City of Cincinnati v. U.S.

The City of Cincinnati and the federal government reached an agreement November 15, 2007, to settle litigation over payment of stormwater fees. The dispute arose when a federal Department of Health and Human Services (DHHS) facility within the City’s service area refused to pay over $100,000 in past-due invoices for stormwater services, alleging that the stormwater service charges were an impermissible “tax” on the federal government and thus refused payment. NACWA, along with the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), and the American Public Works Association (APWA) filed an amicus curiae brief in the Fall of 2004 arguing that Clean Water Act Section 313 gives local governments the authority to collect fees from the federal government to cover the cost of stormwater services at its facilities. An Ohio federal court on March 27, 2007, agreed with this position, and ruled that a U.S. government facility within the City’s service area is not exempt from paying stormwater fees.

As a result of the settlement agreement, the DHHS facility will pay a negotiated portion of the past-due stormwater fees, and after the facility makes its first payment on its current fees the City will dismiss the case. The DHHS facility does not admit any liability as part of the settlement, but this resolution leaves in place the court’s March ruling, which found that “the City’s stormwater system charge falls squarely within the waiver of sovereign immunity,” and thus the DHHS facility is not exempt from paying the charges. This ruling will serve as helpful precedent for any future cases that may arise where federal facilities refusing to pay local stormwater fees. The participation of NACWA and the other municipal amicus groups was a key factor in the Court’s ruling and the ultimate settlement. NACWA’s participation in this litigation is now complete.