SESWA 2011 Annual Conference

National

On July 12, 2011 the United States (US) brought suit against the Cities of Renton and Vancouver, WA in the District Court for the Western District of Washington. The US claims that stormwater fees charged before January 4, 2011 on two properties, both of which are used for electricity generation and transmission, are unauthorized taxes and that the US is not liable for these charges or late payment penalties.

The US also claims that it is entitled to a refund (with interest) of any of those stormwater fees that were paid "wrongfully" before this January 4th date. Members may recall that January 4th this year was the date on which the President signed into law SR 3481 which reinforced that the federal government had a responsibility to pay reasonable service charges (stormwater utility fees) to state or local governments to address stormwater pollution originating from federal properties. While S. 3481 does clarify federal responsibility for stormwater fees charged after January 4th, it did not explicitly address fees that had been charged prior to that date.

Several stormwater utilities across the country, including the cities mentioned above, have continued to try to collect on these unpaid fees. According to the complaint, the cities of Renton and Vancouver attempted to compel payment by threatening to cut off water supply to the federal facilities with unpaid stormwater fees. The US responded by filing suit. 

SR 3481 was passed during the last session of Congress to clarify federal agencies' responsibilities for payment of stormwater fees.   As far as SESWA is aware, this is the first case following the enactment of the new legislation where the federal government has challenged the legitimacy of previously billed stormwater fees billed prior to the passage of this legislation. SESWA will continue to monitor developments in this case and will provide updates in future SESWA Forecast newsletters.

HR 2018 (Clean Water Cooperative Federalism Act of 2011) Passes US House

House Resolution 2018 (by John Mica, R-7, Florida) passed the House earlier this month. The legislation seeks to limit or prohibit the EPA Administrator's oversight of state water quality policies and programs. Key sections of the legislation provide that the administrator is prohibited from: 1) Adopting a revised or new water quality standard for a pollutant when the Administrator has already approved a state water quality standard for the pollutant; 2) Taking action to supersede a state's determination that a discharge will comply with water quality standards; 3) Withdrawing approval of a state program under the NPDES program or limiting federal financial assistance for a state NPDES programs; and , 4) Prohibiting the specification of any defined area as a disposal site for the discharge of dredged or fill material into navigable waters and denying or restricting the use of such area as a disposal site.

If it becomes law, HR 2018 would be the most significant revision to the Clean Water Act in many years. However, there seems to be little interest in HR 2018 in the Senate and the legislation would face a possible veto if passed by Congress.

Court Upholds Stormwater Fees on Property Tax Bills

Many Stormwater Utilities utilize property tax bills to collect stormwater utility fees. There are several benefits associated with the use of the property tax bill including high collection rates and minimized mailing and printing costs for the community. The major disadvantage of utilizing the property tax bill is of course the perception it presents that the stormwater utility fee is not a fee but a tax.

Gwinnett County uses this method to collect stormwater fees and has for years defended itself against claims from customers that the fee is a tax masquerading as a fee. A common criticism heard by utility staff is: "How can you call it a fee when it comes with a property tax bill that's titled 'Notice of Taxes?"

This past June Judge Michael Clark of Gwinnett County's Superior Court entered an order in the case of Gilliam v. Meyer (the Gwinnett County Tax Commissioner) that was very favorable to Gwinnett County.  Mr. and Mrs. Gilliam had filed suit challenging the constitutionality of the County's solid waste and stormwater service fees which are both billed on the property tax bill.  The Court's order found that both fees were lawful and that the County's billing and collection of fees for solid waste services and stormwater services through the County's ad valorem tax statement is lawful.  Click here for a copy of the order.

House Bill 291 - Limiting the Property Tax Bill to Property Taxes Only

The legislation prohibited any fees or assessments being placed on the property tax bill failed to pass in 2011. Counties and cities now have the option to place storm water utility fees (see Gwinnett County article above) and other charges on the property tax bill. HB 291 would have made the county or city bill separately for these services and fees, likely lowering collection rates and increasing administrative costs.

Implementation of the Jordan Lake Rules

The Triangle J Council of Governments and the Piedmont Triad Regional Council (formerly the Piedmont Triad Council of Governments) are excited to announce the release of the Jordan Lake Nutrient Reduction Handbook and corresponding website.  These two Councils of Governments (COGs) cover the entire Jordan Lake watershed, which is governed by legislation designed to address and reduce nutrient inputs to the Lake.  Although this project specifically addresses the Jordan Lake Rule, the strategies identified are useful for all local governments required or committed to improving water quality.

A hardcopy of the handbook is also available for download. If you would like a copy mailed to you please visit http://www.jordanlakerules.org/requestform.html.  In addition, SESWA will host a session at the Annual Conference covering this handbook.  If you have any questions, please contact Elizabeth Jernigan at (336) 294-4950 or ejernigan@ptcog.org.

House Bill 119

The North Carolina General Assembly passed House Bill 119 into law on July 1, 2011. The bill revises several environmental and natural resources policies. Of interest to the stormwater community is Section 6, which directs the Environmental Management Commission to develop model practices for incorporation of stormwater capture and reuse into stormwater management programs and shall make the information on those model practices available to State agencies and local governments. Also, Section 20 requires the Department of Environment and Natural Resources to study the stormwater management requirements for airports in the state, specifically considering whether the requirements might be amended or implemented in a different way to achieve the same level of water quality protection while reducing the cost and other regulatory burdens associated with compliance with the requirements. 

The decision was a reversal of a lower court's ruling on May 8, 2009, in the case of League of Women Voters of Georgetown County v. Smith Land Company.

The League brought suit against Smith Land Company after the Murrells Inlet company began development of a .332 acre tract of land in Pawleys Island in 2007. At that time, there was a 0.19 acre wetland section of the property that included vegetation and a pond. After notifying the U. S. Army Corps of Engineers and the S.C. Department of Health and Environmental Control, Smith Land Company brought in truckloads of dirt, completely filling in the wetlands and pond.

They never received permits from DHEC to do the work.

According to a press release by the S.C. Environmental Law Project, "The wetlands on the property were delineated as "isolated" by the U.S. Army Corps of Engineers, meaning that no federal Clean Water Act permit is required. Smith Land Company argued, and the circuit court agreed, that DHEC similarly did not have jurisdiction to regulate isolated wetlands."   More