
from point and nonpoint sources to
achieve water quality standards within an
impaired watershed. If successful, the
TMDL can serve as a model for TMDLs
to be developed and implemented in wa-
tersheds throughout the Region which
are impaired by pollutants associated
with development and excess stormwa-
ter flow. The stormwater TMDL will di-
rectly address the cause of stream im-
pairment in urban areas and reduce
The stormwater TMDL can serve as a
model for TMDLs to be developed and
implemented in watersheds throughout
the Region which are impaired by pol-
lutants associated with development
and excess stormwater flow.
How are we doing?
How are we doing?
STORMWATER - St ormwat er TMDLs
The Stormwater Program is undertak-
ing several initiatives to further the
efforts of stormwater protection.
The Mid-Atlantic Regions water programs focus on
protecting, preserving and enhancing water resources.
We are working with our partners to develop compre-
hensive environmental programs that help achieve im-
provements in water quality and public health.

WaterInfo highlights the progress we have made in achieving the
greatest water quality benefits.

For FY09 WPD priority areas include:
Healthy Waters Priority and 4 Sector Strategies
Meeting Core Water Program Obligations
Leadership in Interstate Water Protection
Agency Level Support - Economic Recovery & Water Security
A Stronger EPA Workforce & Communication

For FY 09 EAID Priorities include:
Healthy Waters Priority and 4 Sector Strategies
Oysters
Mid-Atlantic Wetlands Work Group
Clean Energy
Pharmaceuticals
Chemical Weapons /Homeland Security
Biology (Investigating Fish in Shenandoah)
Ocean Survey
Logic Model/MIRA
Continued Laboratory and Full Science Support
Natural Infrastructure
Mining
Climate Change
Were on the WebCheck us out at:
https://epaqpx.rtp.epa.gov/waterinfo
Need to register? Go to https://epaqpx.rtp.epa.gov/
V O L U ME 3 , I S S U E 1 P A G E 7
UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY
MID-ATLANTIC REGION 3

WATER PROTECTION DIVISION
&
ENVIRONMENTAL
ASSESSMENT & INNOVATION
DIVISION


The WaterInfo Team extends special thanks to our
contributors, in alphabetical order

Matthew Colip
Andrew Dinsmore
Helene Drago
Paula Estornell
Michael Fritz
Patricia Gleason
Kristeen Gaffney
David Rider
Charles Schadel
Albert Spells (USFWS)
Susan Spielberger
Christopher Thomas



U.S. EPA Mid-Atlantic Region
1650 Arch Street
Philadelphia, PA 19103

Phone: 215-814-2051
Fax: 215-814-2301
E-mail: [email protected]