Reimbursement or Payment Obligation of the Federal Government Under Section 313(c)(2)(b) of the Clean Water Act ( 2011 )

REIMBURSEMENT OR PAYMENT OBLIGATION OF THE FEDERAL
GOVERNMENT UNDER SECTION 313(C)(2)(B) OF THE CLEAN WATER ACT
Section 313(c)(2)(B) of the Clean Water Act does not impose a specific-appropriation
requirement for the payment of stormwater assessments. Federal agencies may pay appropriate
stormwater assessments from annual—including current—lump-sum appropriations.
February 25, 2011
MEMORANDUM OPINION FOR THE GENERAL COUNSEL,
ENVIRONMENTAL PROTECTION AGENCY
Congress recently passed “An Act To amend the Federal Water Pollution Control Act to
clarify Federal responsibility for stormwater pollution,” Pub. L. No. 111-378, 124 Stat. 4128
(2011) (the “Stormwater Amendment”), which revised section 313 of the Clean Water Act
(“CWA”), 33 U.S.C. § 1323 (2006), to clarify that reasonable service charges payable by federal
agencies, as described in section 313(a), include certain stormwater assessments. Section
313(c)(2)(B), enacted as part of this amendment, provides that federal agencies may not pay
certain stormwater assessments “except to the extent and in an amount provided in advance by
any appropriations Act to pay or reimburse the fee, charge, or assessment.” You have asked
whether section 313(c)(2)(B) bars federal agencies from paying stormwater assessments unless
Congress makes a specific appropriation (for example, a line-item appropriation) for such
payments, or instead whether agencies may “use general, lump-sum appropriations” for such
payments.1 We believe that the best reading of section 313(c)(2)(B), when construed in accord
with the structure, purpose, and history of the Stormwater Amendment, is that the provision does
not impose a specific-appropriation requirement. In our view, federal agencies may pay
appropriate stormwater assessments from annual—including current—lump-sum appropriations
1
See Letter for Jonathan Cedarbaum, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, from Scott C. Fulton, General Counsel, Environmental Protection Agency at 1 (Jan. 21, 2011) (“EPA
Letter”). In preparing this opinion, we have received comments from the Tax Division, see Memorandum for John
A. DiCicco, Acting Assistant Attorney General, Tax Division, from David A. Hubbert, Chief, Special Litigation
(Jan. 26, 2011) (“Tax Memorandum”); the Bonneville Power Administration, see Letter for Jonathan Cedarbaum,
Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Randy A. Roach, General Counsel,
Bonneville Power Administration (Feb. 2, 2011); the Environment and Natural Resources Division, see
Memorandum for Karen Wardzinski, Section Chief, Law & Policy Section, Environment and Natural Resources
Division, from Peter J. McVeigh, Attorney, Law & Policy Section (Feb. 3, 2011) (“ENRD Memorandum”); the U.S.
General Services Administration, see Letter for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal
Counsel, from Kris Durmer, General Counsel, General Services Administration (Feb. 3, 2011) (“GSA Letter”);
the U.S. Postal Service, see Letter for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel,
from Carrie M. Branson, Attorney, U.S. Postal Service Law Department (Feb. 3, 2011) (“Postal Service Letter”);
the Council on Environmental Quality, see Letter for Caroline Krass, Principal Deputy Assistant Attorney General,
Office of Legal Counsel, from Nancy H. Sutley, Chair, Council on Environmental Quality (Feb. 3, 2011) (“CEQ
Letter”); the U.S. Department of Agriculture, see Letter for Daniel Koffsky, Deputy Assistant Attorney General,
Office of Legal Counsel, from James Michael Kelly, Associate General Counsel, U.S. Department of Agriculture
(Feb. 7, 2011) (“USDA Letter”); and the U.S. Department of Defense, see Letter for Caroline Krass, Principal
Deputy Assistant Attorney General, Office of Legal Counsel, from Robert S. Taylor, Principal Deputy General
Counsel, Department of Defense (Feb. 8, 2011) (“DOD Letter”).
Opinions of the Office of Legal Counsel in Volume 35
consistent with section 313(c)(2)(B) of the CWA. We emphasize that our opinion is limited to
the application of that subsection.
I.
A.
The CWA, as amended, established a National Pollution Discharge Elimination System
(“NPDES”) that is “designed to prevent harmful discharges into the Nation’s waters.” Nat’l
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). As a general matter,
“the NPDES requires dischargers to obtain permits that place limits on the type and quantity of
pollutants that can be released into the Nation’s waters.” S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). Because stormwater runoff collects
debris, chemicals, and other pollutants and therefore may be a source of pollution when
discharged into the Nation’s waters, Congress amended the CWA in 1987 to direct the
Environmental Protection Agency (“EPA”) to issue rules requiring and governing NPDES
permits for certain categories of discharges of stormwater, including municipal and industrial
discharges. See 33 U.S.C. § 1342(p)(3)(B) (2006); Final Rule, National Pollutant Discharge
Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg.
47,990 (Nov. 16, 1990); Final Rule, National Pollutant Discharge Elimination System—
Regulations for Revision of the Water Pollution Control Program Addressing Storm Water
Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999); see also Natural Res. Defense Council v. EPA,
526 F.3d 591, 594-601 (9th Cir. 2008) (recounting statutory and regulatory history of EPA
stormwater regulations).
The EPA has issued regulations that, among other things, require municipalities operating
separate storm sewer systems to obtain NPDES permits and undertake certain control measures
designed to minimize the discharge of pollution from stormwater into the Nation’s waters. See,
e.g., 40 C.F.R. § 122.34 (2010). Municipal separate storm sewer systems are “publicly owned
conveyances or systems of conveyances that discharge to waters of the U.S. and are designed or
used for collecting or conveying storm water, are not combined sewers, and are not part of a
publicly owned treatment works.” Notice, Stakeholder Input; Stormwater Management
Including Discharges From New Development and Redevelopment, 74 Fed. Reg. 68,617, 68,619
(Dec. 28, 2009); see 40 C.F.R. § 122.26(b)(8) (defining “municipal separate storm sewer”).
Under this federal regulatory scheme, municipalities operating municipal separate storm
sewer systems are required to undertake costly control efforts to minimize pollution from
stormwater discharges into the Nation’s waters. In response, many municipalities have adopted
local stormwater ordinances that attempt to recover the costs of these compliance efforts from
property owners, including federal agencies.
B.
The efforts by municipalities to recover stormwater assessments from federal agencies
gave rise to a controversy whether federal agencies could be required to pay such assessments.
The Supreme Court has explained that as a general matter “the activities of the Federal
Government are free from regulation by any state,” Mayo v. United States, 319 U.S. 441, 445
2
Federal Agency Payment of Stormwater Assessments Under the Clean Water Act
(1943), and that a state or local law that “regulate[s] the [federal] Government directly” “run[s]
afoul of the Supremacy Clause.” North Dakota v. United States, 495 U.S. 423, 434 (1990)
(citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 425-37 (1819)); see also Penn Dairies,
Inc. v. Milk Control Comm’n, 318 U.S. 261, 269 (1943) (“in the absence of Congressional
consent, there is an implied constitutional immunity of the national government from state
taxation and from state regulation” of federal entities). Nevertheless, “a clear congressional
mandate” divests the presumptive immunity of federal agencies from state and local regulatory
compulsion. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1956).
Prior to Congress’s enactment of the Stormwater Amendment, there was some doubt
whether section 313(a) of the CWA, 33 U.S.C. § 1323(a), divested the immunity of federal
agencies with respect to stormwater assessments. See ENRD Memorandum at 2-3; EPA Letter
at 5-7; USDA Letter at 1-2. Section 313(a), in relevant part, provides that federal agencies
owning property or engaged in activities that may result
in the discharge or runoff of pollutants . . . 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.
33 U.S.C. § 1323(a). The section further mandates that these requirements attach
“notwithstanding any immunity of such agencies, officers, agents, or employees under any law
or rule of law.” Id.; see Dep’t of Energy v. Ohio, 503 U.S. 607 (1992) (interpreting section
313(a) of the CWA). In dispute was whether the phrase “reasonable service charges” in section
313(a) included stormwater assessments, thereby waiving federal immunity and requiring federal
agencies to pay such assessments.2
As we explain further in part II below, the Stormwater Amendment reflected an effort
by Congress to resolve the controversy whether local governments could levy stormwater
assessments against the federal Government for its facilities. On June 10, 2010, Senator Cardin
introduced S. 3481, “A bill to amend the Federal Water Pollution Control Act to clarify Federal
responsibility for stormwater pollution.” See 156 Cong. Rec. S4855 (daily ed. June 10, 2010)
(statement of Sen. Cardin). He explained that “the issue of polluted stormwater runoff from
federal properties has . . . gained significant attention” and that he had “grave concerns about
the failure of the Federal Government to pay localities for reasonable costs associated with the
control and abatement of pollution that is originating on its properties.” Id. Senator Cardin
stressed that “Uncle Sam must pay his bills” and that he was “introducing legislation that makes
[that] clear.” Id.; see also id. at S4856 (“Adopting the legislation that I am introducing today
will remove all ambiguity about the responsibility of the Federal Government to pay these
2
For example, the U.S. Government Accountability Office (“GAO”) had concluded that federal agencies
could not pay the District of Columbia’s stormwater assessment because it was a “tax” for which “Congress has not
. . . legislated a waiver of sovereign immunity.” Letter for David A. Lebryk, Commissioner, Financial Management
Service, U.S. Department of Treasury, from Lynn H. Gibson, Acting General Counsel, Government Accountability
Office, B-320868, at 1 (Sept. 29, 2010); see also Letter for Peter J. Nickles, Attorney General of the District of
Columbia, from Lynn H. Gibson, Acting General Counsel, Government Accountability Office, B-320795 (Sept. 29,
2010).
3
Opinions of the Office of Legal Counsel in Volume 35
normal and customary stormwater fees.”). At that time, S. 3481 would have accomplished
this objective by adding a subsection (c) to section 313 of the CWA to make explicit that the
“reasonable service charges” described in section 313(a) include certain stormwater assessments.
S. 3481 also stated that such stormwater assessments “may be paid using appropriated funds.”
Id. at S4856 (text of S. 3481).
The Senate amended S. 3481 in the nature of a substitute, S. Amdt. 4917, on Dec. 21,
2010, a day before its passage. The apparent aim of the last-minute revision was to address
certain appropriations issues that might otherwise arise with the payment of stormwater
assessments. Like the original amendment, the substitute bill, which was introduced on behalf
of Senator Cardin, contained language in proposed section 313(c)(1) to make explicit that the
phrase “reasonable service charges” includes certain stormwater assessments. See 156 Cong.
Rec. S10,932 (daily ed. Dec. 21, 2010) (text of amendment).3
The substitute bill also added a new subsection (c)(2), with the heading “Limitation on
Accounts,” containing the appropriations language that is at issue here. See id. Proposed section
313(c)(2) provided in full:
(2) LIMITATION ON ACCOUNTS.—
(A) LIMITATION.—The payment or reimbursement of any fee, charge,
or assessment described in paragraph (1) shall not be made using funds
from any permanent authorization account in the Treasury.
(B) REIMBURSEMENT OR PAYMENT OBLIGATION OF FEDERAL
GOVERNMENT.—Each department, agency, or instrumentality of the
executive, legislative, and judicial branches of the Federal Government,
as described in [section 313(a)], shall not be obligated to pay or reimburse
any fee, charge, or assessment described in paragraph (1), except to the
extent and in an amount provided in advance by any appropriations Act to
pay or reimburse the fee, charge, or assessment.
3
Section 313(c)(1) provided in full:
(1) IN GENERAL.—For the purposes of this Act, reasonable service charges described in [section
313(a)] include any reasonable nondiscriminatory fee, charge, or assessment that is—
(A) based on some fair approximation of the proportionate contribution of the property or
facility to stormwater pollution (in terms of quantities of pollutants, or volume or rate of
stormwater discharge or runoff from the property or facility); and
(B) used to pay or reimburse the costs associated with any stormwater management
program (whether associated with a separate storm sewer system or a sewer system that
manages a combination of stormwater and sanitary waste), including the full range of
programmatic and structural costs attributable to collecting stormwater, reducing
pollutants in stormwater, and reducing the volume and rate of stormwater discharge,
regardless of whether that reasonable fee, charge, or assessment is denominated a tax.
156 Cong. Rec. S10,932 (daily ed. Dec. 21, 2010). The relevant text of section 313(a) is set forth above. See supra
p. 3.
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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act
Id. The substitute bill passed the Senate by unanimous consent on December 21, 2010, and
passed the House by unanimous consent on December 22, 2010 (the last day of the 111th
Congress). The President signed the enrolled bill into law on January 4, 2011.
On January 21, 2011, you requested our opinion whether “it is permissible to construe . . .
section 313(c)(2)(B) as authorizing federal governmental entities to use general, lump-sum
appropriations to pay the reasonable service charges described in . . . section 313(c)(1),” EPA
Letter at 1, or instead whether section 313(c)(2)(B) “requires a specific appropriation”—for
example, a line-item appropriation—“for the payment of the stormwater charges,” id. at 12.
II.
The issue we address here is whether section 313(c)(2)(B)’s language limiting the
payment of stormwater assessments “except to the extent and in an amount provided in advance
by any appropriations Act to pay or reimburse the fee” forbids federal agencies from paying
stormwater assessments from annual lump-sum appropriations. We conclude that it does not.
The Stormwater Amendment contains two principal provisions. The first provision,
section 313(c)(1), instructs that the “reasonable service charges described in [section 313(a)]
include any reasonable nondiscriminatory fee, charge, or assessment that is . . . based on some
fair approximation of the proportionate contribution of the property or facility to stormwater
pollution” and that is “used to pay or reimburse the costs associated with any stormwater
management program.” The first provision thus resolves the dispute over federal agencies’ duty
to pay stormwater assessments, by making clear that the phrase “reasonable service charges” in
section 313(a)—which is an unambiguous waiver of immunity—includes certain stormwater
assessments. See 33 U.S.C. § 1323(a) (requirements of section 313(a) apply “notwithstanding
any immunity of such agencies, officers, agents, or employees under any law or rule of law”).4
The second provision, section 313(c)(2), sets forth requirements for the payment of such
stormwater assessments by federal agencies. After stating in section 313(c)(2)(A) that federal
agencies may not pay these assessments from “any permanent authorization account in the
Treasury,” section 313(c)(2)(B) allows payment only “to the extent and in an amount provided in
advance by any appropriations Act to pay or reimburse the fee, charge, or assessment.” Section
313(c)(2)(B) could be read to allow federal agencies to pay stormwater assessments out of lump-
sum appropriations, but could also be read to impose a rule that Congress must annually enact a
specific appropriation (for example, a line item) for such payments. In our view, the best reading
of the text, structure, purpose, and history of the Stormwater Amendment, taken together, is that
Congress did not intend to require a specific appropriation.
4
Some agencies providing views on EPA’s opinion request suggested that this Office clarify the meaning
of certain terms in section 313(c)(1) and address other legal issues under the Stormwater Amendment. See, e.g.,
GSA Letter at 2-5; Postal Service Letter at 1-3; USDA Letter at 5. To respond to EPA’s request expeditiously, we
confine this opinion to the interpretation of the appropriations language in section 313(c)(2)(B). GSA, for example,
asked us to advise whether the Federal Buildings Fund may be used to pay stormwater assessments in light of
section 313(c)(2)(A). See GSA Letter at 4-5. Although we recognize the importance of this question, it lies beyond
the scope of EPA’s request, which is focused on section 313(c)(2)(B).
5
Opinions of the Office of Legal Counsel in Volume 35
A.
Although “[s]tatutory construction is a holistic endeavor,” Koons Buick Pontiac GMC,
Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotation marks omitted), our analysis of the
Stormwater Amendment, “begin[s], as always, with the text of the statute.” Hawaii v. Office
of Hawaiian Affairs, 129 S. Ct. 1436, 1443 (2009). The text of section 313(c)(2)(B), standing
alone, does not unambiguously resolve the issue before us. On the one hand, the phrase “except
to the extent and in an amount provided in advance by any appropriations Act” might be read
to authorize the payment of stormwater assessments only when Congress makes a specific
appropriation of funds for that purpose. See Postal Service Letter at 1 (“The language lends
itself to only one logical interpretation, i.e., federal entities are not required to pay stormwater
fees unless Congress has provided specific appropriations for that purpose.”); USDA Letter at
2-4. On the other hand, the phrase might be interpreted as authorizing federal agencies to pay
stormwater assessments, not from a “permanent authorization account in the Treasury,” declared
off limits by section 313(c)(2)(A),5 but instead from annual lump-sum appropriations.
While the text of section 312(c)(2)(B), standing alone, does not resolve the issue, reading
the section to allow payment from annual lump-sum appropriations is ultimately the better
reading of the text. First, such a reading accords with basic principles of appropriations law.
The “except to the extent and in an amount” language can be read to clarify that the Stormwater
Amendment provides spending authority for payment of stormwater assessments, but is not itself
an appropriation. See U.S. General Accounting Office, GAO-04-261SP, Principles of Federal
Appropriations Law, at 2-5 (3d ed. 2004) (“Principles of Federal Appropriations Law”) (“While
other forms of budget authority may authorize the incurring of obligations, the authority to incur
obligations by itself is not sufficient to authorize payments from the Treasury. Thus, at some
point if obligations are paid, they are paid by and from an appropriation.”) (internal citations
omitted); 31 U.S.C. § 1301(d) (2006) (“A law may be construed to make an appropriation out
of the Treasury or to authorize making a contract for the payment of money in excess of an
appropriation only if the law specifically states that an appropriation is made or that such a
contract may be made.”). The phrase further can be understood to embody the basic principle
that any stormwater assessments paid by federal agencies must come from and may not exceed
an actual appropriation. See, e.g., Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 14
(1990) (noting that a statute providing that payments “are effective only ‘in such amounts as are
provided in advance in appropriation Acts’” reflects a “concept that mirrors Art. I, § 9, of the
Constitution (‘No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law’)”). See generally EPA Letter at 12; CEQ Letter at 6; Tax
Memorandum at 5.
Second, this reading of the text comports with earlier opinions of this Office interpreting
other authorization or appropriations provisions. For instance, faced with a statute that
authorized the Secretary of Defense to make available five million dollars out of previously
5
Although we do not address here the meaning of the phrase “permanent authorization account in the
Treasury,” we note that Senator Cardin explained section 313(c)(2)(A) as “rectify[ing] a specific problem in the
District of Columbia, where the Department of Treasury has been paying some stormwater fees” and as reflecting
“that agencies and departments should use their annual appropriated funds to pay for stormwater fees.” 156 Cong.
Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added).
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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act
appropriated funds to the Director of the National Science Foundation “[t]o the extent provided
in appropriations Acts,” this Office concluded that this condition did not require that there have
been a specific line-item appropriation in those appropriations acts. See Funding for the Critical
Technologies Institute, 16 Op. O.L.C. 77, 79-83 (1992) (“Critical Technologies Institute”)
(interpreting section 822(d)(1) of the National Defense Authorization Act for Fiscal Years 1992
and 1993, Pub. L. No. 102-190, § 822, 105 Stat. 1290, 1435 (1991)). In reaching this
conclusion, we noted that the term “provided” can mean “to make a proviso or stipulation,” but
can also mean, more generally, “to make preparation to meet a need.” Id. at 81 (citing Webster’s
Ninth New Collegiate Dictionary 948 (1986)). Construing the term against the background of
the “fundamental principle of appropriations law” that “Congress is not required to enact a
specific appropriation for a program,” and in the absence of any textual indication that Congress
intended to depart from this principle, we concluded that a lump-sum appropriation was
sufficient to meet the condition. Id. at 81-82; see also id. at 79-80 (observing that it is
“axiomatic” that Congress uses lump-sum appropriations to “cover[] a wide range of activities
without specifying precisely the objects to which the appropriation may be applied”).6
Finally, section 313(c)(2)(B)’s limitation that stormwater assessments can be paid only
“to the extent and in an amount provided in advance by any appropriations Act to pay or
6
Nor do we think this Office’s interpretation of section 207 of the Equal Access to Justice Act
(“EAJA”)—which provided that the payment of fees as provided by the statute was “effective only to the extent and
in such amounts as are provided in advance in appropriations Acts,” 94 Stat. 2330—is to the contrary. See Funding
of Attorney Fee Awards Under the Equal Access to Justice Act, 6 Op. O.L.C. 204, 208-09 (1982) (“Olson
Memorandum”). Although this Office observed in Critical Technologies Institute that the Department of Defense’s
reliance on the Olson Memorandum was inapposite because the different statutory language presented a
“significantly different question” and that the addition of the phrase “and in such amounts” requires “a greater
degree of precision than ‘to the extent provided’ would alone,” 16 Op. O.L.C. at 83, we do not believe that this
analysis, which effectively was dicta, precludes the interpretation of section 313(c)(2)(B) we set forth here.
As explained in Critical Technologies Institute, section 207 of EAJA had not been “interpreted” by the Olson
Memorandum to “require a specific line-item appropriation.” Id. at 83. Rather, “the concern motivating section
207’s clause was not,” we said, “whether a line-item appropriation rather than a lump-sum appropriation was
required, but instead whether an appropriation was necessary at all.” Id. On this view, section 207 was an effort
to “make clear that the bill merely authorized funds, but did not appropriate them” and thus to avoid “hav[ing] the
EAJA bill ruled out of order because it contained appropriations, in violation of House rules.” Id. For these
reasons, far from mandating that section 313(c)(2)(B) be interpreted to impose a specific-appropriation requirement,
Critical Technologies Institute, read as whole, supports our conclusion that section 313(c)(2)(B)’s function is not to
impose a rigid specific-appropriation requirement but rather to clarify that the Stormwater Amendment “merely
authorized funds, but did not appropriate them.” Id. at 82.
The GAO has suggested a contrary interpretation of similar language in other statutory contexts, see, e.g.,
Letter for Hon. William Lehman, Chairman, Subcommittee on Transportation and Related Agencies, Committee on
Appropriations, House of Representatives, from Milton J. Socolar, Acting Comptroller General of the United States,
B-204078 (May 6, 1988) (construing a similar phrase as reflecting “a clear prohibition on the obligation or
expenditure of funds . . . unless specifically provided for in an appropriation act”), but the GAO has not addressed
this particular statutory context and, to the extent that its interpretation of other provisions might be extended here,
its interpretation is not binding in any event, see, e.g., Memorandum Opinion for the General Counsel, Small
Business Administration, from Jeannie Rhee, Deputy Assistant Attorney General, Office of Legal Counsel,
Permissibility of Small Business Administration Regulations Implementing the Historically Underutilized Business
Zone, 8(A) Business Development, and Service-Disabled Veteran-Owned Small Business Concern Programs at
13 (Aug. 21, 2009) (“Our Office has on many occasions issued opinions and memoranda concluding that GAO
decisions are not binding on Executive Branch agencies and that the opinions of the Attorney General and of this
Office are controlling.”), available at http://www.justice.gov/olc/opinions.htm; see also Critical Technologies
Institute, 16 Op. O.L.C. at 84 (disagreeing with GAO advice).
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reimburse the [stormwater assessment],” which makes clear that the amendment itself is not
an appropriation, plainly responded to the need to ensure that the statute conformed to the
requirements of 2 U.S.C. § 651 (2006). See EPA Letter at 7-8. That section provides that
“[i]t shall not be in order in either the House of Representatives or the Senate to consider any
bill . . . that provides,” among other things, “new authority to incur indebtedness . . . for the
repayment of which the United States is liable . . . unless that bill . . . also provides that the new
authority is to be effective for any fiscal year only to the extent or in the amounts provided in
advance in appropriation Acts.” 2 U.S.C. § 651(a) (emphasis added). Under section 651,
“legislation providing new [spending] authority will be subject to a point of order in either the
Senate or the House of Representatives unless it also provides that the new authority will be
effective for any fiscal year only to such extent or in such amounts as are provided in advance
in appropriation acts.” Principles of Federal Appropriations Law, at 2-6 (emphasis added).7
Section 313(c)(2)(B)’s confirmation that the Stormwater Amendment is not an appropriation
thus served the important function of avoiding a point of order, thereby enabling passage of the
bill. See EPA Letter at 8 (setting forth this explanation); accord DOD Letter at 3.8
B.
Our textual interpretation is supported by consideration of the text in the context of the
Stormwater Amendment’s overall structure, purpose, and legislative history. The structure of the
Stormwater Amendment favors reading section 313(c)(2)(B) to allow payment from lump-sum
appropriations and undermines a specific-appropriation interpretation of that section. See FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must . . . interpret the
statute as a symmetrical and coherent regulatory scheme and fit, if possible, all parts into an
harmonious whole.”) (internal quotation marks and citations omitted). Reading section
313(c)(2)(B) to restrict payment of stormwater assessments unless and until a future Congress
makes a specific appropriation for that purpose would be in considerable tension with Congress’s
decision in the immediately preceding subsection—section 313(c)(1)—to clarify that federal
agencies are responsible for paying reasonable stormwater assessments. Such a restriction would
frustrate the ability of federal agencies to pay those assessments, and “[w]e are disinclined to say
that what Congress imposed with one hand . . . it withdrew with the other.” Logan v. United
States, 552 U.S. 23, 35 (2007); see Greenlaw v. United States, 554 U.S. 237, 251 (2008) (“We
resist attributing to Congress an intention to render a statute so internally inconsistent.”). Rather,
7
Section 651 traces its statutory lineage to section 401(a) of the Congressional Budget Act of 1974
(originally codified at 31 U.S.C. § 1351(a) (Supp. IV 1974)). The legislative history of the 1974 statute explains
that the purpose of the requirement was to ensure that “backdoor spending authority (such as contract authority, loan
authority, and mandatory or open-ended entitlements) could not take effect until funds were provided through the
appropriations process.” H.R. Rep. No. 93-658, at 17 (1973), reprinted in 1974 U.S.C.C.A.N. 3462, 3463.
8
Because we understand section 313(c)(2)(B) to be serving several purposes on this reading—including
clarifying that the Stormwater Amendment authorizes spending but is not itself an appropriation; forbidding federal
agencies from incurring any stormwater assessment obligations in excess of their appropriations; and conforming
with the requirements of 2 U.S.C. § 651—we do not believe that this reading gives no effect to, and thus renders
surplusage, the phrase “except to the extent and in an amount provided in advance by any appropriations Act.” Cf.
DOD Letter at 4. Indeed, we rejected a similar objection lodged against our interpretation of the phrase “[t]o the
extent provided in Appropriations acts” in Critical Technologies Institute, reasoning, among other things, that the
phrase “makes clear that the act merely authorized funds, and that a further appropriation is required.” 16 Op.
O.L.C. at 82. In any event, “[s]urplusage does not always produce ambiguity and [a] preference for avoiding
surplusage constructions is not absolute.” Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004).
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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act
here, a provision that “seem[s] ambiguous in isolation is . . . clarified by the remainder of the
statutory scheme . . . because only one of the permissible meanings produces a substantive effect
that is compatible with the rest of the law.” Koons Buick Pontiac GMC, 543 U.S. at 60.
Interpreting section 313(c)(2)(B) to require a specific appropriation also would
substantially conflict with the general purpose of the Stormwater Amendment. See Stafford v.
Briggs, 444 U.S. 527, 535 (1980) (statutory interpretation must take account of the “‘the objects
and policy of the law’”) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857));
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 861 (2005)
(“[e]xamination of purpose is a staple of statutory interpretation”). The central purpose of the
Stormwater Amendment was to resolve the controversy surrounding the payment of stormwater
assessments by requiring that federal agencies pay such assessments. The very first words of the
amendment—“[a]n Act To . . . clarify Federal responsibility for stormwater pollution”—show
Congress’s purpose to resolve the dispute regarding stormwater assessments and make clear
that the federal Government as an owner of federal facilities is responsible for the payment of
stormwater assessments. Although “[t]he title of an act cannot control its words,” it “may
furnish some aid in showing what was in the mind of the legislature.” United States v. Palmer,
16 U.S. (3 Wheat.) 610, 630 (1818) (C.J. Marshall); see Holy Trinity Church v. United States,
143 U.S. 457, 462 (1892) (“title of the act” may shed light on the “intent of the legislature”).
The title here does just that. See ENRD Memorandum at 4 (arguing that the “purpose is readily
apparent from the title of the act”).
In addition to the title, all of the available legislative history confirms this account of
Congress’s purpose.9 The Senate sponsor of the bill, Senator Cardin, explained in introducing
the bill: “Adopting the legislation that I am introducing today will remove all ambiguity about
the responsibility of the Federal Government to pay these normal and customary stormwater
fees.” 156 Cong. Rec. S4856 (daily ed. June 10, 2010).10 Several members of the House
repeated this understanding of the objective of the Stormwater Amendment, including after the
substitute version of the bill passed the Senate. Representative Oberstar, for example, noted that
“[s]everal states and municipalities . . . have taken aggressive action to address ongoing sources
of stormwater pollution” but that such action is undermined “when a significant percentage of
Federal property owners take the position that they cannot be held responsible for their
pollution.” 156 Cong. Rec. H8978 (daily ed. Dec. 22, 2010). He explained that the amendment
would “clarif[y] that Federal agencies and departments are financially responsible for any
9
This Office has previously found legislative history one potentially instructive factor to consider, along
with other evidence, when confronted with ambiguous appropriations language. See Critical Technologies Institute,
16 Op. O.L.C. at 80 (relying on legislative history in ascertaining the meaning of similar appropriations language);
see also Authority of Chrysler Corporation Loan Guarantee Board to Issue Guarantees, 43 U.S. Op. Att’y Gen.
219, 219-23 (1980) (construing phrase “to the extent such amounts are provided in advance in appropriations acts”
based principally on legislative history).
10
Although some of the legislative history we cite here was in connection with the bill as it existed prior to
the last-minute addition of section 313(c)(2)(B), that does not render that prior history irrelevant. Senator Cardin’s
explanation of the purpose of the Stormwater Amendment was the same before and after the addition of the relevant
appropriations language (which was added at Senator Cardin’s request), and is consistent with statements made by
members of the House after the revised language was added. Standing alone, the fact that Congress revised the
Stormwater Amendment provides no basis for adopting a restrictive interpretation of section 313(c)(2)(B),
especially when all available legislative evidence is to the contrary.
9
Opinions of the Office of Legal Counsel in Volume 35
reasonable . . . charges for treating or otherwise addressing stormwater pollution that emanates
from Federal property.” Id. Other statements in the legislative record are to the same effect.11
Indeed, after the Senate’s passage of the Stormwater Amendment, Senator Cardin again
explained the purpose of the amendment in similar terms:
[T]oday the Congress stands ready to approve S. 3481, a bill to clarify Federal
responsibility to pay for stormwater pollution. This legislation, which will soon
become law, requires the Federal government to pay localities for reasonable
costs associated with the control and abatement of pollution that is originating
on its properties. At stake is a fundamental issue of equity: polluters should be
financially responsible for the pollution that they cause. That includes the Federal
Government.
156 Cong. Rec. S11,023 (daily ed. Dec. 22, 2010); see id. at S11,024 (statement of Sen. Cardin)
(the federal responsibility “to manage . . . stormwater pollution . . . needs to translate into
payments to the local governments that are forced to deal with this pollution”). Senator Cardin’s
consistent, public, and unambiguous articulation of the intended purpose and effect of the
Stormwater Amendment confirms our view that Congress intended the Stormwater Amendment
to facilitate the payment of stormwater assessments by the federal Government. See N.L.R.B. v.
Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 66 (1964) (“It is the sponsors that we look
to when the meaning of the statutory words is in doubt.”) (internal quotation marks omitted); see
also H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238 (1989) (relying on the stated understanding
of “the principal sponsor of the Senate bill” in interpreting a statute). Although the “remarks of a
single legislator who sponsors a bill” may not be “controlling in analyzing legislative history,”
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980), Senator
Cardin’s remarks accord with all of the available legislative history. There is no indication in
the legislative record that the understanding of the Stormwater Amendment offered by Senator
Cardin and others was not shared universally in Congress.
Reading the statute to impose a specific-appropriation requirement would frustrate that
purpose. Such a requirement would place a substantial obstacle in the path of payment of
stormwater assessments because of the practical burdens associated with attaining specificity in
annual appropriations, especially specificity in appropriations bills applying to a range of federal
agencies. See, e.g., Critical Technologies Institute, 16 Op. O.L.C. at 80 (“A rule requiring
greater specificity in appropriations would create extreme obstacles for the functioning of the
Federal Government.”). Indeed, we note that, to the extent some federal agencies were paying
stormwater assessments from lump-sum appropriations prior to the passage of the Stormwater
Amendment, a specific-appropriation interpretation would require ascribing to Congress an
11
See 156 Cong. Rec. E2259 (daily ed. Dec. 29, 2010) (statement of Rep. Johnson) (describing the bill
as “a simple effort to clarify . . . that the Federal Government bears a proportional responsibility for addressing
pollution originating from its facilities”); id. at E2258 (statement of Rep. Johnson) (explaining that the “common
sense bill” would “ensure[] that the Federal Government maintains its equitable responsibility for stormwater
pollution runoff originating or emanating from its property”); 156 Cong. Rec. E2245 (daily ed. Dec. 22, 2010)
(statement of Del. Norton, who sponsored the Stormwater Amendment in the House) (“The consequence of failing
to pass this bill is that we give the Federal Government a free ride and pass its fees on to our constituents throughout
the United States.”).
10
Federal Agency Payment of Stormwater Assessments Under the Clean Water Act
intent to forbid such ongoing payments unless and until Congress made a specific appropriation.
We can find no indication of such a congressional intent. Equally important, a specific-
appropriation interpretation of section 313(c)(2)(B), rather than resolving once and for all the
obligation of the federal Government as an owner of federal facilities to pay certain stormwater
assessments, would effectively leave the issue where Congress found it—passing on to future
Congresses the task of determining, on an annual basis, whether stormwater assessments should
be paid. Such a reading of section 313(c)(2)(B) would reintroduce the same cloud of legal
uncertainty Congress intended the Stormwater Amendment to dispel.
Furthermore, the legislative history relating specifically to the addition of section
313(c)(2)(B) weighs heavily against interpreting the section to impose a specific-appropriation
requirement. Senator Cardin explained the appropriations language at issue here as follows:
[W]e added a provision to the bill in order to rectify a specific problem in the
District of Columbia, where the Department of Treasury has been paying some
stormwater fees. The provision simply says that agencies and departments should
use their annual appropriated funds to pay for stormwater fees. This is exactly
what they all do today in paying for their drinking water and wastewater bills or
any other utility bill, for that matter. This new language requires that Congress
make available, in appropriations acts, the funds that could be used for this
purpose. It does not mean that the appropriations act would need to state
specifically or expressly that the funds could be used to pay these charges. The
legislative language doesn’t say that, and I want to be perfectly clear that such a
restrictive reading is not our intent.
156 Cong. Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added).12 Senator Cardin’s view
was echoed by several members of the House of Representatives, including the House sponsor of
the Stormwater Amendment, Delegate Norton. She explained: “The bill requires that Congress
make available, in appropriations acts, the funds that could be used to pay for stormwater
management charges, but not that the appropriations act would need to state specifically or
expressly that the funds could be used to pay these charges.” Id. at H8979 (daily ed. Dec. 22,
2010) (emphasis added).13 There is no legislative history pointing to a contrary result. See CEQ
Letter at 5 (canvassing legislative history supporting an interpretation of section 313(c)(2)(B) as
authorizing annual appropriations to pay stormwater assessments and noting “[n]o comments
to the contrary appear anywhere in the legislative history” of the Stormwater Amendment).
12
Although Senator Cardin’s statement was made after the passage of the Senate version of the bill, his
description is consistent with the understanding expressed by members of the House, including the sponsor, prior to
passage there. See infra n. 13 and accompanying text.
13
See also 156 Cong. Rec. H8979 (daily ed. Dec. 22, 2010) (statement of Rep. Oberstar) (“In addition,
the intent of subsection (c)(2)(B) of Section 313 of the Clean Water Act, as added by S. 3481, is to require that
Congress make available, in appropriations acts, the funds that could be used to pay stormwater fees, but not that the
appropriations act would need to state specifically or expressly that the funds could be used to pay these charges.”);
id. at H8980 (daily ed. Dec. 22, 2010) (statement of Rep. Johnson) (“This new language requires that Congress
make available, in appropriations acts, the funds that could be used for this purpose. It should not be interpreted as
requiring appropriations act [sic] to state specifically or expressly that the funds could be used to pay these charges.
The statutory language does not require this, and such a restrictive reading is not intended.”).
11
Opinions of the Office of Legal Counsel in Volume 35
In sum, we conclude that the best reading of the text of the appropriations provision
in section 313(c)(2)(B), in light of the structure, purpose, and history of the Stormwater
Amendment, is that Congress did not intend to impose a specific-appropriation requirement.
Indeed, a specific-appropriation requirement—that, as we have noted, would have the predictable
effect of restricting payment by federal agencies and would leave the status of future stormwater
payments in legal limbo—would undermine Congress’s central aims in enacting the Stormwater
Amendment. We therefore believe that federal agencies may pay stormwater assessments out of
annual—including current—lump-sum appropriations.14
C.
One significant argument might be advanced against our reading of the Stormwater
Amendment. It might be said that, if the plain text of section 313(c)(2)(B) does not definitively
resolve the source of payment, then we must embrace a construction that restricts payment on
the ground that “a condition to [a] waiver of sovereign immunity . . . must be strictly construed.”
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990). We disagree that this rule of
construction justifies reading section 313(c)(2)(B) to impose a specific-appropriation
requirement.
In our view, the appropriations language in section 313(c)(2)(B) is not properly
understood as a condition on the waiver of immunity. Sections 313(a) and 313(c)(1), read
together, accomplish that waiver for stormwater assessments. See supra p. 5. Section
313(c)(2)(B) serves a different function, operating as an internal accounting provision, directing
when and how federal agencies may pay such assessments. Cf. Henderson v. United States, 517
U.S. 654, 667-68 (1996) (holding that, notwithstanding that the Suits in Admiralty Act is a broad
waiver of sovereign immunity, the provisions in section 742 of the statute governing service of
process are not “sensibly typed ‘substantive’ or ‘jurisdictional’”—and therefore a condition on
the waiver—but “[i]nstead, they have a distinctly facilitative, ‘procedural’ cast” as “[t]hey deal
with case processing, not substantive rights or consent to suit”). The heading of section
313(c)(2), “Limitation on Accounts,” supports the view that section 313(c)(2) is not a condition
on a waiver of immunity but rather that it governs the sources from which federal agencies may
14
USDA suggests that section 313(c)(2)(B), in all events, forbids the use of current appropriations to pay
stormwater assessments because an “additional act of Congress is required.” USDA Letter at 4. But the conclusion
does not follow from the premise. It is true that an “additional act of Congress is required”—because the
Stormwater Amendment is not an appropriation, a point that is central to our reading of section 313(c)(2)(B)—but
the view that section 313(c)(2)(B) may be satisfied by a lump-sum appropriation leads logically to the conclusion
that such an appropriation may be a current or future lump-sum appropriation. Payment of stormwater assessments
from a current appropriation would not countermand the statutory requirement that funds be “provided in advance
by any appropriations Act” because federal agencies’ payments of stormwater assessments going forward would
be made from appropriations acts previously enacted by Congress. This same analysis largely responds to DOD’s
concern that section 313(c)(2)(B) “clearly require[s] some additional action by Congress.” DOD Letter at 3. DOD
appears to posit that the “shall not be obligated” clause in section 313(c)(2)(B) means that federal agencies may pay
stormwater assessments out of general operating funds but that agencies must pay such assessments in the event that
Congress enacts specific “appropriations act language.” Id. at 4. As we have explained, we agree that “additional
action by Congress” is required, but that additional action may be a current or future general lump-sum
appropriation. Therefore, we disagree with DOD’s suggested interpretation of the “shall not be obligated” phrase
because, in our view, a general lump-sum appropriation is sufficient to trigger the “mandatory” payment of
stormwater assessments. Id.
12
Federal Agency Payment of Stormwater Assessments Under the Clean Water Act
pay stormwater assessments. See U.S. Government Accountability Office, GAO-05-734SP, A
Glossary of Terms Used in the Federal Budget Process, at 2 (Sept. 2005) (defining account as
“[a] separate financial reporting unit for budget, management, and/or accounting purposes”); see
also Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (noting that the “heading of
a section” is a “tool[] available for the resolution of a doubt about the meaning of a statute”)
(internal quotation marks omitted); ENRD Memorandum at 4. For these reasons, reading section
313(c)(2)(B) not as a condition on the waiver of immunity, but as a separate internal accounting
provision specific to stormwater assessments, is most faithful to the Supreme Court’s instruction
to “interpret [a] statute as a symmetrical and coherent regulatory scheme” that “fit[s] . . . all parts
into a harmonious whole.” Brown & Williamson Tobacco Corp., 529 U.S. at 133 (internal
quotation marks and citations omitted).
We recognize that section 313(c)(2)(B)’s direction that federal agencies “shall not be
obligated to pay” stormwater assessments “except to the extent and in an amount provided in
advance by any appropriations Act” might be read as a condition on the waiver of immunity.
See DOD Letter at 4; cf. Tax Memorandum at 4 (suggesting that section 313(c)(2)(B) “read[s]
more like a traditional waiver given the context of the amendment”). But we believe, in this
statutory context, that the phrase “shall not be obligated to pay . . . except to the extent and in
an amount provided in advance by any appropriations Act” is instead a textual cue that the
Stormwater Amendment is not an appropriation and that stormwater assessment payments
require a separate appropriation by Congress. In other words, the “shall not be obligated to pay”
phrase is an instruction that federal agencies may not pay stormwater assessments unless there
is a separate appropriation of funds by Congress to do so. Because we do not read section
313(c)(2)(B) as a condition on the waiver of immunity effected by sections 313(a) and 313(c)(1),
the strict construction canon governing conditions on waivers of immunity is inapposite.
For these reasons, we conclude that section 313(c)(2)(B) of the CWA does not impose a
specific-appropriation requirement. Instead, federal agencies may pay appropriate stormwater
assessments from annual—including current—lump-sum appropriations.
/s/
CAROLINE D. KRASS
Principal Deputy Assistant Attorney General
13