Judge ponders storm water fee case

Public entities argue against paying Lewiston’s charge

By Sandra L. Lee of the Tribune

Saturday, June 12, 2010
District Judge John H. Bradbury said oral arguments made Friday in a lawsuit brought by five public entities against the city of Lewiston may alter his decision.

“I thought I had my mind made up on this,” Bradbury said at the conclusion, but now he’s going back to the books before rendering a decision.

Bradbury didn’t say which side may have swayed him during more than an hour of discussion about whether a storm water charge levied on Lewiston properties is a fee, as the city maintains, or an illegal tax.

City Attorney Don L. Roberts and Theodore O. Creason, representing Nez Perce County, Lewiston Orchards Irrigation District, the Port of Lewiston, Lewis-Clark State College and Lewiston Independent School District No. 1 seemed to hint the case may be appealed to a higher court no matter how the judge rules. They declined to be specific, however.

The lawsuit was filed in September in response to the city council’s decision to levy a charge on virtually every developed property using a system based on impervious surfaces. An average of such surfaces on several residential properties was used to come up with an equivalent residential unit, or ERU. That square footage was applied to all non-residential properties to come up with a number of ERUs for each.

With wide expanses of roof tops and parking lots, that has totaled thousands of dollars to the contesting governmental entities who wouldn’t have to pay the fee if it was deemed a tax.

The city is charging $3 per month per ERU, and has delayed increases that would have taken that to $4.50 last October and $6 this October. The money would pay for everything from street sweeping to keeping pollutants out of the rivers, which is mandated by a National Pollutant Discharge Elimination System permit the city is required to obtain. It also would pay for construction of storm water systems intended to remedy runoff problems, like the flooding that has occurred the past few days.

Creason argued that storm water is a general responsibility of the city and as such should be paid for out of taxes, not assessed against individual property owners. Orchards residents, for instance, shouldn’t have to pay for downtown storm water projects that don’t impact their properties, he said.

Roberts argued it’s a fee just as garbage collection is a fee. He can attempt to keep runoff on his property just as he can compost his garbage or burn it in his stove, but it’s still a service needed by the public that the city provides, he said.

Courts in two other states have ruled storm water fees provide a direct benefit to property owners, Roberts said.

Cindy Mosher, an attorney with Creason’s firm, said after the hearing if the city’s ordinance contained regulations on what could be discharged into the storm water system and provided an enforcement mechanism, then it could be considered a fee for service. But when a charge funds activities that benefit the general public, such as street sweeping, that is usually paid for by general taxes.

The city wants the money to meet terms of the federal permit, but no portion of it is allotted to enforcement, she and Creason said.

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Lee may be contacted at [email protected] or (208) 848-2266.