Jump to Navigation
Jump to Content

United States v. Renton

ELR Citation: 42 ELR 20110
Nos. No. C11-1156JLR, (W.D. Wash., 05/25/2012) (Robart, J.)

A district court held that the CWA's waiver of sovereign immunity applies to stormwater management fees. In 2011, in response to federal agencies that had ceased paying stormwater program charges, Congress passed the "stormwater amendment" (CWA §313(c)) to clarify federal responsibility to pay stormwater program charges. Two cities in Washington state then filed suit against the United States to collect stormwater management fees imposed prior to January 4, 2011, the date the amendment went into effect. The United States argued that the stormwater fees are taxes, not service charges, and that the United States has not waived its immunity to those taxes prior to January 4, 2011. But the CWA unambiguously waives the sovereign immunity of the United States with respect to payments for reasonable service charges imposed by local governments for the control and abatement of water pollution. In addition, the stormwater amendment was a clarification, rather than an amendment, of the United States' waiver of immunity and responsibility to pay reasonable service charges. The amendment merely stresses the government's existing responsibility to pay stormwater system fees by setting down common, long-standing requirements for the reasonableness of regulatory fees. Accordingly, even if the stormwater management fees are characterized as taxes, the clarification provided by the stormwater amendment indicates that Congress had waived immunity to such taxes even prior to the amendment. Nevertheless, at this stage of litigation, the cities have not demonstrated that the fees assessed prior to January 4, 2011, are reasonable service charges within the meaning of CWA §313(c). Accordingly, the court denied summary judgment on this issue. (Amici counsel included Lawrence Liebesman of Holland & Knight in Washington, DC).