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Today NACWA released its newest member resource Navigating Litigation Floodwaters:  Legal Considerations for Funding Municipal Stormwater Programs during the National Clean Water Law Seminar. This white paper provides analysis on the types of legal issues impacting stormwater funding programs.

In the absence of a federal rule, EPA has turned its focus to strengthening local stormwater programs and more onerous requirements will likely arise on a permit-by-permit basis. More revenue and rate increases will be needed to comply with these complex and costly regulatory requirements.  This environment of rising rates makes the stormwater program landscape ripe for legal challenges.

When opposition to a stormwater program or funding mechanism reaches the courts, there is always the potential that the program or fee could be struck down, leaving a utility in the position of being legally responsible to comply with the Clean Water Act (CWA) yet unable to administer and fund the program. As such, it is imperative that stormwater utilities do their “legal homework” by reviewing all relevant laws and previous cases in their state. NACWA’s white paper will help with this homework by equipping members with critical knowledge and tools to inform and prepare utilities that are creating, implementing or defending a stormwater program, utility or fee.

The white paper presents an overview of trends that are emerging based on the outcomes of key cases, which are grouped in categories based on whether the decision was positive (meaning that the court upheld the utility’s program), negative or still pending before the court and are flagged based on the following:

(1) Authority to Enact, Implement and Fund Program – the white paper flags cases dealing with authority with "A" and cases addressing Sovereign Immunity with "SI”;

(2) Legality of Financing Mechanism and Methodology - cases addressing the fee versus tax issue are depicted with "$" and rate methodology cases are flagged with "M".

As the white paper reveals, the legality and viability of any specific fee program will be based on a variety of factors including the specific structure of the fee and the specific law of the state in which the utility is located.  Despite the local nuances of these cases, it is valuable to know how different courts across the nation have addressed this issue, including the types of legal analyses that have been used when evaluating MS4 fee programs and the kinds of factors that have been relevant in the courts’ deliberations.  It is also helpful to understand common trends that emerge from this body of case law and what lessons they hold for other utilities.

NACWA has expended significant efforts and resources in recent years to defend municipal stormwater fee programs, and looks forward to continued aggressive advocacy to defend these fee programs to ensure their long-term viability. This white paper attempts to provide NACWA members with that important information should they be faced with a legal challenge, and the Association hopes to supplement this document with a more detailed, state-by-state analysis of the issue in the future.

The white paper is available for download and is free of charge for NACWA members. NACWA welcomes feedback on this document, including suggestions for additional cases to add. Please send any thoughts or comments to This e-mail address is being protected from spambots. You need JavaScript enabled to view it  or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .