Stormwater Utilities Must Be Prepared for Legal Challenges—From the Government

The path to legal, drama-free stormwater management rarely runs smoothly. And sometimes the most strident opponents are a stormwater utility’s fellow governmental agencies. During the 2009 General Assembly for the state of Georgia, HB 316 was introduced in the House of Representatives. In short, the bill was to exempt state facilities from paying for stormwater systems. HB 316 was deferred to committee and never came back to the floor, but in the last minutes of the session came back as a rider on SB 194. Fortunately, SB 194 was defeated. End of story? Nope! On July 9, 2009, Georgia’s Attorney General issued Official Opinion 2009-6 at the request of Georgia’s Department of Transportation. The opinion was issued in response to an inquiry made by the Georgia Department of Transportation regarding enforcement efforts of Douglasville–Douglas County Water and Sewer Authority’s stormwater management ordinance. In Georgia, local governments do not have authority by law to force the state to comply with local ordinances and regulations as administered via the police powers of local government. The Georgia Department of Agriculture construed this to mean it did not have to pay stormwater fees, and it did not pay them at several of its state facilities, one of which is located in Garden City, GA. Garden City was left no choice but to follow its ordinances and policies for non-pay. After the city issued a notice of cutoff for utility services, the Department of Agriculture made payment of its stormwater management fee. Currently, the state of Georgia is preparing to introduce yet another bill before the General Assembly in 2010. For clarification, the Home Rule Section of the Georgia Constitution grants local governments the power to provide the service of “stormwater…collection and disposal systems,” and to “prescribe, revise, and collect rates, fees, tolls, or charges for the services, facilities, or commodities furnished or made available by such understanding.” [text_ad] Now ask yourself this: Why does the state require you to address stormwater runoff both in quality and quantity and even endorse stormwater utilities in the State Water Plan? Answer: To comply with the Clean Water Act! How is it that the state pays for water, wastewater, and electricity? Maybe it is because it uses the services provided. Surely the state is not saying that its facilities are not contributing to stormwater runoff both in quality and quantity. Or is it? With all that said, just this past summer South Carolina exempted certain agricultural lands and places of worship from paying stormwater fees. I wonder if they pay their water and electricity bills. Florida routinely has received legal challenges on its ability to charge for stormwater management. One has to remember that stormwater fees are not regulatory fees. They are fees imposed for the management and control of stormwater runoff. Local governments should be prepared to demonstrate that the overall cost of their program is reasonable. Furthermore, the stormwater fee should be structured so the amount charged is proportional to the properties serviced. Finally, some provision should be made so that participation in the program can be characterized as voluntary. There are numerous court cases supporting the principle of stormwater management fees both at the federal and state levels, supporting the fact that stormwater utilities indeed provide a quantifiable unit measurement of service provided just as in the case of water and wastewater. Caution: There are a number of court cases ruling against stormwater systems that were not founded in sound design, where local governments ignored “Robert’s Rules of Stormwater.” So when designing your stormwater fee for services, you must follow the prescribed program strategy or be prepared for a stormwater utility legal challenge. Make sure your local government hires an expert consultant with a proven ability to create your program’s stormwater fee.