B-150193, NOVEMBER 15, 1962, 42 COMP. GEN. 246

B-150193: Nov 15, 1962

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WHICH IS IMPOSED EQUALLY BY MUNICIPAL ORDINANCE ON ALL PROPERTY OWNERS TO COVER OPERATION. IS A REASONABLE SERVICE CHARGE FOR THE RIGHT TO USE THE CITY'S SEWERAGE DISPOSAL SYSTEM AND IS NOT AN ASSESSMENT CONSTITUTING AN INVOLUNTARY EXACTION FOR WHICH THE UNITED STATES IS NOT IABLE. ON THE ASSUMPTION NO CLASS OF WATER USERS IS EXEMPTED FROM PAYING THE RATES CHARGED THE UNITED STATES FOR THE SEWAGE DISPOSAL SERVICE. WAS ESTABLISHED IN 1958 BY SEATTLE AREA VOTERS UNDER A STATE ENABLING ACT. METRO'S FUNCTION WAS TO ESTABLISH A SEWAGE DISPOSAL SERVICE IN THE CITY OF SEATTLE AND THE AREAS SURROUNDING LAKE WASHINGTON. IN CARRYING OUT ITS FUNCTION WAS TO ESTABLISH A SEWAGE DISPOSAL SERVICE IN THE CITY OF SEATTLE AND THE AREAS SURROUNDING LAKE WASHINGTON.

B-150193, NOVEMBER 15, 1962, 42 COMP. GEN. 246

SEWERS - SERVICE CHARGES - SEWAGE DISPOSAL SURCHARGE A MONTHLY SEWAGE DISPOSAL SURCHARGE BASED ON THE AMOUNT OF WATER USED, WHICH IS IMPOSED EQUALLY BY MUNICIPAL ORDINANCE ON ALL PROPERTY OWNERS TO COVER OPERATION, MAINTENANCE, AND CONSTRUCTION COSTS, IS A REASONABLE SERVICE CHARGE FOR THE RIGHT TO USE THE CITY'S SEWERAGE DISPOSAL SYSTEM AND IS NOT AN ASSESSMENT CONSTITUTING AN INVOLUNTARY EXACTION FOR WHICH THE UNITED STATES IS NOT IABLE; THEREFORE, PAYMENT MAY BE MADE OF THE SURCHARGE LEVIED IN CONNECTION WITH THE WATER CONSUMED BY THE DECORATIVE POOLS AT THE EXHIBIT PAVILION OPERATED AT THE SEATTLE WORLD'S FAIR BY THE UNITED STATES, NOTWITHSTANDING THE CLEAR WATER DISCHARGED IMPOSED A NEGLIGIBLE BURDEN ON THE SEWERAGE SYSTEM, ON THE ASSUMPTION NO CLASS OF WATER USERS IS EXEMPTED FROM PAYING THE RATES CHARGED THE UNITED STATES FOR THE SEWAGE DISPOSAL SERVICE.

TO THE SECRETARY OF COMMERCE, NOVEMBER 15, 1962:

BY LETTER OF OCTOBER 26, 1962, YOU REQUESTED AN OPINION AS TO THE LEGAL PROPRIETY OF PAYING TO THE CITY OF SEATTLE CERTAIN SEWER SERVICE CHARGES EXACTED IN CONNECTION WITH OPERATION OF THE UNITED STATES SCIENCE EXHIBIT AT THE SEATTLE WORLD'S FAIR WHICH CONCLUDED OCTOBER 21, 1962. THE FACTS IN THE MATTER APPEAR TO BE AS FOLLOWS:

METRO, A METROPOLITAN MUNICIPAL CORPORATION, WAS ESTABLISHED IN 1958 BY SEATTLE AREA VOTERS UNDER A STATE ENABLING ACT, RCW 35.58, TO SOLVE THE AREA'S MOUNTING POLLUTION PROBLEMS. METRO'S FUNCTION WAS TO ESTABLISH A SEWAGE DISPOSAL SERVICE IN THE CITY OF SEATTLE AND THE AREAS SURROUNDING LAKE WASHINGTON. IN CARRYING OUT ITS FUNCTION WAS TO ESTABLISH A SEWAGE DISPOSAL SERVICE IN THE CITY OF SEATTLE AND THE AREAS SURROUNDING LAKE WASHINGTON. IN CARRYING OUT ITS FUNCTION, METRO MADE ARRANGEMENTS WITH THE CITY OF SEATTLE FOR THE JOINT USE OF SOME OF THE CITY'S EXISTING FACILITIES PROVIDING THE TERMS UPON WHICH THE SERVICE FURNISHED BY METRO WOULD BE PAID. THE COMPREHENSIVE SEWAGE DISPOSAL PLAN ADOPTED BY METRO PROVIDED THAT THE VARIOUS MUNICIPAL COMPONENTS OF METRO WOULD CONTINUE THE COLLECTION OF SEWAGE; THAT METRO WOULD PROCESS AND DISPOSE OF THE EFFLUENT AFTER THE COMPONENTS' COLLECTION SERVICE WAS ACCOMPLISHED; THAT METRO WOULD PAY THE CENTRAL CITY OF SEATTLE FOR THE USE OF SOME OF THE CITY'S EXISTING DISPOSAL FACILITIES; THAT THE CITY WOULD CONTINUE TO OWN THE FACILITIES AND CONTINUE TO PAY THE PRINCIPAL AND INTEREST ON OUTSTANDING BONDED INDEBTEDNESS THEREFOR; AND THAT THE METRO DISPOSAL SERVICE CHARGE WOULD BE PAID BY THE CENTRAL CITY, MUNICIPAL COMPONENTS, AND COUNTY RESIDENTS. SEE MUNICIPALITY OF METROPOLITAN SEATTLE V. CITY OF SEATTLE, (1960) 357 P.2D 863, DECLARING THESE ARRANGEMENTS VALID UNDER THE LAWS OF THE STATE OF WASHINGTON.

THE CITY OF SEATTLE, BY PUBLISHED ORDINANCE NO. 84390 OF 1955, ESTABLISHED ITS SEWERAGE SYSTEM AS A PUBLIC UTILITY AND PROVIDED FOR COLLECTION OF A SEWERAGE CHARGE BASED UPON THE AMOUNT OF WATER USED BY ALL OWNERS OF PROPERTY SERVED BY WATER. RATES CHARGED WERE TO COVER COSTS OF OPERATION AND MAINTENANCE OF THE EXISTING SEWERAGE SYSTEM AND OF THE SERVICING OF BONDS AND THE COST OF OPERATION AND MAINTENANCE OF ADDITIONS THERETO. THE AGREEMENT BETWEEN THE CITY OF SEATTLE AND METRO PROVIDED THAT:

THE CITY IRREVOCABLY OBLIGATES AND BINDS ITSELF TO PAY ITS SEWAGE DISPOSAL CHARGE OUT OF THE GROSS REVENUES OF THE SEWERAGE UTILITY CREATED BY ORDINANCE NO. 84390. THE CITY FURTHER BINDS ITSELF TO ESTABLISH, MAINTAIN AND COLLECT CITY SEWERAGE CHARGES SUFFICIENT TO PAY ALL COSTS OF MAINTENANCE AND OPERATION OF THE CITY SEWERAGE UTILITY, INCLUDING THE SEWAGE DISPOSAL CHARGE PAYABLE TO METRO HEREUNDER AND SUFFICIENT TO PAY THE PRINCIPAL OF AND INTEREST ON ANY REVENUE BONDS OF THE CITY WHICH SHALL CONSTITUTE A CHARGE UPON SUCH GROSS REVENUES. IT IS RECOGNIZED BY METRO AND THE CITY THAT THE SEWAGE DISPOSAL CHARGE PAID BY THE CITY TO METRO SHALL CONSTITUTE AN EXPENSE OF MAINTENANCE AND OPERATION OF THE CITY SEWERAGE UTILITY AND THAT THE CITY SHALL HAVE THE RIGHT TO FIX ITS OWN SCHEDULE OF SEWERAGE RATES AND CHARGES, PROVIDED THAT SAME SHALL PRODUCE REVENUE SUFFICIENT TO MEET THE COVENANTS CONTAINED IN THIS AGREEMENT. MUNICIPALITY OF METROPOLITAN SEATTLE V. CITY OF SEATTLE, ABOVE, AT PAGE 871.

EFFECTIVE JUNE 1, 1962, THE CITY OF SEATTLE, BY PUBLISHED ORDINANCE NO. 91208, REVISED AND INCREASED ITS SEWERAGE RATES INCLUDING THEREIN A "METRO SURCHARGE" TO ENABLE THE CITY TO PERFORM ITS CONTRACTUAL OBLIGATIONS WITH METRO. THIS SURCHARGE, AS WELL AS THE BASIC SEWERAGE CHARGE, IS BASED UPON THE AMOUNT OF WATER METERED.

THE UNITED STATES GOVERNMENT HOLDS FEE TITLE TO THE PROPERTY FOR WHICH THE METRO SURCHARGE IN QUESTION IS APPLICABLE. THE SOLE QUESTION PRESENTED FOR OUR CONSIDERATION IS WHETHER THIS SURCHARGE AVERAGING APPROXIMATELY $1,000 PER MONTH FOR THE EXHIBIT PAVILION IS IN THE NATURE OF AN ASSESSMENT CONSTITUTING AN INVOLUNTARY EXACTION FOR WHICH THE UNITED STATES IS NOT LIABLE OR A SERVICE CHARGE FOR WHICH THE UNITED STATES IS LIABLE. SEE 27 COMP. GEN. 20; 29 ID. 120; 31 ID. 405.

WHILE NOT A PART OF THE RECORD SUBMITTED, WE HAVE BEEN INFORMALLY ADVISED THAT THE SUBSTANTIALLY MAJOR PORTION OF WATER CONSUMED AT THE EXHIBIT PAVILION WAS FOR DECORATIVE POOLS AND WAS DISCHARGED INTO THE SEWER SYSTEM AS CLEAR WATER WITH NEGLIGIBLE BURDEN TO THE SEWAGE TREATMENT FACILITIES OF THE SYSTEM. THERE WOULD NOT APPEAR TO BE ANY QUESTION AS TO THE FAIRNESS OF THE STANDARD APPLIED IN DETERMINING CHARGES FOR SEWAGE SERVICES FURNISHED; THAT IS, AGAINST THE MEASURE OF WATER CONSUMED, PARTICULARLY IN VIEW OF CERTAIN PROVISIONS CONTAINED IN THE SCHEDULE OF CHARGES FOR EXCLUDING FROM COMPUTATIONS OF SEWAGE CHARGES WATER USED BUT WHICH DOES NOT ENTER THE SEWAGE DISPOSAL SYSTEM. SEE IN THIS CONNECTION 34 COMP. GEN. 398; GERICKE V. CITY OF PHILADELPHIA, (1945) 44 A.2D 233; 23 ALR 2D 1360. THE FACT THAT INDIVIDUAL USERS OF WATER MIGHT DISCHARGE MORE OR LESS SEWAGE IN PROPORTION TO THE AMOUNT OF WATER USED BY THEM IS OF NO CONSEQUENCE, SINCE SUCH SITUATIONS ARE CONTEMPLATED IN THE VERY NATURE OF RELYING UPON THE AMOUNT OF WATER USED AS A MEASURING DEVICE. AND, SINCE THE CHARGE, WHICH APPARENTLY IS APPLIED EQUALLY TO ALL WATER USERS, IS COMPUTED TO COVER ONLY OPERATION, MAINTENANCE AND CONSTRUCTION COSTS, THERE DOES NOT APPEAR TO BE ANY REASON FOR CONSIDERING IT UNREASONABLE.

IN THE ABSENCE OF ANY SPECIFIC UNDERSTANDINGS BETWEEN THE GOVERNMENT AND THE CITY OF SEATTLE AT THE TIME THE POOLS FOR THE UNITED STATES FAIR EXHIBIT WERE ERECTED, THERE WOULD NOT APPEAR TO BE ANY BASIS FOR CONSIDERING THE METRO SURCHARGE AS ANYTHING BUT A SERVICE CHARGE FOR THE RIGHT TO USE THE CITY'S SEWERAGE DISPOSAL SYSTEM. ACCORDINGLY, ON THE ASSUMPTION THAT THERE IS NO CLASS OF WATER USERS SUCH AS LOCAL OR STATE GOVERNMENTAL INSTRUMENTALITIES; RELIGIOUS, CHARITABLE, OR OTHER TAX EXEMPT INSTRUMENTALITIES; OR WATER USERS DISCHARGING CLEAR WATER INTO THE SYSTEM, WHICH ARE NOT REQUIRED TO PAY THE RATES CHARGED THE UNITED STATES FOR SEWAGE DISPOSAL SERVICES, THIS OFFICE WOULD NOT OBJECT TO PAYMENT OF THE CHARGES IN QUESTION IF OTHERWISE PROPER.