Forest Service--Surface Water Management Fees
B-306666: Jun 5, 2006
Appropriated funds are not available to pay surface water management fees assessed by King County, Washington, against national forest lands and other Forest Service properties because those fees constitute a tax. The federal government is constitutionally immune from state and local taxation. Although section 313(a) of the Clean Water Act, 33 U.S.C. sect. 1323(a), waives sovereign immunity from certain state and local environmental regulations and fees, it does not waive immunity from taxation. Such a waiver must clearly and expressly confer the privilege of taxing the federal government.
B-306666, Forest Service--Surface Water Management Fees, June 5, 2006
Appropriated funds are not available to pay surface water management fees assessed by
The Chief Financial Officer of the Forest Service, United States Department of Agriculture, has requested an advance decision under 31 U.S.C. sect. 3529 on the propriety of paying surface water management fees assessed by King County, Washington, against federal lands located within its jurisdiction. Letter from Jesse L. King, Associate Deputy Chief for Business Operations/Chief Financial Officer, Forest Service, to David M. Walker, Comptroller General, GAO, Oct. 11, 2005 (King Letter). The Forest Service believes that it is constitutionally immune from paying the fee, which the agency considers a tax. As we explain below, we agree that the
The National Pollutant Discharge Elimination System (NPDES) program under the Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the
Federal facilities are required under section 313(a) of the CWA to comply with all federal, state, interstate and local regulations respecting the control and abatement of water pollution, including the payment of reasonable service charges. 33 U.S.C. sect. 1323, quoted, in relevant part, infra p. 10. Accordingly, the Forest Service and the State of
To implement the CWA,
basin planning, facilities maintenance, regulation, financial administration, public involvement, drainage investigation and enforcement, aquatic resource restoration, surface and storm water quality and environmental monitoring, natural surface water drainage system planning, intergovernmental relations, and facility design and construction.
K.C.C. sect. 9.08.010(Y).
According to the county ordinance, SWM fees are necessary for various reasons: (1) to promote the public health, safety, and welfare by minimizing uncontrolled surface and storm water, erosion, and water pollution; (2) to preserve and utilize the many values of the county's natural drainage system including water quality, open space, fish and wildlife habitat, recreation, education, urban separation and drainage facilities; and (3) to provide for the comprehensive management and administration of surface and storm water. K.C.C. sect. 9.08.040.
SWM fees must be based on the relative contribution of increased surface and storm water runoff from a given parcel to the surface and storm water management system. K.C.C. sect. 9.08.070(A). The SWM fee structure consists of seven classes of developed parcels based on the parcel's relative percentage of impervious surfaces: (1) residential, (2) very light, (3) light, (4) moderate, (5) moderately heavy, (6) heavy, and (7) very heavy. K.C.C. sect. 9.08.070(C). Residential and very lightly developed properties are assessed a flat annual fee of $102 per parcel, while light to very heavily developed parcels are assessed various per acre rates ranging from $255.01 per acre for lightly developed parcels to $1,598.06 per acre for very heavily developed parcels.
The Forest Service maintains approximately 363,543 acres of federal land within the jurisdictional boundary of
The issue before us is whether the Forest Service is constitutionally immune from paying the King County surface water management fee or whether the Forest Service may pay that fee as a reasonable service charge under the Clean Water Act's sovereign immunity waiver, 33 U.S.C. sect. 1323(a).
It is an unquestioned principle of constitutional law that the
Distinguishing a tax from a fee requires careful analysis because the line between tax and fee can be a blurry one. Collins Holding Corp. v.
When the three-part inquiry yields a result that places the charge somewhere in the middle of the San Juan Cellular descriptions, that is, when assessments have characteristics of both taxes and fees, the most important factor becomes the purpose behind the statute or regulation that imposes the charge. See Valero, 205 F.3d at 134 (citing
In United States v. Huntington, West Virginia, the Fourth Circuit considered whether a municipal service fee was indeed a fee or a tax, and whether the federal government (in this case, the General Services Administration and the U.S. Postal Service) was immune from its assessment. United States v. Huntington, West Virginia, 999 F.2d 71 (4th Cir. 1993), cert. denied, 510
Further, rejecting the city's argument that any assessment tied to some state-provided benefit is a user fee, the court added: Under the theory advanced by the City, virtually all of what now are considered 'taxes' could be transmuted into 'user fees' by the simple expedient of dividing what are generally accepted as taxes into constituent parts, e.g., a 'police fee.'
King County's Surface Water Management Fee
When subjected to the three-part inquiry of San Juan Cellular,
When tax assessments also have some attributes of fees, an important factor in determining whether it is a tax or a fee is the purpose behind the assessments. See Valero, 205 F.3d at 134. Broadly stated in the county ordinance, SWM fees are assessed: (1) to promote the public health, safety, and welfare; (2) to preserve and utilize the county's natural drainage system; and (3) to provide for the comprehensive management and administration of surface and storm water. K.C.C. sect. 9.08.040. As we discuss above, such broad purposes are more like core government services providing undifferentiated benefits to the entire public than narrowly circumscribed benefits incident to a voluntary act or a service or convenience provided. See discussion supra pp.7--8.
Clean Water Act and Federal Sovereign Immunity
The state of
Section 313(a) of the Clean Water Act provides, in pertinent part, that:
Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.
Moreover, we cannot imply a waiver of federal sovereign immunity from state and local taxation, despite legislative history suggesting the CWA's federal facilities provision intended, unequivocally, to subject federal agencies to all of the provisions of State and local pollution laws, S. Rep. No. 95-370 at 67 (1977) (emphasis added). Mitchell, 445
The Supreme Court has consistently viewed section 313, and its predecessors, narrowly. In 1976 the Supreme Court found that a prior, similar version of section 313 was not sufficiently clear and unambiguous as to require federal dischargers to obtain state NPDES permits. EPA v.
Despite such statements of congressional intent, the Supreme Court again narrowly construed the CWA's waiver provision, holding that Congress had not waived the federal government's sovereign immunity from liability for civil fines imposed by the state of
Other federal courts also have construed the CWA's section 313(a) waiver provision narrowly. New York State Department of Environmental Conservation v. United States Department of Energy, 772 F. Supp. at 98 (section 313 not blanket [waiver] of the
The Forest Service is constitutionally immune from surface water management fees assessed by
Anthony H. Gamboa
 The Clean Water Act is codified, as amended, in scattered sections of 33 U.S.C. sections 1251–1387.
 See also State of Washington, Department of Ecology, Washington State and U.S. Forest Service's Forest Management Agreement, Publ'n No. 00-10-048 (November 2000), available at www.ecy.wa.gov/biblio/0010048.html (last visited Apr. 12, 2006).
 Available at www.metrokc.gov/mkcc/Code/index.htm (last visited
 See also King County, Water and Land Resources Division, King County's Surface Water Management Fee—Services We Provide, available at www.dnr.metrokc.gov/wlr/surface-water-mgt-fee/ (last visited Apr. 12, 2006) (additional information and history of the SWM program).
 Surface and storm water management system means constructed drainage facilities and any natural surface water drainage features that do any combination of collection, storing, controlling, treating, or conveying surface and storm water. K.C.C. sect. 9.08.010(BB).
 An impervious surface is a hard surface area which either prevents or retards the entry of water into the soil causing water to run off the surface in greater quantities than under natural conditions prior to development. Common impervious surfaces include roofs, walkways, patios, driveways, parking lots, storage areas, areas which are paved, graveled, or made of packed or oiled earthen materials, or other surfaces which similarly impede the natural infiltration of surface and storm water. See K.C.C. sect. 9.08.010(K).
 Available at www.dnr.metrokc.gov/wlr/surface-water-mgt-fee/pdf/swm-fee-protocols.pdf (last visited
 In two cases, courts have applied a test based on Massachusetts v. United States, 435 U.S. 444, 466–67 (1978), to determine whether certain state environmental regulatory assessments were taxes or fees. See New York State Department of Environmental Conservation v. United States Department of Energy, 772 F. Supp. 91, 98–99 (N.D.N.Y. 1991), aff'd 218 F.3d 96 (2nd Cir. 2000) (applying Massachusetts test to determine whether New York's water regulatory charge was an impermissible tax or a permissible fee or regulatory charge under the CWA); Maine v. Department of Navy, 973 F.2d 1007 (1st Cir. 1992) (applying Massachusetts test in analyzing state waste regulatory fee vis- -vis the Resource Conservation and Recovery Act's sovereign immunity waiver provision). We view the
 The assessment is variously called a service charge or surface water management fee. Compare K.C.C. sect. 9.08.070 with SWM Fee Protocols. The terms service charge and fee, however, are synonymous. See B-301126,
 Further, the SWM fee structure, based on a parcel's relative percentage of impervious surfaces, is also similar to
 Were we to have found the opposite—that SWM assessments were fees or service charges and not taxes—we would still conclude that appropriated funds are not available to pay SWM fees. To be payable, such fees must not be manifestly unjust, unreasonable, or discriminatory. 70 Comp. Gen. 687 (1991) (county landfill user fee payable as a reasonable, nondiscriminatory service charge based on level of service provided); 67 Comp. Gen. 220 (1988) (rates charged for utility services are payable by federal agencies unless they are manifestly unjust, unreasonable, or discriminatory); 27 Comp. Gen. 580, 582–83 (1948). Examining the SWM fee, we find its assessment discriminatory. The Washington State Department of Transportation is only liable for 30 percent of fees imposed under section 36.89 of the Revised Code of Washington, the provision that authorizes counties to impose assessments such as
 Then-section 313 provided, in relevant part, that federal agencies shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. . . . 33 U.S.C. sect. 1323 (Supp. IV 1970).
 Hancock v. Train and EPA v. California were companion cases decided on the same day. Hancock concerned the extent of the sovereign immunity waiver in the Clean Air Act's federal facilities provision, 42 U.S.C. sect. 7418. For a more detailed discussion of these cases and the legislative histories of the federal facilities provisions in the Clean Water Act, Clean Air Act, and Safe Drinking Water Act, see B-286951,