Obligation of Federal Agencies to Pay Stormwater Assessments Under the Clean Water Act

Obligation of Federal Agencies to Pay Stormwater

Assessments Under the Clean Water Act

Section 313(c)(2)(B) of the Clean Water Act does not impose a specific-appropriation

requirement for the payment of stormwater assessments. Federal agencies may pay

appropriate stormwater assessments from annual—including current—lump-sum ap-

propriations.

February 25, 2011

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

ENVIRONMENTAL PROTECTION AGENCY

Congress recently passed “An Act To amend the Federal Water Pollu-

tion Control Act to clarify Federal responsibility for stormwater pollu-

tion,” Pub. L. No. 111-378, 124 Stat. 4128 (2011) (the “Stormwater

Amendment”), which revised section 313 of the Clean Water Act

(“CWA”), 33 U.S.C. § 1323 (2006), to clarify that reasonable service

charges payable by federal agencies, as described in section 313(a), in-

clude certain stormwater assessments. Section 313(c)(2)(B), enacted as

part of this amendment, provides that federal agencies may not pay certain

stormwater assessments “except to the extent and in an amount provided

in advance by any appropriations Act to pay or reimburse the fee, charge,

or assessment.” You have asked whether section 313(c)(2)(B) bars federal

agencies from paying stormwater assessments unless Congress makes a

specific appropriation (for example, a line-item appropriation) for such

payments, or instead whether agencies may “use general, lump-sum

appropriations” for such payments. 1 We believe that the best reading of

1 See Letter for Jonathan Cedarbaum, Principal Deputy Assistant Attorney General,

Office of Legal Counsel, from Scott C. Fulton, General Counsel, Environmental Protec-

tion Agency at 1 (Jan. 21, 2011) (“EPA Letter”). In preparing this opinion, we have

received comments from the Tax Division, see Memorandum for John A. DiCicco, Acting

Assistant Attorney General, Tax Division, from David A. Hubbert, Chief, Special Litiga-

tion (Jan. 26, 2011) (“Tax Memorandum”); the Bonneville Power Administration, see

Letter for Jonathan Cedarbaum, Principal Deputy Assistant Attorney General, Office of

Legal Counsel, from Randy A. Roach, General Counsel, Bonneville Power Administra-

tion (Feb. 2, 2011); the Environment and Natural Resources Division, see Memorandum

for Karen Wardzinski, Section Chief, Law & Policy Section, Environment and Natural

Resources Division, from Peter J. McVeigh, Attorney, Law & Policy Section (Feb. 3,

2011) (“ENRD Memorandum”); the General Services Administration, see Letter for

1

35 Op. O.L.C. 1 (2011)

section 313(c)(2)(B), when construed in accord with the structure, pur-

pose, and history of the Stormwater Amendment, is that the provision

does not impose a specific-appropriation requirement. In our view, federal

agencies may pay appropriate stormwater assessments from annual—

including current—lump-sum appropriations consistent with section

313(c)(2)(B) of the CWA. We emphasize that our opinion is limited to the

application of that subsection.

I.

A.

The CWA, as amended, established a National Pollution Discharge

Elimination System (“NPDES”) that is “designed to prevent harmful

discharges into the Nation’s waters.” Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 644, 650 (2007). As a general matter, “the

NPDES requires dischargers to obtain permits that place limits on the type

and quantity of pollutants that can be released into the Nation’s waters.”

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95,

102 (2004). Because stormwater runoff collects debris, chemicals, and

other pollutants and therefore may be a source of pollution when dis-

charged into the Nation’s waters, Congress amended the CWA in 1987 to

direct the Environmental Protection Agency (“EPA”) to issue rules requir-

ing and governing NPDES permits for certain categories of discharges of

stormwater, including municipal and industrial discharges. See 33 U.S.C.

Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Kris

Durmer, General Counsel, General Services Administration (Feb. 3, 2011) (“GSA Let-

ter”); the U.S. Postal Service, see Letter for Daniel Koffsky, Deputy Assistant Attorney

General, Office of Legal Counsel, from Carrie M. Branson, Attorney, Law Department,

U.S. Postal Service (Feb. 3, 2011) (“USPS Letter”); the Council on Environmental

Quality, see Letter for Caroline Krass, Principal Deputy Assistant Attorney General,

Office of Legal Counsel, from Nancy H. Sutley, Chair, Council on Environmental Quality

(Feb. 3, 2011) (“CEQ Letter”); the U.S. Department of Agriculture, see Letter for Daniel

Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from James

Michael Kelly, Associate General Counsel, U.S. Department of Agriculture (Feb. 7, 2011)

(“USDA Letter”); and the Department of Defense, see Letter for Caroline Krass, Principal

Deputy Assistant Attorney General, Office of Legal Counsel, from Robert S. Taylor,

Principal Deputy General Counsel, Department of Defense (Feb. 8, 2011) (“DOD Let-

ter”).

2

Obligation of Federal Agencies to Pay Stormwater Assessments

§ 1342(p)(3)(B) (2006); Final Rule, National Pollutant Discharge Elimi-

nation System Permit Application Regulations for Storm Water Discharg-

es, 55 Fed. Reg. 47,990 (Nov. 16, 1990); Final Rule, National Pollutant

Discharge Elimination System—Regulations for Revision of the Water

Pollution Control Program Addressing Storm Water Discharges, 64 Fed.

Reg. 68,722 (Dec. 8, 1999); see also Natural Res. Def. Council v. EPA,

526 F.3d 591, 594–601 (9th Cir. 2008) (recounting statutory and regulato-

ry history of EPA stormwater regulations).

The EPA has issued regulations that, among other things, require mu-

nicipalities operating separate storm sewer systems to obtain NPDES

permits and undertake certain control measures designed to minimize the

discharge of pollution from stormwater into the Nation’s waters. See,

e.g., 40 C.F.R. § 122.34 (2010). Municipal separate storm sewer systems

are “publicly owned conveyances or systems of conveyances that dis-

charge to waters of the U.S. and are designed or used for collecting or

conveying storm water, are not combined sewers, and are not part of a

publicly owned treatment works.” Notice, Stakeholder Input; Stormwater

Management Including Discharges From New Development and Rede-

velopment, 74 Fed. Reg. 68,617, 68,619 (Dec. 28, 2009); see 40 C.F.R.

§ 122.26(b)(8) (defining “municipal separate storm sewer”).

Under this federal regulatory scheme, municipalities operating munici-

pal separate storm sewer systems are required to undertake costly control

efforts to minimize pollution from stormwater discharges into the Na-

tion’s waters. In response, many municipalities have adopted local storm-

water ordinances that attempt to recover the costs of these compliance

efforts from property owners, including federal agencies.

B.

The efforts by municipalities to recover stormwater assessments from

federal agencies gave rise to a controversy whether federal agencies could

be required to pay such assessments. The Supreme Court has explained

that as a general matter “the activities of the Federal Government are free

from regulation by any state,” Mayo v. United States, 319 U.S. 441, 445

(1943), and that a state or local law that “regulate[s] the [federal] Gov-

ernment directly” “run[s] afoul of the Supremacy Clause.” North Dakota

v. United States, 495 U.S. 423, 434 (1990) (citing McCulloch v. Mary-

land, 17 U.S. (4 Wheat.) 316, 425–37 (1819)); see also Penn Dairies, Inc.

3

35 Op. O.L.C. 1 (2011)

v. Milk Control Comm’n, 318 U.S. 261, 269 (1943) (“in the absence of

Congressional consent, there is an implied constitutional immunity of the

national government from state taxation and from state regulation” of

federal entities). Nevertheless, “a clear congressional mandate” divests

the presumptive immunity of federal agencies from state and local regula-

tory compulsion. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122

(1956).

Prior to Congress’s enactment of the Stormwater Amendment, there

was some doubt whether section 313(a) of the CWA, 33 U.S.C. § 1323(a),

divested the immunity of federal agencies with respect to stormwater

assessments. See ENRD Memorandum at 2–3; EPA Letter at 5–7; USDA

Letter at 1–2. Section 313(a), in relevant part, provides that federal agen-

cies owning property or engaged in activities that may result

in the discharge or runoff of pollutants . . . shall be subject to, and

comply with, all Federal, State, interstate, and local requirements,

administrative authority, and process and sanctions respecting the

control and abatement of water pollution in the same manner, and to

the same extent as any nongovernmental entity including the pay-

ment of reasonable service charges.

33 U.S.C. § 1323(a). The section further mandates that these requirements

attach “notwithstanding any immunity of such agencies, officers, agents,

or employees under any law or rule of law.” Id.; see Dep’t of Energy v.

Ohio, 503 U.S. 607 (1992) (interpreting section 313(a) of the CWA). In

dispute was whether the phrase “reasonable service charges” in section

313(a) included stormwater assessments, thereby waiving federal immuni-

ty and requiring federal agencies to pay such assessments. 2

As we explain further in Part II below, the Stormwater Amendment

reflected an effort by Congress to resolve the controversy whether local

2 For example, the Government Accountability Office (“GAO”) had concluded that

federal agencies could not pay the District of Columbia’s stormwater assessment because

it was a “tax” for which “Congress has not . . . legislated a waiver of sovereign immuni-

ty.” Letter for David A. Lebryk, Commissioner, Financial Management Service, U.S.

Department of the Treasury, from Lynn H. Gibson, Acting General Counsel, Government

Accountability Office, B-320868, at 1 (Sept. 29, 2010); see also Letter for Peter J.

Nickles, Attorney General of the District of Columbia, from Lynn H. Gibson, Acting

General Counsel, Government Accountability Office, B-320795 (Sept. 29, 2010).

4

Obligation of Federal Agencies to Pay Stormwater Assessments

governments could levy stormwater assessments against the federal

government for its facilities. On June 10, 2010, Senator Cardin intro-

duced S. 3481, “A bill to amend the Federal Water Pollution Control Act

to clarify Federal responsibility for stormwater pollution.” See 156 Cong.

Rec. S4855 (daily ed. June 10, 2010). He explained that “the issue of

polluted stormwater runoff from federal properties has . . . gained signif-

icant attention” and that he had “grave concerns about the failure of the

Federal Government to pay localities for reasonable costs associated with

the control and abatement of pollution that is originating on its proper-

ties.” Id. Senator Cardin stressed that “Uncle Sam must pay his bills” and

that he was “introducing legislation that makes [that] clear.” Id.; see also

id. at S4856 (“Adopting the legislation that I am introducing today will

remove all ambiguity about the responsibility of the Federal Government

to pay these normal and customary stormwater fees.”). At that time,

S. 3481 would have accomplished this objective by adding a subsection

(c) to section 313 of the CWA to make explicit that the “reasonable

service charges” described in section 313(a) include certain stormwater

assessments. S. 3481 also stated that such stormwater assessments “may

be paid using appropriated funds.” Id. at S4856 (text of S. 3481).

The Senate amended S. 3481 in the nature of a substitute, S. Amdt.

4917, on Dec. 21, 2010, a day before its passage. The apparent aim of the

last-minute revision was to address certain appropriations issues that

might otherwise arise with the payment of stormwater assessments. Like

the original amendment, the substitute bill, which was introduced on

behalf of Senator Cardin, contained language in proposed section

313(c)(1) to make explicit that the phrase “reasonable service charges”

includes certain stormwater assessments. See 156 Cong. Rec. S10,932

(daily ed. Dec. 21, 2010) (text of amendment). 3

3 Section 313(c)(1) provided in full:

(1) IN GENERAL.—For the purposes of this Act, reasonable service charges de-

scribed in [section 313(a)] include any reasonable nondiscriminatory fee, charge, or

assessment that is—

(A) based on some fair approximation of the proportionate contribution of the

property or facility to stormwater pollution (in terms of quantities of pollutants,

or volume or rate of stormwater discharge or runoff from the property or facili-

ty); and

5

35 Op. O.L.C. 1 (2011)

The substitute bill also added a new subsection (c)(2), with the heading

“Limitation on Accounts,” containing the appropriations language that is

at issue here. See id. Proposed section 313(c)(2) provided in full:

(2) LIMITATION ON ACCOUNTS.—

(A) LIMITATION.—The payment or reimbursement of any

fee, charge, or assessment described in paragraph (1) shall not be

made using funds from any permanent authorization account in

the Treasury.

(B) REIMBURSEMENT OR PAYMENT OBLIGATION OF

FEDERAL GOVERNMENT.—Each department, agency, or in-

strumentality of the executive, legislative, and judicial branches of

the Federal Government, as described in [section 313(a)], shall

not be obligated to pay or reimburse any fee, charge, or assess-

ment described in paragraph (1), except to the extent and in an

amount provided in advance by any appropriations Act to pay or

reimburse the fee, charge, or assessment.

Id. The substitute bill passed the Senate by unanimous consent on De-

cember 21, 2010, and passed the House by unanimous consent on Decem-

ber 22, 2010 (the last day of the 111th Congress). The President signed

the enrolled bill into law on January 4, 2011.

On January 21, 2011, you requested our opinion whether “it is permis-

sible to construe . . . section 313(c)(2)(B) as authorizing federal govern-

mental entities to use general, lump-sum appropriations to pay the reason-

able service charges described in . . . section 313(c)(1),” EPA Letter at 1,

or instead whether section 313(c)(2)(B) “requires a specific appropria-

tion”—for example, a line-item appropriation—“for the payment of the

stormwater charges,” id. at 12.

(B) used to pay or reimburse the costs associated with any stormwater man-

agement program (whether associated with a separate storm sewer system or a

sewer system that manages a combination of stormwater and sanitary waste), in-

cluding the full range of programmatic and structural costs attributable to col-

lecting stormwater, reducing pollutants in stormwater, and reducing the volume

and rate of stormwater discharge, regardless of whether that reasonable fee,

charge, or assessment is denominated a tax.

156 Cong. Rec. S10,932 (daily ed. Dec. 21, 2010). The relevant text of section 313(a) is

set forth above. See supra p. 4.

6

Obligation of Federal Agencies to Pay Stormwater Assessments

II.

The issue we address here is whether section 313(c)(2)(B)’s language

limiting the payment of stormwater assessments “except to the extent

and in an amount provided in advance by any appropriations Act to pay

or reimburse the fee” forbids federal agencies from paying stormwater

assessments from annual lump-sum appropriations. We conclude that it

does not.

The Stormwater Amendment contains two principal provisions. The

first provision, section 313(c)(1), instructs that the “reasonable service

charges described in [section 313(a)] include any reasonable nondiscrimi-

natory fee, charge, or assessment that is . . . based on some fair approxi-

mation of the proportionate contribution of the property or facility to

stormwater pollution” and that is “used to pay or reimburse the costs

associated with any stormwater management program.” The first provi-

sion thus resolves the dispute over federal agencies’ duty to pay storm-

water assessments, by making clear that the phrase “reasonable service

charges” in section 313(a)—which is an unambiguous waiver of immuni-

ty—includes certain stormwater assessments. See 33 U.S.C. § 1323(a)

(requirements of section 313(a) apply “notwithstanding any immunity of

such agencies, officers, agents, or employees under any law or rule of

law”). 4

The second provision, section 313(c)(2), sets forth requirements for the

payment of such stormwater assessments by federal agencies. After stat-

ing in section 313(c)(2)(A) that federal agencies may not pay these as-

sessments from “any permanent authorization account in the Treasury,”

section 313(c)(2)(B) allows payment only “to the extent and in an amount

provided in advance by any appropriations Act to pay or reimburse the

fee, charge, or assessment.” Section 313(c)(2)(B) could be read to allow

4 Some agencies providing views on EPA’s opinion request suggested that this Office

clarify the meaning of certain terms in section 313(c)(1) and address other legal issues

under the Stormwater Amendment. See, e.g., GSA Letter at 2–5; USPS Letter at 1–3;

USDA Letter at 5. To respond to EPA’s request expeditiously, we confine this opinion to

the interpretation of the appropriations language in section 313(c)(2)(B). GSA, for

example, asked us to advise whether the Federal Buildings Fund may be used to pay

stormwater assessments in light of section 313(c)(2)(A). See GSA Letter at 4–5. Alt-

hough we recognize the importance of this question, it lies beyond the scope of EPA’s

request, which is focused on section 313(c)(2)(B).

7

35 Op. O.L.C. 1 (2011)

federal agencies to pay stormwater assessments out of lump-sum appro-

priations, but could also be read to impose a rule that Congress must

annually enact a specific appropriation (for example, a line item) for such

payments. In our view, the best reading of the text, structure, purpose, and

history of the Stormwater Amendment, taken together, is that Congress

did not intend to require a specific appropriation.

A.

Although “[s]tatutory construction is a holistic endeavor,” Koons Buick

Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotation

marks omitted), our analysis of the Stormwater Amendment, “begin[s], as

always, with the text of the statute.” Hawaii v. Office of Hawaiian Affairs,

129 S. Ct. 1436, 1443 (2009). The text of section 313(c)(2)(B), standing

alone, does not unambiguously resolve the issue before us. On the one

hand, the phrase “except to the extent and in an amount provided in ad-

vance by any appropriations Act” might be read to authorize the payment

of stormwater assessments only when Congress makes a specific appro-

priation of funds for that purpose. See USPS Letter at 1 (“The language

lends itself to only one logical interpretation, i.e., federal entities are not

required to pay stormwater fees unless Congress has provided specific

appropriations for that purpose.”); USDA Letter at 2– 4. On the other

hand, the phrase might be interpreted as authorizing federal agencies to

pay stormwater assessments, not from a “permanent authorization account

in the Treasury,” declared off limits by section 313(c)(2)(A), 5 but instead

from annual lump-sum appropriations.

While the text of section 312(c)(2)(B), standing alone, does not resolve

the issue, reading the section to allow payment from annual lump-sum

appropriations is ultimately the better reading of the text. First, such a

reading accords with basic principles of appropriations law. The “except

to the extent and in an amount” language can be read to clarify that the

Stormwater Amendment provides spending authority for payment of

5 Although we do not address here the meaning of the phrase “permanent authorization

account in the Treasury,” we note that Senator Cardin explained section 313(c)(2)(A) as

“rectify[ing] a specific problem in the District of Columbia, where the Department of

Treasury has been paying some stormwater fees” and as reflecting “that agencies and

departments should use their annual appropriated funds to pay for stormwater fees.” 156

Cong. Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added).

8

Obligation of Federal Agencies to Pay Stormwater Assessments

stormwater assessments, but is not itself an appropriation. See U.S. Gen-

eral Accounting Office, GAO-04-261SP, Principles of Federal Appropri-

ations Law 2–5 (3d ed. 2004) (“Federal Appropriations Law”) (“While

other forms of budget authority may authorize the incurring of obliga-

tions, the authority to incur obligations by itself is not sufficient to author-

ize payments from the Treasury. Thus, at some point if obligations are

paid, they are paid by and from an appropriation.”) (internal citations

omitted); 31 U.S.C. § 1301(d) (2006) (“A law may be construed to make

an appropriation out of the Treasury or to authorize making a contract for

the payment of money in excess of an appropriation only if the law specif-

ically states that an appropriation is made or that such a contract may be

made.”). The phrase further can be understood to embody the basic prin-

ciple that any stormwater assessments paid by federal agencies must come

from and may not exceed an actual appropriation. See, e.g., Preseault v.

Interstate Commerce Comm’n, 494 U.S. 1, 14 (1990) (noting that a statute

providing that payments “are effective only ‘in such amounts as are

provided in advance in appropriation Acts’” reflects a “concept that

mirrors Art. I, § 9, of the Constitution (‘No Money shall be drawn from

the Treasury, but in Consequence of Appropriations made by Law’)”).

See generally EPA Letter at 12; CEQ Letter at 6; Tax Memorandum at 5.

Second, this reading of the text comports with earlier opinions of this

Office interpreting other authorization or appropriations provisions. For

instance, faced with a statute that authorized the Secretary of Defense to

make available five million dollars out of previously appropriated funds

to the Director of the National Science Foundation “[t]o the extent pro-

vided in appropriations Acts,” this Office concluded that this condition

did not require that there have been a specific line-item appropriation in

those appropriations acts. See Funding for the Critical Technologies

Institute, 16 Op. O.L.C. 77, 79–83 (1992) (“Critical Technologies Insti-

tute”) (interpreting section 822(d)(1) of the National Defense Authoriza-

tion Act for Fiscal Years 1992 and 1993, Pub. L. No. 102-190, 105 Stat.

1290, 1435 (1991)). In reaching this conclusion, we noted that the term

“provided” can mean “to make a proviso or stipulation,” but can also

mean, more generally, “to make preparation to meet a need.” Id. at 81

(citing Webster’s Ninth New Collegiate Dictionary 948 (1986)). Constru-

ing the term against the background of the “fundamental principle of

appropriations law” that “Congress is not required to enact a specific

9

35 Op. O.L.C. 1 (2011)

appropriation for a program,” and in the absence of any textual indication

that Congress intended to depart from this principle, we concluded that a

lump-sum appropriation was sufficient to meet the condition. Id. at 81–

82; see also id. at 79–80 (observing that it is “axiomatic” that Congress

uses lump-sum appropriations to “cover[] a wide range of activities

without specifying precisely the objects to which the appropriation may

be applied”). 6

6 Nor do we think this Office’s interpretation of section 207 of the Equal Access to

Justice Act (“EAJA”)—which provided that the payment of fees as provided by the statute

was “effective only to the extent and in such amounts as are provided in advance in

appropriations Acts,” Pub. L. No. 96-481, 94 Stat. 2321, 2330 (1980)—is to the contrary.

See Funding of Attorney Fee Awards Under the Equal Access to Justice Act, 6 Op. O.L.C.

204, 208–09 (1982) (“Olson Memorandum”). Although this Office observed in Critical

Technologies Institute that the Department of Defense’s reliance on the Olson Memoran-

dum was inapposite because the different statutory language presented a “significantly

different question” and that the addition of the phrase “and in such amounts” requires “a

greater degree of precision than ‘to the extent provided’ would alone,” 16 Op. O.L.C. at

83, we do not believe that this analysis, which effectively was dicta, precludes the inter-

pretation of section 313(c)(2)(B) we set forth here. As explained in Critical Technologies

Institute, section 207 of EAJA had not been “interpreted” by the Olson Memorandum to

“require a specific line-item appropriation.” 16 Op. O.L.C. at 83. Rather, “the concern

motivating section 207’s clause was not,” we said, “whether a line-item appropriation

rather than a lump-sum appropriation was required, but instead whether an appropriation

was necessary at all.” Id. On this view, section 207 was an effort to “make clear that the

bill merely authorized funds, but did not appropriate them” and thus to avoid “hav[ing]

the EAJA bill ruled out of order because it contained appropriations, in violation of House

rules.” Id. For these reasons, far from mandating that section 313(c)(2)(B) be interpreted

to impose a specific-appropriation requirement, Critical Technologies Institute, read as

whole, supports our conclusion that section 313(c)(2)(B)’s function is not to impose a

rigid specific-appropriation requirement but rather to clarify that the Stormwater Amend-

ment “merely authorized funds, but did not appropriate them.” 16 Op. O.L.C. at 82.

The GAO has suggested a contrary interpretation of similar language in other statutory

contexts, see, e.g., Letter for Hon. William Lehman, Chairman, Subcommittee on Trans-

portation and Related Agencies, Committee on Appropriations, House of Representatives,

from Milton J. Socolar, Acting Comptroller General of the United States, B-204078

(May 6, 1988) (construing a similar phrase as reflecting “a clear prohibition on the

obligation or expenditure of funds . . . unless specifically provided for in an appropriation

act”), but the GAO has not addressed this particular statutory context and, to the extent

that its interpretation of other provisions might be extended here, its interpretation is not

binding in any event, see, e.g., Prioritizing Programs to Exempt Small Businesses from

Competition in Federal Contracts, 33 Op. O.L.C. 284, 302 (2009) (“Our Office has on

many occasions issued opinions and memoranda concluding that GAO decisions are not

binding on Executive Branch agencies and that the opinions of the Attorney General and

10

Obligation of Federal Agencies to Pay Stormwater Assessments

Finally, section 313(c)(2)(B)’s limitation that stormwater assessments

can be paid only “to the extent and in an amount provided in advance by

any appropriations Act to pay or reimburse the [stormwater assessment],”

which makes clear that the amendment itself is not an appropriation,

plainly responded to the need to ensure that the statute conformed to the

requirements of 2 U.S.C. § 651 (2006). See EPA Letter at 7–8. That

section provides that “[i]t shall not be in order in either the House of

Representatives or the Senate to consider any bill . . . that provides,”

among other things, “new authority to incur indebtedness . . . for the

repayment of which the United States is liable . . . unless that bill . . . also

provides that the new authority is to be effective for any fiscal year only

to the extent or in the amounts provided in advance in appropriation

Acts.” 2 U.S.C. § 651(a) (emphasis added). Under section 651, “legisla-

tion providing new [spending] authority will be subject to a point of order

in either the Senate or the House of Representatives unless it also pro-

vides that the new authority will be effective for any fiscal year only to

such extent or in such amounts as are provided in advance in appropria-

tion acts.” Federal Appropriations Law at 2–6 (emphasis added). 7 Section

313(c)(2)(B)’s confirmation that the Stormwater Amendment is not an

appropriation thus served the important function of avoiding a point of

order, thereby enabling passage of the bill. See EPA Letter at 8 (setting

forth this explanation); accord DOD Letter at 3. 8

of this Office are controlling.”); see also Critical Technologies Institute, 16 Op. O.L.C. at

84 (disagreeing with GAO advice).

7 Section 651 traces its statutory lineage to section 401(a) of the Congressional Budg-

et Act of 1974 (originally codified at 31 U.S.C. § 1351(a) (Supp. IV 1974)). The legisla-

tive history of the 1974 statute explains that the purpose of the requirement was to

ensure that “backdoor spending authority (such as contract authority, loan authority, and

mandatory or open-ended entitlements) could not take effect until funds were provided

through the appropriations process.” H.R. Rep. No. 93-658, at 17 (1973), reprinted in

1974 U.S.C.C.A.N. 3462, 3463.

8 Because we understand section 313(c)(2)(B) to be serving several purposes on this

reading—including clarifying that the Stormwater Amendment authorizes spending but is

not itself an appropriation; forbidding federal agencies from incurring any stormwater

assessment obligations in excess of their appropriations; and conforming with the re-

quirements of 2 U.S.C. § 651—we do not believe that this reading gives no effect to, and

thus renders surplusage, the phrase “except to the extent and in an amount provided in

advance by any appropriations Act.” Cf. DOD Letter at 4. Indeed, we rejected a similar

objection lodged against our interpretation of the phrase “[t]o the extent provided in

11

35 Op. O.L.C. 1 (2011)

B.

Our textual interpretation is supported by consideration of the text in

the context of the Stormwater Amendment’s overall structure, purpose,

and legislative history. The structure of the Stormwater Amendment

favors reading section 313(c)(2)(B) to allow payment from lump-sum

appropriations and undermines a specific-appropriation interpretation of

that section. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 133 (2000) (“A court must . . . interpret the statute as a symmetrical

and coherent regulatory scheme and fit, if possible, all parts into an har-

monious whole.”) (internal quotation marks and citations omitted). Read-

ing section 313(c)(2)(B) to restrict payment of stormwater assessments

unless and until a future Congress makes a specific appropriation for that

purpose would be in considerable tension with Congress’s decision in the

immediately preceding subsection—section 313(c)(1)—to clarify that

federal agencies are responsible for paying reasonable stormwater as-

sessments. Such a restriction would frustrate the ability of federal agen-

cies to pay those assessments, and “[w]e are disinclined to say that what

Congress imposed with one hand . . . it withdrew with the other.” Logan

v. United States, 552 U.S. 23, 35 (2007); see Greenlaw v. United States,

554 U.S. 237, 251 (2008) (“We resist attributing to Congress an intention

to render a statute so internally inconsistent.”). Rather, here, a provision

that “seem[s] ambiguous in isolation is . . . clarified by the remainder of

the statutory scheme . . . because only one of the permissible meanings

produces a substantive effect that is compatible with the rest of the law.”

Koons Buick Pontiac GMC, 543 U.S. at 60.

Interpreting section 313(c)(2)(B) to require a specific appropriation al-

so would substantially conflict with the general purpose of the Stormwater

Amendment. See Stafford v. Briggs, 444 U.S. 527, 535 (1980) (statutory

interpretation must take account of the “‘the objects and policy of the

law’”) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857));

McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844,

Appropriations acts” in Critical Technologies Institute, reasoning, among other things,

that the phrase “makes clear that the act merely authorized funds, and that a further

appropriation is required.” 16 Op. O.L.C. at 82. In any event, “[s]urplusage does not

always produce ambiguity and [a] preference for avoiding surplusage constructions is not

absolute.” Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004).

12

Obligation of Federal Agencies to Pay Stormwater Assessments

861 (2005) (“[e]xamination of purpose is a staple of statutory interpreta-

tion”). The central purpose of the Stormwater Amendment was to resolve

the controversy surrounding the payment of stormwater assessments by

requiring that federal agencies pay such assessments. The very first words

of the amendment—“[a]n Act To . . . clarify Federal responsibility for

stormwater pollution”—show Congress’s purpose to resolve the dispute

regarding stormwater assessments and make clear that the federal gov-

ernment as an owner of federal facilities is responsible for the payment of

stormwater assessments. Although “[t]he title of an act cannot control its

words,” it “may furnish some aid in showing what was in the mind of the

legislature.” United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818)

(Marshall, C.J.); see Holy Trinity Church v. United States, 143 U.S. 457,

462 (1892) (“title of the act” may shed light on the “intent of the legisla-

ture”). The title here does just that. See ENRD Memorandum at 4 (arguing

that the “purpose is readily apparent from the title of the act”).

In addition to the title, all of the available legislative history confirms

this account of Congress’s purpose. 9 The Senate sponsor of the bill,

Senator Cardin, explained in introducing the bill: “Adopting the legisla-

tion that I am introducing today will remove all ambiguity about the

responsibility of the Federal Government to pay these normal and cus-

tomary stormwater fees.” 156 Cong. Rec. S4856 (daily ed. June 10,

2010). 10 Several members of the House repeated this understanding of the

objective of the Stormwater Amendment, including after the substitute

9 This Office has previously found legislative history one potentially instructive factor

to consider, along with other evidence, when confronted with ambiguous appropriations

language. See Critical Technologies Institute, 16 Op. O.L.C. at 80 (relying on legislative

history in ascertaining the meaning of similar appropriations language); see also Authority

of Chrysler Corporation Loan Guarantee Board to Issue Guarantees, 43 Op. Att’y Gen.

219, 219–23 (1980) (construing phrase “to the extent such amounts are provided in ad-

vance in appropriations acts” based principally on legislative history).

10 Although some of the legislative history we cite here was in connection with the bill

as it existed prior to the last-minute addition of section 313(c)(2)(B), that does not render

that prior history irrelevant. Senator Cardin’s explanation of the purpose of the Storm-

water Amendment was the same before and after the addition of the relevant appropria-

tions language (which was added at Senator Cardin’s request), and is consistent with

statements made by members of the House after the revised language was added. Stand-

ing alone, the fact that Congress revised the Stormwater Amendment provides no basis for

adopting a restrictive interpretation of section 313(c)(2)(B), especially when all available

legislative evidence is to the contrary.

13

35 Op. O.L.C. 1 (2011)

version of the bill passed the Senate. Representative Oberstar, for exam-

ple, noted that “[s]everal states and municipalities . . . have taken aggres-

sive action to address ongoing sources of stormwater pollution” but that

such action is undermined “when a significant percentage of Federal

property owners take the position that they cannot be held responsible for

their pollution.” 156 Cong. Rec. H8978 (daily ed. Dec. 22, 2010). He

explained that the amendment would “clarif[y] that Federal agencies and

departments are financially responsible for any reasonable . . . charges

for treating or otherwise addressing stormwater pollution that emanates

from Federal property.” Id. Other statements in the legislative record are

to the same effect. 11

Indeed, after the Senate’s passage of the Stormwater Amendment, Sen-

ator Cardin again explained the purpose of the amendment in similar

terms:

[T]oday the Congress stands ready to approve S. 3481, a bill to clari-

fy Federal responsibility to pay for stormwater pollution. This legis-

lation, which will soon become law, requires the Federal government

to pay localities for reasonable costs associated with the control and

abatement of pollution that is originating on its properties. At stake

is a fundamental issue of equity: polluters should be financially re-

sponsible for the pollution that they cause. That includes the Federal

Government.

156 Cong. Rec. S11,023 (daily ed. Dec. 22, 2010); see id. at S11,024

(statement of Sen. Cardin) (the federal responsibility “to manage . . .

stormwater pollution . . . needs to translate into payments to the local

governments that are forced to deal with this pollution”). Senator Cardin’s

consistent, public, and unambiguous articulation of the intended purpose

11 See 156 Cong. Rec. E2259 (daily ed. Dec. 29, 2010) (statement of Rep. Johnson)

(describing the bill as “a simple effort to clarify . . . that the Federal Government bears a

proportional responsibility for addressing pollution originating from its facilities”); id. at

E2258 (statement of Rep. Johnson) (explaining that the “common sense bill” would

“ensure[] that the Federal Government maintains its equitable responsibility for storm-

water pollution runoff originating or emanating from its property”); 156 Cong. Rec.

E2245 (daily ed. Dec. 22, 2010) (statement of Del. Norton, who sponsored the Storm-

water Amendment in the House) (“The consequence of failing to pass this bill is that we

give the Federal Government a free ride and pass its fees on to our constituents through-

out the United States.”).

14

Obligation of Federal Agencies to Pay Stormwater Assessments

and effect of the Stormwater Amendment confirms our view that Con-

gress intended the Stormwater Amendment to facilitate the payment of

stormwater assessments by the federal government. See NLRB v. Fruit &

Vegetable Packers, Local 760, 377 U.S. 58, 66 (1964) (“It is the sponsors

that we look to when the meaning of the statutory words is in doubt.”)

(internal quotation marks omitted); see also H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229, 238 (1989) (relying on the stated understanding of “the

principal sponsor of the Senate bill” in interpreting a statute). Although

the “remarks of a single legislator who sponsors a bill” may not be “con-

trolling in analyzing legislative history,” Consumer Prod. Safety Comm’n

v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980), Senator Cardin’s re-

marks accord with all of the available legislative history. There is no

indication in the legislative record that the understanding of the Storm-

water Amendment offered by Senator Cardin and others was not shared

universally in Congress.

Reading the statute to impose a specific-appropriation requirement

would frustrate that purpose. Such a requirement would place a substan-

tial obstacle in the path of payment of stormwater assessments because of

the practical burdens associated with attaining specificity in annual ap-

propriations, especially specificity in appropriations bills applying to a

range of federal agencies. See, e.g., Critical Technologies Institute, 16

Op. O.L.C. at 80 (“A rule requiring greater specificity in appropriations

would create extreme obstacles for the functioning of the Federal Gov-

ernment.”). Indeed, we note that, to the extent some federal agencies were

paying stormwater assessments from lump-sum appropriations prior to the

passage of the Stormwater Amendment, a specific-appropriation interpre-

tation would require ascribing to Congress an intent to forbid such ongo-

ing payments unless and until Congress made a specific appropriation. We

can find no indication of such a congressional intent. Equally important, a

specific-appropriation interpretation of section 313(c)(2)(B), rather than

resolving once and for all the obligation of the federal government as an

owner of federal facilities to pay certain stormwater assessments, would

effectively leave the issue where Congress found it—passing on to future

Congresses the task of determining, on an annual basis, whether storm-

water assessments should be paid. Such a reading of section 313(c)(2)(B)

would reintroduce the same cloud of legal uncertainty Congress intended

the Stormwater Amendment to dispel.

15

35 Op. O.L.C. 1 (2011)

Furthermore, the legislative history relating specifically to the addition

of section 313(c)(2)(B) weighs heavily against interpreting the section to

impose a specific-appropriation requirement. Senator Cardin explained

the appropriations language at issue here as follows:

[W]e added a provision to the bill in order to rectify a specific prob-

lem in the District of Columbia, where the Department of Treasury

has been paying some stormwater fees. The provision simply says

that agencies and departments should use their annual appropriated

funds to pay for stormwater fees. This is exactly what they all do to-

day in paying for their drinking water and wastewater bills or any

other utility bill, for that matter. This new language requires that

Congress make available, in appropriations acts, the funds that could

be used for this purpose. It does not mean that the appropriations act

would need to state specifically or expressly that the funds could be

used to pay these charges. The legislative language doesn’t say that,

and I want to be perfectly clear that such a restrictive reading is not

our intent.

156 Cong. Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added). 12

Senator Cardin’s view was echoed by several members of the House of

Representatives, including the House sponsor of the Stormwater Amend-

ment, Delegate Norton. She explained: “The bill requires that Congress

make available, in appropriations acts, the funds that could be used to pay

for stormwater management charges, but not that the appropriations act

would need to state specifically or expressly that the funds could be used

to pay these charges.” Id. at H8979 (daily ed. Dec. 22, 2010) (emphasis

added). 13 There is no legislative history pointing to a contrary result. See

12 Although Senator Cardin’s statement was made after the passage of the Senate ver-

sion of the bill, his description is consistent with the understanding expressed by members

of the House, including the sponsor, prior to passage there. See infra n. 13 and accompa-

nying text.

13 See also 156 Cong. Rec. H8979 (daily ed. Dec. 22, 2010) (statement of Rep. Ober-

star) (“In addition, the intent of subsection (c)(2)(B) of Section 313 of the Clean Water

Act, as added by S. 3481, is to require that Congress make available, in appropriations

acts, the funds that could be used to pay stormwater fees, but not that the appropriations

act would need to state specifically or expressly that the funds could be used to pay these

charges.”); id. at H8980 (daily ed. Dec. 22, 2010) (statement of Rep. Johnson) (“This

new language requires that Congress make available, in appropriations acts, the funds

16

Obligation of Federal Agencies to Pay Stormwater Assessments

CEQ Letter at 5 (canvassing legislative history supporting an interpreta-

tion of section 313(c)(2)(B) as authorizing annual appropriations to pay

stormwater assessments and noting “[n]o comments to the contrary appear

anywhere in the legislative history” of the Stormwater Amendment).

In sum, we conclude that the best reading of the text of the appropria-

tions provision in section 313(c)(2)(B), in light of the structure, purpose,

and history of the Stormwater Amendment, is that Congress did not intend

to impose a specific-appropriation requirement. Indeed, a specific-

appropriation requirement—which, as we have noted, would have the

predictable effect of restricting payment by federal agencies and would

leave the status of future stormwater payments in legal limbo—would

undermine Congress’s central aims in enacting the Stormwater Amend-

ment. We therefore believe that federal agencies may pay stormwater

assessments out of annual—including current—lump-sum appropria-

tions. 14

that could be used for this purpose. It should not be interpreted as requiring appropria-

tions act [sic] to state specifically or expressly that the funds could be used to pay these

charges. The statutory language does not require this, and such a restrictive reading is

not intended.”).

14 USDA suggests that section 313(c)(2)(B), in all events, forbids the use of current

appropriations to pay stormwater assessments because an “additional act of Congress is

required.” USDA Letter at 4. But the conclusion does not follow from the premise. It is

true that an “additional act of Congress is required”—because the Stormwater Amend-

ment is not an appropriation, a point that is central to our reading of section

313(c)(2)(B)—but the view that section 313(c)(2)(B) may be satisfied by a lump-sum

appropriation leads logically to the conclusion that such an appropriation may be a

current or future lump-sum appropriation. Payment of stormwater assessments from a

current appropriation would not countermand the statutory requirement that funds be

“provided in advance by any appropriations Act” because federal agencies’ payments of

stormwater assessments going forward would be made from appropriations acts previ-

ously enacted by Congress. This same analysis largely responds to the Department of

Defense’s concern that section 313(c)(2)(B) “clearly require[s] some additional action by

Congress.” DOD Letter at 3. DOD appears to posit that the “shall not be obligated”

clause in section 313(c)(2)(B) means that federal agencies may pay stormwater assess-

ments out of general operating funds but that agencies must pay such assessments in the

event that Congress enacts specific “appropriations act language.” Id. at 4. As we have

explained, we agree that “additional action by Congress” is required, but that additional

action may be a current or future general lump-sum appropriation. Therefore, we disa-

gree with DOD’s suggested interpretation of the “shall not be obligated” phrase because,

in our view, a general lump-sum appropriation is sufficient to trigger the “mandatory”

payment of stormwater assessments. Id.

17

35 Op. O.L.C. 1 (2011)

C.

One significant argument might be advanced against our reading of

the Stormwater Amendment. It might be said that, if the plain text of

section 313(c)(2)(B) does not definitively resolve the source of payment,

then we must embrace a construction that restricts payment on the

ground that “a condition to [a] waiver of sovereign immunity . . . must

be strictly construed.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

94 (1990). We disagree that this rule of construction justifies reading

section 313(c)(2)(B) to impose a specific-appropriation requirement.

In our view, the appropriations language in section 313(c)(2)(B) is not

properly understood as a condition on the waiver of immunity. Sections

313(a) and 313(c)(1), read together, accomplish that waiver for storm-

water assessments. See supra p. 7. Section 313(c)(2)(B) serves a different

function, operating as an internal accounting provision, directing when

and how federal agencies may pay such assessments. Cf. Henderson v.

United States, 517 U.S. 654, 667–68 (1996) (holding that, notwithstand-

ing that the Suits in Admiralty Act is a broad waiver of sovereign im-

munity, the provisions in section 742 of the statute governing service of

process are not “sensibly typed ‘substantive’ or ‘jurisdictional’”—and

therefore a condition on the waiver—but “[i]nstead, they have a distinctly

facilitative, ‘procedural’ cast” as “[t]hey deal with case processing, not

substantive rights or consent to suit”). The heading of section 313(c)(2),

“Limitation on Accounts,” supports the view that section 313(c)(2) is not

a condition on a waiver of immunity but rather that it governs the sources

from which federal agencies may pay stormwater assessments. See Gov-

ernment Accountability Office, GAO-05-734SP, A Glossary of Terms

Used in the Federal Budget Process 2 (Sept. 2005) (defining account as

“[a] separate financial reporting unit for budget, management, and/or

accounting purposes”); see also Almendarez-Torres v. United States, 523

U.S. 224, 234 (1998) (noting that the “heading of a section” is a “tool[]

available for the resolution of a doubt about the meaning of a statute”)

(internal quotation marks omitted); ENRD Memorandum at 4. For these

reasons, reading section 313(c)(2)(B) not as a condition on the waiver of

immunity, but as a separate internal accounting provision specific to

stormwater assessments, is most faithful to the Supreme Court’s instruc-

tion to “interpret [a] statute as a symmetrical and coherent regulatory

scheme” that “fit[s] . . . all parts into a harmonious whole.” Brown &

18

Obligation of Federal Agencies to Pay Stormwater Assessments

Williamson, 529 U.S. at 133 (internal quotation marks and citations omit-

ted).

We recognize that section 313(c)(2)(B)’s direction that federal agencies

“shall not be obligated to pay” stormwater assessments “except to the

extent and in an amount provided in advance by any appropriations Act”

might be read as a condition on the waiver of immunity. See DOD Letter

at 4; cf. Tax Memorandum at 4 (suggesting that section 313(c)(2)(B)

“read[s] more like a traditional waiver given the context of the amend-

ment”). But we believe, in this statutory context, that the phrase “shall not

be obligated to pay . . . except to the extent and in an amount provided in

advance by any appropriations Act” is instead a textual cue that the

Stormwater Amendment is not an appropriation and that stormwater

assessment payments require a separate appropriation by Congress. In

other words, the “shall not be obligated to pay” phrase is an instruction

that federal agencies may not pay stormwater assessments unless there is

a separate appropriation of funds by Congress to do so. Because we do not

read section 313(c)(2)(B) as a condition on the waiver of immunity ef-

fected by sections 313(a) and 313(c)(1), the strict construction canon

governing conditions on waivers of immunity is inapposite.

For these reasons, we conclude that section 313(c)(2)(B) of the CWA

does not impose a specific-appropriation requirement. Instead, federal

agencies may pay appropriate stormwater assessments from annual—

including current—lump-sum appropriations.

CAROLINE D. KRASS

Principal Deputy Assistant Attorney General

Office of Legal Counsel

19