Stormwater bill pits city versus BPA

The Bonneville Power Administration plans to spend $400 million to build a new high-voltage transmission line between Troutdale, Ore., and Castle Rock — but the federal agency is not planning to pay the city of Vancouver $8,500 a month for its stormwater bill anymore.

Aberdeen’s not going to get its $6 a month either. Longview’s call for $403.80 a month will also go unheeded.

o What: The Bonneville Power Administration sent letters to cities in Washington and Oregon last month telling them their stormwater bills were a tax (which federal agencies do not have to pay) and would therefore no longer be paid. Cities say they are weighing their options on what to do next. The cities that have received the letter are:

o Washington: Vancouver, Longview, Aberdeen, Renton, Tacoma, Snohomish, Pasco, Shelton.

? Oregon: Eugene, Reedsport, Forest Grove and Keizer.

? Note: Many other federal agencies also do not pay. The U.S. Forest Service and King County have been at odds over the same payment since at least 2006.

Based on a legal opinion written by the U.S. Government Accountability Office that says the stormwater utility bill is really a local tax — which federal agencies do not pay — the BPA is no longer paying it, no matter how much, anywhere in Washington or Oregon.

The BPA isn’t alone in its stance: King County and the U.S. Forest Service have been at odds over a $1,000 a year bill for at least four years. (But in Vancouver, the agency is current on its stormwater runoff bills for the Gifford Pinchot Forest Headquarters on N.E. 51st Circle).

Nationwide, other federal agencies have also bucked the stormwater charge, leading to several court cases.

However, there isn’t any sort of consistency from federal institutions, as most do pay the bill.

Cities and counties are outraged, saying nonpayment by a few federal agencies sets a nasty precedent and leaves them short in a time when they desperately need the money.

And the unpaid bills are provoking some tough talk from public works officials.

“When they stop paying it, it becomes delinquent,” said Aberdeen Public Works Director Larry Bledsoe. Aberdeen charges a small BPA office there $6 a month for stormwater as part of the utility bill. “When it becomes delinquent, we’ll shut their water off.”

Vancouver Public Works Director Brian Carlson said he is “also reserving that option.”

Commercial stormwater rates are based on the size of the areas that are impermeable, including roofs and parking lots. In some places, like Aberdeen, that could mean just a few dollars a month, but for Vancouver, the loss of $102,000 annually from the BPA’s large Ross Complex in West Minnehaha is significant, Carlson said.

The bill is a service fee, just like water or sewer, and the BPA should pay it, he said.

“That’s not fair to our businesses and agencies… they’re putting that burden on the backs of our locals,” he said.

What’s worse, Carlson said, is stormwater rates are largely driven by the federal Clean Water Act.

Most of the federal institutions in Vancouver do pay their stormwater fee, which is part of their utility bill. The agencies and the amounts:

? U.S. Postal Service: monthly bills vary.

? Social Security Administration: $253.10 bimonthly.

? Veteran’s Administration: $3,763.79 monthly.

? FBI: $96.88 bimonthly.

? U.S. Army: $121.10 monthly.

By the time the city upgrades all of its groundwater infrastructure to meet federal standards, it will have cost at least $100 million, he said. Since 2003, more than $13 million has gone to capital improvements.

“The irony of it all is it’s being driven by the feds,” Carlson said. “There’s a fairness and common sense thing here.”

It’s reached a point where the city has lobbied its federal delegation to intervene. Mayor Tim Leavitt has sent a letter to Sen. Maria Cantwell asking for her help, and Congressman Brian Baird, D-Vancouver, has lobbied the Department of Justice to review the decision.

A BPA spokesman said this week that it’s not that the agency doesn’t want to pay its stormwater bill. Because of the GAO opinion, it just can’t.

A Forest Service spokesman said the issue was relatively new to many in the agency, but that it too is legally bound by the GAO opinion and cannot pay. Asked why the agency is paying in Vancouver but not King County, he said, “that’s something we’ll have to discuss.”

Going through its bills, the Bonneville Power Administration said it realized that the charges for stormwater were lumped in with other utilities, causing it to go through all of its bills to find where it was erroneously paying.

“We realized this was something we weren’t supposed to be paying,” spokesman Michael Milstein said.

He said the agency is still paying all its other utility bills. He also noted that the stormwater charge, should the BPA have to pay it, would be passed on to ratepayers. There’s no immediate rate reduction in the works because the BPA has cut that cost, Milstein said, but it will be factored in next time the agency readjusts its power rates.

The BPA expects the disagreement might wind up in court, Milstein said.

“We’re as interested in a clear legal direction on this as anyone. We understand there could be a different interpretation; what we really want is clarity.”

City attorneys around the state are sharpening arguments in their favor.

The GAO has said because the user charge is based on square footage, it is more like a tax than a user fee.

Linda Marousek, Vancouver assistant city attorney, believes otherwise.

“This has repeatedly been challenged in the state of Washington,” she said. “And the courts have repeatedly said ‘This is not a tax.’”

She also cited a 2007 case in Cincinnati, where, after several years, a judge in the District Court for Southern Ohio ordered the Health and Human Services agency there to pay $17,000 in back fees and to pay all stormwater bills in the future.

King County Senior Deputy Prosecuting Attorney Joseph Rochelle has been trying since 2008 to get the Government Accountability Office to change its ruling.

“That GAO opinion basically uses one federal test for what is the difference between what is a tax and what is a regulatory fee,” Rochelle said. “My rather lengthy response is: ‘I think you’ve applied the wrong test.’”

The city of Seattle has also been informed by several federal agencies that they’re not going to pay their stormwater bills, Seattle Assistant City Attorney Greg Narver said. Narver did not have a list of which agencies were not paying in Seattle.

“My understanding in conversations with federal government is that this is going on all around the country,” he said.

Rochelle said he had heard that the issue had also come up in California, where a state court had ruled the stormwater fees were indeed a tax.

There’s no precedence, he said, and “federal agencies approach this inconsistently.”

Marousek said she hopes the problem reaches a resolution soon.

“The Department of Justice is making a decision, but unless they make a decision soon, our bills continue to pile up,” she said. “Eighty five hundred dollars a month is a pretty big chunk of change for a city this size.”

Andrea Damewood: 360-735-4542; andrea.damewood@columbian.com.