Clean Water Current

NACWA filed an amicus brief May 31 in support of public agency member the City of Wilmington, Delaware’s ongoing efforts to recoup over $5.8 million in unpaid stormwater management fees from the U.S. Army Corps of Engineers (Corps) for several properties the Corps owns within the City. 

The U.S. Court of Federal Claims previously held that the Corps did not need to pay the fees because they had not been adequately justified under Clean Water Act Section 1323, which requires federal agencies to pay localities “reasonable service charges.” The City is now appealing the decision.

As one of the leading advocates for the adoption of Section 1323, NACWA’s brief provides an important perspective on the history of Section 1323 to the U.S. Court of Appeals for the Federal Circuit.

NACWA’s brief focuses on the impetus of Section 1323, which was a longstanding and pervasive resistance on the part of federal agencies to pay reasonable stormwater fees to local governments despite benefiting from local stormwater management services.  The brief also outlines how the general approach used by Wilmington – employing impervious surface area calculations to determine appropriate fees – clearly meets Section 1323’s requirements.

NACWA argues in the brief that adoption of the Corps’ overly narrow interpretation of Section 1323 could lead to a resurgence of the exact problem that led to its passage – Congress’ “grave concerns about the failure of the federal government to pay localities for reasonable costs associated with the control and abatement of pollution originating on its properties.”

NACWA was represented by NACWA Legal Affiliate AquaLaw.  Briefing in the case is ongoing, and NACWA will continue to keep members apprised of any updates as they occur.  In the interim, please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.