City of Wilmington, Delaware v. United States, No. 22-1581 (Fed. Cir. 2023)
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Wilmington charges its residential and non-residential property owners a stormwater management fee, based on an estimation of each property’s contribution to stormwater runoff. Because a precise measure of the actual amount of stormwater pollution from each property is impossible, the city devised a methodology for approximating the runoff attributable to each property based on recommendations from an engineering firm. For non-residential properties, the city assesses the fee based on a formula comprised of four variables. The U.S. Army Corps of Engineers (USACE) owns five properties in Wilmington, comprising 270 acres, classified as vacant, and used to store dredged material. USACE disputed whether the Clean Water Act (CWA), 33 U.S.C. 1323, waived its sovereign immunity with respect to this fee.
The Federal Circuit affirmed a Claims Court holding that the fees are not reasonable service charges, allowable under the CWA. Wilmington did not explain how the vacant land use code corresponded to the runoff coefficients nor whether its stormwater class fairly captured variability in vacant parcels, given that only one parcel contains any paved surface. Wilmington’s methodology, as applied, led to charges that are not a fair approximation of the properties’ proportionate contribution to stormwater pollution.
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