District of Columbia Water and Sewer v. United States

In the United States Court of Federal Claims

No. 18-1586C

Filed: September 10, 2021

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DISTRICT OF COLUMBIA WATER AND *

SEWER AUTHORITY, *

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Plaintiff,

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v. *

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UNITED STATES, *

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Defendant. *

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Frederick A. Douglas, Douglas & Boykin PLLC, Washington, D.C., for plaintiff. Of

counsel was Tram T. Pham, Douglas & Boykin PLLC, Washington, D.C.

Douglas T. Hoffman, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With him were

Claudia Burke, Assistant Director, Commercial Litigation Branch, Martin F. Hockey, Jr.,

Jr., Acting Director, Commercial Litigation Branch, and Brian M. Boynton, Acting

Assistant Attorney General, Civil Division.

OPINION

HORN, J.

The above-captioned case involves a dispute between the District of Columbia

Water and Sewer Authority (DCWS) and the Armed Forces Retirement Home of

Washington, D.C. (AFRH), over the alleged lack of payment by AFRH for sewer services

provided by DCWS. Plaintiff’s amended complaint seeks payment for sewer services,

including impervious area charges, or what plaintiff refers to as stormwater charges.1 In

1 As explained on the DCWS website:

Impervious surfaces such as rooftops, paved driveways, patios, and parking

lots are major contributors to stormwater runoff entering the District’s

combined sewer system. This adds significantly to pollution in the Anacostia

and Potomac Rivers and Rock Creek.

The Clean Rivers Impervious Area Charge (CRIAC) is a fair way to

distribute the cost of maintaining storm sewers and protecting area

the case currently before the court, plaintiff does not seek payment for the provision of

non-sewage-related-water to the AFRH by the District of Columbia (the District). Plaintiff’s

amended complaint alleges amounts due in excess of $12,000,000.00 which plaintiff

asserts have not been paid by the AFRH over a number of years.2 Plaintiff asserts

entitlement to payment for sewer services pursuant to the District of Columbia Public

Works Act of 1954, Pub. L. No. 83-364, 68 Stat. 101 (1954) (the 1954 Act), as amended

and codified in the Code of the District of Columbia (D.C. Code) at § 34-2101, et seq.,

which plaintiff argues obligates the United States to compensate DCWS for sewer

services rendered to the AFRH. The United States responds by relying on a 1938

agreement between DCWS’ predecessor-in-interest and the AFRH’s predecessor-in-

interest (the 1938 Agreement), in which, according to defendant, DCWS’ predecessor-in-

interest agreed to provide water and sewer services to the AFRH’s predecessor-in-

interest, free of charge and in perpetuity, in exchange for AFRH’s predecessor-in-interest

providing DCWS’ predecessor-in-interest an easement to build and access a critical water

reservoir on the property of AFRH’s predecessor-in-interest. Plaintiff disputes defendant’s

interpretation of the 1938 Agreement, arguing that the 1938 Agreement did not cover

sewer services free of charge and in perpetuity. Plaintiff also argues that, regardless of

whether the 1938 Agreement included sewer services, the alleged mandatory payment

obligations of the United States set forth in the 1954 Act, as amended, controls. Defendant

waterways because it is based on a property’s contribution of rainwater to

the District’s sewer system. Because charges are based on the amount of

impervious area on a property, owners of large office buildings, shopping

centers and parking lots will be charged more than owners of modest

residential dwellings.

All residential, multi-family and non-residential customers are billed a

CRIAC. The charge is based on an Equivalent Residential Unit (ERU). An

ERU is a statistical median of the amount of impervious surface area in a

single-family residential property, measured in square feet.

Available at https://www.dcwater.com/impervious-area-charge (last visited Sept. 10,

2021).

2 Plaintiff’s amended complaint and subsequent submissions are unclear as to the date

starting from which plaintiff seeks compensation for sewer services rendered, and the

amount of damages requested. In its amended complaint, plaintiff states that it has been

billing the AFRH since 2004 without receiving any payments, however, at oral argument,

plaintiff indicated that it was only requesting payments allegedly due starting in January

of 2012. Moreover, in supplemental briefing to the court, plaintiff states that it is requesting

“judgment in the amount of $9,234,228.76 for past and estimated sewer services and for

past and estimated stormwater costs,” which plaintiff appears to have calculated from

2012 to 2019, and, as discussed below, was the amount requested in its April 2019

submission of its Federal Cost of Service Estimates (FCSE) for the fiscal year 2021.

Plaintiff also requests “an Order approving the methodology for calculating the Federal

Cost of Service Estimates for FY2022 and FY2023.”

2

filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Rules of the

United States Court of Federal Claims (RCFC). The parties also filed cross-motions for

summary judgment, all of which were fully briefed.

FINDINGS OF FACT

The AFRH, which was originally established in 1851 as the Military Asylum of

Washington, D.C., was created for

every soldier of the army of the United States who shall have served, or

may serve, honestly and faithfully twenty years in the same, and every

soldier, and every discharged soldier, whether regular or volunteer, who

shall have suffered by reason of disease or wounds incurred in the service

and in the line of his duty, rendering him incapable of further military service,

if such disability has not been occasioned by his own misconduct . . . .

31st Cong. § 4 (1851). After a number of re-designations by Congress, on September 7,

1972, the AFRH was designated as “an independent establishment in the executive

branch” for the purpose of providing “residences and related services for certain retired

and former members of the Armed Forces.” See 24 U.S.C. § 411 (2018). At the time of

the 1938 Agreement, discussed below, the AFRH was called the United States Solders’

Home (the Soldiers’ Home).

Plaintiff asserts that “[t]he various buildings on the AFRH-W [Washington] grounds

are connected to separate water and sewer mains operated by” DCWS. Plaintiff offers a

history of the organization of the District of Colombia Water and Sewer Departments,

stating that “[s]ewer lines were mapped separately from water mains as early as the late

1800s,” and that, unlike water in the water mains, the sewer mains “provides non-potable

water for waste products and removes it for treatment.” Plaintiff further provides that,

dating back to the early 1900s, “water and sewer services were overseen by the District

of Columbia Water Department and the Sewer Department, respectively.” Plaintiff states,

that the Sanitary Engineer of the Sewer Department oversaw “construction and

maintenance of the sewer system,” while the Superintendent of the Water Department

oversaw the Water Department. Plaintiff also states that the head of each department

also provided separate annual reports of their respective departments’ activities.

In the 1929 edition of the D.C. Code, which existed through 1939 by way of five

supplements thereto, relevant water and sewer provisions were contained in title 20,

titled: “Municipality of the District of Columbia.” The “Drainage of Lots” provisions were

included as Part 6 of Chapter 5, “Health,” in title 20 of the D.C. Code. See D.C. Code, title

20, §§ 1311-1314 (1929). Chapter 6 of title 20 was titled: “Water.” See id. §§ 1371–1408.

The provision in section 1311, part of the “Drainage of Lots” provisions in Chapter 5,

stated that lots on streets where there was a “public sewer” were required to be

“connected with said sewer in such manner that any and all of the drainage of such lot,

whether water or liquid refuse of any kind, except human urine and fecal matter, shall flow

into said sewer.” Id. § 1311.

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Despite the separate labels of “Drainage of Lots” and “Water,” each set of

provisions contained instructions pertaining to both water and sewer services. For

instance, section 1311 of title 20 of the D.C. Code, the section discussed immediately

above, which was part of the “Drainage of Lots” provisions in Chapter 5, also provided

that lots on streets which had both a “public sewer and water main” were required to “be

connected with said sewer and also with said water main in such manner that any and all

of the drainage of such lot, whether water or liquid refuse of any kind shall flow into said

sewer.” D.C. Code, title 20, § 1311. Similarly, section 1380 of title 20 of the D.C. Code,

which was part of the “Water” Chapter, provided that the “Commissioners of the District

of Columbia are authorized . . . to construct water mains and service sewers in any street,

avenue, road, or ally in the District of Columbia.” Id. at § 1380; see also id. at § 1387 (part

of the “Water” Chapter, and which provided a definition of “service sewer” as “a sewer

with which connection may be directly made for the purpose of providing sewerage

facilities to abutting property,” and that “such sewers shall be so indicated on the records

of the sewer division of the engineer department of the District of Columbia”).

Regarding payment, the provision in section 1381 in the “Water” Chapter stated by

1939 that assessments were to be “levied against all lots or land abutting upon that part

of the street, avenue, road, or ally,” “at the rate of one dollar and twenty-five cents per

linear front foot” where a “water main shall be laid,” and “at the rate of one dollar per linear

front foot” where a “sewer shall be laid.” D.C. Code, title 20, § 1381 (Supp. V, 1939). In

the D.C. Code at title 20, section 1390, part of the “Water” Chapter, an assessment for

“water rents” was set forth for the “use of water for domestic purposes through unmetered

services,” at “$9.85 per annum for all tenements two stories high, or less, with a front

width of sixteen feet, or less,” and “for each additional front foot or fraction thereof greater

than one-half, 62 cents; and for each additional story or part thereof, one-third of the

charges as computed above.” Id. § 1390. The provision at section 1390 in the D.C. Code

at title 20, also stated that “[f]or the use of water through metered services,” there was “a

minimum charge of $8.75 per annum for seven thousand five hundred cubic feet of water,

and 7 cents per one hundred cubic feet for water used in excess of that quantity.” Id.

There was no indication in the 1929 edition of the D.C. Code, or its supplements through

1939, that a reoccurring fee was charged for the use of water for sewage purposes.

The 1938 Agreement

On October 4, 1937, the Honorable Melvin C. Hazen, the President of the Board

of Commissioners of the District of Columbia, wrote the following letter to Major General

Frederick W. Coleman, the Governor of the Soldiers’ Home, one of the predecessors-in-

interest to the AFRH:

The Commissioners of the District of Columbia wish you to know that it is

necessary for them to construct a new water distribution reservoir of

approximate elevation of 250 feet above mean tide level in order to properly

operate and safeguard the supply and distribution of water in the District of

Columbia.

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A study of contours of the city indicates that the only suitable location for

this reservoir that is 250 foot elevation is the United States Soldiers’ Home

Grounds.

Accordingly, request for authority and funds for the construction of a

reservoir and pipe line in the United States Soldiers’ Home Grounds is

embodied in the Annual Estimates of the District of Columbia Water Division

for 1939, as shown on the attached sketch, which will shortly be placed

before the Bureau of the Budget.

Your comments and cooperation in this matter are requested.

(capitalization in original).

On October 20, 1937, Major General Coleman replied with an acknowledgement

of receipt, and wrote to the Honorable Melvin C. Hazen:

On account of the fact that the Soldiers’ Home is a public trust owned and

operated practically in its entirety from contributions received from enlisted

men on the active list of the Regular Army, I would suggest that the

legislative action contemplated by you be suspended until such time as this

matter can be considered by the Board of Commissioners of the Home.

Your letter will be presented to the Board and I will be glad to communicate

further with you when the Board has taken action thereon.

(capitalization in original). On October 25, 1937, the Board of Commissioners of the

Soldiers’ Home “convened a Board Meeting . . . to discuss the matter.” At the October 25,

1937 Board of Commissioners meeting General Pillsbury, who was a member of the

Board of Commissioners of the Solders’ Home, stated :

I have gone into the matter and I believe without any question this proposed

installation is necessary to safe-guard the water supply of the District of

Columbia in the increasing drain and demand on the service. The increased

water demand is such that the water is filtered at the McMillan plant here at

an excessive rate. This installation is designed to offer a reserve supply so

that the filters could be run at the regular rate in the day time and the surplus

water filtered at night could be drawn on during the following day. There is

an emergency in the water supply of the District that I think makes this

installation necessary. The only reasonable solution is the installation of the

reservoir so as to afford a reserve supply.

Nevertheless, Major General Coleman, then the President of the Board of

Commissioners for the Soldiers’ Home, initially rejected the proposal to build the

reservoir. In a November 2, 1937 letter from Major General Coleman to the Honorable

Melvin C. Hazen, the President of the Board of Commissioners of the District of Columbia,

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Major General Coleman wrote:

[A]lthough the United States has title to the land where the District desires

to construct the new reservoir, the deed [of the Soldiers’ Home] contains a

definite limitation as to its use, in that the land is held “ * * * In Trust

nevertheless for sole use, benefit and behoof of the Commissioners of the

Soldiers’ Home and for no other use or purpose whatsoever: * * * ” and that

the Commissioners held the property in trust for the use and benefit of the

soldiers of the United States Army.

A license, grant, or deed to the District of Columbia which would enable the

District of Columbia to establish a reservoir within this tract would constitute

a violation of the trust imposed upon the Commissioners of the Home unless

such action is clearly to the best interest of the old soldiers who are the

beneficiaries of the trust. In determining what these “best interests” are, the

potential applicability of the property, among other things, must be

considered. The location of the proposed reservoir is one of the logical

building sites in event of enlargement of the Home and should be reserved

for such purpose. In all matters affecting the Home the Commissioners

regard the trust as being concerned not only with the present or with the

immediate future but with the years far ahead.

The Commissioners of the Home are informed and believe that there are,

in fact, other points in the District of Columbia of sufficient elevation and

accessibility which can be used for the uprose of operating and

safeguarding the supply and distribution of water in the District of Columbia

It was the conclusion of the Board of Commissioners of the Home, having

in mind the vested interest of the beneficiaries of the trust, that it can not, at

this time, take favorable action with respect to the proposed construction.

In view of what has been stated above, I am directed by the Board of

Commissioners to request that you withdraw from you estimates for 1939,

which will shortly be placed before the Bureau of the Budget, any request

for authority or funds for the construction of a reservoir on Soldiers’ Home

property and that the Board of Commissioners of the United States Soldiers’

Home be advised of your action in the matter.

(capitalization and ellipses in original). The District complied with the Soldiers’ Home’s

request for the District to withdraw from its budget request the funds for the construction

of the reservoir, however, discussions between the Soldiers’ Home and the District

continued. In a letter dated January 6, 1938 to Major General Coleman of the Soldiers’

Home, the Honorable Melvin C. Hazen, President of the Board of Commissioners of the

District of Columbia, wrote:

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In view of the absolute necessity of ample water supply at adequate

pressure, not only for Federal institutions but also in the interest of the

general public welfare, your renewed consideration of our request for

permission to locate a vitally important storage reservoir on high ground

within the territory under the jurisdiction of the Board of Commissioners of

the United States Soldiers’ Home is requested.

Our renewed request that you grant this permission would not be made but

for the fact that the proposed site is the only one considered feasible. The

engineers of the District of Columbia Water Division have made a

comprehensive survey of all possible sites for a reservoir and after

exhaustive study have reluctantly reached the conclusion that all

contemplated alternates are impracticable.

The Commissioners are willing, with your advice and approval, to

recommend payment of a reasonable price for the site in question since the

need for the construction of this reservoir is so urgent, and they therefore

are most reluctant to postpone a recommendation for the enactment of

legislation beyond the present (75th) Congress which would authorize its

construction and the necessary appropriation. The Commissioners are

willing that the price be determined by a board of appraisers selected jointly

by the Board of Commissioners of [the] Solders’ Home and the Board of

Commissioners of the District of Columbia.

(capitalization in original).

The Honorable Melvin C. Hazen’s renewed request to construct the reservoir on

the premises of the Soldiers’ Home was subsequently discussed by the Board of

Commissioners of the Soldiers’ Home and, on February 1, 1938, the 1938 Agreement

was signed and executed. The 1938 Agreement stated:

This Agreement made this 1st day of February, 1938, by and between

Frederick W. Coleman (Retired), Governor of the United States Soldiers’

Home; Major General Charles R. Reynolds, The Surgeon General; Major

General Edgar T. Conley, The Adjutant General; Major General Henry

Gibbins, The Quartermaster General; Major General Julian L. Schley, The

Chief of Engineers; Major General Allen W. Gullion, The Judge Advocate

General; and Major General Frederick W. Boschen, The Chief of Finance,

constituting the Board of Commissioners of the United States Soldiers’

Home, parties of the first part, and Melvin C. Hazen, George E. Allen, and

Colonel Dan I. Sultan, constituting the Board of Commissioners of the

District of Columbia, parties of the second part, witnesseth:

That Whereas the Commissioners of the District of Columbia have made

application to the Board of Commissioners of the United States Soldiers’

Home for permission to install and maintain an underground reservoir, for

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use in connection with the water supply system of the District of Columbia,

on lands constituting a part of the Soldiers’ Home grounds;

And Whereas the lands on which it is proposed to construct said reservoir

were conveyed to the United States of America in Trust “for the sole use,

benefit and behoof of The Commissioners of the Soldiers’ Home and for no

other purpos [sic] whatsoever”;

And Whereas to grant the request of the District of Columbia would

constitute a violation of the trust imposed unless such action is clearly to the

best interest of the old soldiers who are the beneficiaries of the said trust;

And Whereas the Board of Commissioners of the United States Soldiers’

Home at a meeting held on the 24th day of January, 1938, after careful

consideration of all of the facts, have determined that the recognition of the

perpetual right to the use of water from the water supply system of the

District of Columbia, and the right to use water from the reservoir proposed

to be installed on the Soldiers’ Home grounds, with the right to tap the

District of Columbia Water mains and use water therefrom to the extent

necessary for the purpose of said Home, and the advantage of having a

more continuous pressure for fire fighting purposes in the protection of the

buildings and property of said Home resulting from the installation of the

proposed reservoir, constitute a lasting benefit to said Home and adequate

consideration for the grant of the privilege requested by the parties of the

second part;

And Whereas the National Capital Park and Planning Commission has

recommended the transfer of jurisdiction for the purposes and to the extent

hereinafter set forth;

Now Therefore, pursuant to the authority vested in the Board of

Commissioners of the United States Soldiers’ Home and the Secretary of

War, by Section 4815, United States Revised Statutes (U.S.C. 24:41), with

the approval of the Secretary of War, as evidenced by signature hereto, the

parties of the first part hereby grant to the parties of the second part,

permission, and transfer jurisdiction to the extent hereinafter set forth, to

install an underground reservoir, for use in connection with the water supply

system of the District of Columbia, together with right-of-way for water

mains leading to and from said reservoir, on and across the grounds of the

United States Soldiers’ Home, at the locations, and in the manner, and in

accordance with the plans therefor, as more fully shown, described, and set

out on the map attached hereto and made a part hereof, together with the

right of ingress and egress thereto for the purpose of constructing, repairing

and maintaining same, so long as the said reservoir is used in connection

with the water supply system of the District of Columbia, and no longer, with

the understanding that said grant is made in consideration of the perpetual

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right to use water from the water supply system of the District of Columbia,

as may be needed, for the purpose of said Home, including water for fire

protection purposes without compensation therefore at any time, which right

the said parties of the second part, under authority of the act of Congress

approved May 20, 1932 (47 Stat. 161, U.S.C. 40:122), hereby grant, warrant

and confirm to the parties of the first part.

The parties of the second part agree to repair all damages done to roads

and property of the parties of the first part, in the construction, repair and

maintenance of said reservoir, and to save the parties of the first part

harmless from any damages or claims resulting from the occupation of the

premises under this agreement by the parties of the second part.

It is mutually understood and agreed that the jurisdiction over said property

hereby transferred to the parties of the second part is limited to that

necessary in construction, repair and maintenance of the reservoir and

water mains above mentioned, and in all other respects, including the power

to police the property, jurisdiction retained by the parties of the first part.

This Agreement is made in anticipation of an appropriation to be made for

the construction of said proposed reservoir, and in the event the necessary

appropriation is not made within two years, this agreement shall become

null and void and of no effect.

In Witness Whereof, the said parties have hereunto, and to a duplicate

hereof of like tenor and affect, set their hands and seals, in the City of

Washington and District of Columbia, the day and year first above written.

(capitalization in original).

On April 4, 1938, Congress passed the following legislation which provided:

For the construction of a reservoir of approximately fifteen million gallons

capacity on the grounds of the United States Soldiers’ Home, District of

Columbia, including necessary appurtenances and auxiliaries, and

including not to exceed $12,000 for the employment, by contract or

otherwise, and without reference to section 3709 of the Revised Statutes

(41 U.S.C. [§] 5) or the Classification act of 1923, as amended, of

engineering and other professional services, $400,000, to continue

available [sic] until June 30, 1940.

52 Stat. 190, 75th Cong. (1938).

On January 26, 1939, Major General Coleman of the Soldiers’ Home wrote to the

Honorable Melvin C. Hazen, the President of the Board of Commissioners of the District

of Columbia, regarding the 1938 Agreement’s applicability in the face of potential

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legislation recommended by the District that would require the federal government “to

purchase the water used by” the federal government. Major General Coleman’s letter

January 26, 1939 letter stated:

There has been noted recently in the press apparently authentic statements

that the Commissioners of the District of Columbia either have

recommended or propose to recommend to the Congress that legislation

be enacted which will require that Federal Government activities in the

District of Columbia be required to purchase the water used by them.

On February 1, 1938, the Commissioners of the District of Columbia and

the Board of Commissioners of the U.S. Soldiers’ Home entered into a

contract of agreement where, in consideration of the authority given the

former to erect and maintain a large water storage reservoir on the grounds

of the Soldiers’ Home, the perpetual right to free water for its use was

granted to the latter. This agreement appears to be entirely satisfactory to

both parties; it will result in a very considerable construction and

maintenance savings to the District of Columbia and at the same time will

satisfy the requirements of the Trustees of this Home in their responsibility

to the trust obligation imposed upon them by law.

In view of the existing contract above referred to, I feel that it is fair to

assume that any proposed legislation on this subject will specifically exclude

the U.S. Soldiers’ Home from the provisions of any Act in reference hereto

to be proposed to Congress by the Commissioners of the District of

Columbia.

(capitalization in original).

The Honorable Melvin C. Hazen of the District responded in a letter to Major

General Coleman of the Soldiers’ Home, stating:

On January 13, 1939, the Commissioners [of the District] transmitted to

Congress a report of a study of the Water System authorized by Public Act

No. 172, 75th Congress, First Session, approved June 29, 1937, and stated

to Congress that it was their belief “that the Federal Government should

reimburse the water fund for water used at the established meter rates,

possibly with a preferential discount of about 10 %.”

The Commissioners are cognizant of the fact that a contract was entered

into between the Soldiers’ Home and the District under which the Home was

given the perpetual right to free water. It is not intended to modify this

contract in any way. When, as and if definite legislation is under

consideration, the Commissioners will make suitable recommendations to

this effect.

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(capitalization in original).

In a March 4, 1939 Memorandum to the Board of Commissioners for the Soldiers’

Home, Judge Advocate General, Major General Allen W. Gullion questioned the validity

of the perpetual water rights granted to the United States Soldiers’ Home by the 1938

Agreement, as follows:

1. By letter, subject as above, dated February 21, 1939, inclosing copy of

an agreement dated February 1, 1938, between the Board of

Commissioners of the United States Soldiers’ Home and the Board of

Commissioners of the District of Columbia, together with a copy of a letter

from the Governor of the United States Soldiers’ Home dated January 26,

1939, and the reply to said letter signed by the President of the Board of

Commissioners of the District of Columbia, I am requested to express an

opinion on the following questions:

“a. As to the binding effects of the [1938] agreement entered

into and as further supported by the two letters hereinbefore

referred to.

“b. What further action, if any, the Board of Commissioners of

the U.S. Soldiers’ Home, should now take to guarantee

perpetual water rights to the U.S. Soldiers’ Home by the

District of Columbia in return for the action of the Board of

Commissioners in granting them the right to construct an

underground water reservoir on the grounds of the U.S.

Soldiers’ Home, to improve and enlarge the water system of

the District of Columbia.

“c. The desirability or necessity of filing a copy of the

agreement and pertinent papers for record in the office of the

Recorder of Deeds of the District of Columbia.”

2. In substance the agreement gives to the District of Columbia the right to

install an underground reservoir on lands constituting a part of the Solders’

Home grounds in consideration of the perpetual right to the use of water

from the water supply system of the District of Columbia, by the Home

without compensation therefor.

3. (a) In response to question a: Whether the agreement is enforceable

in the courts is an extremely doubtful question which can only be resolved

by the courts. The agreement is, however, binding on the parties in

accordance with its terms. It is, of course, subject to the will of Congress.

The subject matter of the agreement is within the exclusive legislative

jurisdiction of Congress under Article I, section 8 of the Constitution.

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(b) With respect to question b, it is my opinion that there is

nothing that can be done by the Board of Commissioners of

the Home to guarantee perpetual water rights to the Home by

the District of Columbia. The power to tax or charge

Government instrumentalities for water does not reside in the

Board of Commissioners of the District of Columbia, but in

Congress which has not delegated this power. It is suggested

that if a bill is introduced in Congress contemplating a tax or

charge on water supply, the agreement should be brought to

the attention of the Committee to whom the bill is referred. The

agreement may have some persuasive effect but as

heretofore stated has no binding effect on Congress.

(c) With respect to question c, it is my opinion that it is not

necessary to file a copy of the agreement in the Office of the

Recorder of Deeds of the District of Columbia. However, such

filing will cause the agreement to become a matter of public

and permanent record and thus may be influencing in future

consideration of water charges to the Home. Accordingly, I

deem it desirable that the agreement be so filed.

(capitalization and emphasis in original).

The District of Columbia Public Works Act of 1954

The United States, including the AFRH, had not paid for water or sewer services

until the enactment of the 1954 Act. The enactment of the 1954 Act marked the first time

that the District’s public was charged for sewer services on a recurring basis. As originally

enacted, in section 206 of Title II, “Sanitary Sewage Works,” the 1954 Act provided that

the “Commissioners [of the District of Columbia] are authorized to establish charges for

the provision of sanitary sewer service, such charges to be collected in the same manner

and at the same time as water charges are collected, and to be paid into the D.C. Sanitary

Sewage Works Fund.” Id.

The 1954 Act also marked the first time the United States was to be charged for

sewer services rendered by the District. The provision in section 212(a) of the 1954 Act,

as originally enacted, stated:

The sanitary sewer service charges prescribed herein shall be applicable to

all sanitary sewer services furnished by the sanitary sewage works of the

District through any connection thereto for direct use by the Government of

the United States or any department, independent establishment, or agency

thereof, and such charges shall be predicated on the value of water and

water services received by such facilities of the Government of the United

States or any department, independent establishment, or agency thereof

from the District water supply system. Payment of the said sanitary sewer

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service charge shall be made as provided in subsection (b) of this section:

Provided, That the aggregate amount of such sanitary sewer service charge

for each fiscal year shall be determined in the manner prescribed in section

207 hereof: Provided further, That the obligation to pay for sanitary sewer

services received by the Government of the United States or any

department, independent establishment, or agency thereof shall be with

respect to such service furnished on and after July 1, 1954.

Id. § 212(a) (capitalization and emphasis in original). In section 212(b), the 1954 Act

provided:

For the purpose of effectuating the provisions of subsection (a) of this

section there shall be included annually in the budget estimates of the

Commissioners beginning with the estimates for the fiscal year ending June

30, 1955, the value as determined by the Commissioners of the sanitary

sewer service furnished to the United States or to any department,

independent establishment, or agency thereof during the most recent

preceding fiscal year for which such value can be determined based on the

rates for such charges prevailing during the period of such service, and

there shall be appropriated annually for the D.C. Sanitary Sewage Works

Fund out of any money in the Treasury not otherwise appropriated (to be

advanced on July 1 of each fiscal year beginning in July 1, 1954) a sum

corresponding to the said value of charges for sanitary sewer service

furnished the United States.

Id. § 212(b) (capitalization in original). Title II of the 1954 Act was incorporated into the

D.C. Code in what is now D.C. Code § 34-2101, et seq. Neither the AFRH (including any

of its predecessors-in-interest), nor the 1938 Agreement, were mentioned in the 1954 Act.

Relevant to the above-captioned case, in 1989, section 212 of the 1954 Act was

amended and section 212(b) imposed a specific set of instructions on (1) the Secretary

of the Treasury, (2) the District, and (3) each Federal entity receiving sanitary sewer

services from the District before the District was to receive payment from the United

States for sanitary sewer services rendered by the District. As amended in 1989, section

212(b) provided, in full:

(b)(1) Beginning in the second quarter of fiscal year 1990, the government

of the District of Columbia shall receive payment for sanitary sewer services

from funds appropriated or otherwise available to the Federal departments,

independent establishments, or agencies. In accordance with the provisions

of paragraphs (2) and (3) of this subsection, one-fourth (25 percent) of the

annual estimate prepared by the District government shall be paid, not later

than the second day of each fiscal quarter, to the District government by the

Secretary of the Treasury from funds deposited by said departments,

establishments, or agencies in a United States Treasury account entitled

“Federal Payment for Water and Sewer Services.” In the absence of

13

sufficient funds in said account, payment shall be made by the Secretary of

the Treasury from funds available to the United States Treasury and shall

be reimbursed promptly to the United States Treasury by the respective

user agencies. Payments shall be made to the District government by the

Secretary of the Treasury without further justification, and shall be equal to

one-fourth (25 percent) of the annual estimate prepared by the District

government pursuant to paragraph (2) of this subsection.

(2) By April 15 of each calendar year the District shall provide the Office of

Management and Budget, for inclusion in the President’s budget of the

respective Federal departments, independent establishments, or agencies,

an estimate of the cost of service for the fiscal year commencing October

1st of the following calendar year. The estimate shall provide the total

estimated annual cost of such service and an itemized estimate of such

costs by Federal department, independent establishment, or agency. The

District’s estimates on a yearly basis shall reflect such adjustments as are

necessary to (1) account for actual usage variances from the estimated

amounts for the fiscal year ending on September 30th of the calendar year

preceding April 15th, and (2) reflect changes in rates charged for water and

sewer services resulting from public laws or rate covenants pursuant to

water and sewer revenue bond sales.

(3) Each Federal department, independent establishment, or agency

receiving sanitary sewer services in buildings, establishments, or other

places shall pay from funds specifically appropriated or otherwise available

to it, quarterly and on the first day of each such fiscal quarter, to an account

in the United States Treasury entitled “Federal Payment for Water and

Sewer Services” an amount equal to one-fourth (25 percent) of the annual

estimate for said services as provided for in paragraph (2) of this

subsection.

(4) The amount or time period for late payment of charges for sanitary sewer

services involving a building, establishment, or other place owned by the

Government of the United States imposed by the District of Columbia shall

not be different from those imposed by the District of Columbia on its most

favored customer.

District of Columbia Appropriations Act, 1990, Pub. L. No. 101-168, 103 Stat. 1267, 1281–

82 (1989) (capitalization in original). As indicated in the quote immediately above, and of

particular relevance to the above-captioned case, section 212(b), as amended in 1989,

required that the District, “[b]y April 15 of each calendar year, shall provide the Office of

Management and Budget, for inclusion in the President’s budget of the respective Federal

departments, independent establishments, or agencies, an estimate of the cost of service

for the fiscal year commencing October 1st of the following calendar year.” Id. (emphasis

added). The parties refer to this provision of required annual estimates as the Federal

Cost of Service Estimates (FCSE). Subsection 212(b)(2) was later amended in 2001 to

14

require that the District provide its annual FCSE, in addition to the Office of Management

and Budget, also to “the Secretary of Treasury, and the head of each of the respective

Federal departments, independent establishments, and agencies.” See District of

Columbia Appropriations Act, 2002, Pub. L. No. 107-96, 115 Stat. 923, 943 (2001). The

District of Columbia Appropriations Act of 2002 also added subsection 212(c), which

stated:

Nothing in this section may be construed to require the District of Columbia

to seek payment for sanitary sewer services directly from any Federal entity

which is under the jurisdiction of a department, independent establishment,

or agency which is required to make a payment for such services under this

section, or to allocate any amounts charged for such services among the

entities which are under the jurisdiction of any such department,

independent establishment, or agency. Each Federal department,

independent establishment, and agency receiving sanitary sewer services

from the District of Columbia shall be responsible for allocating billings for

such services among entities under the jurisdiction of the department,

establishment, or agency, and shall be responsible for collecting amounts

from such entities for any payments made to the District of Columbia under

this section.

Id.

Subsequent Correspondence between DCWS and AFRH

As discussed below, the parties have submitted to the court various copies of

correspondence between DCWS and the AFRH, beginning in 1990, in which DCWS and

the AFRH discuss their respective positions regarding the sewer service charges

allegedly owed by the AFRH to DCWS. On June 25, 1990, John Touchstone, then the

Director of the District of Columbia Department of Public Works, DCWS’ predecessor-in-

interest, wrote the following letter to Colonel (Retired) R.W. Hampton, then the Secretary

Treasurer of the Soldiers’ Home, AFRH’s predecessor-in-interest, regarding the validity

of the 1938 Agreement and its applicability to sewer services:

This is in response to your letter of January 10, 1990, addressed to Mr.

James E. Dennis, regarding a 1938 Agreement between the District

Government and the U.S. Soldiers’ and Airmen’s Home. We regret the

delay in responding to your inquiry. However, it was necessary for us to

allow the D.C. Corporation Counsel to review the agreement, prior to

accepting or denying the terms outlined.

The Corporation Counsel recently rendered an opinion on the validity and

enforceability of the agreement. As a result of their opinion, the Department

of Public Works will honor the 1938 Agreement between the U.S. Solders’

and Airmen’s Home and the District of Columbia. The District will continue

to render water and sewer services to the Home without charge.

15

(capitalization in original).

In 1996, DCWS, the successor-in-interest to the District of Columbia Department

of Public Works, and the plaintiff in this case, was established “to plan, design, construct,

operate, maintain, regulate, finance, repair, modernize, and improve water distribution

and sewage collection, treatment, and disposal systems and services, and to encourage

conservation.” Water and Sewer Authority Establishment and Department of Public

Works Reorganization Act of 1996, 1995 D.C. Sess. L. Serv. 11–111 (Act 11–201),

§ 202(c) (1996) (codified as amended at D.C. Code § 34-2202.02(c) (2021)). DCWS was

authorized to “establish, adjust, levy, collect, and abate charges for services, facilities, or

commodities furnished or supplied by it,” D.C. Code § 34-2202.03(11). DCWS was also

authorized to “determine whether churches, charitable organizations, or institutions that

receive annual appropriations from Congress should be furnished with water or sewer

service without charge.” D.C. Code § 34-2202.03(31).

The Resolution of the Board of Directors of the D.C. Water and Sewer Authority,

which was presented and adopted on December 5, 1996, stated:

In accordance with the Water and Sewer Authority Establishment and

Department of Public Works Reorganization Act of 1996, D.C. Law 11-111,

sections 203 (31) and 216 (the Act), the District of Columbia members of

the Board of Directors considered the matter of furnishing water and sewer

services to the United States Soldiers’ Home without charge. The Act

transferred the responsibility for determining whether any customers are to

receive water and sewer services without charge or at reduced rates. Upon

consideration, it was decided by a vote of six (6) in favor, and none (0)

opposed, and be it resolved as follows:

1) Pursuant to an agreement between the U.S. Soldiers’ Home and the

District of Columbia, the Commissioners of the Soldiers’ Home dated

February 1, 1938, granted permission to the District of Columbia to place

an underground reservoir on property conveyed in trust to the U.S. Soldiers’

Home. As consideration the District of Columbia granted the U.S. Soldiers’

Home the perpetual right to use water from the District’s water supply

system without charge. In a legal review of this agreement, an Assistant

D.C. Corporation Counsel and the D.C. Deputy Corporation Counsel for

Public Works determined that under the terms of the Agreement, the District

is obligated to provide water services to the U.S. Soldier’s [sic] Home as

long as the District uses the U.S. Soldiers’ Home property.

2) The Agreement does not obligate the District of Columbia to provide

sewer services without charge to the U.S. Soldiers’ Home, and the April 25,

1990 memorandum of the Office of Corporation Counsel concludes that

“since the Agreement does not discuss the gratuitous sewer services, the

Soldiers’ Home may be legally obligated to pay the District for sewer

16

services.” However, in a memorandum dated June 19, 1990, the Director of

Public Works extended no charge [for] sewer services to the U.S. Soldiers’

Home.

3) The Board of Directors wishes to honor the agreement and continue

providing water without charge to the U.S. Soldiers’ Home. The no charge

sewer services practice will be honored for the remainder of fiscal year

1997.

On or before March 1997, the Board will determine whether to extend no

charge sewer services into fiscal year 1998. To assist in this determination,

the Interim General Manager shall cause a comparative analysis of the

annual value of the right to use the U.S. Soldiers’ Home property for the

reservoir and the value of the no water charge and/or water and sewer

services since June 1990. The analysis should be submitted for

consideration by the Retail Rates Committee at its February 1997 meeting.

(capitalization in original).

In a letter dated January 12, 2004, the Chief Financial Officer of DCWS, Mr. Paul

Bender, wrote to the Facilities Manager of the Soldiers’ Home, stating:

The U.S. Soldiers’ and Airmen’s Home (“Soldiers’ Home”) receives free

water service from the District of Columbia Water and Sewer Authority

(WASA) for eight accounts pursuant to an agreement executed in 1928 [sic]

between the District of Columbia and the Soldier’s Home

WASA, and before October 1996 the District of Columbia Government, has

also provided the Soldier’s Home sewer service at no charge even though

sewer service is not part of the agreement. In 1996, the WASA Board of

Directors reviewed the agreement with Soldier’s Home and determined that

the sewer exemptions should be eliminated; this was part of an overall

elimination of all other free services that were then being provided by the

D.C. Government, including free water and sewer service to the District of

Columbia Government itself.

Therefore, effective July 1, 2004, WASA will begin to bill Soldier’s Home for

sewer service for all of its accounts. The institution of sewer fees is also

consistent with federal law; fee exemptions of sewer services conflict with

Section 204(b)(1) of the Clean Water Act (PL 92-500). Federal regulations

require elimination of any contract that contravenes this section of the law.

Free water service for the eight accounts will continue for the time being.

WASA desires to open discussion with Soldier’s Home regarding the

continuation of free water service and the value already provided to the

Home compared to the value of the property. We also need to resolve with

17

you the historical unbilled amounts for sewer service.

Soldiers’ Home eight exempt accounts registered 70,000 hundred cubic

feet (ccf) of use from October 2002 to September 2003. WASA’s

wastewater rate is $2.57 per ccf. We estimate the annual cost of sewer

service to these eight accounts to be approximately $180,000. WASA

understands this amount may impose a financial burden on the Soldier’s

Home and we welcome your thoughts on how to mitigate this impact.

I would like to meet with you to develop a mutually agreeable plan to

implement sewer charges for these accounts and resolve these issues. I

will contact you to arrange a meeting.

(capitalization in original).

Based on the record before the court, including the supplemental submissions filed

by both parties, it appears that DCWS did not attempt to charge the AFRH for sewer

services rendered until at least 2004. Plaintiff alleges that “[b]eginning in 2004, and at

regular, [sic] intervals since,” DCWS “has billed AFRH for sewer services provided which

includes impervious area charges.” Although plaintiff has produced a number of

spreadsheets and tables documenting charges for various sewer services rendered by

the DCWS to the AFRH, plaintiff has produced little evidence that it had sent billings for

such sewer services to the AFRH at “regular intervals” since 2004. There are only two

actual “billings” which have been produced in the record before the court, even after

multiple instructions to the parties to file fuller and more complete documentation if

available. One billing is a “Bill Summary,” dated March 9, 2012, indicating a bill amount

to the AFRH for $1,794,808.89, of which $1,744,174.48 is indicated as past due. The

second billing is a “Group Bill Summary,” dated May 25, 2018, which indicates a total

amount due by the AFRH of $12,472,946.91, of which $12,452,520.54 is indicated as

past due. Plaintiff also states in supplemental briefing:

Beginning in October 2007, DC Water’s electronic data system records

reflect billings for sewer services being sent to:

Soldiers’ Home,

ACCTG OPS/UNB Building 5th FL,

Bureau of Public Debt/PO BOX 1328,

Parkersburg, WV 26106

(hereinafter referred to as the “West Virginia AFRH business address”).

(capitalization in original).3

3 Although plaintiff alleges that “billings were sent to” the above West Virginia address,

plaintiff has not produced any billings sent to that address, including the two billings

discussed above, for the record before the court.

18

Based on the record before the court, DCWS retained a consultant company, PB

Consult, and, in a July 16, 2004 memorandum from David Earley of PB Consult to Paul

Bender, Chief Financial Officer of DCWS, Thomas Bridenbaugh of Leftwich & Ludaway,

LLC, Nick Amrhein of PB Consult, and John Cromwell of Stratus Consulting, Mr. Earley

estimated that “[c]umulatively, the Soldiers Home has received $13.3 million in water and

sewer services over the 65 year period.”

The court notes that, according to plaintiff, in 2010, DCWS and the AFRH began

another negotiation to “construct a five-million-gallon reservoir” on AFRH’s premises. A

January 20, 2011 email from Jessica Demoise of the DCWS Department of Engineering

and Technical Services, to Jody Russell of the AFRH provided, in relevant part:

This email summarizes our meeting today, January 20th, with Soldiers

Home regarding the feasibility of locating a 5MG tank on their property.

We met with Justin Seffens, Chief of Campus Operations, and Steve

McManus, Acting GM and Deputy COO/CFO. They stated that AFRH is

open to the idea of locating the tank at the Eisenhower Drive site, and

requested that the design include a garden on top of the tank. A condition

of AFRH’s cooperation is that DC Water must renew the agreement to

provide water service on a perpetual basis. (It should be noted that AFRH

believes that their sewer is also currently subsidized.)

(capitalization in original).

In a February 2, 2011 email from Olu Adebo, Chief Financial Officer of DCWS, to

Steven McManus of the AFRH, Mr. Adebo wrote:

I am reaching out to you and your team to find out how we can resolve a

long standing financial dispute between our 2 agencies. As you may already

be aware, Soldiers Home currently owes over $4m in unpaid sewer charges

on its sewer account. In addition, while we wish to continue to honor the

current agreement for providing free water (this agreement does not

obligate the Water Authority to provide free sewer), due to the extensive

passage of time since the agreement was struck, we will like to discuss and

clarify certain aspects of the agreement.

Note that although, we started to bill your agency for sewer services in 2004,

to date, we have not received any payment or formal notification explaining

your lack of payment. Also, note that between 1996 and 2004 we made

numerous attempts to understand the basis for an exemption to your

agency for sewer services, however, to date, no one has been able to

substantiate the basis for the exemption. Our suspicion is that the

19

exemption stems from an old tradition (that has long since changed) of

providing free water and sewer to government and non-profit type

organizations in the District. Note that after 1996 through legislation and

rulemaking in the District this exemption was cancelled for all entities and

every customer now pays for services provided.

While we concede that an existing agreement obligates us to provide free

water, we however see no basis, or know of any basis (in light of our current

legislative structure), for not charging for sewer services on your accounts.

As I stated above, the outstanding balance now exceeds $4m and has risen

to the attention of our board of directors who have identified this as a critical

issue that has to be dealt with this fiscal year. Coincidentally, we are also

interested in discussing with you an option to build additional water facility

on your premises, which could create an opportunity to discuss and

negotiate these matters.

I have been tasked by our General Manager and Board to coordinate a

resolution to this matter. Please confirm that you are the appropriate officer

in your organization to work with directly on this matter, and if so when we

can reasonable [sic] expect to get together “soon” to discuss. If you are not

the appropriate officer please direct me to the correct party. I look forward

to a productive dialogue and a timely resolution to this matter.

(capitalization in original). On February 3, 2011, Mr. McManus of the AFRH responded:

Mr. Adebo, Thank you for your note. As the agency head, I’m probably the

best person to start with. Please see attached memo from DC Public Works

dated June 25, 1990. Based on this letter I’m not sure it is correct to use the

terminology – “long standing financial dispute between our 2 agencies.”

Also believe it is important to understand and point out that our 1938

agreement that was validated in 1990 by the DC Corporation Counsel was

the result of DC placing a large water reservoir on the AFRH-W Campus

and not because we were government or a non-profit. We look forward to

discussing the mutual benefits of DC building an additional water facility on

AFRH. We are in the process of moving real property support from GSA to

DoD. Would expect this to take another 30 to 60 days. Once this

realignment has occurred we will reach out for discussions. Is that timeline

acceptable to you?

Mr. Adebo responded the same day, February 3, 2011, writing:

Thanks for your timely response on this matter. I will appreciate if we can

meet within the next two weeks to clarify the facts around our current

arrangement. If that works I will send you some tentative dates for such a

meeting.

20

The long standing dispute I referenced was related to the sewer bills and

not water. I expect that this meeting I requested would set the stage for our

negotiation meetings in the very near future.

Finally, also on February 3, 2011, Mr. McManus responded: “Mr. Adebo, Understand, but

the letter dated June 25, 1990 by DC validated both water and sewer. I will be in Gulfport,

MS all next week. You are welcome to propose some dates the following week.” No

further communications between Mr. Adebo and Mr. McManus are included in the record

before the court.

In a supplemental brief, plaintiff asserts:

Between 2012 and 2017, negotiating teams from AFRH and DC Water met

to discuss AFRH’s payment for water and sewer services regarding the

following issues: whether the residential properties that AFRH rented

should receive free water services, whether there should be a cap on free

water services to encourage conservation, whether the 1938 Agreement

exempted AFRH from payment for sewer, whether the meters were

accurately recording water consumption necessary for sewer billing,

whether all accounts were active, whether there was any objection to DC

Water’s statement of amounts due, defining core (essential to AFRH’s

mission) and non-core properties and buildings for services, whether an

agreement could be reached for a valuation of the past consumption of

water in order to agree on an amount for the past sewer services and a time

frame for payment for the past, ongoing and future services.

Throughout this litigation the parties have provided little documentation of the

negotiations between the parties between 2012 and 2017 or copies of billing statements

from the DCWS to the AFRH, even after multiple requests from the court for more

evidence of comprehensive communications or documentation. The record before the

court does include a May 7, 2012 letter from Justin Seffens, Chief of Campus Operations

of the AFRH, to Jacqueline Brown-Ervin, a Commercial Care Associate of DCWS, stating:

The Armed Forces Retirement Home disputes the three (3) Billings, sent by

FedEx dated May 1, 2012 to this facility because we are exempt from

charges pursuant to a longstanding Agreement between the Armed Forces

Retirement Home and the District of Columbia Water and Sewer Authority,

whereby, in 1939 [sic], the District of Columbia agreed to exempt the Armed

Forces Retirement Home. The Armed Forces Retirement Home and DC

Water are currently negotiating a resolution to this dispute, and until this

dispute is resolved, the Armed Forces Retirement Home shall continue to

officially dispute all billing charges.

(capitalization and emphasis in original). As discussed above, there are only two billing

records which were provided for inclusion in in the record before the court: one in March

of 2012, and one in May of 2018. It is, therefore, unclear as to which “three (3) Billings,

21

sent by FedEx dated May 1, 2012,” mentioned in the quote immediately above, Mr.

Seffens of the AFRH is referring. Plaintiff also alleges that “DC Water and AFRH entered

into a Tolling Agreement to stay the running of the District of Columbia’s three – year

statute of limitations while exploring efforts to resolve the impasse over the payment for

sewer services,” starting on January 22, 2013, and that the “January 2013 Tolling

Agreement was thereafter renewed every six months until January 10, 2017 when the

term of the agreement was set for one-year to expire on January 9, 2018.” Plaintiff states

that “[i]n December 2017, Joseph H. Pollard, AFRH’s General Counsel, advised DC

Water that AFRH would not extend the tolling agreement beyond its January 8th [2018]

expiration.” In its supplemental submissions to the court, plaintiff provided a January 22,

2013 Tolling Agreement, as well as a January 10, 2017 extension, but did not produce

any record of the extensions in between or beyond those dates.

DCWS’ Annual Federal Cost of Service Estimate Submission

Plaintiff concedes that “[p]rior to April 15, 2019, DC Water did not include the AFRH

in the annual FCSE submitted to the Office of Management and Budget, the United States

Treasury and the Department of Defense official responsible for AFRH.” The record

before the court contains an April 13, 2021 affidavit from Carolyn Mackool, who attested

that “[s]ince 2017” she has “been the Director of Customer Care for the District of

Columbia Water and Sewer Authority,” and that among her duties are to “supervise

accounting and billing services to customers, including federal departments, agencies,

and independent establishments of the United States Government.” Additionally, Ms.

Mackool attested that “[u]ntil January 2019, DC Water treated AFRH as a commercial

account, exempted from paying for drinking water, billed on a retrospective pay as you

go basis.” She further attested that “[a]t least once every year, on or about April 15th, DC

Water provides the United States its estimate of the cost of service for the upcoming fiscal

year for each of the United States’ agencies, federal departments, and independent

establishments.” Ms. Mackool further attested that up until 2019, DCWS “had not included

the sewer services provided to AFRH as part of the Federal Cost of Service Estimate

(FCSE) for any fiscal year,” but that “[i]n January 2019, the Department of Customer

Services became aware that AFRH was a federal entity and should be included in the

federal estimate.” Ms. Mackool further attested that DCWS then “prepared a summary of

the costs of sewer services provided to AFRH from FY2010 through FY2017,” which

“were thought to be those for which we could legally recover costs.” She further indicated

that, on January 23, 2019, DCWS “provided this summary of sewer services costs to the

U.S. Treasury as a true-up for sewer services provided to the AFRH and requested

payment for those services,” but that DCWS’s “request was denied.”4

In the record before the court, plaintiff produced a ten-page set of spreadsheets

which appear to be what plaintiff and Ms. Mackool refer to as the “true-up” provided to the

United States Treasury on January 23, 2019 for sewer services and impervious area

4 In a footnote to Ms. Mackool’s April 13, 2021 affidavit, she explained that her “best

recollection is the denial was communicated in a telephone conversation to members of

my staff from the Treasury officials with whom they had been communicating.”

22

charges allegedly incurred by the AFRH. The January 23, 2019 “true-up” is specific to the

AFRH, and is a separate document from the FCSE’s submitted later in 2019, which are

discussed below. The first spreadsheet of the January 23, 2019 “true-up” is titled:

“FY2020 Federal Billing Estimate & FY2017 True-up (For Agencies Appropriations).”

(capitalization and emphasis in original). For the first eight pages of the spreadsheet, the

years listed in the title of each page decreases one fiscal year from the previous page,

with the eighth page titled: “FY2013 Federal Billing Estimate & FY2010 True-up (For

Agencies Appropriations).” (capitalization and emphasis in original). In each of the first

eight pages, for each of the fiscal years for federal billing estimate and true-up indicated

in the title, there are columns named: “Estimated Amount Billed,” “Actual Usage Cost,”

and “Adjustment for . . . Actual Usage Variance,” and are associated with the following

five categories of fees: “WSRF [Water System Replacement Fee],” “METERING FEE,”

“CLEAN RIVERS IAC [Impervious Area Charge (CRIAC)],” “STORMWATER,” and

“RIGHT-OF-WAY FEE.” (capitalization and emphasis in original). Almost all of the

amounts in the “Estimated Amount Billed” columns, however, are left empty, and all of

the amounts in the “Actual Usage Cost” columns are identical to the amounts in the

“Adjusted for . . . Actual Usage Variance” columns. (emphasis in original). For example,

the following WSRF and metering fees are listed in the first spreadsheet page, which is

titled: “FY2020 Federal Billing Estimate & FY2017 True-up (For Agencies

Appropriations):”

The ninth page of the spreadsheet lists the same categories of fees, but focuses on “Pre

FY2010 Past Due Amount[s].” (capitalization and emphasis in original). The tenth page

appears to contain the sum of all previous costs from the document, and lists a final “Total

Past Due” for the charges in the amount of $10,637,264.10 (capitalization and emphasis

in original).

As explained in the April 13, 2021 affidavit of Ms. Mackool, “[o]n or about April 18,

2019, DC Water submitted its FCSE” for the fiscal year 2021, “to the United States Office

of Management and Budget, U.S. Treasury and appropriate officials of federal agencies,

departments, and independent establishments of the United States, including AFRH,

included in the FCSE.” Ms. Mackool further attested that “[o]n July 16, 2019, DC Water

submitted a revised estimate for FY2021 to correct certain formulaic errors that affected

all of DC Water’s calculations throughout the estimate.” Plaintiff has produced both the

initial 2019 FCSE, dated April 15, 2019, as well as the revised, July 16, 2019 submission,

both of which are for the fiscal year 2021.5 Both the April 15, 2019 FCSE and the revised,

5 Plaintiff’s submissions also include another affidavit from Carolyn Mackool, dated

December 18, 2019, in which Ms. Mackool attested that the “[o]n or about April 18, 2019”

FCSE submission was for the 2022 fiscal year, not for the 2021 fiscal year. That the April

15, 2019 FCSE, or revised July 16, 2019 FCSE, provided estimates for the 2022 fiscal

23

July 16, 2019 FCSE include a cover letter, which states, as taken from the July 16, 2019

version:6

This letter serves to formally transmit a revision of the FY 2021 water and

sewer bill for all federal agencies served by the District of Columbia Water

and Sewer Authority (DC Water). We reviewed the previously issued

Federal Cost of Service Estimate for FY2021 and identified some errors,

including the incorrect version of Exhibit V. In addition, there were some

incorrect formulas in Exhibit I. These errors have caused some confusion

and we are reissuing the Cost of Service Estimate for FY2021 with the

appropriate corrections. In the interest of improving our process, minimizing

our risk for data link errors, and providing less redundant information, we

reduced the FY2021 estimate from eleven exhibits to four. This decision

was made in conjunction with the Department of Treasury and our legal

counsel. It is our sincerest hope you find this document easier to understand

and identify the responsibility of each respective agency.

As detailed further in the enclosed documents, the total water and sewer bill

for all federal agencies is approximately $101,518,263.58. This bill is net of

the FY 2018 actual settlement as required by federal law and as further

explained below.

This bill constitutes the basis for appropriation of FY 2021 federal payment

for all services furnished by DC Water in accordance with the DC Public

Works Act of 1954, as amended, and Public Laws 103-334, 107-96 and

108-335. The enclosed detail exhibits accommodate the change to the

legislation, Public Law 111-378, that clarifies federal responsibility for

payment of storm water charges and restricts payment of such storm water

charges from permanent appropriation of the U.S. Treasury. As a result, the

enclosed bill delineates the portion of the appropriation that will be paid from

the U.S. Treasury permanent authorization account and the remaining

balance that will be paid directly from each federal agency account. The

total amount remains the sum of the appropriation required for each agency.

year is in contradiction to the information transmitted either by the original or the revised

2019 FCSE, both of which state that the estimates pertained to fiscal year 2021. Adding

further confusion, plaintiff’s amended complaint states that the “[o]n or about April 18,

2019” FCSE submission was for estimates pertaining to “the upcoming fiscal year,” which

neither would be for the 2022 or for the 2021 fiscal year, but for the 2020 fiscal year. In

supplemental briefing to the court, plaintiff states that its references to the 2019

submissions of its FCSE were for the 2021 fiscal year.

6Aside from the first paragraph added to the cover letter of the July 16, 2019 revised

FCSE, which explains the need for the revision, the July 16, 2019 FCSE cover letter is

substantially similar to the April 15, 2019 FCSE cover letter.

24

Each agency is required to pay the IPAC[7] request they receive from the

Department of Treasury. In the event an agency disputes what is owed, they

should contact the designated billing agent. If adjustments are warranted,

we will correct individual accounts and the outcome will be reflected on the

true-up for the agency. As in previous years, we have included detailed

information, by federal agency and meter, for your reference, and consistent

with federal law, are transmitting a copy of this estimate to all federal

agencies (see enclosed distribution list).

(capitalization in original). Notably, the July 16, 2019 FCSE lists as a “[k]ey assumption[]

for the FY 2021 billing,” that “[t]his year’s adjustment includes billing from 2012 to 2018

for Department of Defense- AFRH in the amount of $7.5 million.” Enclosed with the July

16, 2019 transmission letter is an exhibit which lists the “FY2021 Net Federal Bill

Payment (For Agencies Appropriations),” and provides, with respect to the AFRH, that

the AFRH’s “Total FY2021 Estimate” equals $1,747,090.49; that the AFRH’s “FY18

True-Up,” which, based on the “[k]ey assumption” described in the July 16, 2019 letter,

includes “billing” to the AFRH from 2012 to 2018, equals $7,487,138.27; that the “Total $

FY2021 Bill Amount,” which is the previous two amounts added together, equals

$9,234,228.76, and of that amount, $648,299.31 is for stormwater charges; and that the

“US Treasury Total $ FY2021 Bill” for the AFRH, which is equal to the “Total $ FY2021

Bill Amount” for the AFRH, less AFRH’s stormwater fees, is calculated as

$8,585,929.45. (capitalization and emphasis in original).

DISCUSSION

This case was originally filed in the United States District Court for the District of

Columbia on January 9, 2018, and subsequently transferred from the United States

District Court for the District of Columbia to the United States Court of Federal Claims in

October 2018. In this court, the case was originally assigned to Judge Thomas C.

Wheeler. The case was stayed to allow for plaintiff to submit its 2019 FCSE for the 2021

fiscal year. Once plaintiff had submitted its estimate for the 2021 fiscal year, plaintiff filed

an amended complaint containing four counts. The parties subsequently stipulated to

dismiss the first two counts. Plaintiff’s remaining two counts allege a violation of the 1954

Act, which plaintiff argues created a statutory obligation for the AFRH to make payments

for sewer services rendered by the District, and alleges a claim for quantum meruit and

that AFRH has received valuable sewer services from DCWS without payment.

After the amended complaint was filed, defendant initially filed a motion to dismiss

pursuant to RCFC 12(b)(1) or RCFC 12(b)(6). With respect to the motion to dismiss

pursuant to RCFC 12(b)(6), defendant argues that plaintiff’s amended complaint fails to

state a claim because the 1938 Agreement must be read to prevent DCWS from charging

the AFRH for sewer services. Defendant argues that: (1) the 1938 Agreement was

“unambiguous” and included sewer services free of charge to the AFRH; (2) the laws in

7 Although not defined in the revised July 16, 2019 FCSE, IGPC appears to be an acronym

for “Intra-Governmental Payment and Collection.”

25

effect at the time of the 1938 Agreement treat water and sewer services similarly; (3)

plaintiff’s predecessor-in-interest acknowledged that the 1938 Agreement encompassed

sewer services; and (4) plaintiff’s inaction in attempting to charge AFRH for sewer

services until 2004 constitutes a waiver of plaintiff’s right to now bring suit for payments

plaintiff might have attempted to start recovering as early as 1954. Defendant also

alternatively argues, pursuant to RCFC 12(b)(1), that plaintiff lacks jurisdiction to bring all

but one year of plaintiff’s claims for recovery of payments allegedly due, because “[t]he

District does not allege proper submission of any AFRH sewer charges until April 2019.”

(emphasis in original). As discussed above, plaintiff alleges in its amended complaint that

it has billed the AFRH “at regular intervals” since 2004, but, until 2019, had not ever

included the AFRH in its annual submission of its FCSE.8 Defendant excludes from its

RCFC 12(b)(1) jurisdictional motion, plaintiff’s claim for the recovery of such funds related

to its April 2019 submission of estimates as they pertain to the 2021 fiscal year, but argues

that recovery of such funds nevertheless fails for the reasons discussed in its RCFC

12(b)(6) motion. Defendant also argues that plaintiff lacks jurisdiction to the extent it seeks

to recover impervious area charges, because the 1954 Act, as amended, does not waive

sovereign immunity for such charges. After the parties completed briefing on defendant’s

motion to dismiss, the parties brought cross-motions for summary judgment which

generally tracked the parties’ arguments addressed in the briefing for the motions to

dismiss. The above captioned case was first transferred to another Judge of this court

before ultimately being assigned to the undersigned for resolution during the summary

judgment briefing. After oral argument on the motions to dismiss and for summary

judgment, the court ordered the parties to submit supplemental briefings to explain their

respective positions on the interplay between the 1954 Act and the 1938 Agreement, as

well as to give the parties an opportunity to supplement the record with additional relevant,

but apparently missing, documents. In defendant’s supplemental briefing, defendant

continues to maintain that plaintiff is not entitled to payment for sewer services rendered

because of the 1938 Agreement in which the District, according to defendant, agreed to

provide sewer services, in addition to water services, to AFRH’s predecessor-in-interest

8 In supplemental briefing to the court, plaintiff stated:

On April 15, 2020, DC Water submitted its FCSE for FY2022 to the federal

government for federal entities including the AFRH. The FY2022 for AFRH

includes a True-up for FY 2019 of the actual charges incurred in FY2019

although there was not a prior estimate for the fiscal year charges. On April

15, 2021, DC Water will submit its FCSE for FY2023. This estimate will have

a True-up for of [sic] the actual charges incurred in providing sewer services

to the AFRH in FY2020 although there was not a prior estimate for the fiscal

year charges. The methodology for estimating the cost of services and

True-up are the same for each fiscal year and consistent with DC Water’s

treatment of other federal customers.

(capitalization in original). The court also notes that plaintiff also requests in its

supplemental briefing that the undersigned issue “an Order approving the methodology

for calculating the Federal Cost of Service Estimates for FY2022 and FY2023.”

26

free of charge and in perpetuity in exchange for the permission to build a water distribution

reservoir on the property on which the AFRH is situated. Although the defendant does not

dispute that the 1954 Act generally obligates the United States and its federal entities

situated in the District to pay for sewer services rendered by the District, defendant argues

that the obligation does not apply to the AFRH.

Defendant also does not dispute the general authority of Congress to obligate the

United States to pay for sewer services rendered to the AFRH by the District, or the

authority of Congress to effectively nullify the 1938 Agreement through the passage of

legislation. Defendant argues, however, that “any interpretation of the 1954 Act must

necessarily account for the 1938 agreement,” and, thus, an exception for the AFRH must

be read into the 1954 Act and its subsequent amendments, such that the AFRH is to be

excluded from the general mandate that federal entities are to compensate the District for

sewer services rendered. Defendant argues that congressional intent to uphold the

AFRH’s rights gained from the 1938 Agreement is evidenced by the 1954 Act’s failure to

explicitly “disband the parties’ earlier 1938 Agreement if it wished to eliminate its [the 1938

Agreement’s] protections.” Defendant argues that “harmony” between the 1938

Agreement and the 1954 Act “is further supported by the fact that both parties’ behavior

shows that they understood Congress did not intend to obviate the parties’ 1938

agreement.” Defendant also argues that it would achieve an “absurd result” if the 1954

Act, which, in addition to section 212, mandates, in a similar, but separate, provision,

federal entities to pay for water services, as it does for sewer services, were to be read

to nullify the 1938 Agreement in its entirety, because such an interpretation would also

eliminate AFRH’s right to free water services, which, the parties do not dispute, was

agreed to in the 1938 Agreement. Such nullification of the 1938 Agreement, defendant

argues, would “result in an illusory agreement wherein AFRH gets no benefit, and

resultantly, the District had no right to its easement in the first place.” In plaintiff’s

supplemental briefing, plaintiff maintains that the 1938 Agreement did not include sewer

services free of charge and in perpetuity, but that even if the 1938 Agreement did,

Congress exercised its authority through the enactment of the 1954 Act and subsequent

amendments thereto to obligate all federal entities, including the AFRH, to pay for sewer

services rendered.

Construction and Operation of Section 212 of the 1954 Act, as Currently Amended

The amended provisions of section 212 of the 1954 Act are incorporated into the

D.C. Code at § 34-2112, titled: “Sanitary sewer service charges for United States

government.” Section 212, in its entirety, as currently amended, reads:

(a) The sanitary sewer service charges prescribed herein shall be

applicable to all sanitary sewer services furnished by the sanitary sewage

works of the District through any connection thereto for direct use by the

government of the United States or any department, independent

establishment, or agency thereof, and such charges shall be predicated on

the value of water and water services received by such facilities of the

government of the United States or any department, independent

establishment, or agency thereof from the District water supply system.

27

Payment of the said sanitary sewer service charge shall be made as

provided in subsection (b) of this section.

(b)(1) Beginning in the second quarter of fiscal year 1990, the government

of the District of Columbia shall receive payment for sanitary sewer services

from funds appropriated or otherwise available to the Federal departments,

independent establishments, or agencies. In accordance with the provisions

of paragraphs (2) and (3) of this subsection, one-fourth (25 percent) of the

annual estimate prepared by the District government shall be paid, not later

than the second day of each fiscal quarter, to the District government by the

Secretary of the Treasury from funds deposited by said departments,

establishments, or agencies in a United States Treasury account entitled

“Federal Payment for Water and Sewer Services”. In the absence of

sufficient funds in said account, payment shall be made by the Secretary of

the Treasury from funds available to the [United States Treasury and shall

be reimbursed promptly to the United States Treasury by the][9] respective

user agencies. Payments shall be made to the District government by the

Secretary of the Treasury without further justification, and shall be equal to

one-fourth (25 percent) of the annual estimate prepared by the District

government pursuant to paragraph (2) of this subsection.

(2) by April 15 of each calendar year the District shall provide

the Office of Management and Budget, the Secretary of the

Treasury, and the head of each of the respective Federal

departments, independent establishments, and agencies, for

inclusion in the President’s budget of the respective Federal

departments, independent establishments, or agencies, an

estimate of the cost of service for the fiscal year commencing

October 1st of the following calendar year. The estimate shall

provide the total estimated annual cost of such service and an

itemized estimate of such costs by Federal department,

independent establishment, or agency. The District’s

estimates on a yearly basis shall reflect such adjustments as

are necessary to (A) account for actual usage variances from

the estimated amounts for the fiscal year ending on

September 30th of the calendar year preceding April 15th,

and (B) reflect changes in rates charged for water and sewer

9 The Consolidated Appropriations Act for FY2001 amended section 212(b) of the 1954

Act as follows, “in the third sentence of paragraph (1), by striking ‘United States Treasury

and’ and all that follows through ‘by the.’” The versions of section 212 which are published

on Westlaw, Lexis Nexis, Bloomberg Law, and the D.C. Code website do not strike this

language, and there are no subsequent amendments to section 212 in which such

language is reincluded. The parties, in a joint supplemental submission in response to the

court’s inquiry, confirmed an error in the D.C. Code, contrary to the citations on Westlaw,

Lexis Nexis, Bloomberg Law, and the D.C. Code website.

28

services resulting from public laws or rate covenants pursuant

to water and sewer revenue bond sales.

(3) Each Federal department, independent establishment, or

agency receiving sanitary sewer services in buildings,

establishments, or other places shall pay from funds

specifically appropriated or otherwise available to it, quarterly

and on the first day of each such fiscal quarter, to an account

in the United States Treasury entitled “Federal Payment for

Water and Sewer Services” an amount equal to one-fourth (25

percent) of the annual estimate for said services as provided

for in paragraph (2) of this subsection.

(4) The amount or time period for late payment of charges for

sanitary sewer services involving a building, establishment, or

other place owned by the Government of the United States

imposed by the District of Columbia shall not be different from

those imposed by the District of Columbia on its most favored

customer.

(5) Repealed.

(c) Nothing in this section may be construed to require the District of

Columbia to seek payment for sanitary sewer services directly from any

Federal entity which is under the jurisdiction of a department, independent

establishment, or agency which is required to make a payment for such

services under this section, or to allocate any amounts charged for such

services among the entities which are under the jurisdiction of any such

department, independent establishment, or agency. Each Federal

department, independent establishment, and agency receiving sanitary

sewer services from the District of Columbia shall be responsible for

allocating billings for such services among entities under the jurisdiction of

the department, establishment, or agency, and shall be responsible for

collecting amounts from such entities for any payments made to the District

of Columbia under this section.

D.C. Code § 34-2112 (capitalization and emphasis in original) (brackets and strike-out

represent words which were struck by the Consolidated Appropriations Act for FY2001).

In order to reach a decision in the above-captioned case, the court must interpret

section 212 of the 1954 Act. In a statutory construction analysis, the first step is “to

determine whether the language at issue has a plain and unambiguous meaning with

regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., 534 U.S. 438,

450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)); see also

Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1056 (2019) (quoting Caraco Pharm.

Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012) (“We begin ‘where all such

inquiries must begin: with the language of the statute itself.’” (quoting United States v.

29

Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)))); Jimenez v. Quarterman, 555 U.S.

113, 118 (2009) (“As with any question of statutory interpretation, our analysis begins with

the plain language of the statute.”); Facebook, Inc. v. Windy City Innovations, LLC, 973

F.3d 1321, 1330 (Fed. Cir. 2020) (“Our ‘first step “is to determine whether the language

at issue has a plain and unambiguous meaning with regard to the particular dispute in the

case.”’” (quoting Barnhart v. Sigmon Coal Co., Inc., 534 U.S. at 450 (quoting Robinson v.

Shell Oil Co., 519 U.S. at 340))); Starry Assocs., Inc. v. United States, 892 F.3d 1372,

1377 (Fed. Cir. 2018) Click-To-Call Techs., LP v. Ingenio, Inc., YellowPages.com, LLC,

899 F.3d 1321, 1329 (Fed. Cir. 2018); Starry Assocs., Inc. v. United States, 892 F.3d

1372, 1377 (Fed. Cir. 2018); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 644

(Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2011); Strategic Hous. Fin. Corp. of

Travis Cnty. v. United States, 608 F.3d 1317, 1323 (Fed. Cir.) (“When interpreting any

statute, we look first to the statutory language.”), reh’g and reh’g en banc denied (Fed.

Cir. 2010), cert. denied, 562 U.S. 1221 (2011). “The plainness or ambiguity of statutory

language is determined by reference to the language itself, the specific context in which

that language is used, and the broader context of the statute as a whole.” Robinson v.

Shell Oil Co., 519 U.S. at 341 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991)); see also King v.

Burwell, 576 U.S. 473, 474 (2015) (“[W]hen deciding whether the language is plain, we

must read the words ‘in their context and with a view to their place in the overall statutory

scheme.’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000))). In construing a statute, courts “‘must begin with the language employed by

Congress and the assumption that the ordinary meaning of that language accurately

expresses the legislative purpose.’” Schindler Elevator Corp. v. United States, 563 U.S.

401, 407 (2011) (2011) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009)

(internal quotation marks omitted)). Even “‘[w]hen terms used in a statute are undefined,

we give them their ordinary meaning.’” Schindler Elevator Corp. v. United States, 563

U.S. at 407 (quoting Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)). “‘Beyond

the statute’s text, the traditional tools of statutory construction include the statute’s

structure, canons of statutory construction, and legislative history.’” Bartels Trust for the

Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d 1357, 1361 (Fed. Cir.)

(quoting Bull v. United States, 479 F.3d 1365, 1376 (Fed. Cir. 2007)), reh’g en banc

denied (Fed. Cir. 2010); see also Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566

U.S. at 412 (“[W]e consider each question [of statutory interpretation] in the context of the

entire statute.” (citing Robinson v. Shell Oil Co., 519 U.S. at 341)); Roberts v. Sea-Land

Servs., Inc., 566 U.S. 93, 100 (2012); Bush v. United States, 655 F.3d 1323, 1329 (Fed.

Cir. 2011), cert. denied, 566 U.S. 1021 (2012).

The initial inquiry into the statutory text ceases “if the statutory language is

unambiguous and ‘the statutory scheme is coherent and consistent.’” Barnhart v. Sigmon

Coal Co., 534 U.S. at 450 (quoting Robinson v. Shell Oil Co., 519 U.S. at 340); see also

King v. Burwell, 576 U.S. at 474 (“If the statutory language is plain, we must enforce it

according to its terms.” (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251

(2010)); Sucic v. Wilkie, 921 F.3d 1095, 1098 (Fed. Cir. 2019) (quoting Barnhart v.

Sigmon Coal Co., 534 U.S. at 450); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d at

644; Arko Foods Int’l, Inc. v. United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011)

(“‘[W]here Congress has clearly stated its intent in the language of a statute, a court

30

should not inquire further into the meaning of the statute.’” (quoting Millenium Lumber

Distrib., Ltd. v. United States, 558 F.3d 1326, 1328 (Fed. Cir.), reh’g denied (Fed. Cir.

2009)); Am. Airlines, Inc. v. United States, 551 F.3d 1294, 1300 (Fed. Cir. 2008). Thus,

when the “‘statute’s language is plain, “the sole function of the courts is to enforce it

according to its terms.”’” Johnson v. United States, 529 U.S. 694, 723 (2000) (quoting

United States v. Ron Pair Enters., Inc., 489 U.S. at 241 (quoting Caminetti v. United

States, 242 U.S. 470, 485 (1917))); see also Jimenez v. Quarterman, 555 U.S. at 118;

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); Bartels

Trust for the Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d at 1361

(citing Sharp v. United States, 580 F.3d at 1237); Candle Corp. of Am. v. U.S. Int’l Trade

Comm’n, 374 F.3d 1087, 1093 (Fed. Cir.), reh’g and reh’g denied (Fed. Cir. 2004).

In interpreting the plain meaning of the statute, it is the court’s duty, if possible, to

give meaning to every clause and word of the statute. See Setser v. United States, 566

U.S. 231, 239 (2012) (“Our decision today follows the interpretive rule they invoke, that

we must ‘give effect . . . to every clause and word’ of the Act.” (omission in original)

(quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955))); see also Alaska

Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004) (“It is, moreover, ‘“a

cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,

void, or otherwise insignificant.”’” (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)))); Williams v. Taylor, 529 U.S. 362,

404 (2000) (describing as a “cardinal principle of statutory construction” the rule that every

clause and word of a statute must be given effect if possible); Boeing Co. v. Sec’y of the

Air Force, 983 F.3d 1321, 1327 (Fed. Cir. 2020) (quoting Shea v. United States, 976 F.3d

1292, 1300 (Fed. Cir. 2020) (“[i]t is a ‘cardinal principle of statutory construction that courts

must give effect, if possible, to every clause and word of a statute.’” (quoting Williams v.

Taylor, 529 U.S. at 364))); Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir. 2009).

Similarly, the court must avoid an interpretation of a clause or word which renders other

provisions of the statute inconsistent, meaningless, or superfluous. See Duncan v.

Walker, 533 U.S. at 174 (noting that courts should not treat statutory terms as

“surplusage”). “[W]hen two statutes are capable of co-existence, it is the duty of the courts

. . . to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155

(1976); see also Xianli Zhang v. United States, 640 F.3d 1358, 1368 (Fed. Cir.) (citing

Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1365 (Fed. Cir. 2005)),

reh’g and reh’g en banc denied (Fed. Cir. 2011), cert. denied, 566 U.S. 986 (2012); Hanlin

v. United States, 214 F.3d 1319, 1321 (Fed. Cir.), reh’g denied (Fed. Cir. 2000).

The United States Supreme Court also has held that the specific terms of a statute

supersede general terms within that statute or within another statute that might otherwise

control. See Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228–29 (1957)

(“Specific terms prevail over the general in the same or another statute which otherwise

might be controlling.” (quoting D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932)));

see also Bloate v. United States, 559 U.S. 196, 207 (2010); Bulova Watch Co. v. United

States, 365 U.S. 753, 761 (1961). In addition, the Supreme Court has endorsed “the

‘normal rule of statutory construction’ that ‘identical words used in different parts of the

same act are intended to have the same meaning.’” Gustafson v. Alloyd Co., 513 U.S.

31

561, 570 (1995) (quoting Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342

(1994)); see also Kislev Partners, L.P. ex rel. Bahar v. United States, 84 Fed. Cl. 385,

389, recons. denied, 84 Fed. Cl. 378 (2008).

If a statute is unequivocal on its face or the meaning of the statute is plain, there

is usually no need to resort to the legislative history underlying the statute. See Whitfield

v. United States, 543 U.S. 209, 215 (“Because the meaning of [the statute’s] text is plain

and unambiguous, we need not accept petitioners’ invitation to consider the legislative

history . . . .”), reh’g denied sub nom. Hall v. United States, 544 U.S. 913 (2005); but see

Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1196 (Fed. Cir.) (“Though

‘we do not resort to legislative history to cloud a statutory text that is clear,’ Ratzlaf v.

United States, 510 U.S. 135, 147–48 (1994), we nevertheless recognize that ‘words are

inexact tools at best, and hence it is essential that we place the words of a statute in their

proper context by resort to the legislative history.’” (quoting Tidewater Oil Co. v. United

States, 409 U.S. 151, 157 (1972))), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert.

denied, 544 U.S. 923 (2005). In limited circumstances, legislative history may be helpful

in certain instances “to shed light on what legislators understood an ambiguous statutory

text to mean when they voted to enact it into law.” Bruesewitz v. Wyeth LLC, 562 U.S.

223, 242 (2011) (citing Exxon Mobile Corp. v. Allapatah Servs., Inc., 545 U.S. 546, 568

(2005); see also Xianli Zhang v. United States, 640 F.3d at 1373. Legislative history,

however, does not “trump[] clear text.” Bartels Trust for the Benefit of Cornell Univ. ex rel.

Bartels v. United States, 617 F.3d at 1361 (citing Sharp v. United States, 580 F.3d at

1238; Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 396 (Fed. Cir. 1990)). The

Supreme Court, however, has noted that when it appears that the plain language of a

statute resolves the issue, a court is to “look to the legislative history to determine only

whether there is [a] ‘clearly expressed legislative intention’ contrary to that language,

which would require us to question the strong presumption that Congress expresses its

intent through the language it chooses.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12

(1987) (citing United States v. James, 478 U.S. 597, 606 (1986), abrogated on other

grounds by Cent. Green Co. v. United States, 531 U.S. 425, 436 (2001); Consumer

Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).

The amended section 212 of the 1954 Act, quoted above, provides for procedures

by which the District is to be paid for sewer services rendered to the federal entities

situated in the District. The general instruction appears in section 212(a), which states:

The sanitary sewer service charges prescribed herein shall be applicable to

all sanitary sewer services furnished by the sanitary sewage works of the

District through any connection thereto for direct use by the government of

the United States or any department, independent establishment, or agency

thereof, and such charges shall be predicated on the value of water and

water services received by such facilities of the government of the United

States or any department, independent establishment, or agency thereof

from the District water supply system. Payment of the said sanitary sewer

service charge shall be made as provided in subsection (b) of this section.

D.C. Code § 34-2112(a). As the immediately above-quoted provision states, sanitary

sewer service charges are to be “predicated on the value of water and water services

32

received by” each federal entity. The value of water and water service are provided in the

D.C. Code at section 34-2401.25, titled: “Water and water service supplied for the use of

the government of the United States,” which states, in relevant part:

All water and water services furnished from the District water supply system

through any connection thereto for direct use by the government of the

United States or any department, independent establishment, or agency

thereof, situated in the District, except water and water services furnished

to the United States for the maintenance, operation, and extension of the

water system, shall be paid for at the rates for the furnishing and readiness

to furnish water applicable to other water consumers in the District.

D.C. Code § 34-2401.25. Reading D.C. Code sections 34-2112(a) and 34-2401.25

together, the United States is to pay for all sanitary sewer services rendered to it by the

District, and the cost of such services are to be based on what the District charges the

United States to supply water to the United States, which is equivalent to what the District

charges the District’s public to supply water.

In order for the District to be paid for sewer services rendered to the United States,

there must be compliance with certain prerequisites identified in the provision of

subsection 212(b), as currently amended and incorporated into the D.C. Code at section

34-2112(b). This subsection (b) divides responsibilities into three steps to be undertaken

by: (1) the District, (2) the federal entities which receive sanitary sewer services from the

District, and (3) the Secretary of the Treasury. See D.C. Code at § 34-2112(b)(1)–(3).

These steps are to be complied with annually, and, with respect to the responsibilities of

the federal entities and the Secretary of the Treasury, actions are required on a quarterly

basis.

Starting with the instructions to the District, which are set forth in section 212(b)(2),

“[b]y April 15 of each calendar year,” the District is to produce annual estimates of sewer

services used by the federal government “for the fiscal year commencing October 1st of

the following calendar year.” D.C. Code § 34-2112(b)(2). By way of example, by April 15,

2019, the District was to have produced its estimates for the fiscal year beginning on

October 1, 2020, which, for purposes of the federal government’s budget, is the fiscal

year of 2021. See Budget of the United States, available at https://www.usa.gov/budget

(last visited Sept. 10, 2021) (“The government’s fiscal year runs from October 1 of one

year to September 30 of the next.”). Section 212(b)(2) also provides specific instructions

to the District with respect to the format of the District’s production of estimates. See D.C.

Code § 34-2112(b)(2). Additionally, section 212(b)(2) states that the estimates are to be

provided to “the Office of Management and Budget, the Secretary of the Treasury, and

the head of each of the respective Federal departments, independent establishments,

and agencies, for inclusion in the President’s budget of the respective Federal

departments, independent establishments, or agencies.” Id. Section 212(b)(2) also

requires the format of the estimates to include “the total estimated annual cost of such

service and an itemized estimate of such costs by Federal department, independent

establishment, or agency.” Id. Section 212(b)(2) also requires that the estimates produced

be adjusted

33

as are necessary to (A) account for actual usage variances from the

estimated amounts for the fiscal year ending on September 30th of the

calendar year preceding April 15th, and (B) reflect changes in rates charged

for water and sewer services resulting from public laws or rate covenants

pursuant to water and sewer revenue bond sales.

Id. Therefore, for example, taking estimates which were to have been produced by the

District on April 15, 2019, such estimates were to have accounted for any differences in

usage from the estimates supplied for the fiscal year 2018, which estimates were to have

been produced by the District by April 15, 2016.

In accordance with the instructions in section 212(b)(2), and, again, using April 15,

2019 as an example, the District was to comply with the following: (1) the estimates

produced by the District by April 15, 2019 were to have been for the fiscal year 2021; (2)

the estimates were to have been produced to the Office of Management and Budget, the

Secretary of the Treasury, and the head of each of the respective federal entities located

within the District to receive such services for the fiscal year 2021; (3) the estimates were

to have included the total amount estimated to be due for all sanitary sewer services

rendered to the United States government in the fiscal year 2021, as well as that total

itemized by each federal department, independent establishment, and agency receiving

such sewer services; and (4) the estimates were to have been adjusted to reflect the

actual usage variances from the estimates which were to have been submitted for the

fiscal year 2018 and which were to have been submitted by April 15, 2016, as well as any

changes in rates resulting from public laws or rate covenants entered into pursuant to

water and sewer revenue bond sales.

Section 212(b)(3) contains instructions for each of the federal entities which are to

receive sanitary sewer services within the District. The instructions delegated to each

federal entity are triggered by the District’s production of estimates, discussed

immediately above. According to section 212(b)(3):

Each Federal department, independent establishment, or agency receiving

sanitary sewer services in buildings, establishments, or other places shall

pay from funds specifically appropriated or otherwise available to it,

quarterly and on the first day of each such fiscal quarter, to an account in

the United States Treasury entitled “Federal Payment for Water and Sewer

Services” an amount equal to one-fourth (25 percent) of the annual estimate

for said services as provided for in paragraph (2) of this subsection.

D.C. Code § 34-2112(b)(3) (capitalization in original). For example, on October 1, 2020,

each federal entity was to have paid to the above-referenced Treasury account one-fourth

of its estimated, allocated amount for the fiscal year 2021, which amount, as discussed

above, was to have been produced by the District by April 15, 2019. An additional one-

fourth payment of the estimated fiscal year 2021 was to have been submitted by each

federal entity by January 1, 2021, April 1, 2021, and July 1, 2021, respectively. As also

discussed above, the estimates produced for the fiscal year 2021 were to have included

an adjustment representing the actual costs of services from the fiscal year 2018, and,

therefore, the payments starting on October 1, 2020 by each federal entity also were to

have reflected such adjustments.

34

Section 212(b)(3) contains the instructions for the Secretary of the Treasury.

Although section 212(b)(2) charges each Federal entity with the primary responsibility to

pay the estimated funds, section 212(b)(1) contemplates that it is the Secretary of the

Treasury who is charged with executing the actual payment of the estimated funds to the

District. See D.C. Code § 34-2112(b)(1). Section 212(b)(1) states:

In accordance with the provisions of paragraphs (2) and (3) of this

subsection, one-fourth (25 percent) of the annual estimate prepared by the

District government shall be paid, not later than the second day of each

fiscal quarter, to the District government by the Secretary of the Treasury

from funds deposited by said departments, establishments, or agencies in

a United States Treasury account entitled “Federal Payment for Water and

Sewer Services”.

Id. Additionally, in the “absence of sufficient funds” in the above-referenced United States

Treasury account, section 212(b)(1) instructs that “payment shall be made by the

Secretary of the Treasury from funds available to the United States Treasury and shall be

reimbursed promptly to the United States Treasury by the respective user agencies.”10 Id.

Furthermore, section 212(b)(1) states that “[p]ayments shall be made to the District

government by the Secretary of the Treasury without further justification, and shall be

equal to one-fourth (25 percent) of the annual estimate prepared by the District

government pursuant to paragraph (2) of this subsection.” Id.

Reconciliation Between the 1938 Agreement and Section 212 of the 1954 Act, as

Currently Amended and Codified at D.C. Code § 34-2112

The parties’ dispute in the above-captioned case revolves around the effect of the

1938 Agreement in light of section 212 of the 1954 Act, as currently amended. As

discussed above, in the 1938 Agreement, the parties’ predecessors-in-interest agreed

that, in exchange for the Soldiers’ Home’s permission for the District to install and access

a water reservoir on the Soldiers’ Home’s premises “for use in connection with the water

supply system,” the Soldiers’ Home would have “the perpetual right to use water from the

water supply system of the District of Columbia, as may be needed, for the purpose of

said Home, including water for fire protection purposes without compensation therefore

at any time.” Defendant argues that such language in the 1938 Agreement must be

interpreted to allow the AFRH, the Soldiers’ Home’s successor-in-interest, to receive, in

addition to water services free of charge and in perpetuity, sewer services free of charge

also in perpetuity. Plaintiff disagrees that uncompensated sewer services were included

in the 1938 Agreement. Moreover, plaintiff argues, regardless of what was agreed to in

the 1938 Agreement, section 212 of the 1954 Act obligates each federal entity situated in

the District, including the AFRH, to pay for sewer services rendered to it by the District.

As noted above, defendant does not dispute that Congress possesses the authority to

enact legislation which could nullify the 1938 Agreement and obligate the AFRH to pay

for sewer services rendered. As further noted above, defendant also does not dispute

that section 212 of the 1954 Act mandates payment from federal entities receiving

10As discussed above, the crossed-out language was stricken by the Consolidated

Appropriations Act for FY2001.

35

sanitary sewer services within the District, but argues that the AFRH is excepted from

such a mandate. Defendant argues that any legislation subsequent to the 1938

Agreement would have had to explicitly evidence congressional intent to nullify the 1938

Agreement. Defendant further argues that section 212 of the 1954 Act does not evidence

explicit congressional intent to nullify the 1938 Agreement because section 212 makes

no reference the AFRH or the 1938 Agreement.

The United States Supreme Court recently discussed the authority of Congress to

mandate the government to pay compensation through the enactment of legislation. See

generally Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020). In Maine

Community Health Options, the Supreme Court ruled on the effect of a statute which, on

its face, appeared to mandate the government to reimburse health insurers participating

in the national health exchanges created by the Patient Protection and Affordable Care

Act (ACA) under certain circumstances. See id. at 1320–21. The Supreme Court found

that “Congress can create an obligation directly through statutory language.” Id. at 1321.

According to the Supreme Court, the statute at issue in Maine, section 1342 of the ACA

“imposed a legal duty of the United States that could mature into a legal liability through

the insurers’ actions—namely, their participating in the healthcare exchanges.” Me. Cmty.

Health Options v. United States, 140 S. Ct. at 1320. The Supreme Court explained:

This conclusion flows from § 1342’s express terms and context. See, e.g.,

Merit Management Group, LP v. FTI Consulting, Inc., 583 U.S. ----, ----, 138

S. Ct. 883, 893, 200 L.Ed.2d 183 (2018) (statutory interpretation “begins

with the text”). The first sign that the statute imposed an obligation is its

mandatory language: “Shall.” “Unlike the word ‘may,’ which implies

discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware

Technologies, Inc. v. United States, 579 U.S. ----, ----, 136 S. Ct. 1969,

1977, 195 L.Ed.2d 334 (2016); see also Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S. Ct. 956, 140 L.Ed.2d 62

(1998) (observing that “‘shall’” typically “creates an obligation impervious to

. . . discretion”).

Me. Cmty. Health Options v. United States, 140 S. Ct. at 1320. The Supreme Court in

Maine observed that section 1342 of the ACA used the “shall” “command three times,”

and that Congress opted to use the term “shall” instead of the term “may,” despite the use

of the latter term in section 1342’s “adjacent provisions.” Me. Cmty. Health Options v.

United States, 140 S. Ct. at 1320.

Related to the above-captioned case, section 212 of the 1954 Act, as currently

amended, uses the term “shall” fifteen times.11 By way of example, and relevant to the

federal government’s obligations, section 212 of the 1954 Act uses the term “shall” to

instruct: (1) that the “sanitary sewer service charges prescribed herein shall be applicable

to all sanitary sewer services” rendered by the District to federal entities of United States

situated in the District; (2) that the District “shall receive payment for sanitary sewer

services from funds appropriated or otherwise available to” the federal entities situated in

11The term “shall” also appears one time in the text stricken by the Consolidated

Appropriations Act for FY2001, discussed above.

36

the District; (3) that “[e]ach” federal entity “shall pay” the sanitary sewer service charges

into the named United States Treasury account “from funds specifically appropriated to

it;” (4) that, even in absence of sufficient funds in the named Treasury account, “payments

shall be made” to the District “by the Secretary of the Treasury;” and (5) that “[p]ayments

shall be made to the District government by the Secretary of the Treasury without further

justification.” D.C. Code § 34-2112 (all emphasis added). The term “may” is used only

once in section 212, appearing in section 212(c), to indicate that “[n]othing in this section

may be construed to require” the District of Columbia “to seek payment for sanitary sewer

services directly from any Federal entity which is under the jurisdiction of a department,

independent establishment, or agency which is required to make a payment for such

services under this section.” D.C. Code § 34-2112(c) (emphasis added).

Given the use of the term “shall” fifteen times in section 212 of the 1954 Act, the

court finds that section 212, as currently amended and codified in the D.C. Code at section

34-2112, can create “a legal duty of the United States” that matures into a “legal liability”

if not fulfilled. See Maine Cmty. Health Options v. United States, 140 S. Ct. at 1320. As

was the case in Maine, however, in which the legal liability was contingent upon the

“insurers’ actions—namely, their participating in the healthcare exchanges,” this court

finds that the legal liability imposed upon the United States by section 212 of the 1954

Act is contingent upon the “actions” of the District, namely, the District’s mandatory

production of its annual estimates, or what the parties refer to as the District’s annual

FCSE submission.

As indicated above, section 212(b)(2) of the 1954 Act, as amended, instructs that

the District “shall” comply with the following: (1) by April 15 of each year, the District must

produce estimates of the costs to render sanity sewer services to federal entities in the

District for the fiscal year beginning the following calendar year; (2) such estimates must

be produced to the Office of Management and Budget, the Secretary of the Treasury, and

the head of each of the respective federal entity within the District receiving such services;

(3) such estimates must indicate the total amount estimated to be due for all sanitary

sewer services rendered to the United States government for the relevant fiscal year, as

well as that total itemized by each federal entity to receive such sewer services; and (4)

such estimates must be adjusted to reflect the actual usage variances from the estimates

for the fiscal year preceding April 15th, as well as any changes in rates resulting from

public laws or rate covenants entered into pursuant to water and sewer revenue bond

sales. See D.C. Code § 34-2112(b)(2). If the District does not timely produce its statutorily

required estimates to the various federal entities receiving sanitary sewer services within

the District, as well as to the Secretary of the Treasury and the Office of Management

and Budget, the issue becomes whether the subsequent obligations of a federal entity,

such as the AFRH, are triggered. A federal entity receiving sanitary sewer services from

the District would have great difficulty to be able to determine what the federal entity would

be obligated to pay into the named Treasury account, and, in the event of a federal entity’s

nonpayment of the proper amount into the Treasury account, the Secretary of the

Treasury would also have great difficulty to know what amount is due to be paid to the

District. Therefore, unless the District first completes its statutory obligations, as set forth

in section 212(b)(2) of the 1954 Act, to properly inform the United States of its estimated

sanitary sewer service charges, the United States’ payments equal to such estimated

37

amounts for sanitary sewer services, as set forth in sections 212(b)(1) and (3), do not

mature into a legal liability for the United States to pay such estimated sanitary sewer

service charges to the District.

Aside from the above condition that, in order to receive payment, the District must

comply with all the instructions set forth in section 212(b)(2) of the 1954 Act, as currently

amended, with respect to its production of estimates, section 212 contains no other

contingencies or exceptions which would permit any federal entity the discretion not to

execute the required payments into the named Treasury account, or which would permit

the Secretary of the Treasury the discretion not to execute the required payments to the

District. By the plain language of section 212, there is no exemption for a federal entity,

such as the AFRH which receives sanitary sewer services delivered by the District, from

submitting the required payments into the named Treasury account. To the contrary, “[t]he

sanitary sewer service charges” in section 212 “shall be applicable to all sanitary sewer

services furnished by the sanitary sewage works of the District through any connection

thereto for direct use by the government of the United States or any department,

independent establishment, or agency thereof,” see D.C. Code § 34-2112(a) (emphasis

added), and “[e]ach Federal department, independent establishment, or agency receiving

sanitary sewer services in buildings, establishments, or other places shall pay from funds

specifically appropriated or otherwise available to it, quarterly and on the first day of each

such fiscal quarter,” into the named Treasury account, for payment to the District. See id.

§ 34-2112(b)(2) (emphasis added). Although defendant argues that Congress would have

had to explicitly subject the AFRH to make sanitary sewer service payments, or otherwise

explicitly nullify the 1938 Agreement so as to subject the AFRH to make sanitary sewer

service payments, such a reading of section 212 would be in direct contradiction with

section 212’s express, catchall instructions that the District is to be paid for all sanitary

sewer services rendered, and that each department, independent establishment, or

agency of the United States is to pay for all such services it receives. See King v. Burwell,

576 U.S. at 474 (“If the statutory language is plain, we must enforce it according to its

terms.” (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. at 251); Sucic v. Wilkie,

921 F.3d at 1098 (quoting Barnhart v. Sigmon Coal Co., 534 U.S. at 450); Bettcher Indus.,

Inc. v. Bunzl USA, Inc., 661 F.3d at 644; see also Arko Foods Int’l, Inc. v. United States,

654 F.3d at 1364 (quoting Millenium Lumber Distrib., Ltd. v. United States, 558 F.3d at

1328); Am. Airlines, Inc. v. United States, 551 F.3d at 1300.

This court, therefore, finds that provided the proper furnishing of estimates by the

District occurs, section 212 of the 1954 Act creates a mandatory obligation for federal

entities within the District, including the AFRH, to pay for sanitary sewer services rendered

by the District. Section 8 of Article I of the Constitution vests explicit authority in Congress

“[t]o exercise exclusive legislation in all cases whatsoever, over” the District of Columbia.

See U.S. Const. art 1, § 8. Therefore, despite the silence in the 1938 Agreement as to

the provision of sewer services, free or not, or in perpetuity or not, and even if the 1938

Agreement could be read to include the District’s providing sanitary sewer services

without the AFRH having to pay, the 1938 Agreement was always going to be subject to

potential, subsequently enacted legislation by Congress concerning the obligations of the

United States related to sewer charges by the District.

38

As noted above, in the case currently before the court, the District only seeks to

be paid sewer services charges, not paid for water service charges. The parties do not

dispute that free water services were agreed to in the 1938 Agreement. In very similar

language to section 212 of the 1954 Act, section 106 of the 1954 Act, as currently

amended and incorporated into the D.C. Code at § 34-2401.25 (2021), requires that all

federal entities of the United States within the District, including the AFRH, make

payments for water and water services rendered to it by the District. Section 106(a) of the

1954 Act provides, as currently amended and codified at D.C. Code § 34-2401.25:

All water and water services furnished from the District water supply system

through any connection thereto for direct use by the government of the

United States or any department, independent establishment, or agency

thereof, situated in the District, except water and water services furnished

to the United States for the maintenance, operation, and extension of the

water system, shall be paid for at the rates for the furnishing and readiness

to furnish water applicable to other water consumers in the District.

Id. § 34-2401.25(a). Section 106 also states:

Each Federal department, independent establishment, or agency receiving

water services in buildings, establishments, or other places shall pay from

funds specifically appropriated or otherwise available to it, quarterly and on

the first day of each such fiscal quarter, to an account in the United States

Treasury entitled “Federal Payment for Water and Sewer Services” an

amount equal to one-fourth (25 percent) of the annual estimate for said

services as provided for in paragraph (2) of this subsection.

Id. § 34-2401.25(b)(1). Section 106 of the 1954 Act, as currently amended, also requires

the proper furnishing of estimates by the District, in the same fashion as Section 212 of

the 1954 Act, as currently amended:

By April 15 of each calendar year the District shall provide the Office of

Management and Budget, the Secretary of the Treasury, and the head of

each of the respective Federal departments, independent establishments,

and agencies, for inclusion in the President's budget of the respective

Federal departments, independent establishments, or agencies, an

estimate of the cost of service for the fiscal year commencing October 1st

of the following calendar year. The estimate shall provide the total estimated

annual cost of such service and an itemized estimate of such costs by

Federal department, independent establishment, or agency. The District's

estimates on a yearly basis shall reflect such adjustments as are necessary

to (A) account for actual usage variances from the estimated amounts for

the fiscal year ending on September 30th of the calendar year preceding

April 15th, and (B) reflect changes in rates charged for water and sewer

services resulting from public laws or rate covenants pursuant to water and

sewer revenue bond sales.

Id. § 34-2401.25(b)(2).

39

Prior to the 1938 Agreement, as well as prior to the 1954 Act, it appears that the

United States was not required to pay for either water or sewer services rendered by the

District. As noted above, defendant tries to argue that reading the 1954 Act to obligate

the AFRH’s payment for both water and sewer services renders the 1938 Agreement an

illusory agreement, because, according to defendant, the AFRH would then have

received nothing in return for having permitted the District an easement to build and

access a water reservoir on its premises. As explained, however, in the documents of

correspondence between the District and the AFRH leading up to the 1938 Agreement,

the District identified building a water reservoir on the grounds of the AFRH as necessary

for the proper operation of the water supply system throughout the District. As discussed

above, in a January 6, 1938 letter from the President of the Board of Commissioners of

the District, the Honorable. Melvin C. Hazen, to the Governor of the Soldiers’ Home, Major

General Frederick W. Coleman, the Honorable Melvin C. Hazen stated:

In view of the absolute necessity of ample water supply at adequate

pressure, not only for Federal institutions but also in the interest of the

general public welfare, your renewed consideration of our request for

permission to locate a vitally important storage reservoir on high ground

within the territory under the jurisdiction of the Board of Commissioners of

the United States Soldiers’ Home is requested.

Our renewed request that you grant this permission would not be made but

for the fact that the proposed site is the only one considered feasible. The

engineers of the District of Columbia Water Division have made a

comprehensive survey of all possible sites for a reservoir and after

exhaustive study have reluctantly reached the conclusion that all

contemplated alternates are impracticable.

The necessity of the water reservoir also was acknowledged by a member of the Board

of Commissioners of the Soldiers’ Home, prior to the letter from the Honorable Melvin C.

Hazen. As noted above, the record reflects that General Pillsbury acknowledged at the

October 25, 1937 Board of Commissioners meeting:

I have gone into the matter and I believe without any question this proposed

installation is necessary to safe-guard the water supply of the District of

Columbia in the increasing drain and demand on the service. The increased

water demand is such that the water is filtered at the McMillan plant here at

an excessive rate. This installation is designed to offer a reserve supply so

that the filters could be run at the regular rate in the day time and the surplus

water filtered at night could be drawn on during the following day. There is

an emergency in the water supply of the District that I think makes this

installation necessary. The only reasonable solution is the installation of the

reservoir so as to afford a reserve supply.

Therefore, permission by the Soldiers’ Home for the District to build the water reservoir

was a direct benefit to the United States and its government buildings, including the

Solders’ Home, because, once the water reservoir was built, the Soldiers’ Home, as well

as other government entities in the District, would not be affected by an inadequately

40

constructed and operated water supply system, and at that time memorialized the

provision of free water to the AFRH. Moreover, that the 1938 Agreement always remained

subject to changes at a later time as a result of legislation subsequently enacted by

Congress that might obligate the AFRH to pay for both water and sewer services, does

not make the 1938 Agreement illusory merely because such legislation ultimately came

to fruition. In its authority over matters concerning the District, Congress had, and has,

the discretion to include, or not to include, mandatory language in sections 106 and 212

of the 1954 Act. As currently amended by Congress, the AFRH, along with all other United

States entities situated within the District receiving water and sewer services, are required

to pay for water and sewer services received, in accordance with the express provisions

of the 1954 Act.

The District’s Compliance with the Submission Requirements of Section 212 of the 1954

Act, as Currently Amended

Plaintiff’s amended complaint alleges: “Beginning in 2004, and at regular intervals

since, DC Water has billed the AFRH for sewer services provided by DC Water.” At oral

argument, plaintiff’s counsel of record explained that DCWS had been sending “monthly

bills” to the AFRH, although only two actual billings were produced for inclusion in the

record before the court. Plaintiff’s submissions to the court also include a “true-up”

statement which the District alleged was sent to the Treasury on January 23, 2019, which

defendant does not dispute, in which plaintiff allegedly provided the costs of what the

District claimed were “Actual” usage fees incurred by the AFRH for sewer services,

including certain impervious area charges, organized by fiscal years, from the fiscal years

of 2017 to 2010, as well as for charges for “PRE FY2010.” (capitalization and emphasis

in original). Plaintiff’s amended complaint also states: “At least once every year, on or

before April 15th, DC Water provides the United States its estimate of the cost of service

for the upcoming fiscal years for each of the United States’ agencies, federal department,

and independent establishments,” and that the estimate “includes adjustments to account

for actual usage variances from its estimated amounts and changes in rates charged for

water and sewer services resulting from public laws or rate covenants pursuant to water

and sewer revenue bond sales.” Plaintiff, however, concedes that it did not include the

AFRH in its annual FCSE until the District’s April 15, 2019 FCSE submission for the 2021

fiscal year. The record before the court includes the April 15, 2019 FCSE, as well as a

July 16, 2019 revision of the April 15, 2019 FCSE, both of which include sewer service

charges the District estimated it would provide in the 2021 fiscal year to the AFRH, as

well as water and sewer service charges the District estimated it would provide to many

other United States entities situated within the District for the 2021 fiscal year. The April

15, 2019 FCSE and the July 16, 2019 revision reflect that those documents were

submitted to the Office of Management and Budget, as well as to the Department of

Treasury. Plaintiff also states that the submissions were sent to the AFRH. Defendant

does not dispute that the April 15, 2019 FCSE, or the July 16, 2019 revision of the April

15, 2019 FCSE, were sent to various entities of the United States, including the AFRH,

nor does defendant dispute that original and revised 2019 FCSE for the 2021 fiscal year

were sent on April 15, 2019, and July 16, 2019, respectively. In addition, both the April

15, 2019 FCSE and the July 16, 2019 revision included, with respect to the AFRH, an

adjustment to account for an alleged amount owed due to “billing from 2012 to 2018.”

41

As discussed above, this court has determined that section 212 of the 1954 Act,

as currently amended and codified at D.C. Code § 34-2112, created mandatory payment

obligations for the AFRH, as well as for each federal entity receiving sanitary sewer

services provided by the District, contingent upon the District’s proper production and

presentation of fiscal year estimates, as set forth in section 212 of the 1954 Act, as

currently amended and codified at D.C. Code in section 34-2112. As indicated above, the

District’s production and presentation of annual estimates “shall” conform to the following

instructions: (1) by April 15 of each year, the District is to produce estimates of the costs

to render sanity sewer services to the federal entities in the District for the fiscal year

beginning the following calendar year; (2) such estimates are to be produced to the Office

of Management and Budget, the Secretary of the Treasury, and the head of each of the

respective federal entity within the District to receiving such services; (3) such estimates

are to indicate the total amount estimated to be due for all sanitary sewer services

rendered to the United States government for the relevant fiscal year, as well as that total

itemized by each federal entity to receive such sewer services; and (4) such estimates

are to be adjusted to reflect the actual usage variances from the estimates for the fiscal

year preceding April 15th, as well as any changes in rates resulting from public laws or

rate covenants entered into pursuant to water and sewer revenue bond sales. See D.C.

Code § 34-2112(b)(2).

The record before the court does not indicate that before 2019 plaintiff included in

its annually submitted FCSE any estimated costs of services to account for usage by the

AFRH, despite multiple opportunities and requests from this court to submit such

evidence. Although plaintiff has alleged it made submissions of monthly billings for sewer

services to the AFRH since 2004, as well as the submission of a “true-up” sent to the

Treasury on January 23, 2019, for various charges incurred by the AFRH from fiscal years

2017 to 2010 and earlier, those submissions did not comply with the requirements in

section 212 that the District was to have submitted such charges prospectively, and by

April 15th, on an annual basis, not only to AFRH, but to the Secretary of the Treasury, as

well as to the Office of Management and Budget for inclusion in the President’s budget

for the AFRH. See D.C. Code § 34-2112(b)(2). Because plaintiff’s attempts to bill the

AFRH for sewer services prior to 2019 were not in compliance with section 212’s

mandatory submission requirements, the United States is not obligated retroactively to

pay for such sanitary sewer services alleged by plaintiff to be retrospectively owed.

The only instance in the record before the court in which plaintiff appears to have

complied with section 212’s mandatory submission requirements with respect to the

AFRH was in 2019, as described above, when the District submitted its 2019 FCSE for

the fiscal year 2021, on April 15, 2019, and then submitted a revised version of the 2019

FCSE for the fiscal year 2021 on July 16, 2019. Plaintiff’s April 15, 2019 FCSE submission

was in compliance with the statutory submission requirements in section 212, in that: (1)

it was submitted “by April 15” of 2019; (2) it included sanitary sewer service charges

estimated to be due for the fiscal year 2021; and (3) it was submitted to “the Office of

Management and Budget, the Secretary of the Treasury, and the head of” the AFRH.

Plaintiff, therefore, can be entitled to the costs of sanitary sewer services estimated to be

due for the 2021 fiscal year, and an amount equivalent to one-fourth of such costs should

have been included in the AFRH’s deposit into the “Federal Payment for Water and Sewer

42

Services” Treasury account on October 1, 2020, January 1, 2021, April 1, 2021, and July

1, 2021, respectively, and such amounts should have been included in the executed

payments by the Secretary of the Treasury to the District on October 2, 2020 January 2,

2021, April 2, 2021, and July 2, 2021, respectively.

As discussed above, plaintiff’s 2019 FCSE for the 2021 fiscal year included

adjustments to the AFRH’s fiscal year 2021 estimated sewer service charges for “billing

from 2012 to 2018 for Department of Defense- AFRH in the amount of $7.5 million.”

Plaintiff, however, is not entitled to adjustments for past years with respect to the AFRH

because the District did not include in its annual estimates, any estimated charges due

for the AFRH. Section 212(b)(2) of the 1954 Act provides that “[t]he District’s estimates

on a yearly basis shall reflect such adjustments as are necessary to (A) account for actual

usage variances from the estimated amounts for the fiscal year ending on September

30th of the calendar year preceding April 15th.” D.C. Code § 34-2112(b)(2). In the case

of plaintiff’s 2019 annual submission for the 2021 fiscal year, section 212(b)(2) required

the District to adjust its 2021 fiscal year annual estimates to account for the difference

between the United States’ actual cost of usage for sanitary sewer services in the 2018

fiscal year from what the District estimated was to be the cost of usage for the 2018 fiscal

year. Because the District did not submit any sanitary sewer service charges estimated

to be due for the AFRH in its annual fiscal year 2018 submission, or any other prior year

before its submission of the 2019 FCSE, and, subsequently, did not receive any payments

from the AFRH associated with its 2018 fiscal year submission, plaintiff now would not be

entitled to an adjustment of its 2021 fiscal year estimates.

Entitlement to Impervious Area Charges

In its amended complaint, plaintiff included a request for payment of “sewer service

and impervious area charges” by the AFRH. As indicated above, the DCWS website

provides the following explanation of its impervious area charges:

Impervious surfaces such as rooftops, paved driveways, patios, and parking

lots are major contributors to stormwater runoff entering the District’s

combined sewer system. This adds significantly to pollution in the Anacostia

and Potomac Rivers and Rock Creek.

The Clean Rivers Impervious Area Charge (CRIAC) is a fair way to

distribute the cost of maintaining storm sewers and protecting g area

waterways because it is based on a property’s contribution of rainwater to

the District’s sewer system. Because charges are based on the amount of

impervious area on a property, owners of large office buildings, shopping

centers and parking lots will be charged more than owners of modest

residential dwellings.

All residential, multi-family and non-residential customers are billed a

CRIAC. The charge is based on an Equivalent Residential Unit (ERU). An

ERU is a statistical median of the amount of impervious surface area in a

single-family residential property, measured in square feet.

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Available at https://www.dcwater.com/impervious-area-charge.

Plaintiff’s amended complaint states:

Beginning in 2004, and at regular intervals since, DC Water has billed AFRH

for sewer services provided by DC Water to AFRH-W at the rates set by the

DC Retail Water and Sewer Rates Committee and for Impervious Surface

Area charges (“IAC”) that are part and parcel of sewer services.

(capitalization in original; footnote omitted).

In defendant’s motion to dismiss, defendant states:

The District’s first amended complaint relies on the D.C. Public Works Act

of 1954 as the jurisdictional basis for the District’s claim for stormwater

charges. The District’s reliance is misplaced because section 212 is

explicitly limited to “sanitary sewer service charges,” and section 201 [of the

1954 Act] differentiates between “sanitary sewage” and “stormwater

sewage.” The District’s impervious surface area charges relate to

stormwater sewage, not sanitary sewage. See DCMR § 556.1, 3, 5,

(Stormwater Fees); 21 DCMR § 4101.3.

(capitalization in original; brackets added; internal references omitted). Defendant further

argues that “[t]he substantive law the District must rely on for its claim for stormwater

charges is 33 U.S.C. § 1323,” and notes “the obvious applicability of 33 U.S.C. § 1323 to

stormwater.” The statute at 33 U.S.C. § 1323 (2018), enacted as part of the Federal

Facilities Section of the Federal Water Pollution Control Act Amendments of 1972, Pub.

L. No. 92–500, 86 Stat. 816 (the Clean Water Act), states, as currently amended, in

relevant part:

(a) Compliance with pollution control requirements by Federal entities

Each department, agency, or instrumentality of the executive, legislative,

and judicial branches of the Federal Government (1) having jurisdiction over

any property or facility, or (2) engaged in any activity resulting, or which may

result, in the discharge or runoff of pollutants, and each officer, agent, or

employee thereof in the performance of his official duties, 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 payment of reasonable

service charges. . . . This subsection shall apply notwithstanding any

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

rule of law. . . .

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(c) Reasonable service charges

(1) In general

For the purposes of this chapter, reasonable service charges

described in subsection (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 facility); and

(B) used to pay or reimburse the costs

associated with any stormwater management

program (whether associated with a separate

storm sewer system or a sewer system that

manages a combination of stormwater and

sanitary waste), including the full range of

programmatic and structural costs attributable

to collecting 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.

(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 instrumentality of

the executive, legislative, and judicial branches

of the Federal Government, as described in

subsection (a), shall not be obligated to pay or

reimburse any fee, charge, or assessment

45

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. (emphasis in original). Defendant in the above-captioned case, however, argues that

because plaintiff’s amended complaint does not assert 33 U.S.C. § 1323 as a basis for

entitlement to stormwater charges, “the portion of the District’s complaint seeking

stormwater charges should be dismissed pursuant to RCFC 12(b)(6).” Defendant also

cites to DeKalb County, Georgia v. United States, 108 Fed. Cl. 681 (2013), in which a

Judge of this court found that 33 U.S.C. § 1323, as amended in 1977, waived the United

States’ sovereign immunity for stormwater assessments considered service fees, but did

not waive such immunity for stormwater assessments considered taxes until 33 U.S.C.

§ 1323 was subsequently amended in 2011, after which sovereign immunity for

stormwater assessments considered taxes was waived. In DeKalb County, plaintiff,

DeKalb County, was attempting to collect DeKalb County “stormwater utility charges”

prior to 2011. See DeKalb Cnty., Ga. v. United States, 108 Fed. Cl. at 687. The Judge in

DeKalb County determined DeKalb County was not entitled to such stormwater

assessments because the DeKalb the court found that such charges were to be

considered taxes, not fees. See generally id. at 694–710.

In plaintiff’s response to defendant’s motion to dismiss, plaintiff disagrees with

defendant that section 212 of the 1954 Act’s mandate does not include stormwater

charges. Relying on the definitions provided in section 201 the 1954 Act, plaintiff argues

that the charges mandated in section 212 of the 1954 Act “are applicable ‘to all sanitary

sewage works of the District.’” (emphasis added by plaintiff) (citing subsection 212(a) of

the 1954 Act). Plaintiff continues:

“Sanitary sewage works” means “a system of sanitary and combined

sewers, appurtenances, pumping stations, and treatment works for

conveying, treating, and disposing of sanitary sewage.” “Combined sewer”

means “a sewer which carries both sanitary sewage and stormwater

sewage.” “Stormwater sewage” means “liquid flowing in sewers resulting

directly from precipitation.”

(emphasis added by plaintiff; internal citations and footnotes omitted). Plaintiff also

disagrees with defendant’s assertion that 33 U.S.C. § 1323 is the proper avenue to seek

stormwater charges, stating:

Contrary to the United States’ position, the Federal Facilities Pollution

Control provision of the Clean Water Act (“Federal Facilities Section”), 33

U.S.C. § 1323, does not control the instant issue of whether DC Water may

demand payment for impervious area charges from the United States.

Rather, this section governs water pollution and merely requires the

Government to comply with all applicable law and to pay “reasonable

service charges.”

46

Plaintiff continues:

The Federal Facilities Pollution Control (“FFC”) provision of the Clean Water

Act (“CWA”) merely provides the necessary waiver of sovereign immunity

for DC Water to charge for stormwater services. Both federal provisions

work in conjunction by first granting permission for the District of Columbia

to charge for stormwater via the FFC and then delineating the way the

District may seek compensation via the 1954 Act. Indeed, DC Water

charges for stormwater charges through its annual federal estimate which

all other federal agencies accept.

(emphasis in original).

Responding to plaintiff’s contention that “DC Water charges for stormwater

charges through its annual federal estimate which all other federal agencies accept,”

defendant states:

It is unclear what the District means by the phrase “which all other federal

agencies accept.

Whatever the District may mean, section 1323 explicitly excludes the

payment of stormwater charges through Treasury’s process. Section 1323

provides that “[t]he 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.” 33 U.S.C. §

1323(c)(2)(A). The account Treasury uses for water and sewer charges is

a “permanent authorization account” that is not used for stormwater

charges. 33 U.S.C. § 1323(c)(2)(A). Thus as our prior filings have

described, Treasury does not collect for stormwater charges from agencies,

nor does it pay for any stormwater charges under 33 U.S.C. § 1323, from

the permanent authorization account.

(emphasis in original; quotation marks to internal references omitted).

The 1954 Act provides the following definitions in section 201, codified at D.C.

Code § 34-2101, and which particular section has not been amended since the 1954 Act’s

initial enactment:

For the purposes of this subchapter:

(1) The term “sanitary sewage” means:

(A) Domestic sewage with storm and surface

water limited;

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(B) Sewage discharging from sanitary

conveniences;

(C) Commercial or industrial wastes; and

(D) Water supply after it has been used.

(2) The term “stormwater sewage” means liquid flowing in

sewers resulting directly from precipitation.

(3) The term “combined sewage” means sewage containing

both sanitary sewage and stormwater sewage.

(4) The term “sewer” means a pipe or conduit carrying

sewage.

(5) The term “sanitary sewer” means a sewer which carries

sanitary sewage.

(6) The term “stormwater sewer” means a sewer which carries

stormwater sewage.

(7) The term “combined sewer” means a sewer which carries

both sanitary sewage and stormwater sewage.

(8) The term “sanitary sewage works” means a system of

sanitary and combined sewers, appurtenances, pumping

stations, and treatment works for conveying, treating, and

disposing of sanitary sewage.

(9) The term “stormwater sewer system” means a system of

sewers, appurtenances, and pumping stations for conveying

and disposing of stormwater sewage.

(10) The term “combined sewer system” means a system of

sewers and appurtenances conveying both sanitary sewage

and stormwater sewage.

1954 Act § 201; see also D.C. Code § 34-2101 (emphasis in original).

Subsection 212(a) of the 1954 Act, as amended and codified at D.C. Code § 34-2112(a),

states:

The sanitary sewer service charges prescribed herein shall be applicable to

all sanitary sewer services furnished by the sanitary sewage works of the

District through any connection thereto for direct use by the government of

48

the United States or any department, independent establishment, or agency

thereof, and such charges shall be predicated on the value of water and

water services received by such facilities of the government of the United

States or any department, independent establishment, or agency thereof

from the District water supply system. Payment of the said sanitary sewer

service charge shall be made as provided in subsection (b) of this section.

1954 Act § 212(a); see also D.C. Code § 34-2112(a) (emphasis added). Although section

201 of the 1954 Act and the section 34-2101 of the D.C. Code provide specific definitions

for multiple different terms related to sewer and sanitary sewer, the 1954 Act and the D.C.

Code do not provide a specific definition for “sanitary sewer service charges,” the critical

term for subsection 212(a) of the 1954 Act and D.C. Code § 34-2112(a).

As indicated in the definitions above, section 201 of the 1954 Act and the section

34-2101 of the D.C. Code define the term “sanitary sewer” as “a sewer which carries

sanitary sewage.” 1954 Act § 201; see also D.C. Code § 34-2101. The term “sanitary

sewage” is defined in section 201 of the 1954 Act and the section 34-2101 of the D.C.

Code as:

(A) Domestic sewage with storm and surface water limited;

(B) Sewage discharging from sanitary conveniences;

(C) Commercial or industrial wastes; and

(D) Water supply after it has been used.

1954 Act § 201; see also D.C. Code § 34-2101. Although it is not entirely clear what the

words in section 201 of the 1954 Act and section 34-2101 of the D.C. Code, “with storm

and surface water limited,” mean, or if the words are meant as a limitation of storm and

surface water as it relates to the term “Domestic sewage.” Notably, section 201 of the

1954 Act provides separate definitions for “sanitary sewage” and “stormwater sewage,”

as well as “sanitary sewer” and “stormwater sewer.” See D.C. Code § 34-2101 The 1954

Act does not explain why storm and surface water are limited. See id. Given, however,

the distinct definitions in section 201 of the 1954 Act of sanitary sewage/sewer and

stormwater sewage/sewer, and given section 212’s multiple uses of the term “sanitary” to

qualify the term “sewer,” without reference to “stormwater,” it appears that section 212’s

mandate for the United States to pay for sewer services was intended to be limited to

sanitary sewer services charges, to the exclusion of stormwater sewer service charges.

In addition, section 212 of the 1954 Act, which, as discussed above, governs the

United States’ obligations to pay sanitary sewer service charges, was not amended to

include reference to an impervious area charge. This is in contrast to section 207 of the

1954 Act, codified as amended at D.C. Code § 34-2107, which applies to the District’s

49

building owners,12 which makes no specific mention of an obligation of the United States

to pay sewer service charges for its buildings. As originally enacted, section 207 provided,

in relevant part:

The sanitary sewer service charges established under the authority of this

title shall be based on the water consumption of, and water services to, the

properties served, and be determined by one of the following methods:

(a) Where water is supplied from the District water supply system at meter

rates, the Commissioners shall establish the sanitary sewer service charge

as a percentage of the water charge applicable in the District, but such

percentage shall not exceed 60 per centum of the water charge.

1954 Act § 207. In 2008, the D.C. Council amended D.C. Code § 34-2107, which tracks

section 207 of the 1954 Act, to include the impervious area of a property as an additional

basis upon which the District could determine the sanitary sewer service charges for a

property. See Water and Sewer Authority Equitable Ratemaking Amendment Act of 2008,

2008 D.C. Sess. L. Serv. 17–370 (Act 17–705) (“AN ACT to amend the District of

Columbia Public Works Act of 1954 to broaden the bases for the determination of sanitary

sewer service charges to include impervious surface area and to provide for an appeal

process for the assessment of an impervious surface area fee.” (capitalization in

original)). The provisions at D.C. Code § 34-2107 now provide for the “[m]ethods of

determination of sanitary sewer services charges,” as follows:

(a) The sanitary sewer service charges established under the authority of

this subchapter shall be based on the following:

(1) A billing methodology which takes into account both the water

consumption of, and water service to, a property and the amount of

impervious surface on a property that either prevents or retards the entry of

water into the ground as occurring under natural conditions, or that causes

water to run off the surface in greater quantities or at an increased rate of

flow, relative to the flow present under natural conditions. For the purposes

of this paragraph, the term “surface” shall include rooftops, footprints of

patios, driveways, private streets, other paved areas, athletic courts and

swimming pools, and any path or walkway that is covered by impervious

material.

D.C. Code § 34-2107(a)(1). Therefore, for building owners in the District, the impervious

surface area of a property is included as part of the methodology for determining the cost

of sanitary sewer services, and is in addition to the consideration of “the water

12D.C. Code § 34-2108 describes the “Persons obligated to pay sanitary sewer service

charge,” in subsection (a), as “[t]he owner or occupant of each building, establishment, or

other place in the District connected wit

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