Lewiston port eyes suit against city over fee issue

Port officials say action is last resort in dispute over Lewiston’s storm water fees

By Elaine Williams of the Tribune

Thursday, August 6, 2009
Lewiston port commissioners voted Wednesday to support suing the city of Lewiston over its storm water fees that the port anticipates will cost it tens of thousands of dollars.

The commissioners described the action as a last resort they will pursue only if other government entities join them and no alternatives emerge.

The issue has been simmering for at least a year, as the city went through the process of imposing the fees to pay for a federal mandate to reduce pollution in storm water entering rivers and lakes and other bodies of water, with projects such as increasing the regularity of street sweeping.

A message left for Lewiston’s city manager Wednesday was not returned.

The port believes the fees are really a tax that should have been subject to voter approval, said Garry Jones, a Lewiston attorney from the firm of Jones, Brower & Callery, who is representing the port. “You can’t flip a coin so that’s why you have the judicial determination.”

Fees, Jones said, must be reasonably related to the services provided. Jones later noted that almost every homeowner in the Lewiston Orchards is paying storm water fees, even though the Orchards has no storm water system.

The reason the port is so concerned about the fees, which are expected to generate about $900,000 annually for the city, is because of how much it’s having to spend on them.

Once they reach their full amount in the third and final year of a phase-in period, the port will be paying about $37,000 annually, not counting an equal amount borne by the port’s tenants, said David Doeringsfeld, manager of the Port of Lewiston.

“If the city chooses to raise it, there’s nothing you can do about it,” Jones said.

The financial burden of the fees isn’t the only concern, Jones said.

The port, for example, believes the city has “over-emphasized” the federal requirements and the city’s obligation to meet the rules as they stand now is “modest,” Jones said.

Private businesses that made significant investments in water retention systems aren’t getting credit for those in how the fees are assessed, Jones said.

Such worries prompted the unusual step, port commissioners said.

“We’re a public entity suing another public entity. It’s a pretty serious step,” said Jerry Klemm, a port commissioner.

But the port can justify the move because any resolution the port gets will apply not just to the port, but to all taxpayers of Nez Perce County, said Terry Kolb, a port commissioner. “We’re representing you.”

And the cost of litigating the issue will be “substantially less” than paying the fees, especially if others share in the cost of the legal fees, Doeringsfeld said.

Those that will likely go on record soon sharing the port’s concerns about storm water fees include Nez Perce County, the Lewiston School District, the Lewiston Orchards Irrigation District and Lewis-Clark State College, Jones said.

The positions of those groups wasn’t clear on Wednesday. The Nez Perce County commissioners have “considered” following the same path as the Port of Lewiston, said Nance Ceccarelli, a deputy prosecuting attorney for Nez Perce County.

College officials have discussed the storm water issue with the port and other government agencies and are continuing to “explore all options,” according to a statement issued by LCSC.

The school district and the irrigation district didn’t provide comments on Wednesday.

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Williams may be contacted at [email protected] or (208) 848-2261.