DeKalb County v. United States

A settlement agreement icon-pdf 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 icon-pdf holding that the federal government was not responsible for the fees.

This litigation was filed by NACWA Member Agency DeKalb County, Georgia, in the U.S Court of Federal Claims in November 2011 to collect over $280,000 in unpaid stormwater bills from a number of different federal government facilities. In January 2013, the court ruled that stormwater charges billed to the federal facilities by the County were a local tax and not a utility fee under federal law.  The court also found that a 2011 amendment to the CWA, which clarified federal responsibility for municipal stormwater charges, does not apply to charges that qualify as taxes and were billed prior to the amendment's enactment.  Accordingly, the court ruled the County could not collect pre-2011 unpaid amounts.

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 icon-pdf 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.  

Settlement Agreement
The settlement document memorializes the agreement between the parties in the case, including the payment of $150,000 by the U.S. Department of Justice (DOJ) to DeKalb County to settle the claim. The agreement also acknowledges the County’s objection to the January 2013 U.S. Court of Federal Claims decision in the case, specifically the court’s finding that 1) the stormwater charges in question were taxes and not utility fees, and 2) that a 2011 CWA Amendment clarifying federal responsibility for stormwater fees does not apply to pre-2011 charges. DOJ ultimately did not appear confident defending these two issues on appeal, and accordingly offered to settle the case instead.

NACWA believes the settlement agreement represents a clear acknowledgment by the federal government of the necessity to pay the fees in question. NACWA also believes the settlement agreement can be used by other utilities to help minimize the impact of the claims court decision in the future.