In 2003, DeKalb County, Ga., established a stormwater utility. Its fees are based on impervious area and help finance the county’s stormwater management system. In a recent court case, DeKalb County, Georgia v. USA, the county sought to recover unpaid fees from 18 federal facilities from 2005 to 2010. Federal facilities are exempt from paying taxes levied by the state but can be charged a reasonable fee for services. In this case, federal facilities argued that the charges at issue were taxes, rather than fees.

The 2011 Clean Water Act Amendment removed all ambiguity about the responsibility of federal facilities to pay stormwater fees. However, on Jan. 28, a federal court decided that these fees would not apply retroactively, as the court did not discern any such intent in the 2011 amendment.

This decision does create a split among federal courts, as a Washington state District Court ruled that federal facilities are responsible for municipal stormwater fees billed prior to enactment of the 2011 amendment in USA v. Cities of Renton and Vancouver.