"Water is not a pollutant" EPA and the sediment TMDL

The traditional approach to TMDL formulation is to identify the total capacity of a waterbody for loading of a specific pollutant in order to meet water quality standards. EPA determined that the TMDL for sediment could be met using surrogate parameters in stead of end of pipe numeric effluent limitations.  In Virgina, rather than establish a sediment TMDL for Accotink Creek, the EPA chose to issue a TMDL for a surrogate, the flow of water.  The Virginia Department of Transportation found that this reduction could not be achieved through retrofitting existing storm water and sued the EPA.  The Court agreed and issued a finding that “Storm water runoff is not a pollutant, so EPA is not authorized to regulate it.”