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The U.S. Department of Justice (DOJ) released a legal opinion and guidance document March 18 outlining the payment obligations of federal government agencies under the recently enacted Clean Water Act (CWA) amendment on federal payment of stormwater fees (S. 3481) and directing federal government agencies that they may pay local stormwater assessments from annual lump-sum appropriations without the need for any additional stormwater-specific appropriations.  This legal opinion is an important victory for NACWA’s stormwater utility members and for the Association’s advocacy efforts on this critical issue.

S. 3481 was passed by Congress late last year to amend section 313 of the CWA and clarify that federal government facilities are responsible for paying reasonable stormwater service charges.  NACWA played a critical role in securing passage of S. 3481 and previously published information on the bill in Advocacy Alert 10-36 and Advocacy Alert 11-01.  The final version of the legislation included language that made payment of stormwater fees by federal government agencies contingent upon the appropriation of funds by Congress, but there was some question whether the appropriations could come from annual funds appropriated for general agency operating expenses or required a specific additional appropriation just for stormwater fees.  DOJ’s legal opinion makes clear that stormwater-specific appropriations are not needed and that federal stormwater charges can be paid from annual lump-sum appropriations, including current appropriations for normal operating expenses that federal agencies already have.

In reaching this conclusion, DOJ looked at the plain text and structure of the statute, the legal case law and principles governing statutory interpretation, and the legislative history of the bill.  DOJ determined that all of these factors support a finding that general lump-sum appropriations can be used to pay federal stormwater charges.  The legal opinion specifically states that:

“In sum, we conclude that the best reading of the text of the appropriations provision in section 313(c)(2)(B), in light of the structure, purpose, and history of the Stormwater Amendment, is that Congress did not intent to impose a specific-appropriation requirement.  Indeed, a specific-appropriation requirement….would have the predictable effect of restricting payment by federal agencies and….would undermine Congress’s central aims in enacting the Stormwater Amendment.  We therefore believe that federal agencies may pay stormwater assessments out of annual – including current – lump-sum appropriations.”

In making this determination, DOJ agreed with NACWA’s interpretation of the legislation as outlined in the Association’s January 2011 letter to DOJ regarding the appropriations language.  DOJ’s position is also consistent with that of the U.S. Government Accountability Office (GAO) regarding the specific payment of stormwater fees in Washington, DC as announced by GAO last week.  Taken together, the DOJ and GAO legal opinions make clear that federal agencies can pay local stormwater charges from the same operating accounts that are annually appropriated to pay the agencies’ operating expenses.

If stormwater utilities find that any of their local federal facilities refuse to pay stormwater fees by claiming that they need a special appropriation for stormwater service, NACWA strongly encourages the use of both the DOJ and GAO legal opinions to rebut that argument and clarify that federal agencies can and should pay the fees out of their normal operating budgets, including currently appropriated funds.

One issue not directly addressed in the DOJ legal opinion is whether S. 3481’s requirement for federal payment of stormwater fees applies to any outstanding or past due payments that federal agencies may currently owe to stormwater utilities.  It is NACWA’s position that because S. 3481 simply clarifies an existing legal obligation under the CWA for federal facilities to pay stormwater charges, past due amounts are payable under the legislation.  Additionally, because the DOJ guidance is silent on the issue and does not specifically say that federal agencies are prohibited from paying past due amounts, NACWA encourages any members with outstanding stormwater charges to continue pursuing payment of those fees.  Members are further encouraged to use the language in the DOJ guidance regarding the availability of current lump-sum appropriations to pay stormwater assessments as a possible method to recover any outstanding amounts.  NACWA will continue its advocacy efforts with DOJ, the U.S. Environmental Protection Agency (EPA), and the congressional sponsors of the legislation to obtain additional guidance on this issue and will keep the membership updated on developments.

Anyone with questions regarding DOJ’s legal opinion and guidance should feel free to contact Nathan Gardner-Andrews, NACWA’s General Counsel, at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .