In mid-November, the Missouri Supreme Court ruled that the St. Louis Metropolitan Sewer District (MSD) stormwater fee is actually a tax, which violates the state’s constitution because it was established without voter approval.

The court opinion states, “A tax by any other name remains a tax. It cannot be transformed into a user fee by adept packaging any more than a zoologist can transform a horse into a zebra with a bucket of paint. Here, no matter how many stripes MSD paints on it, the stormwater user charge is not a user fee.”

The stormwater fee, based on impervious surface area and established in 2008, was intended to help the sewer district raise nearly $60 million per year to address stormwater budget shortfalls.

There have been a number of court cases on stormwater fees in recent years. In another case, decided in September, an Ohio appeals court struck down the Northeast Ohio Regional Sewer District’s stormwater fee, ruling that the sewer district did not have the authority to enact a regional stormwater management program or fee. The Northeast Ohio Regional Sewer District is currently obligated to a $3 billion combined sewer overflow (CSO) long-term control plan, Project Clean Lake. The decision hinders the ability of wastewater utilities to address CSOs and is impactful because it could serve as a legal precedent outside of Ohio.

The National Association of Clean Water Agencies (NACWA) and the Association of Ohio Metropolitan Wastewater Agencies filed an amicus brief in the Ohio Supreme Court to appeal the ruling.