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Hotel Employers Ass'n of San Francisco v. Gorsuch

Citation: 12 ELR 20591
No. No. 80-4413, 669 F.2d 1305/17 ERC 1112/(9th Cir., 02/24/1982)

The Ninth Circuit affirms the district court's ruling that the City of San Francisco's system of sewer service charges does not violate the proportionality requirement of § 204(b)(1) of the Federal Water Pollution Control Act (FWPCA), the applicable Environmental Protection Agency (EPA) regulation, or the United States and California Constitutions. EPA approved the city's sewer charge scheme, which allocates surface run-off treatment costs with the water use formula used to apportion sanitary sewage treatment costs. Rejecting appellant's contention that the charge system violated § 204(b)(1) since it failed to apportion treatment costs of surface run-off according to the acreage occupied by each user, the court holds that there was a reasonable basis for the EPA Administrator's conclusion that the system satisfied the proportionality requirement. Although the FWPCA does not define the phrase "proportionate share," § 204(b)(1)'s legislative history indicates that Congress's intent in enacting the user fee requirement was to give localities flexibility in developing financing schemes and not to impose an absolute proportionality requirement. The court finds further evidence of the rationality of EPA's approval of a charge scheme ignoring users' relative contributions to run-off lands in the fact that the amount of surface run-off cannot be fairly ascribed to a property owner's use of the treatment system. In addition, the court upholds the EPA Administrator's determination that the city's charge system is consistent with the Agency's regulation governing apportionment of surface run-off treatment costs. Finally, the court rules that since the charge system passes the arbitrary and capricious test with regard to the specific proportionality requirements of § 204(b) it also satisfies due process and equal protection requirements of the United States and California Constitutions under the less stringent "rational relationship" test.

Counsel for Plaintiff
J. C. Ladd
Steinhart, Falconer & Morgenstein
333 Market St., Suite 3200, San Francisco CA 94105
(415) 777-3999

Counsel for Defendants
William A. Barrett, Deputy City Attorney
1212 Market St., Suite 3, San Francisco CA 94102
(415) 558-4538

Thomas H. Pacheco
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2767

Before TRASK, SNEED and TANG, Circuit Judges.