The National Association of Clean Water Agencies (NACWA) recently released a white paper titled Navigating Litigation Floodwaters: Legal Considerations for Funding Municipal Stormwater Programs, which provides analysis on the types of legal issues affecting stormwater funding programs.
In the absence of a federal rule, the U.S. Environmental Protection Agency has turned its focus to strengthening local stormwater programs. More onerous requirements are likely to arise on a permit-by-permit basis. More revenue and rate increases will be needed to comply with these complex and costly regulatory requirements. This environment of rising rates makes the stormwater program landscape ripe for legal challenges.
When opposition to a stormwater program or funding mechanism reaches the courts, there is always the potential that the program or fee could be struck down, leaving a utility in the position of being legally responsible to comply with the Clean Water Act yet unable to administer and fund the program. As such, it is imperative that stormwater utilities do their “legal homework” by reviewing all relevant laws and previous cases in their state. NACWA’s white paper will help with this homework by equipping utilities with critical knowledge and tools to inform and prepare them for creating, implementing, or defending a stormwater program, utility, or fee. Even if a utility is not facing a legal challenge, the information in the handbook can help legally bolster a program or fee to proactively avoid litigation.
For instance, to avoid “authority to enact” challenges, a utility may want to get an opinion from the State Attorney General on the validity and extent of authority. On the fee versus tax issue, there are a set of common factors that have evolved in case law. Utilities should use these factors to test their program and fee, and make adjustments if needed, to ensure maximum defensibility.
As the white paper reveals, the legality and viability of any fee program will be based on a variety of factors, including the specific structure of the fee and the specific law of the state in which the utility is located. Despite the local nuances of these cases, it is valuable to know how different courts across the nation have addressed this issue, including the types of legal analyses that have been used when evaluating municipal separate storm sewer system fee programs and factors that have been relevant in the courts’ deliberations.
NACWA has expended significant efforts and resources in recent years to defend municipal stormwater fee programs. NACWA hopes to supplement this white paper with a more detailed, state-by-state analysis of the issue in the future.