Vancouver sued over BPA stormwater bills

Feds say charges a tax, city maintains they’re legitimate fee

By Andrea Damewood, Columbian staff writer

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Vancouver and the federal government are headed to court over more than $500,000 in disputed utility bills.

The federal lawsuit, filed Tuesday against Vancouver and Renton, claims that the Bonneville Power Administration is not responsible for back payments of its city stormwater bills, and also seeks a refund of bills it paid from 2005 to 2010.

Vancouver said the federal power marketing agency owes more than $100,000 in past-due stormwater charges from January to December 2010 for its 250-acre Ross Complex site at 5411 N.E. Highway 99.

But in its suit, the federal government argues that not only does it not owe the city, but it also wants Vancouver to refund more than $443,000 it paid during the five previous years, plus interest.

“It’s an issue of fairness,” city Public Works Director Brian Carlson said Wednesday, pointing out that it’s the federal government that mandates costly and stringent treatment of the city’s stormwater, and it’s a federal agency that won’t pay its back bill.

Last year, the BPA informed Vancouver, along with 11 other Washington and Oregon cities, that it would no longer be paying its stormwater bills, as the agency considered them a tax rather than a fee. Federal agencies are not required to pay local taxes.

But on Jan. 4, President Barack Obama signed into law a measure saying that stormwater bills are a fee, which the federal government does have to pay.

In the suit, the federal government said that the bills charged before Jan. 4 still count as taxes — and it wants its money back.

“The United States is constitutionally immune from the stormwater charges imposed before Jan. 4, 2011, because they are a tax,” the lawsuit states. “The United States has not waived its immunity to these taxes.”

Carlson said that to him, it’s obvious that the new law means that stormwater bills have always been fees.

“Congress has made its intent clear, now they’re kind of nitpicking over whether this is retroactive or not,” he said.

A call to U.S. Justice Department attorney Jonathan D. Carroll, who filed the suit in U.S. District Court in Seattle on behalf of the United States, was not returned Wednesday.

Vancouver and the BPA had agreed that they would let the courts decide the case, so the suit was not a surprise, Carlson said. He said the city is “confident” in its chances of winning.

Vancouver has also threatened to turn off the water to the Ross Complex, but since the massive site is vital to transmitting power throughout the Pacific Northwest, the city agreed to wait until 60 days after the resolution of the lawsuit and any appeals before taking action.

Renton, which says it is owed for unpaid stormwater charges dating from June 2009 to December 2010, has made a similar agreement. The United States is seeking a $38,600 refund from Renton for stormwater bills it paid at its Maple Valley Substation between 2005 and 2009.

Since the law went into effect in January, the BPA has yet to pay Vancouver its current balance. But Carlson said that a new calculation of the bill is still being worked out and the agency intends to pay once the figure is settled.

Andrea Damewood: 360-735-4542 or andrea.damewood@columbian.com or www.facebook.com/reporterdamewood or www.twitter.com/col_cityhall.