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Local Governments May Assess "Reasonable" Service Charges for Stormwater Facilities Owned by the Federal Government

August 8, 2012 by Pat Mason
Category: Storm and Surface Water Management

A significant case decided last May resulted in a major victory for local governments in the U.S. District Court for the Western District of Washington.  The case determined that federal agencies must pay local governments “reasonable service charges” for stormwater pollution control.  Some federal agencies had been paying such fees, but others had refused to pay based on the principle of sovereign immunity of the United States government.

The case also provides guidance concerning how to interpret what is a “reasonable” charge under federal law.  It is not clear yet whether this decision will be appealed to the Ninth Circuit Court of Appeals.

There is an excellent summary of this decision and its implications for local governments prepared by Alice Ostdiek, attorney for the Foster Pepper law firm, published in the Association of Washington Cities’ City Vision magazine, July/August 2012.  See the article, Fee For Service: A recent ruling nets cities a stormwater victory.

About Pat Mason

Pat is recognized throughout Washington State as a highly trusted resource on municipal law. He regularly counsels local governments on public records, open public meetings, and just about any other municipal issue that comes up.



"The significant problem that isn't addressed is what a stormwater utility is and functions it legally can perform.. The State of Washington has not put legal boundaries around a stormwater utility. Stormwater utilities are being used to pay for manure management, crop rotation practices, water quality management, septic tank leakage, fund private property rain gardens, shellfish protections, fish passage improvements, land land and stream modifications, harbor sanitation, etc. The original legislative concept of flood control and MS4 stormwater infrastructure has been expanding rapidly to the point a 1985 Washington State court decision defining it as a utility payable by fees and not a general tax is becoming more and more questionable with each additional program jurisdictions keep adding to constantly expanding stormwater utilities. And not to be lost on bean counters, stormwater utilities are a lucrative source of government revenue to cover general operations overhead. And the more such utility can expand, the greater the revenue flow."

Robert Dashiell on Aug 17, 2012 12:01 PM

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