ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
DeKalb County v. United States
A settlement agreement requiring payment of a majority of outstanding stormwater fees was reached in July 2013 to resolve a legal battle between the federal government and NACWA member DeKalb County, Georgia. The settlement is an important victory for the municipality and NACWA and will help weaken the impact of an underlying federal claims court decision holding that the federal government was not responsible for the fees.
The court did note, however, that the language of the 2011 amendment clearly establishes federal responsibility for payment of stormwater charges going forward regardless of whether they are deemed fees or taxes. Accordingly, this decision should not impair the ability of stormwater utilities to collect charges from federal facilities that were billed after the January 2011 enactment of the CWA amendment.
The decision's finding on the CWA amendment's applicability to pre-2011 amounts was directly at odds with a 2012 ruling from a federal district court in Washington State, which held the amendment does apply to pre-2011 amounts.
NACWA participated in the DeKalb County case with a May 2012 brief in support of the County, as well as participation in oral arguments in November 2012, and was disappointed with the court's decision. NACWA’s brief and arguments to the court reiterated that the recent CWA stormwater amendment simply clarified a long-standing obligation of federal agencies to pay these fees, thus mandating payment of past due amounts. The NACWA brief also highlighted the significant financial challenges that DeKalb County would face if federal facilities do not pay these fees, as well as the dangerous precedent this would set for other municipal stormwater utilities across the country.
The County appealed the decision to the U.S. Court of Appeals for the Federal Circuit in March 2013. NACWA strongly disagreed with the lower court's conclusions regarding the tax-versus-fee analysis, as well as its finding on the pre-2011 applicability of the CWA stormwater fee amendment, and was pleased that a settlement was reached on appeal.