City of Wilmington, Delaware v. United States

In the United States Court of Federal Claims

No. 16-1691C

(Filed: January 26, 2022)

)

CITY OF WILMINGTON, )

DELAWARE, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Paul T. Nyffeler, Chem Law PLLC, Glen Allen, VA, for Plaintiff. Of counsel were Robert

M. Goff and Rosamaria Tassone, City of Wilmington Law Department, Wilmington, DE.

Ann C. Motto, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for Defendant. With her on the briefs were Brian M.

Boynton, Acting Assistant Attorney General, Civil Division, Martin F. Hockey, Jr., Acting

Director, and Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

SOLOMSON, Judge.

Shakespeare observed more than once that “the rain, it raineth every day.”1 It

may not rain every day in modern-day Wilmington, Delaware (“Wilmington” or the

“City”), but the City charges its property owners monthly stormwater management

fees. This is a case about whether the United States government must pay, pursuant to

the Clean Water Act, ten years of such fees the City assessed the government for five

properties the United States Army Corps of Engineers (“USACE”) owns in Wilmington.

1 William Shakespeare, Twelfth Night, act 5, sc. 1; William Shakespeare, King Lear, act 3, sc. 2.

1

I. BACKGROUND

A. The Clean Water Act’s Federal-Facilities Section — An Overview

The Clean Water Act requires federal property owners to comply with local

water pollution laws. 33 U.S.C. § 1323 (“Federal facilities pollution control”)

(hereinafter the “Federal-Facilities Section”). Specifically, the Federal-Facilities Section

subjects every “department, agency, or instrumentality of . . . the Federal Government”

with “jurisdiction over . . . property” to “all Federal, State, interstate, and local

requirements . . . respecting the control and abatement of water pollution.” Id.

§ 1323(a). Thus, federal property owners must “pay[] . . . reasonable service charges”

imposed by local governments to recover costs of stormwater management. Id. The

Clean Water Act, in turn, defines a reasonable service charge as (1) “any reasonable

nondiscriminatory fee, charge, or assessment” that is (2) “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 (3) is “used to pay or reimburse the costs associated with any

stormwater management program.” Id. § 1323(c)(1)(B) (emphasis added).

Because the meaning and application of the Federal-Facilities Section is central to

the outcome of this case, the Court briefly traces its development.

B. Clean Water Act History

In 1948, Congress passed the Federal Water Pollution Control Act (“FWPCA”),

the Clean Water Act’s initial ancestral legislation. Pub. L. No. 80-845, 62 Stat. 1155

(1948); EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 202 & n.2 (1976).

The law empowered the Surgeon General to create, in tandem with Federal and state

agencies, “comprehensive programs” to reduce water pollution. § 2(a), 62 Stat. at 1155.

The FWCPA, however, spawned a scattered, state-based system of water pollution

control “designed to determine what lakes and streams had become polluted” and

identify who had polluted them. Am. Frozen Food Inst. v. Train, 539 F.2d 107, 115 (D.C.

Cir. 1976). Attempts to unscramble the polluted eggs after the fact proved

“impractical.” Id.

Congress tinkered with the law in the following years. For example, Congress

enacted the Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903, which required

states to implement water quality standards and empowered the then-Department of

Health, Education, and Welfare to promulgate such standards where particular states

failed to do so. Soon afterward, Congress passed the Water Quality Improvement Act

2

of 1970, Pub. L. No. 91-224, 84 Stat. 91, which required federal agencies to comply with

water quality standards.

The first major revision of the FWPCA came with the Federal Water Pollution

Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (the “1972

Amendments”). Together with the 1972 Amendments, the law is more commonly

known today as the Clean Water Act. See DeKalb Cnty. v. United States, 108 Fed. Cl. 681,

685 (2013) (discussing the 1972 Amendments). Among other changes, the 1972

Amendments addressed the backwards-looking orientation of the FWCPA by directly

restricting the amount of pollutants that could be released into a state’s navigable

waters in the first place. See EPA, 426 U.S. at 204. As a result, polluters had to obtain

National Pollutant Discharge Elimination System (“NPDES”) permits from the EPA or a

state before releasing pollutants into such waters. Id. at 205. States also were required to

establish “total maximum daily loads” (“TMDLs”) for various pollutants allowed to

enter state waters.2 86 Stat. at 848 (“Each State shall establish for the waters

identified . . . the total maximum daily load, for those pollutants which the

Administrator identifies . . . .”).

The 1972 Amendments also created the initial version of the Clean Water Act’s

Federal-Facilities Section, the current version of which is at issue in this litigation. In

1972, that section provided, in relevant part, that Federal agencies and instrumentalities

“engaged in any activity . . . which may result, in the discharge or runoff of pollutants

shall comply with . . . State . . . and local requirements respecting control and abatement

of pollution . . . including the payment of reasonable service charges.” 86 Stat. at 875.

In 1976, the United States Supreme Court’s decision in EPA v. California, 426 U.S.

200 (1976), prompted Congress to further revise the Federal-Facilities Section. The

Supreme Court held that although federal facilities must comply with state water

pollution requirements like non-federal entities, the 1972 Amendments did “not

expressly provide that federal dischargers must obtain state NPDES permits.” Id. at

212. Rather, the Court held that the “requirements” the Clean Water Act imposed on

federal property owners were only “effluent limitations and standards and schedules of

compliance.” Id. at 215.3

2TMDLs “are the maximum amount of a pollutant that a waterbody can assimilate and still

achieve water quality standards.” Plaintiff’s Exhibit (“PX”) 24 at WILM0011513.

3The Supreme Court issued a similar decision, related to the Clean Air Act, the same day the

Court issued EPA v. California. See Hancock v. Train, 426 U.S. 167, 168–69 (1976) (“The specific

question is whether obtaining a permit to operate is among those ‘requirements respecting

control and abatement of air pollution’ with which existing federal facilities must comply under

3

In response, Congress amended the Clean Water Act’s Federal-Facilities Section

again in 1977 to clarify that federal facilities also had to comply with permitting

requirements. Clean Water Act of 1977, Pub. L. No. 95-217, §§ 60–61, 91 Stat. 1566,

1597–98 (the “1977 Amendments”).4 The 1977 Amendments finalized much of the

language of the Federal-Facilities Section as currently codified at 33 U.S.C. § 1323. As

noted above, Congress expressly required, among other things, that federal facilities

“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.” 33

U.S.C. § 1323(a). Federal facilities are thus subject:

(A) to any requirement whether substantive or procedural

(including any recordkeeping or reporting requirement, any

requirement respecting permits and any other requirement,

whatsoever), (B) to the exercise of any Federal, State, or local

administrative authority, and (C) to any process and sanction,

whether enforced in Federal, State, or local courts or in any

other manner.

Id.5 As noted above, and following the Supreme Court’s terminology, we refer to that

provision as “Section 1323” or the “Federal-Facilities Section.” See U.S. Dep’t of

Energy v. Ohio, 503 U.S. 607, 614 (1992).

s[ection] 118 of the Clean Air Act.” (quoting 42 U.S.C. § 1857f (1976)). The Court held that the

Clean Air Act, as written at the time, did not “subject[] federal installations to state permit

requirements.” Id. at 198.

4 According to the Senate Report on the 1977 Amendments:

The act has been amended to indicate unequivocally that all Federal

facilities and activities are subject to all of the provisions of State

and local pollution laws. Though this was the intent of the

Congress in passing the 1972 Federal Water Pollution Control Act

Amendments, the Supreme Court, encouraged by Federal agencies,

has misconstrued the original intent.

S. Rep. No. 95-370, at 67 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392.

5Although the Court recognizes that legislative history cannot displace or otherwise add to a

statute’s plain language, Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992), a

contemporaneous Senate Report listed examples of “requirements” as including “requirements

to obtain operating and construction permits, reporting and monitoring requirements, any

4

Finally, in 2011, Congress amended the Clean Water Act to define “reasonable

service charges.” Federal Responsibility to Pay for Stormwater Programs Act of 2011,

Pub. L. No. 111-378, 124 Stat. 4128 (codified at 33 U.S.C. § 1323(c)) (the “2011

Amendments”). The statute now defines “reasonable service charges” as follows:

(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.

33 U.S.C. § 1323(c)(1) (emphasis added).

C. Wilmington’s Stormwater Ordinance: Wilmington Code § 45-53

Wilmington charges the owners of all properties within its corporate boundaries

fees to recover the costs “related to all aspects of storm water management,” including

capital improvements, flooding mitigation, and watershed planning. Wilmington, DE

Code (“Wilmington Code”) § 45-53(d). The City first implemented the program in

January 2007. Joint Exhibit (“JX”) 14 at WILM0000443; ECF No. 81 (Joint Stipulations of

provisions for injunctive relief and such sanctions imposed by a court to enforce such relief, and

the payment of reasonable service charges.” S. Rep. No. 95-370, at 67.

5

Undisputed Fact (“JSUF”)) ¶ 5. The program’s goal is “to enhance surface water quality

by reducing the quantity and rate of stormwater runoff and the amount of pollutants

discharged into the rivers, which occur as a consequence of separate stormwater

discharges, [combined sewer overflows], and wastewater treatment plant discharges.”

JX 14 at WILM0000443. The fees Wilmington assessed the government — and that are

at issue in this case — are based on this local ordinance.

II. PROCEDURAL BACKGROUND

A. The Complaint

Wilmington filed its complaint against the government on December 22, 2016,

seeking to recover “the payment of reasonable service charges” assessed for “the control

and abatement of water pollution” pursuant to the Federal-Facilities Section. ECF No. 1

(“Compl.”) at 1–3. The City filed an amended complaint on April 16, 2021, primarily to

update the amounts for which Wilmington seeks to hold the government responsible.

ECF No. 101 (“Am. Compl.”).

The USACE owns five properties in Wilmington (the “Properties”), and

Wilmington has assessed the USACE stormwater management fees for the Properties

“from January 4, 2011 to present.” Am. Compl. at 5–13. The City alleges that its

stormwater management charges for the Properties are “reasonable service charges

properly payable by the United States in accordance with Congress’[s] waiver of

sovereign immunity under the Clean Water Act, 33 U.S.C. § 1323(a).” Am. Compl. at 4.

Wilmington claims that the government owes the City $2,577,686.82 in principal

charges and $3,360,441.32 in interest for “stormwater fees properly assessed to [the

government’s] property and facilities.” Am. Compl. at 4, 14.

B. Discovery and Summary Judgment Briefing

Earlier in this case, the parties cross-moved for judgment on the pleadings. See

ECF Nos. 15–17, 24–27; see also City of Wilmington v. United States (Wilmington I), 136 Fed.

Cl. 628 (2018) (Williams, J.) (ECF No. 28). Wilmington argued that the government, by

not pursuing Wilmington’s administrative appeal process under Wilmington Code

§ 45-53(d)(7), waived any challenge to the reasonableness of Wilmington’s charges.

Wilmington I, 136 Fed. Cl. at 629–30. On March 14, 2018, Judge Williams denied both

parties’ motions. Id. at 635. Judge Williams rejected Wilmington’s claim for two

primary reasons: (1) Wilmington’s appeal system is permissive, not mandatory; and

(2) requiring the government to exhaust its local administrative remedies would

severely prejudice the government. Id. at 623–33.

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The undersigned agreed with — and continues to agree with — Judge Williams’

conclusion that the Wilmington Code does not provide that a party waives its right to

defend against an assessment outside of the appeal process; nor, for that matter, does

the Clean Water Act otherwise operate to preclude the government from defending

against the City’s charges in this Court. Wilmington I, 136 Fed. Cl. at 632. Relatedly,

Judge Williams held that the government is not required to “exhaust” the City’s

administrative appeal process before defending itself in this Court against the City’s

claims on the grounds that its assessed charges are unreasonable and, thus, are not

owed pursuant to what is otherwise a money-mandating provision of law. Id. at 632–33

(explaining that when Congress has not explicitly required the exhaustion of a

particular administrative remedy, “sound judicial discretion” governs the application of

the exhaustion doctrine).

Judge Williams reasoned that if Wilmington charged the government

unreasonable fees, and the government did not appeal, an exhaustion requirement

effectively would force the government to pay unreasonable fees, something the Clean

Water Act’s limited sovereign immunity waiver for “reasonable” charges does not

require and, therefore, does not permit. Wilmington I, 136 Fed. Cl. at 633. Put

differently, the Clean Water Act is only money-mandating with respect to “reasonable”

charges and the government necessarily may defend against Wilmington’s claims on

the ground that the charges at issue are not reasonable and thus not owed pursuant to

law.

Finally, the City’s appeal process only permits adjustments to future billing

cycles. Accordingly, even if the government had pursued the City’s appeal process

successfully — and this is an issue Wilmington continues to gloss over — that process

would not have resulted in any change to the previously assessed fees at issue in this

matter. Wilmington I, 136 Fed. Cl. at 632–33 (holding that the City’s appeal process

would not have provided the government with any remedy and that the government’s

true first opportunity to defend itself is in the instant case).

Following the discovery period, see ECF Nos. 30, 42, 54, 56, the parties filed their

pretrial memoranda. ECF Nos. 60, 64.

On January 30, 2020, the United States filed a motion in limine to exclude the

expert testimony of Mr. Hector J. Cyre. ECF No. 68. On January 31, 2020, Wilmington

filed a motion in limine to (1) preclude the government from asserting certain

arguments, (2) exclude the testimony of the government’s expert witness, and

(3) exclude several of its fact witnesses. ECF No. 69. On February 5, 2020, this case was

reassigned to the undersigned judge. ECF Nos. 72, 73. On March 4, 2021, after both

motions in limine were fully briefed, ECF Nos. 77, 78, the Court denied them. City of

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Wilmington v. United States (Wilmington II), 152 Fed. Cl. 373 (2021) (ECF No. 91). In

Wilmington II, the Court once again rejected the City’s administrative exhaustion

argument that was rehashed from Wilmington I. Wilmington II, 152 Fed. Cl. at 379–80.

On April 2, 2021, less than three weeks before trial was scheduled to begin,

Wilmington filed a motion for reconsideration of Wilmington I and Wilmington II. ECF

No. 95. The Court denied Wilmington’s motion for reconsideration on April 6, 2021.

ECF No. 98.

C. The Trial

On April 19, 2021, trial commenced via videoconference due to health and safety

considerations related to the COVID-19 pandemic. ECF No. 89; ECF No. 93 (Pre-Trial

Order) at 1 n.1. Over two days, Wilmington presented evidence from one fact witness

and one expert witness. The City’s lone fact witness, Ms. Kelly Williams, testified in her

official capacity as the Commissioner of Public Works for the City. See ECF Nos. 104,

105, Transcript of Proceedings (“Tr.”) 40:10–11. She testified, inter alia, as to the origins

of the City’s stormwater charge system, the process by which customers can appeal the

City’s charges, and the extent to which the Properties contribute to the City’s

stormwater pollution. Tr. 39:20–248:3.

The City’s expert witness, Mr. Hector Cyre, president of the engineering firm

Water Resource Associates, testified regarding his professional experience within the

stormwater management industry. Tr. 279:10–282:3. His testimony focused on the

general reasonableness of Wilmington’s stormwater methodology. Tr. 274:15–425:23.

D. The Parties’ RCFC 52(c) Briefing and Evidentiary Motions

On April 20, 2021, following the close of Wilmington’s case-in-chief, the Court

suspended trial to permit the government to file a motion for judgment on partial

findings pursuant to Rule 52(c) of the Rules of the United States Court of Federal Claims

(“RCFC”). Tr. 441:5–444:8; see also ECF No. 102. On May 4, 2021, Wilmington filed a

timely motion to admit portions of the RCFC 30(b)(6) deposition testimony taken from

the government’s witness, Craig Homesley, Chief of the USACE’s Project Support

Branch, as well as Plaintiff’s Exhibits (“PX”) 1, 4, 28, and 43. ECF No. 106. On May 18,

2021, the government filed its response to Wilmington’s evidentiary motion. ECF No.

112. The government did not object to admitting the selected portions of

Mr. Homesley’s deposition, but sought to counter-designate and admit yet other

portions of his deposition for context. Id. at 3–4. The government, however, opposed

admitting Wilmington’s four exhibits into the record. Id. at 5–10.

8

On June 8, 2021, the Court granted Wilmington’s motion to admit portions of

Mr. Homesley’s deposition testimony, in addition to the four exhibits: PX 1, PX 4 (but

not pages numbered COE000077 and COE000080–82), PX 28, and PX 43. City of

Wilmington v. United States, 153 Fed. Cl. 405, 410 (2021) (ECF No. 115). The Court also

granted the government’s request to enter its counter-designated portions of

Mr. Homesley’s deposition testimony into the evidentiary record. Id.

On June 21, 2021, the government filed a motion for judgment on partial findings

pursuant to RCFC 52(c). ECF No. 117. On June 22, 2021, the government filed a

corrected motion for judgment on partial findings. ECF No. 119 (“Def. Mot.”). On

August 5, 2021, Wilmington filed a response to the government’s corrected motion for

judgment on partial findings. ECF No. 121 (“Pl. Resp.”). On August 11, 2021, the

government moved for leave to file a reply, ECF No. 122, which the Court granted,

Minute Order (Aug. 11, 2021). On August 13, 2021, the government filed its reply to

Wilmington’s response. ECF No. 123 (“Def. Reply”).

III. FACTUAL FINDINGS6

A. The Properties, Runoff, and Wilmington’s Stormwater Management

System

The USACE’s five Wilmington Properties comprise a dredge material disposal

area that the USACE uses in its work dredging the waterways near the City. JSUF ¶¶ 3,

121; JX 2. The Properties measure nearly 11,888,000 square feet, which translates to

more than 270 acres. JSUF ¶¶ 133, 140, 147, 154, 161.

Some portion of precipitation that falls on the Properties runs off them and

ultimately into the Christina or Delaware Rivers. JSUF ¶ 127; JX 17. Wilmington is

subject to federal pollution requirements, including TMDLs, and runoff can increase the

flow of pollutants into nearby water.7 JX 14 at WILM0000443; JX 34 at WILM0010073–

74. The City maintains a system of infrastructure to “enhance surface water quality by

reducing the quantity and rate of stormwater runoff and the amount of pollutants

discharged into the [nearby] rivers.” JX 14 at WILM0000443; JSUF ¶¶ 6, 11 (describing

the stormwater management program). The system consists of a stormwater collection

6This section constitutes the Court’s principal findings of fact in accordance with RCFC 52(a)

and 52(c). Other findings of fact and rulings on questions of mixed fact and law are contained

in the discussion sections of this opinion, see infra Sections V and VI.

7The Christina Basin, “a 565 square mile basin” which “spans three states, Delaware,

Pennsylvania, and Maryland,” and includes the Christina River, is subject to TMDLs imposed

by the EPA. PX 24 at WILM0011513.

9

and conveyance system and a wastewater treatment facility. JSUF ¶¶ 7, 11. The City’s

system is designed to protect surface water bodies, including the Brandywine River, the

Christina River, and the Delaware River. JSUF ¶ 8; JX 14 at WILM0000443; Tr. 178:21–

25.

The stormwater collection and conveyance system is comprised of a combined

sewer system and a municipal separate storm sewer system. JSUF ¶ 11. In times of

heavy rainfall, stormwater runoff can combine with wastewater in amounts too great

for the combined sewer system pipe capacity. Tr. 179:1–5. This can cause a combined

sewer overflow event, during which wastewater and stormwater both flow into the

rivers, polluting them. Tr. 43:18–44:7.

While stormwater from at least one of the Properties “flows directly into [a

nearby] [r]iver,” it does so “with no use of the City’s sewer system.” JX 17. As a result,

no stormwater from the Properties contributes to combined sewer overflows. JSUF

¶ 15; Tr. 179:6–9. Additionally, stormwater from the Properties does not enter

Wilmington’s combined sewer system or its municipal separate storm sewer system.

JSUF ¶ 14; Tr. 176:21–177:5. In fact, the City is unaware of any pipes on the Properties

that even “connect to [Wilmington’s] stormwater collection and conveyance system.”

Tr. 145:8-13. The Properties also do not use, or burden, the City’s wastewater treatment

plant. Tr. 178:4–20. The City does not know the proportional demand or burden, if any,

that the Properties place on the nearby rivers. Tr. 185:13–187:3. The City does not know

to which TMDLs the Properties contribute, if any. Tr. 189:17–21.

B. Wilmington’s Stormwater Charges: Purpose and Origins

The City imposes a monthly stormwater charge on the owner of each parcel of

land in Wilmington.8 Wilmington Code § 45-53(d). The City hired an engineering firm,

Black & Veatch, to help develop its stormwater charge system, and Wilmington based

its stormwater charge methodology on recommendations from that firm. JSUF ¶ 5.

Wilmington created the stormwater charge to, inter alia, recover costs of operating,

managing, and upgrading stormwater infrastructure, including combined sewer

overflows, and to comply with federal water pollution standards. JX 34 at

WILM0010075–76, WILM0010100–01; Tr. 159:24–160:13.

The stormwater charge provides Wilmington a revenue source with which to

fund the stormwater management system for surface water quality management. JSUF

8The City recently changed its billing cycle from quarterly to monthly. See Wilmington Code

§ 45-53(d) (“All parcels . . . shall be assessed a monthly storm water charge . . . .” (emphasis

added)). Some of the parties’ filings refer to the previous quarterly billing system.

10

¶¶ 17–18. The City maintains revenue from stormwater charges in a fund separate

from other City funds and uses the revenue exclusively for stormwater management

purposes. JSUF ¶¶ 115–19.

C. Wilmington’s Stormwater Charge Formula

The City has enacted statutory provisions that govern its method for calculating

stormwater charges; the applicable formula varies depending upon the type of

property. Wilmington Code § 45-53(d)(1)–(3). The City cannot feasibly measure actual

stormwater runoff or pollution for which each property in its jurisdiction is responsible;

thus, the City’s statutory stormwater charge formula attempts to approximate runoff or

pollution attributable to each property. JSUF ¶¶ 20–22. But, as discussed below, the

City’s estimating and charging methodology differs depending on the type of property.

Specifically, to calculate the stormwater charge for nonresidential properties

including the Properties at issue, the City uses a multifactor formula. First, a property’s

total area (its “gross parcel area”) is multiplied by a “runoff coefficient”9 used to

estimate the percentage of a property’s surface area that generates water runoff based

on the property’s physical nature and topography. Wilmington Code § 45-53(a); JSUF

¶¶ 40–41, 44; Tr. 125:23–127:8. This produces the property’s “impervious area,”10 a

number meant to approximate the surface area from which stormwater runs off the

property. Wilmington Code § 45-53(a). That impervious area is then divided by an

9 A “runoff coefficient” is a multiplier used to estimate impervious area. Wilmington Code § 45-

53(a). Runoff coefficients range from .95 — a high multiplier used for relatively impervious

properties like “parking structures,” where most water runs off — to lower multipliers like the

.25 used for properties like parks and cemeteries which presumably absorb more water. Id.

§ 45-53(d)(3) (as delineated in Table 2); JSUF ¶¶ 40–41, 44; Tr. 125:23–127:8. A coefficient of 1,

for example, would mean all of the water runs off the property in question, while a coefficient

of zero would mean that no water runs off but rather is completely absorbed.

10 “Impervious area” is defined as:

the total square feet of hard surface areas including buildings,

driveways, any attached or detached structures, and paved or hard-

scaped areas, or other surface areas that behave like an impervious

area under wet weather conditions, that either prevent or restrict

the volume of storm water that can enter into the soil, and/or

thereby cause water to run off the surface in greater quantities or at

an increased rate of flow than what would have occurred under

natural undisturbed conditions.

Wilmington Code § 45-53(a); see also JSUF ¶ 23 (citing Wilmington Code § 45-53(a) for its

definition of “impervious area”).

11

“equivalency stormwater unit,” or “ESU,” of 789 square feet — which represents the

size of the median single-family home in Wilmington. JSUF ¶¶ 24–26. The ESU serves

as a common denominator of sorts to help property owners conceptualize the runoff for

which their property is responsible, as compared to the size of the City’s median

property. Tr. 79:6–80:8; 221:1–222:2; 326:1–327:19. The impervious area divided by the

ESU produces a property’s ESU factor. Wilmington Code § 45-53(a); JSUF ¶¶ 25–26, 45–

47. Finally, the property’s ESU factor is multiplied by the specified charge rate per ESU,

producing the City’s monthly charge to the property owner. JSUF ¶¶ 48–49; Tr. 326:9–

22.

To illustrate the City’s system, assume a hypothetical property of 100,000 square

feet gross parcel area with a runoff coefficient of .4 — meaning that 40% of the

property’s area is estimated to be an impervious area from which stormwater runs off

and presumably enters the City’s stormwater management system. See JSUF ¶ 40; Tr.

126:15– 127:8. Because 40% of 100,000 is 40,000, the hypothetical property’s estimated

“impervious area” would be 40,000 square feet. That estimated impervious area of

40,000 divided by the ESU of 789 produces an ESU factor of 50.697 — meaning that the

property is about 50.697 times larger than the median single-family residence in

Wilmington. See Tr. 221:22–25. If the rate per ESU for this property’s categorization

was $15, the property owner would owe $760.46 per month in stormwater charges.

The City obtains the first factor in the nonresidential formula — a property’s

“gross parcel area” — from the New Castle County (the “County”) Department of Land

Use. JSUF ¶ 36. The City assigns a “runoff coefficient” to a property based upon the

stormwater class into which the City has categorized a property. JSUF ¶ 37;

Wilmington Code § 45-53(d)(3). The City does not visit, or otherwise independently

assess, properties, but rather categorizes them within a stormwater class based on an

occupancy code the County has assigned to a particular property. JSUF ¶¶ 38–39.

Black & Veatch, the engineering firm the City hired to help develop its

stormwater charge system, recommended the fee methodology the City ultimately

adopted. JSUF ¶ 5. Black & Veatch developed the runoff coefficients the City employs

based on a set of coefficients outlined in a 1962 study called “Hydrologic Determination

of Waterway Areas for the Design of Drainage Structures in Small Drainage Basins,”

authored by Dr. Ven Te Chow (the “1962 Study”). JX 14 at WILM0000451,

WILM0000460.11

11William J. Hall & Marcelo H. García, Ven Te Chow, University of Illinois Urbana-Champaign,

The Grainier College of Engineering, https://cee.illinois.edu/about/history/history-

excellence/ven-te-chow (last visited Jan. 19, 2022).

12

At trial, the City’s expert, Mr. Cyre, admitted that he did not know whether the

occupancy codes reflected in the County’s records — upon which the City based its

stormwater classes and thus assigned impervious area coefficients — assumes the same

stormwater characteristics as the categorizes used in Dr. Chow’s 1962 Study or those

used by the City. Tr. 373:9–22. Instead, Mr. Cyre merely “assume[d]” that Black &

Veatch “had some basis” for correlating the City’s land classes and the County’s

occupancy codes. Tr. 373:18–21. The City, however, is not involved in the County’s

process for setting occupancy codes, and the City does not verify the accuracy of the

County’s occupancy codes as applied to properties to calculate their stormwater charge.

JSUF ¶ 33; Tr. 132:18–20.12

Wilmington also assesses interest on unpaid stormwater charges. The City

charges “1% for the first three months of nonpayment of charges, 1.5% for the second

three months of nonpayment of charges, 2.5% for the third three months of nonpayment

of charges, 3% for the fourth three months of nonpayment of charges, and 3% for each

subsequent month after twelve months of nonpayment of charges.” JSUF ¶ 64 (citing

Wilmington Code § 45-176(c)).

D. Wilmington Applied Its Formula to the Federal Properties

For the five federal Properties at issue, Wilmington used the above-described

formula to calculate and invoice the government $2,577,686.82 in stormwater charges

(and $3,360,441.32 in interest) between January 1, 2011, and April 16, 2021. Am. Compl.

at 5–14; JSUF ¶¶ 138, 145, 152, 159, 166.

The City calculated those charges after assigning the Properties at issue to the

“vacant” category. JSUF ¶ 123. The City defines a “vacant parcel” as “a parcel upon

which there is no structure except for some marginal structure such as fencing, and

which is assigned a ‘Vacant’ occupancy code in the assessor’s records of the New Castle

County Department of Land Use.” Wilmington Code § 45-53(a); JSUF ¶ 50. The

“vacant” class includes properties that “are not similar at all to one another” in terms of

“land cover and size.” Tr. 165:20–166:5.13 Wilmington, moreover, has never visited the

Properties. Tr. 116:21–25. Outside of categorizing the Properties into a stormwater

class — based upon the County occupancy codes — and utilizing the Black &

Veatch-assigned runoff coefficient, the City has not analyzed the Properties to

12Instead, the City’s engineering firm examined the County’s land categories, “made an

engineering judgment” about which City runoff category (e.g., commercial, residential) those

land categories translate to, and applied to each runoff category “the high end of the [runoff

coefficient] range” from Dr. Chow’s 1962 Study. Tr. 324:22–325:6.

13 This singular fact proves fatal to Wilmington’s case, as explained in detail below.

13

determine the volume or content of their stormwater runoff. JSUF ¶¶ 179–180. The

City has never analyzed the Properties’ actual impervious area. Tr. 121:7–12. Nor has

the City ever analyzed whether the runoff coefficient assigned to the Properties reflects

their physical characteristics. Tr. 163:21–25.

In sum, the City’s stormwater charges at issue in this litigation are “not based on

any separate analysis by Wilmington, or any other entity, of the Properties’ stormwater

runoff.” JSUF ¶ 178.

E. General Limitations on the Accuracy of Wilmington’s Formula

Wilmington believes that visiting the federal Properties to assess actual runoff

would be “discriminatory” to other properties in the City unless USACE files a

fee-adjustment application, Tr. 109:8–17, but the result is disparate treatment

nevertheless: Wilmington calculates impervious area more accurately for residential

than nonresidential properties. For residential properties, impervious area calculations

are “based on actual data on impervious area.” JSUF ¶ 34; see also JSUF ¶ 35

(“Impervious areas for condominium properties are based on ‘actual impervious

areas.’”). In contrast, to calculate impervious area for residential properties, the City

obtains from the County records the actual square footage of structures on the property,

but does not count “paved surfaces, such as driveways or patios or sidewalks.” Tr.

122:10–19; 123:13–19. The County tax assessment system does not maintain that data

for nonresidential parcels. JSUF ¶ 31. For example, with respect to the 60

condominium properties that existed when the City’s engineering firm developed its

stormwater user fee methodology, Wilmington used “a combination of [Geographic

Information System] and aerial imagery to individually determine impervious areas.”

Tr. 125:1-9. The City did not use that or any similar method to calculate the impervious

area of the Properties at issue. Tr. 125:10-13.

Accordingly, while Wilmington “does not differentiate between Federal and

private properties” when levying stormwater charges, JSUF ¶ 172; Tr. 107:10–13, the

City admits that “it is likely in some situations, the resulting measure of imperviousness

may differ from the actual imperviousness that exists in a specific property.” JX 14 at

WILM0000452; see also Tr. 169:17–22 (Commissioner Williams agreeing that it is “likely

in some situations that Wilmington will assess a charge that is based on the wrong

impervious area measurements”); Tr. 169:23–170:13 (Commissioner Williams testifying

that she does not believe the Properties were assigned a “significantly higher” measure

of imperviousness than their actual imperviousness).

14

Wilmington has not changed or amended its stormwater methodology since the

2011 Clean Water Act amendments updated the statute to define the term “reasonable

service charges.” Tr. 106:18–107:9; see also supra Section I.B.

F. Wilmington’s Appeal System

As explained above, the City provides a limited appeal process for stormwater

charges; nonresidential property owners can file fee adjustment requests with the City if

they believe there was an error in the charge calculations. JSUF ¶¶ 103–04. Property

owners can appeal: “(1) the calculation of the storm water charge; (2) the assigned storm

water class; (3) the assigned tier, if applicable, and (4) the eligibility for a credit.”

Wilmington Code § 45-53(d)(7). The appeal process is limited, however, because it

applies solely to future charges. JSUF ¶ 112 (“Wilmington’s appeal process only applies

prospectively (or only on a ‘go-forward’ basis).”); Wilmington Code § 45-53(d)(7)(b)

(“The filing of a notice of appeal shall not stay the imposition, calculation or duty to pay

the storm water charge; the appellant shall pay the storm water charge, as stated in the

billing.”). The City confirmed this at trial. Tr. 71:1–6, 102:23–103:4. The appeal process

simply does not provide for adjustments of prior billing cycles. JX 40 at WILM0012020

(“There will be no retroactive adjustments for prior billing periods.”).

Moreover, a property owner must pay all fees before the City will even consider

an appeal. JX 40 at WILM0012021 (“All stormwater charges that are outstanding at the

time of the application must be paid in full prior to the City commencing the technical

review. Any storm water charge bill that is received during the adjustment appeal

application review process need[s] to be paid in full.”); Tr. 103:5–15 (Commissioner

Williams testifying that the City “will not consider an application unless . . . your

outstanding fees are up to date”).14

G. The United States Refuses to Pay

The United States did not pay the stormwater charges or associated interest

Wilmington assessed on the five Properties. JSUF ¶¶ 139, 146, 153, 160, 167. The

United States did not appeal the charges assigned via the City’s appeal process. JSUF

¶ 168; Wilmington I, 136 Fed. Cl. at 630 (“Defendant did not bring an administrative

14Thus, if Wilmington were correct that the government is required to follow the City’s appeal

process, the government would have to pay its assessed fees — whether reasonable or not —

and then sue for their return irrespective of whether the appeal process was successful (because

the appeal process does not impact charges already assessed). In the Court’s view, the City’s

position makes little sense and would incorrectly reverse the burden of proof with respect to

what is otherwise the City’s money-mandating claim against the government pursuant to the

Clean Water Act’s Federal-Facilities Section.

15

appeal . . . .”); Wilmington II, 152 Fed. Cl. at 380 (“the government did not utilize

Wilmington’s administrative appeal process”).

Wilmington thus claims it is owed the amounts it has invoiced the government

for its Properties. Am. Compl. ¶¶ 2, 29, 34, 39, 44, 49.

IV. JURISDICTION AND STANDARD OF REVIEW

The Tucker Act is this Court’s primary jurisdictional statute; it provides, in

relevant part, as follows:

The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the

United States founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department, or upon

any express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in

tort.

28 U.S.C. § 1491(a)(1) (emphasis added). Where a plaintiff seeks compensation from the

government based upon a provision of the Constitution, a statute, or regulation, this

Court only has jurisdiction where the plaintiff demonstrates that its claim is based on a

substantive law that “can fairly be interpreted as mandating compensation by the

Federal Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206,

219 (1983). Such a claim is called a money-mandating claim. See, e.g., Maine Cmty.

Health Options v. United States, 590 U.S. --, 140 S. Ct. 1308, 1328 (2020) (holding that a

statute falls within the Tucker Act’s sovereign immunity waiver when it “creates ‘a

right capable of grounding a claim within the waiver of sovereign immunity if, but only

if, it can be fairly interpreted as mandating compensation by the Federal Government

for the damage sustained’” (quoting United States v. White Mountain Apache Tribe, 537

U.S. 465, 472 (2003))); Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl.

1967) (noting that, for money-mandating claims, “the allegation must be made that the

particular provision of law relied upon grants the claimant, expressly or by implication,

a right to be paid a certain sum”).

This Court already has concluded, and the parties do not dispute, that the Clean

Water Act’s Federal-Facilities Section, 33 U.S.C. § 1323, is a money-mandating statute.

See Wilmington I, 136 Fed. Cl. at 631 (“Section 1323(a) of the Clean Water Act ‘may fairly

be interpreted to mandate the payment of money by the government’ because it

mandates that the United States ‘shall’ pay ‘reasonable service charges.’” (quoting

DeKalb Cnty., 108 Fed. Cl. at 696)). This Court thus has jurisdiction to decide

16

Wilmington’s claims that the government owes the City money pursuant to that statute.

See Am. Compl. ¶ 3.

Pending before the Court is the government’s motion for judgment on partial

findings pursuant to RCFC 52(c), in which the government argues that Wilmington

failed to meet its burden of proof at trial. See RCFC 52(c) (“If a party has been fully

heard on an issue during trial and the court finds against the party on that issue, the

court may enter judgment against a party on a claim or defense that, under the

controlling law, can be maintained or defeated only with a favorable finding on that

issue.”). In particular, the government argues that Wilmington did not demonstrate

that the stormwater charges it assessed the government for its Properties were

“reasonable service charges” pursuant to the Federal-Facilities Section, 33 U.S.C. §

1323(c). Def. Mot. at 2.

In resolving the government’s motion, “the judge, as the sole trier of fact, may

weigh the evidence and is not required to resolve all issues of evidence and credibility

in the plaintiff’s favor.” Persyn v. United States, 34 Fed. Cl. 187, 195 (1995), aff’d, 106 F.3d

424 (Fed. Cir. 1996). Rather, after hearing the plaintiff’s evidence, the Court

“determine[s] whether or not the plaintiff has convincingly shown a right to relief.”

Fifth Third Bank of W. Ohio v. United States, 56 Fed. Cl. 668, 683 (2003) (quoting Howard

Indus., Inc. v. United States, 115 F. Supp. 481, 485 (Ct. Cl. 1953). “The trial may end at the

close of a plaintiff’s case if a plaintiff has failed to maintain its claim, RCFC 52(c),

because ‘[a] plaintiff has no automatic right to cross-examine a defendant’s witnesses

for the purpose of proving what the plaintiff failed to establish during the presentation

of its case.’” Columbia First Bank, FSB v. United States, 60 Fed. Cl. 97, 101 (2004) (quoting

Cooper v. United States, 37 Fed. Cl. 28, 35 (1996)); see also Penna v. United States, 153 Fed.

Cl. 6, 18 (2021) (discussing the procedure and standard of review for RCFC 52(c)

motions). In other words, “[t]he time for plaintiff to prove its case is during its case-in-

chief.” IMS Eng’rs-Architects, P.C. v. United States, 92 Fed. Cl. 52, 75 (2010) (citing Cooper,

37 Fed. Cl. at 35).

V. THE COURT GRANTS THE GOVERNMENT’S RCFC 52(C) MOTION

As explained above, the Clean Water Act only waives the federal government’s

sovereign immunity to Wilmington to sue for “reasonable service charges.” 33 U.S.C.

§ 1323(a), (c); DeKalb Cnty., 108 Fed. Cl. at 695. The “reasonable service charges” for

which the United States is liable include only “reasonable nondiscriminatory fee[s],

charge[s], or assessment[s] that [are] . . . based on some fair approximation of the

proportionate contribution of the property or facility to stormwater pollution . . .

and . . . used to pay or reimburse the costs associated with any stormwater

management program[.]” 33 U.S.C. § 1323(c)(1). Wilmington failed to carry its burden

17

to prove that its charges were “reasonable service charges” within the meaning of the

statute. Id. Therefore, the government is not liable pursuant to the Clean Water Act to

pay Wilmington’s service charges as assessed and claimed in this suit, and the

government is entitled to judgment.15

Simply put, the facts demonstrate, if anything, that the City’s charges to the

government do not represent “some fair approximation” of the Properties’ relative (i.e.,

“proportionate”) contribution to stormwater pollution.

A. Wilmington Failed to Prove that Its Stormwater Charges Are

“Reasonable Service Charges” Pursuant to the Clean Water Act

Although the charges Wilmington assessed the government for the Properties are

the product of a statutory scheme that may be facially reasonable in some general,

layman’s sense, the Court concludes that the City’s charges fail the statutory definition

of “reasonable services charges.” The relevant question, in that regard, is not whether

the City’s methodology has some logical basis, whether it appears fair in some general

sense, or whether an expert believes it is “good enough for government work,” Brown v.

Plata, 563 U.S. 493, 562 (2011) (Scalia, J., dissenting), as the pejorative saying goes;

rather, the issue is whether the City’s methodology as applied to the Properties at issue

produced charges to the government that meet the money-mandating requirements of

the Federal-Facilities Section. In deciding that issue, this Court is mindful of the United

States Supreme Court’s “established practice of construing waivers of sovereign

immunity narrowly” and thus we “decline [the] invitation to read the statutory

language [as] broadly” and as permissively as Wilmington has urged throughout this

litigation. Lane v. Pena, 518 U.S. 187, 195 (1996).

To be clear, the Court takes no issue with Wilmington’s general approach — i.e.,

the use of property categories and runoff coefficients. The problem, however, is that for

Wilmington’s charges to be found “reasonable,” the City’s evidence must show, at a

minimum, that the County’s tax records properly categorize the Properties for

15Section 1323(c)(1)(b) further requires that charges be “used to pay or reimburse the costs

associated with any stormwater management program[.]” 33 U.S.C. § 1323(c)(1)(b).

Wilmington has met this requirement. See JSUF ¶¶ 115–19; Tr. 342:14–21 (Mr. Cyre testifying

that the City’s stormwater charges are used to pay the cost of the stormwater program). The

government also does not contest that the City’s charges meet Section 1323(c)’s

“nondiscriminatory” requirement. See Wilmington Code § 45-53(d) (“All parcels that are within

the city’s corporate boundaries, shall be assessed a quarterly storm water charge[.] . . . .”); ECF

No. 106-1 at A13–A14, 37:21–38:5; JX 61 at 3–4 (government interrogatory response agreeing that

“[t]he United States does not presently so contend” that Wilmington’s stormwater charge is

discriminatory).

18

stormwater purposes, including relative to other properties or classes of properties

within the City’s jurisdiction. Relatedly, Wilmington also must show that Dr. Chow’s

1962 Study — from which the City’s consultants derived the runoff coefficients

Wilmington utilizes in its formula — assumes the same land category definitions as the

County’s records. As discussed in more detail below, the City failed to meet its burden

of proof on those factual questions and, thus, has not properly tailored its stormwater

charge program to the Federal-Facilities Section’s requirements.

First, the City failed to offer any testimony or evidence to prove that the County’s

tax records properly categorize the Properties — either individually or in comparison to

other properties. The tax records are critical because they drive the selection of the

runoff coefficient and the resulting charges. Thus, if a particular property is classified

incorrectly (i.e., there is no demonstrable connection between a County classification

and a property’s actual runoff characteristics) — or even if other properties are

classified incorrectly relative to the Properties — the resulting charges cannot represent

a fair approximation of contribution to stormwater pollution. The fatal problem for the

City’s claim is that the County land-record tax classifications have nothing to do with

stormwater runoff; instead, the County assigns land-use codes based on occupancy

permits, see supra Section III.C, and Wilmington fails to demonstrate any ties between

the labels assigned by occupancy permits and a property’s actual topography, its runoff

characteristics, or its contribution to stormwater pollution. See Wilmington Code § 45-

53(a) (defining “Vacant parcel” as “a parcel upon which there is no structure except for

some marginal structure such as fencing, and which is assigned a ‘Vacant’ occupancy

code in the assessor’s records of the New Castle County Department of Land Use.”).

Put differently, the City makes no individualized effort to determine whether a

different land category from Dr. Chow’s 1962 Study might more accurately describe the

characteristics of the Properties. Wilmington’s system merely assumes that the

County’s tax records reflect land categories whose definitions mirror those described in

Dr. Chow’s 1962 Study, from which Black & Veatch derived the runoff coefficients the

City uses. Simply put, a “vacant” parcel may be defined one way in Dr. Chow’s 1962

Study but a different way in the County’s tax records. If that were the case, the City

may well be assigning an entirely erroneous runoff coefficient to the Properties at issue.

In fact, Mr. Cyre explicitly conceded that possibility:

[THE COURT]: How do we even know that, when [Dr.

Chow’s 1962 Study] uses the range of .10 to .30, that that’s

what the [County’s] tax records are talking about in terms of

the character of the land?

19

[MR. CYRE]: I don’t know that. I would assume that Black &

Veatch, in allocating those . . . land use classes, those

occupancy codes, had some basis for doing so. But I do not

personally know that, sir.

Tr. 373:13–22. Wilmington cannot sustain its claim against the government on

Dr. Cyre’s admitted assumption about Black & Veatch’s work, which he made no

independent attempt to substantiate. Wilmington provided no evidence to fill that gap

in the record and, for all the Court knows, the coefficients assigned to the Properties

bear little to no relationship to the land category definitions in Dr. Chow’s 1962 Study,

let alone to the reality of the Properties’ physical characteristics (in terms of runoff or

pollution generation). Accordingly, the Court concludes that the coefficients may

accurately reflect the percentage of a particular property generating runoff or they may

not. That problem alone is sufficient to defeat Wilmington’s claim here.16

Second, Wilmington failed to prove that the variation of the actual characteristics

of properties within a particular tax-record category is relatively small. Again, Mr. Cyre

conceded this at trial:

[DEFENDANT’S COUNSEL]: And it’s accurate to say that —

as I believe you’ve testified, that you have not performed any

analysis of the properties that comprise these three occupancy

codes; correct[?]

[MR. CYRE]: That is correct.

[DEFENDANT’S COUNSEL]: And isn’t it fair to say that,

without doing any analysis of the properties that are in these

three occupancy codes, that you cannot conclude that the

16 A related problem is that the “gross parcel area” used in the City’s calculations also comes

from New Castle County tax assessor’s office, but the City does not verify the accuracy of that

data either. JSUF ¶ 33 (“New Castle County provides the property land use occupancy codes,

Wilmington does not check the property land use occupancy code unless an appeal is filed, and

Wilmington is not involved in New Castle County’s process for setting property land use

occupancy codes.”). The City does not know what land covers or property characteristics

actually exist on the Properties, Tr. 129:9–12, and it does not know if the County’s data is

accurate, Tr. 132:18–20; see also Tr. 309:17–21 (Mr. Cyre testifying that “in the specific applied

sense, it would be productive to validate the accuracy of any data source that you are using, in

this case the . . . New Castle County database”). None of this means that Wilmington’s formula

is generally unlawful or otherwise improper as applied to other properties with the City’s

jurisdiction. Rather, the Court holds only that the City’s charges to the United States at issue

here do not meet the requirements of the Federal-Facilities Section.

20

properties in that vacant class have similar land use

characteristics? That’s fair; correct?

[MR. CYRE]: I think that’s fair.

Tr. 360:23–361:8.

Given that admission, Wilmington fails to demonstrate that all the properties

within a particular class should be assigned the same coefficient, although that is

exactly what the City’s charging methodology does for the Properties. Again, assigning

all properties with a certain occupancy code the same coefficient assumes that the

properties have the same (or nearly the same) runoff characteristics. But, if there is

wide variation in the actual characteristics of properties within a particular occupancy

code, that could well mean that the government is being overcharged vis-à-vis other

properties assigned the same code. Absent testimony or other evidence either

substantiating the degree of similarity within an occupancy code or tying the

coefficients to the reality of the Properties’ physical characteristics, Wilmington cannot

prove that its charges are “based on some fair approximation of the proportionate

contribution of the property . . . to stormwater pollution[.]” 33 U.S.C. § 1323(c)(1)(A).

Other aspects of Mr. Cyre’s testimony further undermine Wilmington’s case:

• Mr. Cyre did not ever examine, or even visit, the Properties. Tr. 380:18–23;

383:21–384:7. Nor did the City. Tr. 116:21–24 (“[DEFENDANT’S

COUNSEL]: Wilmington has never been to the dredge disposal sites to

determine what is actually on the properties; right? [COMMISSIONER

WILLIAMS]: That is correct.”). Accordingly, Mr. Cyre was unable to offer

testimony about the Properties in particular. Tr. 283:6–13; see also

Tr. 347:25–348:3 (confirming that Mr. Cyre’s “focus was not on the

individual properties at issue”).

• Mr. Cyre was unable to explain to what extent the City’s impervious area

estimate correlated with the Properties’ actual impervious area. Tr. 349:14–

21; see also Tr. 381:10–17 (“[DEFENDANT’S COUNSEL]: To be clear, you do

not offer an opinion that the .30 runoff coefficient is a fair approximation of

the stormwater pollution that the Corps’ properties at issue contribute to

Wilmington’s stormwater system; correct? MR. CYRE: Other than by that

assumed extension from the class level to the individual members of the

class, that is correct.”).

21

• Mr. Cyre admitted that it is impossible to know if the assigned runoff

coefficient for a given property is accurate unless and until the City

examines that property. Tr. 297:5–12.

Although the Court acknowledges that Wilmington’s charges must represent

only a “fair approximation of the proportionate contribution of the property or facility to

stormwater pollution,” the City’s expert conceded too much ground for the City to

prevail. 33 U.S.C. § 1323(c)(1)(A) (emphasis added). In that regard, the Court takes no

issue with the City’s contention that the Clean Water Act permits the City to assess

stormwater fees against the United States based on estimates, Pl. Resp. at 29.17 The

Court concludes, however, that such estimates must be based on facts anchored in

reality.

Legal questions about approximations and estimates are not unique to this case.

For example, in Precision Pine & Timber, Inc. v. United States, the United States Court of

Appeals for the Federal Circuit, our immediate appellate court, considered, “with

respect to damages[,] . . . whether the evidence adduced at trial was sufficient to enable

the fact finder . . . to make a ‘fair and reasonable approximation.’” 596 F.3d 817, 833

(Fed. Cir. 2010) (quoting Nat’l Australia Bank v. United States, 452 F.3d 1321, 1327 (Fed.

Cir. 2006)). The party charged with proving a fair approximation of damages “has the

burden of proving them with ‘reasonable certainty.’” 596 F.3d at 833. “As the phrase

itself suggests, reasonable certainty requires more than a guess, but less than absolute

exactness or mathematical precision.” Id. (emphasis added) (citing Bluebonnet Sav.

Bank v. United States, 266 F.3d 1348, 1355 (Fed. Cir. 2001)). Based on the facts as found

above, the Court concludes that, in this case — on the spectrum of proof between guess

and “reasonable certainty” — Wilmington’s evidence is closer to the former than the

latter and, thus, the calculated fees at issue do not constitute a “fair approximation of

the proportionate contribution of the property or facility to stormwater pollution.” 33

U.S.C. § 1323(c)(1)(A).18

17Specifically, Wilmington contends that “Congress’s choice of the phrase ‘based on some fair

approximation of the proportionate contribution of the property or facility to stormwater

pollution’ necessarily implies that more than one approximation may be fair.” Pl. Resp. at 29

(quoting 33 U.S.C. § 1323(c)(1)(A)). The Court takes no issue with that specific assertion, either.

18Cf. Boeing Co. v. United States, 86 Fed. Cl. 303, 314 n.8 (2009) (“While consideration of a

hypothetical negotiation ‘necessarily involves an element of approximation and

uncertainty,’ . . . an expert should be able to hazard something more than a guess, or at least

show how, despite all reasonable efforts, his estimate is the best that could be derived.”

(quoting Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 517 (Fed. Cir. 1995))).

22

Accordingly, the City did not prove that the Properties’ estimated runoff, and

thus the stormwater charges, were remotely accurate in any sense of that word. This

Court simply cannot, on this record, conclude that the City’s charges were “based on

some fair approximation of the proportionate contribution of the propert[ies] . . . to

stormwater pollution.” 33 U.S.C. § 1323(c)(1)(A) (emphasis added).

Wilmington’s proof at trial also failed to focus on the object of the requisite “fair

approximation” — i.e., “the proportionate contribution of the property or facility to

stormwater pollution.” 33 U.S.C. § 1323(c)(1)(A). Neither the Supreme Court nor the

Federal Circuit appear to have defined “proportionate” or “proportional” for the

purposes of the Clean Water Act. Merriam-Webster defines “proportionate,” not

surprisingly, with reference to “proportional”; it defines “proportional” as

“corresponding in size, degree, or intensity.” Proportionate, Merriam-Webster

Dictionary, https://www.merriam-webster.com/dictionary/proportional (last visited

Jan. 24, 2022).19 A straightforward reading of 33 U.S.C. § 1323(c) therefore indicates that

stormwater charges assessed against a federal property must be tied to the property’s

relative (or “corresponding”) contribution to stormwater pollution. Even without

resorting to a dictionary definition, however, the Court finds it obvious that the statute

requires some actual relationship between charges assessed against federal properties

and their relative contribution to total stormwater pollution.20

It is true, as Wilmington notes, that Congress appears to have adopted the 2011

Amendments “out of frustration with increasing Federal agency resistance to paying

local stormwater charges.” Pl. Resp. at 21 (citing 156 Cong. Rec. H979 (Dec. 22, 2010)).

But neither the plain language of the Federal-Facilities Section nor its legislative history

suggests that Congress made the government liable for anything more than stormwater

pollution costs for which federal properties are proportionately responsible. In other

words, the Federal-Facilities Section only mandates that the federal government pay for

its relative contribution to pollution — a connection that Wilmington did not prove at

19Merriam-Webster’s definition comports with that of other dictionaries. See, e.g., Proportionate,

Oxford Learner’s Dictionary,

https://www.oxfordlearnersdictionaries.com/us/definition/english/proportionate (last

visited Jan. 25, 2022) (“increasing or decreasing in size, amount or degree according to changes

in something else”); Proportionate, Oxford English Dictionary (3d ed. 2007),

https://www.oed.com/view/Entry/152776 (last visited Jan. 25, 2021) (“[p]roportioned,

adjusted in proportion; that is in (due) proportion, proportional (to); appropriate in respect of

quantity, extent, degree, etc.”).

20Cf. Hospice of New Mexico, LLC v. Sebelius, 691 F. Supp. 2d 1275, 1291 (D.N.M. 2010)

(concluding that “[t]he word ‘proportion,’ within the context of 42 U.S.C. § 1395f(i)(2)(C), refers

to the mathematical relation of a part to the whole; in other words, it specifies a ratio or a

fraction”), aff’d, 435 F. App’x 749 (10th Cir. 2011).

23

trial. The fact that Congress was concerned with the United States paying for its fair

share of stormwater runoff does not mean that Congress commanded payment for just

any reasonable guesstimate of costs that a locality seeks to impose on property owners

within a jurisdiction. Rather, the government is on the hook for fees correlating with

the approximate stormwater pollution to which the government actually contributes

(with the caveat that, as the Court already has acknowledged, such contributions may

be reasonably estimated).21

In sum, the statutory phrase “proportionate contribution of the property or

facility to stormwater pollution” requires some link between the charges Wilmington

seeks to impose and a property’s (estimated) stormwater pollution relative to total

pollution. Charges without such a link cannot be reasonable under the statute. For

example, the total cost of the City’s stormwater management system cannot simply be

allocated over a base of property area because the quantity of attributable pollution

cannot be derived from the size of a property alone. In that regard, the City

acknowledges, at least implicitly, that the specific physical characteristics of a property

must be taken into account. As explained above, the City relies upon County tax

records and runoff coefficients to accomplish that, but despite the statute’s plain

language, Wilmington did not present any evidence linking the Properties to any

particular amount of stormwater pollution, proportional or otherwise, and there is no

evidence that the proxies for relative pollution contribution — tax record categories and

runoff coefficients — yield a fair approximation for the purpose of computing a charge.

In its response brief, Wilmington elaborates on its interpretation of the Federal-

Facilities Section, arguing that the City’s charge regime keeps proportionality “within a

given Nonresidential class using parcel area,” “between Nonresidential classes using

impervious area,” and across different classes. Pl. Resp. at 30. This interpretation of

proportionality is not what the statute demands; rather, the statute demands a

demonstrated relationship between the charges and the Properties’ relative stormwater

21This Court generally is less than enthusiastic about relying on legislative history, and that is

particularly true where the statutory language is relatively clear and the history in question is

comprised of statements from individual legislators. United States v. Gonzales, 520 U.S. 1, 6

(1997) (“[G]iven the straightforward statutory command, there is no reason to resort to

legislative history.”); N.L.R.B. v. SW Gen., Inc., 580 U.S. --, 137 S. Ct. 929, 943 (2017) (“floor

statements by individual legislators rank among the least illuminating forms of legislative

history”). Nevertheless, because both parties cite to the legislative history in their briefs — see

Def. Mot. at 18–19, 22, 25–26, 28, 31, 34, 41–42; Pl. Resp. at 18–21, 29, 35 — the Court has

reviewed it and concludes that the legislative history, if anything, corroborates the

straightforward textual reading the Court applies in this decision.

24

pollution (even if that quantity is estimated).22 This can be seen from the language of

the statute itself, which implicitly requires that a property’s “contribution . . . to

stormwater pollution” be assessed “in terms of quantities of pollutants, or volume or

rate of stormwater discharge or runoff from the property or facility.” 33 U.S.C.

§ 1323(c)(1)(A). As a result of the City’s erroneous statutory interpretation,23 however,

the City did not provide evidence that it calculated charges for the Properties based on

the Properties’ relative contribution to the City’s stormwater pollution.

Nor for that matter, as explained supra, does the Court accept Wilmington’s

contention that its charging scheme results in proportionate charges across different

classes for the simple reason that Wilmington estimates impervious area for all

nonresidential properties using a runoff coefficient approach but does not use runoff

coefficients to determine impervious area for residential parcels. Tr. 122:2–9.

B. Wilmington Attempted to Prove the General Reasonableness of Its

Service Charge Methodology, Which Is Insufficient for Recovery

Wilmington focused its entire case-in-chief on proving that the methodology the

City uses to calculate stormwater charges for all properties in the City — residential,

commercial, and Federal — is generally reasonable. This strategic choice at trial meant

Wilmington did not provide evidence of the Properties’ proportionate contribution to

pollution, either estimated or actual. Given that choice, Wilmington’s case may have

been doomed from the outset, given how the Court reads the statute (as explained

above). Nonetheless, some discussion of the City’s case-in-chief is warranted to

22The City confirmed at trial that it would not label as unreasonable any gap, no matter how

large, between a property’s actual impervious area and its estimated impervious area unless the

government followed the City’s appeal process to dispute the City’s estimate. Tr. 193:13–19.

The implications of this position are striking; unless the government files an appeal, a

monumental difference between actual and correct charges — say, one leading to a million-

dollar overcharge — would not be considered unreasonable under Wilmington’s approach.

23Wilmington also presented differing interpretations of the proportionality requirement

during its case-in-chief. Compare Tr. 236:9–24 (“[DEFENDANT’S COUNSEL]: So[,] it’s your

testimony that a class with totally different, you know, properties in it, with totally different

characteristics, the resulting charge would still be proportional? [COMMISSIONER

WILLIAMS]: Yeah. I believe — I believe that the system is a fair approximation of it. Yes.”),

with Wilmington Code § 45-53(a) (“Storm water class means classes of uses defined such that

customers within a class have similar land use characteristics”); see also Def. Mot. at 25 n.7

(citing Commissioner Williams’ testimony at Tr. 236:19–25 as proof that “Wilmington

fundamentally misunderstands the proportionality requirement”).

25

demonstrate the gap between what the City showed and what it needed to show to

recover.24

The thrust of the City’s evidence was that: (1) Wilmington’s system is, overall,

“reasonable . . . [and] nondiscriminatory in technical terms”; (2) its charges, generally,

are “based on an approximation of the proportional contribution of . . . all the

properties . . . to stormwater pollution”; and (3) by extension, the charges at issue must

be characterized as reasonable. Tr. 342:22–343:5 (emphasis added). To this end, the

City’s sole expert witness, Mr. Cyre, testified as to various apparently sensible aspects

of the City’s charge regime. For example, he testified that the impervious area — the

proxy the City uses to help estimate how much water runs off a property — provides

“one fair approximation of the contribution to stormwater pollution.” Tr. 302:25–303:3.

He testified that more than three quarters of methodologies in use today by localities

incorporate impervious surface area in some manner, and that impervious area “is

widely accepted as the parameter that best represents contribution to pollution.” Tr.

303:10–20; see also JX 14 at WILM0000446 (discussing the widespread use of impervious

area in stormwater rate setting).

Mr. Cyre defended various aspects of the City’s methodology. He testified, for

example, that the County’s tax databases — upon which the City relies to determine a

property’s gross area — “are generally among the best in terms of reflecting what is

real.” Tr. 309:12–25. Regarding the City’s use of coefficients to determine impervious

area, Mr. Cyre testified that Dr. Chow’s “hydrology coefficients of runoff,” upon which

the City bases its own runoff coefficients, are “accepted by the engineering and

hydrology fraternity totally.” Tr. 337:13–15. Mr. Cyre further testified that he “think[s]

Wilmington’s system is achieving the appropriate objectives,” citing the use of classes

for properties and based upon the assumption that the County’s tax database is “good.”

Tr. 336:20–337:12. He testified that the system “treats similar classes of properties

similarly and dissimilar classes of properties proportionately.” Tr. 337:3–5. He testified

that from a technical standard, the “stormwater charges to the classes of properties in

Wilmington bear a substantial relationship to the cost of the stormwater management

program,” Tr. 337:16–22 (emphasis added), and that the system as a whole is

“approximately and reasonably proportional to the cost of the program,” Tr. 338:1–10.

24“Reasonable” has been defined as “fair, proper, or moderate under the circumstances[.]”

Ayesta v. Davis, 584 U.S. --, 138 S. Ct. 1080, 1093 (2018) (citing Reasonable, Black’s Law Dictionary

(5th ed. 1979)). The 2019 edition of Black’s Law Dictionary defines the term identically.

26

All this testimony is beside the point. Wilmington’s evidence may show that its

stormwater charge methodology is reasonable in some general sense.25 But the Clean

Water Act does not require the government to pay service charges merely because a

locality employs a methodology that may be generally characterized as reasonable or

because a locality’s methodology is similar to others adopted in different jurisdictions.

Rather, the statute provides that the federal government must pay charges only if they

are “based on some fair approximation of the proportionate contribution of the

property or facility to stormwater pollution.” 33 U.S.C. § 1323(c)(1)(A). Mr. Cyre did

not opine, other than in a conclusory fashion, on how Wilmington’s methodology meets

the statutory requirements. Indeed, Mr. Cyre admitted that both of the following can be

simultaneously true — the City’s stormwater methodology could be “within a

reasonable spectrum of approaches” and yet the charges that system produces for the

Properties at issue might “not accurately reflect the demand [the] Corps’ Properties

place on the system.” Tr. 378:22–379:4. Relatedly, he also indicated that the City’s use

of runoff coefficients to estimate impervious area can be consistent with general

industry practice, while the City’s application of a particular runoff coefficient to the

Properties might “not accurately reflect the[ir] impervious area.” Tr. 378:14–21. Those

admissions fundamentally undermine Wilmington’s case.

The Court further finds it impossible to determine that the Properties’ charges

are “based on a proportionate contribution . . . to stormwater pollution” absent a

preponderance of evidence that the Properties impose any burdens on, or contribute

any pollution to, Wilmington’s stormwater management system. 33 U.S.C.

§ 1323(c)(1)(A). In particular, Wilmington failed to identify any measurable cost the

Properties impose on the City’s stormwater management system. See, e.g., JSUF ¶ 14

(“Wilmington does not contend that stormwater from one or more Properties entered

(or is entering) Wilmington’s [combined sewer system] and [municipal separate storm

sewer system].”); JSUF ¶ 15 (“The Properties do not contribute to Combined Sewer

Overflows[.]”). Wilmington’s trial witnesses made this clear. Mr. Cyre did not render

an opinion on whether the Properties “imposed any additional costs on Wilmington’s

system or program.” Tr. 291:12–292:7 (emphasis added). Specifically, Mr. Cyre

admitted that he was unaware of: (1) any City analysis regarding the demand the

Properties impose on Wilmington’s system, Tr. 393:6–10; (2) any drainage infrastructure

the City provides to service the Properties, Tr. 393:15–18; or (3) any infrastructure to

25On the other hand, even that may be a rosy assessment of Wilmington’s evidence: Mr. Cyre

went on to testify that he would put Wilmington’s methodology “at the 45[th] percentile,”

adding “it’s pretty darn good. . . . I think it could be a lot better. . . . I think it’s good enough.”

Tr. 307:21–308:3. Accordingly, the Court does not conclude that Wilmington’s methodology is

generally reasonable; rather, the Court merely assumes it is for the purposes of this decision.

27

improve water quality that the City maintains as a result of the Properties. Tr. 393:19–

22.

Similarly, Commissioner Williams testified that the Properties do not contribute

water to any of Wilmington’s pipes, its combined sewer system, the municipal separate

storm sewer system, combined sewer overflows, or the wastewater treatment plant.

Tr. 177:14-18 (pipes); Tr. 176:21-25, (combined sewer system); Tr. 177:1–5 (municipal

separate storm sewer system); 179:6–9 (combined sewer overflows); Tr. 178:4–20

(wastewater treatment plant). She also testified that the City is unaware of any pipes on

the Properties “that connect to [Wilmington’s] stormwater collection and conveyance

system.” Tr. 145:8-13. Finally, Commissioner Williams testified that the City does not

know the proportional demand or burden, if any, that the Properties place on the rivers

or to which TMDLs the dredge disposal sites contribute. Tr. 185:13–23, 186:23–187:3

(rivers); Tr. 189:17–21 (TMDLs).

In sum, Wilmington’s reliance on Mr. Cyre’s and Commissioner Williams’

testimony to prove that the Properties contribute to stormwater pollution (and

associated costs) — and were charged accordingly — is unavailing, particularly given

the City’s burden of proof in this case.

****

In the end, Wilmington concentrated its fire away from the correct statutory

target (as delineated in the Federal-Facilities Section), failed to produce evidence

demonstrating proportionality, and, thus, failed to meet its burden to prove facts

necessary to show that it is entitled to the claimed fees.

C. The Court Rejects Wilmington’s Remaining Arguments

Wilmington advances several alternative arguments in an attempt to show that

its charges qualify as reasonable under the Federal-Facilities Section. None of them

succeeds.

1. The 2008 EPA Brochure Is Irrelevant

Wilmington insists that the EPA’s inclusion of Wilmington’s stormwater utility

in a 2008 brochure, in which the EPA labeled the program “fair and equitable,” imbues

Wilmington’s charges with per se reasonableness under the Clean Water Act. ECF

No. 112-3 at 5; Pl. Resp. at 22–23 (“The EPA’s conclusion has not been withdrawn or

rebutted.”). The brochure certainly favors Wilmington’s position, but cannot save the

City’s claims. The EPA’s label of “fair and equitable” is irrelevant as a matter of both

fact and law.

28

First, even if an agency’s description of a charging methodology in a public

publication was somehow meant as a binding factual admission — something that

Wilmington does not argue here — EPA could not have used the phrase to refer to

Section 1323(c)(1) because the 2008 brochure was published well before the 2011 Clean

Water Act Amendments. See Pl. Resp. at 23 (“[T]he EPA’s description of Wilmington’s

stormwater charges as being ‘fair and reasonable’ predates Congress’ 2011 amendment

to 33 U.S.C. § 1323 . . . .”). Thus, the EPA’s brochure cannot show, as a factual matter,

that the government intended (in 2008) for Wilmington’s charges to be deemed

reasonable under the definition of “reasonable service charges” enacted years later.

Second, while a charitable interpretation of the City’s argument may be that

EPA’s praise for Wilmington’s program somehow should preclude the government

from refusing to pay Wilmington’s charges based on an estoppel theory, binding

precedent forecloses such an argument here. In general, a plaintiff cannot rely upon

erroneous advice from government personnel to obtain payment where it is otherwise

unauthorized. See, e.g., Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 426 (1990)

(“[J]udicial use of the equitable doctrine of estoppel cannot grant respondent a money

remedy that Congress has not authorized.”).26 Thus, even if Wilmington invokes the

EPA brochure as the basis for some sort of an estoppel argument, the Court rejects it.

2. Industry Practice Is Inapposite to the Statutory Requirements

Wilmington further argues that its charges are reasonable because its engineering

firm developed the City’s approach to be consistent with industry practice. Pl. Resp. at

23 (“The fact that Wilmington’s Ordinance assesses stormwater charges consistent with

prevailing standards and practices is itself evidence of the charges’ reasonableness.”).

The Court is not unsympathetic to the City’s point in a general sense, but it is inapposite

to the statutory requirements. Nothing in the statute makes Wilmington’s charges

26This is particularly true in the absence of any allegation of affirmative misconduct —

something Wilmington does not allege here. See Lua v. United States, 843 F.3d 950, 956 (Fed. Cir.

2016) (“Appellants must show ‘affirmative misconduct [as] a prerequisite for invoking equitable

estoppel against the [G]overnment’” (quoting Zacharin v. United States, 213 F.3d 1366, 1371 (Fed.

Cir. 2000))). Wilmington alleges only that the EPA “reviewed Wilmington’s stormwater

utility . . . and concluded . . . that Wilmington had ‘establish[ed] a stormwater utility to recover

costs related to stormwater management on a fair and equitable basis.’” Pl. Resp. at 22–23

(quoting PX 28 at 4). It does not allege affirmative misconduct and nowhere claims that

Wilmington developed its stormwater utility in reliance on EPA’s brochure. In any event, the

Court doubts that such allegations would make sense, as the EPA’s brochure was published

after Wilmington’s stormwater utility provisions were enacted. PX 28 at 4 (“Wilmington has a

combined sewer system and used a three-step approach to establish a stormwater utility . . . .”).

29

reasonable for payment purposes just because the City’s approach is similar to that of

other localities.

Moreover, even if the Court were to assume that the City’s process followed the

industry standard at the time the ordinance was passed,27 a practice that fails to satisfy a

current legal requirement for payment cannot be saved by conformance with a

years-old industry standard.28 Rather, to recover its charges in this case, Wilmington

must, but does not, demonstrate that its charges properly qualify under the money-

mandating statute at issue, 33 U.S.C. § 1323.

3. The Charges Do Not Have a “Presumption of

Reasonableness”

Wilmington further argues that its stormwater charges must be presumed

reasonable as a matter of law. Pl. Resp. 24–27. Specifically, the City argues that because

its stormwater charges were “assessed in strict accordance with the elements of City

Code § 45-53” they are “presumed reasonable as a matter of law” and are subject only

to “rational basis” review. Id. at 24. Wilmington thus seems to argue that virtually any

charges it develops under its own Code would be legally reasonable under the Clean

Water Act, without regard to the statutory definition of “reasonable service charges”

contained in the Federal-Facilities Section. This is patently incorrect. Because 33 U.S.C.

§ 1323(c) clearly defines when state and local charges are “reasonable,” this Court may

not presume that Wilmington’s charges are “reasonable as a matter of law.”

Wilmington, as the plaintiff in this action, bears the burden of proof and cannot shift

that burden to the government. See, e.g., Banks v. United States, 78 Fed. Cl. 603, 616

(2007) (noting that “[p]laintiffs bear the burden of proof in civil proceedings” and they

“meet that burden only if they establish by a preponderance of the evidence the cause

of action for which they have sued” (internal quotations and citations omitted)), vacated

in part on other grounds, 721 F. App’x 928 (Fed. Cir. 2017).

27The government disputes this claim, labeling the testimony of Wilmington’s expert on the

matter conclusory: “There is no evidence in the record that ‘the practices [of] Black and Veatch’

in formulating Wilmington’s utility are consistent with industry standards. . . . There is no

evidence before the Court that Wilmington’s ordinance is consistent with prevailing standards.”

Def. Reply at 6 (quoting Pl. Resp. at 23).

28 Congress amended the Federal-Facilities Section to define “reasonable service charges” in

2011, after Wilmington already instituted the formula it used to generate the charges for which

it seeks compensation here; it is perhaps unsurprising that Wilmington ultimately fails to

demonstrate that its charges to the government qualify under the relevant statute because

Wilmington never updated its charging methodology accordingly. Tr. 106:18–107:9.

30

Relatedly, the City contends that the Clean Water Act “did not exempt the

United States from the burdens of overcoming . . . long-established presumptions

accompanying local ordinances” like Wilmington’s “complete powers of legislation and

administration” and its “power to enact ordinances . . . necessary and proper for

carrying into execution of any of its express or implied powers.” Pl. Resp. at 26–27

(quoting Wilmington Code § 1-101 (“Powers of the city — Generally”)). This argument

also fails. The government does not challenge the City’s general power to enact

ordinances, nor does the government contest the validity of Wilmington’s statutory

scheme for stormwater charges. Rather, the only issue here is whether the City has

proven that the government must pay assessed charges pursuant to the Federal-

Facilities Section of the Clean Water Act. The City’s power to enact ordinances is

simply irrelevant to that question, which the Court answers in the negative.

4. The Supreme Court’s “Massachusetts Test” is Inapplicable

Next, Wilmington argues that the Supreme Court’s decision in Massachusetts v.

United States, 435 U.S. 444 (1978), and its progeny, should control the outcome of this

case. According to Wilmington, those cases teach that the City only has to demonstrate

that its charging methodology is “generally reasonable” because: (1) “the words

‘accurate’ or ‘actual’ are not found in 33 U.S.C. § 1323”; and (2) “the law has never held

[local] governments to any semblance of accuracy under the ‘fair approximation’ test or

otherwise.” Pl. Resp. at 32–33 (discussing Massachusetts and citing other cases). The

Court is unconvinced that Massachusetts rescues the City’s claims.

In Massachusetts, the Supreme Court considered an annual registration tax

Congress imposed on all civil aircraft that fly in the navigable airspace of the United

States; the tax was enacted “[a]s part of a comprehensive program to recoup the costs of

federal aviation programs from those who use the national airsystem.” 435 U.S. at 446.

The case involved the “constitutional question” of “whether this tax, as applied to an

aircraft owned by a State and used by it exclusively for police functions, violates the

implied immunity of a state government from federal taxation.” Id. (emphasis added).

The Supreme Court concluded “that it does not.” Id. In so holding, the Supreme Court

explained:

The principles that have animated the development of the

doctrine of state tax immunity and the decisions of this Court

in analogous contexts persuade us that a State enjoys no

constitutional immunity from a nondiscriminatory revenue

measure, . . . which operates only to ensure that each member

of a class of special beneficiaries of a federal program pay a

31

reasonable approximation of its fair share of the cost of the

program to the National Government.

Id. at 454–55 (noting that “the immunity of the Federal Government from state taxation

is bottomed on the Supremacy Clause, but the States’ immunity from federal taxes was

judicially implied from the States’ role in the constitutional scheme”).

In sum, the Supreme Court held:

So long as the [federal] charges do not discriminate against

state functions, are based on a fair approximation of use of the

system, and are structured to produce revenues that will not

exceed the total cost to the Federal Government of the benefits

to be supplied, there can be no substantial basis for a claim

that the National Government will be using its taxing powers

to control, unduly interfere with, or destroy a State’s ability to

perform essential services.

Massachusetts, 435 U.S. at 466–67 (emphasis added).

This Court understands the facial appeal of the Massachusetts decision to

Wilmington’s position. The Supreme Court in that case indeed acknowledged that a

“fair approximation” of a user’s proportional share of the cost of a system does not

require a precise calculation. 435 U.S. at 465–66 (discussing the general insignificance of

“[t]he possibility of a slight overcharge”). The government does not dispute that

premise. Def. Resp. at 9 (conceding that the Clean Water Act’s Federal-Facilities Section

“does not require exact precision”). And neither does this Court. But that premise does

not lead to the ineluctable conclusion that the reasoning in Massachusetts applies here to

save Wilmington’s money-mandating claim. In that regard, we must be clear about the

context of that case and the precise issue before the Supreme Court — Massachusetts did

not define the term “fair approximation” for all purposes, but rather addressed whether

fees the federal government imposed on a state passed constitutional muster:

If the National Government were required more precisely to

calibrate the amount of the fee to the extent of the actual use

of the airways, administrative costs would increase and so

would the amount of revenue needed to operate the system.

The resulting increment in a State’s actual fair share might

well be greater than any overcharge resulting from the

present fee system. But the complete answer to the

Commonwealth’s concern is that even if the flat fee does cost

it somewhat more than it would have to pay under a perfect

32

user fee system, there is still no interference with the values

protected by the implied constitutional tax immunity of the

States. The possibility of a slight overcharge is no more

offensive to the constitutional structure than is the increase in

the cost of essential operations that results either from the fact

that those who deal with the State may be required to pay

nondiscriminatory taxes on the money they receive or from

the fact a jury may award an eminent domain claimant an

amount in excess of what would be “just compensation” in an

ideal system of justice.

Massachusetts, 435 U.S. at 466.

The Supreme Court thus held that a tax representing a “fair approximation” of

“use” — or perhaps, more accurately, an allocation of cost of use — satisfied

constitutional requirements. 435 U.S. at 461 (“A nondiscriminatory taxing measure that

operates to defray the cost of a federal program by recovering a fair approximation of

each beneficiary’s share of the cost is surely no more offensive to the constitutional

scheme than is either a tax on the income earned by state employees or a tax on a State’s

sale of bottled water.”). Applying that “fair approximation” standard to the tax at

issue, the Court in Massachusetts concluded that it was constitutional: “the tax satisfies

the requirement that it be a fair approximation of the cost of the benefits civil aircraft

receive from the federal activities.” Id. at 467. Although the Court noted “[a] probable

deficiency in the formula” — insofar as “not all aircraft make equal use of the federal

navigational facilities or of the airports that have been planned or constructed with

federal assistance” — the Court nevertheless determined the taxation “scheme . . . is a

fair approximation of the cost of the benefits each aircraft receives.” Id. at 468–69 (“The

four taxes, taken together, fairly reflect the benefits received, since three are geared

directly to use, whereas the fourth, the aircraft registration tax, is designed to give

weight to factors affecting the level of use of the navigational facilities.”). The Supreme

Court further determined that “the tax is not excessive in relation to the cost of the

Government benefits supplied.” Id. at 469.

Although this Court agrees with Wilmington that Massachusetts plausibly may be

read to operationally define the phrase “fair approximation,” we cannot graft that

concept from a case involving the constitutionality of a tax onto the later-enacted,

money-mandating statute at issue in this litigation. To the extent the Supreme Court

defined “fair approximation,” the definition is hardly plug-and-play. In that regard, the

United States Court of Appeals for the Eighth Circuit explained the difficulty with

exporting the Massachusetts analysis to a different context:

As far back as the landmark case of McCulloch v. Maryland, 4

Wheat. 316, 4 L.Ed. 579 (1819), it was recognized that the

federal government is immune from taxation by the states

33

absent Congressional authorization. Federal immunity from

state taxation is based on the Supremacy Clause of the United

States Constitution, U.S. Const. art. VI, cl. 2. Unlike the states’

immunity from federal taxation, which is somewhat limited,

the United States’ immunity from state taxation is a “blanket

immunity.” . . . The immunity question in Massachusetts arose

in the context of a state’s immunity from federal taxation. The

states’ immunity from federal taxation is more limited than

the federal government’s immunity from state taxation, and

is based on a different constitutional source. Generally, the

states are immune from federal taxation that would unduly

burden essential state functions. Federal immunity from state

taxation, however, is a blanket immunity and is not subject to

the same limits.

United States v. City of Columbia, 914 F.2d 151, 153–54 (8th Cir. 1990) (internal citations

omitted) (quoting South Carolina v. Baker, 485 U.S. 505, 518 n.11 (1988), and discussing

Massachusetts, 435 U.S. at 459–60). Thus, there is a distinction this Court must draw —

at least as a matter of constitutional law — between the degree of precision that the

federal government must use when imposing a tax or fee on states, on the one hand,

and the severe constraints upon states seeking to charge the federal government, on the

other.

Wilmington fails to explain how the constitutional principles controlling what

the federal government may charge users for its services translate to how this Court

must interpret 33 U.S.C. § 1323(c).29 Again, the Supreme Court in Massachusetts was

concerned with whether a federal tax or user fee constituted a “fair approximation” of

the cost of benefits received by a user of a government program or system — a

judicially-created test formulated specifically to analyze the constitutionality of a

federal tax (or fee). Indeed, the Supreme Court itself has read Massachusetts as standing

only for the proposition that “the amount of a user fee [need not] be precisely calibrated

to the use that a party makes of Government services.” United States v. Sperry Corp., 493

U.S. 52, 60 (1989) (“Nor does the Government need to record invoices and billable hours

to justify the cost of its services.”). Rather, “[a]ll that [is] required is that the user fee be

29Cf. United States v. Sperry Corp., 493 U.S. 52, 61 n.7 (1989) (distinguishing American Trucking

Assns, Inc. v. Scheiner, 483 U.S. 266 (1987), on the grounds that “[t]he Court there was faced with

particular constitutional restrictions on fees and taxes not present in this case” and explaining

that American Trucking’s reasoning “cannot be extended outside the context of the Commerce

Clause” which imposes a more “exacting requirement” than the Just Compensation Clause).

34

a ‘fair approximation of the cost of benefits supplied.’” Id. (quoting Massachusetts, 435

U.S. at 463 n.19).30

In contrast to the constitutional questions addressed in Massachusetts, this Court

is faced with a clear statutory directive — and we cannot simply ignore the object of the

“fair approximation” in the Clean Water Act’s Federal-Facilities Section, in which

Congress expressly commanded payment of local service charges only where they are

based on “the proportionate contribution of the property . . . to stormwater pollution.”

33 U.S.C. § 1323(c)(1)(A). As discussed above, Wilmington’s charging methodology is

entirely untethered to the Properties’ proportionate contribution to stormwater

pollution. Again, the City is free to estimate the Properties’ proportionate contribution

to stormwater pollution (i.e., to employ a “fair approximation”), but there is little, if any,

evidence — and certainly no preponderant evidence — that Wilmington’s scheme does

that with any degree of accuracy.

Indeed, the Court agrees with the government that Wilmington would lose even

if the Court were to apply the Massachusetts test. See Def. Reply at 10. As the

government notes, “Massachusetts requires charges be based on some fair

approximation of use” or cost of use. Id. (citing Massachusetts, 435 U.S. at 464).

Wilmington, however, “did not present any evidence at all showing that the Properties

use Wilmington’s system or impose any measurable burden on Wilmington’s system,”

and the Properties “indisputably do not use Wilmington’s local drainage

infrastructure.” Def. Reply at 10 (citing JSUF ¶ 14 and explaining that “[t]o the

contrary, the evidence strongly shows the opposite, that the Properties are not being

charged an approximate amount proportionate to their contributions to stormwater

pollution”).31

Wilmington cites other cases applying Massachusetts, but they are inapposite or

support the government. See Pl. Resp. at 33 (citing, e.g., Jorling v. Dep’t of Energy, 218

30The Supreme Court thus “recognized that when the Federal Government applies user charges

to a large number of parties, it probably will charge a user more or less than it would under a

perfect user-fee system, but we declined to impose a requirement that the Government ‘give

weight to every factor affecting appropriate compensation for airport and airway use[.]’”

Sperry, 493 U.S. at 61 (emphasis added) (citing Massachusetts, 435 U.S. at 468).

31The Court further agrees with the government that Wilmington also appears to “equate[]

‘proportionate’ with ‘nondiscriminatory,’ arguing that proportionate simply means fair and

equitable apportionment between different governments.” Def. Rep. at 10 (citing Pl. Resp. at

34). The government correctly explains, however, that “[S]ection 1323(c) separately requires

stormwater charges be nondiscriminatory” and that “[i]f Wilmington were right, there would

be no need to separately require proportionality if ‘nondiscriminatory’ and ‘proportionate’

denoted the same meaning.” Id. Thus, the Court agrees that “Wilmington’s interpretation

renders the word ‘proportionate’ superfluous” and “must be rejected.” Id.

35

F.3d 96 (2d Cir. 2000), and Brock v. Wash. Metro Area Transit Auth., 796 F.2d 481, 485

(D.C. Cir. 1986)).32

In Jorling, the United States Court of Appeals for the Second Circuit held that

hazardous waste charges New York State imposed on federal installations under the

Resource Conservation and Recovery Act (“RCRA”) constituted “reasonable service

charges” pursuant to 42 U.S.C. § 6961(a) because they met the Massachusetts “fair

approximation” test. 218 F.3d at 103–06. In particular, the Second Circuit concluded

that such charges were “reasonably designed to fairly approximate [the] use of [the

New York State Department of Environmental Conservation]’s services and thereby to

roughly approximate the cost of supplying these services to transporters of waste[.]” Id.

at 105. As explained above, this Court does not agree that Massachusetts’ constitutional

concerns — and its “fair approximation” standard — may be transported and applied

directly to the Clean Water Act’s Federal-Facilities Section. More significantly,

however, Jorling is distinguishable because RCRA does not contain the same (or even an

analogous) definition of “reasonable service charges.” Compare 42 U.S.C. § 6961(a), with

33 U.S.C. § 1323(c)(1).

As amended, RCRA provides that each department, agency, and instrumentality

of the federal government

engaged in any activity resulting, or which may result, in the

disposal or management of solid waste or hazardous waste

shall be subject to, and comply with, all Federal, State,

interstate, and local requirements, both substantive and

procedural . . . , respecting control and abatement of solid

waste or hazardous waste disposal and management in the

same manner, and to the same extent, as any person is subject

to such requirements, including the payment of reasonable

service charges.

42 U.S.C. § 6961(a) (emphasis added). “In 1992, Congress clarified the scope of the

waiver of sovereign immunity in this provision,” Jorling, 218 F.3d at 100, by adding the

following language:

The United States hereby expressly waives any immunity

otherwise applicable to the United States with respect to any

such substantive or procedural requirement (including, but

not limited to, any . . . reasonable service charge). The

reasonable service charges referred to in this subsection

32Plaintiff also cites N.Y. Dep’t of Env’t Conservation v. U.S. Dep’t of Energy, 850 F. Supp. 132, 142–

43 (N.D.N.Y. 1994), but that decision was affirmed in Jorling and so this Court does not

separately address the district court decision.

36

include, but are not limited to, fees or charges assessed in

connection with the processing and issuance of permits,

renewal of permits, amendments to permits, review of plans,

studies, and other documents, and inspection and monitoring

of facilities, as well as any other nondiscriminatory charges

that are assessed in connection with a Federal, State,

interstate, or local solid waste or hazardous waste regulatory

program.

Federal Facility Compliance Act of 1992, Pub. L. No. 102–386, § 102(a)(3), 106 Stat. 1505,

1505 (codified at 42 U.S.C. § 6961(a)).

RCRA thus manifestly does not define “reasonable services charges” per se; it

merely provides examples of what the federal government may be charged in the

limited context of waste disposal. While RCRA references the permissibility of “other

nondiscriminatory charges,” RCRA contains nothing similar to the limiting language of

proportionality of contribution to pollution that Congress included in the Clean Water

Act’s Federal-Facilities Section. The absence of such specific language at least enables

this Court to understand why, for the purposes of RCRA, the parties and the Second

Circuit resorted to the Massachusetts analysis regarding what constitutes a fair

approximation of use. See Jorling, 218 F.3d at 102 (“The Supreme Court’s application of

the fair approximation test in Massachusetts to uphold the challenged aircraft

registration tax appears to tilt the analysis toward consideration of use.”).33 Congress

has instructed, however, that the “fair approximation” that is relevant for the Clean

Water Act is not some generic “use” given over to judicial definition, but rather must be

an approximation of “the proportionate contribution of the property . . . to stormwater

pollution.” 33 U.S.C. § 1323(c)(1)(A). Because Wilmington’s claims are governed by

more clearly defined, and more restrictive, statutory language than that of RCRA, the

Second Circuit’s reliance on the Massachusetts analysis of “fair approximation” does not

persuade this Court to apply Massachusetts in this case.

In Brock v. Washington Metro Area Transit Authority, the United States Court of

Appeals for the District of Columbia Circuit considered the District of Columbia’s

workers’ compensation regime, pursuant to which “all employers (or their

compensation carriers) contribute to a Special Fund from which the Secretary of

Labor . . . makes a variety of payments to injured workers.” 796 F.2d at 481–82 (citing

33 U.S.C. § 944). The Washington Metropolitan Area Transit Authority (“WMATA”)

stopped contributing to that Special Fund, asserting, among other things, “that the

33See also Jorling, 218 F.3d at 103 (“Ultimately, of course, the Massachusetts test is concerned with

whether the challenged method for imposing charges fairly apportions the cost of providing a

service, but by framing the second component of the test in terms of ‘use,’ the Court made clear

that a method for imposing charges based on each payer’s approximate use will pass muster as

an adequate apportionment of costs.”).

37

constitutional doctrine of intergovernmental tax immunity (here, state immunity from

federal taxation) shelters it from liability for Special Fund contributions.” Id. at 482.

Applying Massachusetts, the D.C. Circuit explained as follows:

. . . Massachusetts held only that the method used to calculate

the fee must rationally be designed to approximate

prospectively the benefit to the user. The levy held

constitutional in Massachusetts illustrates this meaning of “fair

approximation.” The fee was a flat registration tax for all civil

aircraft, introduced to help finance federal aviation programs;

the amount of the fee was based on the size and type of

aircraft, but not the aircraft’s actual use of the airways or the

facilities and services supplied by the United States. . . .

The Massachusetts opinion acknowledged that a fee based on

actual use would measure the benefit to the user more

accurately. The Court emphasized, however, that an actual

use measurement method would be more costly to

administer. Furthermore, the Court observed, the

measurement method employed does bear a fair relationship

to the benefit: bigger planes are more expensive for the federal

safety system to accommodate. Finally, the Court noted that

all users receive certain ambient or indirect benefits from the

federal aviation system: the federal services are available to,

and make the airspace safer for, all users.

Brock, 796 F.2d at 485–86 (discussing Massachusetts, 435 U.S. at 468–69, 451 n.9).

Like Jorling, the Brock decision similarly relied upon Massachusetts to focus on

whether a fee had some approximate or fair relationship to the benefit received by the

entity charged. But, again, in Brock — just as in Massachusetts itself — there was no

statutory command defining the object of “fair approximation,” in contrast to the Clean

Water Act’s Federal-Facilities Section at issue here. Rather, the D.C. Circuit adapted

and applied the Massachusetts analysis to hold “that the payments in question entail a

fair approximation of projected benefits, and, moreover, relate to a ‘proprietary’

function,” such “that WMATA cannot tenably claim constitutional immunity from the

Special Fund assessment.” Brock, 796 F.2d at 487.

Brock is thus inapposite to Wilmington’s claim, insofar as (1) constitutional

immunity is not at issue in this case, and (2) the federal government’s general “use” of

the City’s stormwater management program is not the relevant consideration (for

38

which there is no evidence in any event). Rather, the issue here is whether the City’s

fees are “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).” 33

U.S.C. § 1323(c)(1)(A). As explained above, Wilmington’s assessed fees — for which it

seeks a judgment here — are not based on some fair approximation of the government’s

proportionate contribution to stormwater pollution.

If anything, Brock’s explanation of Massachusetts demonstrates the problems with

Wilmington’s methodology, at least vis-à-vis its money-mandating claim in this case.

As noted above, the D.C. Circuit in Brock highlighted that “the measurement method

employed” in Massachusetts “does bear a fair relationship to the benefit: bigger planes

are more expensive for the federal safety system to accommodate.” 796 F.2d at 485–86

(noting that, in Massachusetts, “the amount of the fee was based on the size and type of

aircraft, but not the aircraft’s actual use of the airways or the facilities and services

supplied by the United States”). In contrast, Wilmington presented no evidence

explaining the relationship between the size and nature of the Properties and their

proportionate contribution to stormwater pollution — and that is precisely the type of

evidence the Federal-Facilities Section requires in order for the government to be on the

hook for the service charges at issue. Viewed through the prism of Massachusetts,

Wilmington’s service charges would be akin to the government charging fees based not

on the verified size and type of aircraft, but rather on a mere listing of aircraft, imported

from a third party without verification, that may or may not accurately reflect the

aspects of the aircraft generating the charges. This Court cannot find such charges

payable pursuant to 33 U.S.C. § 1323.

D. The City’s Fee Adjustment Process Does Not Qualify as a “Local

Requirement” for Purposes of 33 U.S.C. § 1323(a)

Since the outset of this case, Wilmington repeatedly has argued that the

government cannot contest the City’s stormwater charges because the government did

not challenge the charges through the City’s appeal process. The Court consistently has

rejected that argument. See Wilmington I, 136 Fed. Cl. at 631–33 (rejecting Wilmington’s

arguments that (1) Section 1323(a) compels the government to file an appeal, and (2) the

exhaustion doctrine prevents the government from raising in litigation any arguments it

could have raised in that administrative appeal); Wilmington II, 152 Fed. Cl. at 379–80

(rejecting Wilmington’s argument that the government should be precluded from

arguing at trial that the Properties contain wetlands because the government never

sought lower stormwater charges through the City’s appeal process). At trial,

Wilmington nevertheless continued to assert that its charges must be presumed

reasonable because the government did not file a fee adjustment application. Tr. 193:8–

39

12. In its response brief, Wilmington once again advances the same position, with

equally unpersuasive arguments. Pl. Resp. at 38–42.

As this Court already has explained, Wilmington’s permissive administrative

appeal process, which allows property owners to appeal only future charges — and

only after all assessed fees, no matter how unreasonable, have been paid to the City —

does not cloak its stormwater charges in per se, statutory reasonableness for the

purposes of the Federal-Facilities Section. Nor for that matter is the appeal process a

“requirement[]” to which the government must adhere pursuant to 33 U.S.C. § 1323(a).

The statute’s plain language, case law interpreting the statute, and even the

statute’s legislative history all mandate rejection of Wilmington’s argument. The Court

evaluates each of these before turning to Wilmington’s arguments.

We begin with the statute’s text. Section 1323(a) instructs agencies to comply

with “local requirements . . . respecting the control and abatement of water pollution.”

33 U.S.C. § 1323(a). As an initial matter, a straightforward reading indicates that

Wilmington’s appeal process does not govern, does not involve, and thus is not

“respecting the control or abatement of water pollution.”34 The Wilmington Code

describes the appeal process as one property owners can undertake to dispute the

amount of their charges. Wilmington Code § 45-53(d)(7). Appealing a charge,

self-evidently, has nothing to do with “the control and abatement of water pollution.”

See id. (describing the following grounds for appeal: “(1) the calculation of the storm

water charge; (2) the assigned storm water class; (3) the assigned tier, if applicable; and

(4) the eligibility for a credit”).

Although the case law interpreting the term “requirements” in Section 1323 is

sparse, it supports defining “requirements” in a way that does not include

Wilmington’s appeal process. The Supreme Court, for example, in EPA v. California,

34Wilmington cites Lamar, Archer & Cofrin, LLP v. Appling, 584 U.S. --, 138 S. Ct. 1752, 1759

(2018), for the following dictionary definition of “respecting”: “in view of: considering; with

regard or relation to: regarding, concerning.” Pl. Resp. at 38. That definition does not help

Wilmington, as the City does not explain — and the Court does not see — how Wilmington’s

appeal process is “regarding” or “concerning” the control or abatement of water pollution.

Indeed, the City then references “the illustrative fee adjustments appeal example in

Wilmington’s [Storm Water Credits and Fee Adjustments Appeals] Manual,” in which a

hypothetical commercial property owner “obtained a revised runoff coefficient.” Id. The City

argues that this illustration shows that a property owner could “[r]eplace more of asphalt or

gravel with grass, and the City would reward the efforts to further limit stormwater pollution

with still lower stormwater charges.” Id. This example, however, merely clarifies that

Wilmington’s appeal process is both optional (rather than a “requirement”) and a process

respecting the revision of prospective charges, not respecting stormwater pollution.

40

adopted the view of the United States Court of Appeals for the Ninth Circuit that

“requirements” refers “‘simply and solely to substantive’ standards, to effluent

limitations and standards and schedules of compliance.” 426 U.S. at 215 (quoting

California ex rel. State Water Res. Control Board v. EPA, 511 F.2d 963, 969 (9th Cir. 1975)).35

Under this definition, Wilmington’s appeal process is not a “requirement.”

The few district courts that have addressed the issue also read the term

“requirements” like this Court reads it. See In re ACF Basin Water Litigation, 467 F. Supp.

3d 1323, 1337 (N.D. Ga. 2020) (“The Supreme Court has stated that the requirements

that can be enforced against federal agencies under [the Federal-Facilities Section] are

limited to objective state standards of control, such as effluent limitations in permits,

compliance schedules and other controls on pollution applicable to dischargers.” (citing

EPA, 426 U.S. at 215)); New York v. United States, 620 F. Supp. 374, 384 (E.D.N.Y. 1985)

(defining Clean Water Act “requirements” as “objective, administratively

predetermined effluent standard[s] or limitation[s] or administrative order[s] upon

which to measure the prohibitive levels of water pollution”); Kelley ex rel. Michigan v.

United States, 618 F. Supp. 1103, 1108 (W.D. Mich. 1985) (defining Clean Water Act

“requirements” as state statutes that “provide objective, quantifiable standards subject

to uniform application,” and holding that statutes making it unlawful to discharge into

state waters any substance that may become harmful to public welfare and providing

causes of action for that behavior were not Clean Water Act “requirements”).36

35As discussed in Section I.B, supra, Congress amended the Clean Water Act in 1977 in response

to EPA v. California. Nevertheless, Congress did not alter the Court’s definition of

“requirements” — the amended statute did not, and does not, expressly define “requirements.”

See New York v. United States, 620 F. Supp. 374, 382 (E.D.N.Y. 1985) (explaining that Congress did

not expand the definition of substantive requirements in the 1977 Amendments and that “to the

degree the Supreme Court’s ruling in EPA v. California . . . construed the substantive

‘requirements’ of § 313 to mean effluent limitations, such ruling was unaffected by the 1977

amendments enacted by Congress”). Wilmington’s appeal process also would not qualify as a

procedural requirement even under the examples in the statute’s legislative history; as cited

supra note 5, a 1977 Senate report listed several examples of “procedural provisions” covered by

“requirements,” none of which resembles the appeal process: “requirements to obtain

operating and construction permits, reporting and monitoring requirements, any provisions for

injunctive relief and such sanctions imposed by a court to enforce such relief, and the payment

of reasonable service charges.” S. Rep. No. 95-370, at 67.

36Wilmington did not cite any definition of “requirements,” under the Clean Water Act or any

other statute, or any case law, suggesting that Wilmington’s appeal process applies to the

federal government. The government, in contrast, bolsters its argument that the City’s appeal

process is not a “requirement” under the statute by citing cases that interpret the word

“requirements” as used in similar statutes; this Court agrees that none of the definitions of

41

Additionally, legislative history, though not dispositive, supports the idea that

Wilmington’s appeal process does not concern the control or abatement of water

pollution. As explained above, Congress amended the Clean Water Act in 1977 to

address the Supreme Court’s decision in EPA v. California, 426 U.S. 200 (1976), that the

statute as then-written did not require federal agencies to pay for permits. See supra

Section I.B. Wilmington thus correctly notes that the purpose of the 1977 Amendments,

in part, “was to ‘unequivocally’ subject ‘all Federal facilities and activities . . . to all of

the provisions of State and local pollution laws.’” Pl. Resp. at 18 (quoting S. Rep. No.

95-370, at 67 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392). But Wilmington’s

reliance upon legislative history is misplaced. First, such history cannot supplant the

plain meaning of the statute. Second, the Senate Report itself indicates that the 1977

Amendments were intended to subject federal facilities to procedural requirements

related to controlling pollution, such as “requirements to obtain operating and

construction permits, [and] reporting and monitoring requirements.” S. Rep. No. 95-

370, at 67. The government thus argues, and this Court agrees, that “a fee adjustment

process is not at all similar to those example procedural requirements” cited in the

Senate Report. Def. Mot. at 42.

Undaunted, Wilmington continues to push its twice-rejected thesis that the

government had to comply with the City’s appeal process. First, Wilmington again

argues that the appeal process qualifies as a statutory “requirement” that the

government is obligated to follow. Pl. Resp. at 39. Second, Wilmington asserts that

Delaware state law mandates exhaustion. Id. at 40. And third, Wilmington contends

that the government can pay the bills under protest and then sue for their return. Id. at

9. The Court addresses each argument seriatim.

First, Wilmington argues that the United States is subject to Wilmington’s appeal

process because that process is “easily understood as a procedural requirement” and

the Clean Water Act subjects the federal government to local “administrative

authority.” Pl. Resp. at 39 (quoting 33 U.S.C. § 1323(a)).37 As discussed above, the

“requirements” in those cases, even if applied to the Clean Water Act, would include

Wilmington’s appeal process. See Def. Mot. at 41–43 (citing Hancock v. Train, 426 U.S. 167, 187

(1976) (Clean Air Act); Fla. Dep’t of Env’t Regul. v. Silvex Corp., 606 F. Supp. 159, 162–63 (M.D.

Fla. 1985) (RCRA); Romero-Barcelo v. Brown, 643 F.2d 835, 855 (1st Cir. 1981), rev’d on other

grounds sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) (Noise Control Act)). In each

of the cited cases, the court did not interpret the word “requirements” to include anything

analogous to Wilmington’s appeal process.

37“Each department, agency, or instrumentality . . . shall be subject to, and comply with, all

Federal, State, interstate, and local requirements, administrative authority, and process and

42

statute’s language, as well as case law interpreting its language, foreclose this

argument.

Second, Wilmington attempts to support its exhaustion argument on state law

grounds. Pl. Resp. at 40 (“[T]he United States does not deny that Delaware requires

exhaustion from its property owners.”). It is irrelevant, though, whether Delaware law

requires property owners to exhaust administrative remedies. As noted in Wilmington I,

“[w]here ‘Congress has not clearly mandated the exhaustion of particular administrative

remedies, the exhaustion doctrine is not jurisdictional, but is a matter for the exercise of

sound judicial discretion.’” 136 Fed. Cl. 628, 632–33 (emphasis added) (quoting Maggitt

v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000)). In this case, neither Congress nor the

Wilmington Code has mandated exhaustion. See 33 U.S.C. § 1323; Wilmington Code

§ 45-53(d)(7).

Mandating exhaustion thus falls to judicial discretion — and sound judicial

discretion prevents mandating exhaustion in this case. For the reasons discussed above

as well as in Wilmington I, Wilmington’s appeal process is not reasonable. Section 45-

53(d)(7) of the Wilmington Code applies only prospectively and does not allow

adjustments of prior billing cycles. JSUF ¶ 112; Tr. 71:1–5, 102:23–103:4; JX 40 at

WILM0012020. And before Wilmington even considers adjusting a property’s

stormwater charges, the property owner must pay all outstanding charges. Tr. 103:5–

15. Thus, as Judge Williams noted in Wilmington I, pursuing Wilmington’s appeal

process could require the United States to pay unreasonable charges — something the

language of Section 1323(c) expressly precludes. 136 Fed. Cl. at 633; 33 U.S.C. § 1323(c).

Third, Wilmington posits that property owners should pay charges “under

protest” and then “bring[] an action against the city to recover [them] back.” Pl. Resp.

at 9 (first quoting Murphy v. City of Wilmington, 11 Del. 108, 138 (1880); and then citing

Mr. Kleen, LLC v. New Castle Cnty. Dep’t of Special Servs., 2014 WL 4243562 (Del. Sup. Ct.

Aug. 19, 2014)). Even if Delaware law provides for such an option — something the

Court accepts only for the sake of argument here — this does not help Wilmington’s

case because it means that property owners who have been charged unreasonable sums

have recourse, if at all, only as a plaintiff claiming a refund and not through

Wilmington’s appeal process. Indeed, even according to the City, the government’s

only remedy here with respect to past fee assessments is to pay the charges and then

sue for a refund. Such an approach ignores the terms of the Clean Water Act which

require the federal government only to pay charges where the statute commands it.

Wilmington cannot use its appellate process to force the government to pay and sue for

sanctions respecting the control and abatement of water pollution[.]” 33 U.S.C. § 1323(a) (emphasis

added).

43

a refund as if the federal government itself were a plaintiff-claimant in this Court (or

any other). Again, Section 1323(c) does not allow the government to pay unreasonable

charges that do not comply with the statute, and nothing in the Federal-Facilities

Section requires the government to pay first and seek a refund later. See Nat’l Fed’n of

Ind. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 595 U.S. --, 2022 WL 120952,

at *7 (Jan. 13, 2022) (Gorsuch, J., concurring) (“Congress does not usually ‘hide

elephants in mouseholes’” (quoting Whitman v. Am. Trucking Ass’ns., Inc., 531 U.S. 457,

468 (2001))).

Finally, even if this Court were to interpret the fee-adjustment process as

generally mandatory, the government would not be required to exhaust it here.

Wilmington concedes that the fee-adjustment process cannot provide the government’s

requested relief — retroactive adjustment of past charges. JX 40 at WILM0012020

(“There will be no retroactive adjustments for prior billing periods.”); Tr. 191:15–25.

And exhaustion is not mandatory when an agency cannot grant the requested relief. Cf.

McCarthy v. Madigan, 503 U.S. 140, 146–48 (1992) (describing a situation in which a

federal agency “lack[s] authority to grant the type of relief requested” as a “set[] of

circumstances in which the interests of the individual weigh heavily against requiring

administrative exhaustion”), cited in Fredericks v. United States, 125 Fed. Cl. 404, 411–12

(2016).

Further, the government would be forced to pay all outstanding charges before

beginning the fee-adjustment process — even unreasonable charges that by law may

not be imposed in the first place on the federal government. JX 40 at WILM0012021

(“All storm water charges that are outstanding at the time of the application must be

paid in full prior to the city commencing the technical review.”); Tr. 103:5–15, 194:5–

195:5. The government therefore has no remedy under Wilmington’s appeal process to

dispute past unreasonable charges without paying them first, something forbidden by

Section 1323, as the Court explained above.

Wilmington contends that United States v. Testan, 424 U.S. 392 (1976), “derail[s]”

this point. Pl. Resp. at 40–41.38 The legislative scheme at issue in Testan and that at

38 The entirety of Wilmington’s argument, which is difficult to track, is as follows:

The United States’ first argument [that the appeal process is

inadequate because it would not grant retroactive adjustment of

past charges] is derailed by United States v. Testan. There, the

Supreme Court explained that because the respondents “have an

administrative avenue for prospective relief available to them

under the elaborate and structured provisions of the Classification

44

issue here, however, are as different as proverbial apples and oranges, and Testan’s

holding does not support Wilmington’s arguments. At issue in Testan was a federal

scheme governing federal employee pay and via which Congress circumscribed the

remedies available to federal employees for incorrect payments. 424 U.S. at 403–04

(“The situation, as we see it, is not that Congress has left the respondents remediless, as

they assert, for their allegedly wrongful civil service classification, but that Congress

has not made available to a party wrongfully classified the remedy of money damages

through retroactive classification.”). In this case, in contrast, Wilmington is seeking

damages which must qualify under the Clean Water Act’s limited waiver of sovereign

immunity. Am. Compl. ¶ 3 (“The United States . . . continues to deny[] its obligation

under the Clean Water Act, 33 U.S.C. § 1323(a), to pay Wilmington reasonable service

charges for stormwater management assessed against its properties located in

Wilmington”).

Here, accordingly, the question is whether the Clean Water Act mandates the

government to pay Wilmington’s invoices. Wilmington’s contention that the

government could have challenged the charges in the City’s appeal process is spurious,

as the government notes, Def. Mot. at 44, because such a challenge would not affect

charges already assessed which may have violated the Clean Water Act. If Congress

had circumscribed the government’s remedies in Federal-Facilities Section cases — by,

say, declaring all invoices assessed under that section presumptively proper and subject

only to challenge via municipal appeal processes — this would be a different case. In

the absence of such limiting language, however, the government is permitted to defend

against the City’s charges on the grounds that the charges do not comply with the Clean

Water Act.

VI. THE UNITED STATES DOES NOT OWE INTEREST TO WILMINGTON

Wilmington claims the government owes the City interest accrued over the past

decade due to the government’s refusal to pay Wilmington’s outstanding stormwater

charges. Compl. at 10 (requesting $1,185,929.24 in interest). By the time of trial,

Wilmington had assessed the government over $3.3 million in interest. Am. Compl. at

14 (requesting $3,360,441,32 in interest). In Wilmington I, the government moved for

Act . . . ,” they “are not entirely without remedy. They are without

the remedies in the Court of Claims of retroactive classification . . .

to which they assert they are entitled. Additional remedies of this

kind are for the Congress to provide and not for the courts to

construct.” United States v. Testan, 424 U.S. 392, 403–04 (1976).

Pl. Resp. at 40–41.

45

partial judgment on the pleadings as to the interest issue, arguing that Wilmington

could not recover interest as a matter of law because Section 1323 does not explicitly

waive sovereign immunity to recover interest. 136 Fed. Cl. at 630. The Court declined

to resolve the interest question at that time because it “raise[d] a thorny issue of first

impression in this Court.” Id. at 634.

The Court today holds that Wilmington cannot claim interest from the

government for the unpaid Clean Water Act charges even if the government were liable

to Wilmington for the principal charges it assessed.

This Court can only award interest “under a contract or an Act of Congress

expressly providing for payment thereof.” 28 U.S.C. § 2516(a). The Supreme Court also

has articulated a general “no-interest rule”: “In the absence of express congressional

consent to the award of interest separate from a general waiver of immunity to suit, the

United States is immune from an interest award.” Library of Congress v. Shaw, 478 U.S.

310, 314 (1986). In Shaw, the Court held that a litigant who was entitled under statute39

to a reasonable attorney’s fee and costs after winning an employment suit against the

federal government was not entitled to interest on the attorney’s fee because the statute

did not separately waive sovereign immunity for interest. Id. at 311, 323. The Court

noted that this no-interest rule had been recognized “[f]or well over a century.” Id. at

316. The Court further rejected plaintiff’s contention that the statute waived sovereign

immunity from interest “by equating the United States’ liability to that of a private

party.” Id. at 319. Importantly, the Court noted that neither the statute nor legislative

history references interest; such “congressional silence d[id] not permit [the Court] to

read the provision as the requisite waiver of the Government’s immunity with respect

to interest.” Id.

The Federal Circuit has repeatedly expanded upon the no-interest rule, noting,

for example, that “the waiver for sovereign immunity for interest must be distinct from

a general waiver of immunity for the cause of action resulting in the damages award

against the United States.” Marathon Oil Co. v. United States, 374 F.3d 1123, 1126–27

(Fed. Cir. 2004). Such waivers, the Federal Circuit held, “‘must be unequivocally

expressed,’ or a court must infer that Congress did not intend to create a waiver.” Id. at

1127 (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)). In Marathon Oil, the

Federal Circuit held that oil companies who successfully sued the United States for a

breach of contract were not entitled to post-judgment interest because the statute under

which they sued did not contain a separate, unambiguous sovereign immunity waiver

39The statute at interest in Shaw made the government “liable ‘the same as a private person’ for

‘costs,’ including ‘a reasonable attorney’s fee.’” 478 U.S. at 317–18 (quoting 42 U.S.C. § 2000e–

5(k)).

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for interest. 374 F.3d at 1125. The statute at issue “require[d] the government to pay

post-judgment interest on ‘all final judgments against the United States in the United

States Court of Appeals for the Federal Circuit,” id. at 1126 (quoting 28 U.S.C.

§ 1961(c)(2)), but “trigger[ed] a chain of cross[-]references that link[ed] four distinct

statutory provisions,” id. at 1128. Because the interaction between the cross-referenced

statutes was “subject to plausible readings under which Congress has not waived

sovereign immunity for post-judgment interest,” the Federal Circuit concluded that

“Congress has not unequivocally excluded the narrower reading of the relevant

statutes” and held that plaintiffs could not recover interest. Id. at 1132. The Federal

Circuit continues to invoke and apply the no-interest rule.40

Shaw, Marathon Oil, and 28 U.S.C. § 2516(a) all mandate that the government is

only liable for interest when the law at issue contains an express waiver of sovereign

immunity for interest. Nowhere in the Federal-Facilities Section is there such a waiver.

Thus, the government would not be liable for interest even if Wilmington’s charges

qualified as “reasonable service charges” under the statute.

In response, Wilmington argues that the following sentence in Section 1323(a)

waives sovereign immunity for interest regardless of the no-interest rule: “This

subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or

employees under any law or rule of law.” Pl. Resp. at 43 (quoting 33 U.S.C. § 1323(a)).

Wilmington claims that this sentence waives the no-interest rule because “there is no

plausible way to interpret ‘notwithstanding any immunity . . . under any law or rule of

law’ to exclude interest.” Pl. Resp. at 44 (quoting 33 U.S.C. § 1323(a)).

The Court disagrees. The sentence to which Wilmington points certainly

indicates that federal instrumentalities cannot use “any immunity” to escape the

provisions of Section 1323. But no provision provides for interest. Section 1323 does

40See, e.g., Shell Oil Co. v. United States, 7 F.4th 1165, 1174 n.3 (Fed. Cir. 2021) (reiterating that

interest cannot be recovered in a suit against the United States without an express waiver);

Clay v. McDonough, 2021 WL 4538675, at *2 (Fed. Cir. Oct. 5, 2021) (per curiam) (rejecting

plaintiff’s claim that he is entitled to interest because “‘interest cannot be recovered in a suit

against the Government in the absence of an express waiver of sovereign immunity from an

award of interest’ . . . and [plaintiff] has not identified any such waiver” (quoting Shaw, 478 U.S.

at 311)); Athey v. United States, 908 F.3d 696, 708–09 (Fed. Cir. 2018) (affirming Court of Federal

Claims’ denial of interest on Lump Sum Pay Act and Back Pay Act pursuant to the no-interest

rule); Bitzer v. Shinseki, 429 F. App’x 984, 986 (Fed. Cir. 2011) (“Moreover, Smith [v. Principi, 281

F.3d 1384 (Fed. Cir. 2002)] . . . unequivocally rejected the argument that no matter how

compelling the equities or public policy argument in favor of awarding interest, the Department

[of Veterans Affairs] is without authority to do so in the absence of express statutory

language”).

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not mention interest, so the general waiver of immunity language is of no help to

Wilmington. See Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal

Government’s sovereign immunity must be unequivocally expressed in statutory text,

and will not be implied.” (citations omitted)). In short, the “subsection” may “apply”

notwithstanding any assertion of immunity, but nothing in that subsection provides for

the payment of interest.

The Federal Circuit has held that statutory language far more helpful to a

plaintiff than that of the Clean Water Act does not permit the recovery of interest. In

Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002), upon which the government relies, see

Def. Reply at 16, the Federal Circuit addressed a statute that provided that the

government could “provide such relief on account of such error as the Secretary

determines equitable, including the payment of moneys to any person whom the

Secretary determines is equitably entitled to such moneys.” Smith, 281 F.3d at 1387

(quoting 38 U.S.C. § 503). The Federal Circuit concluded that such language did not

waive sovereign immunity for the purposes of collecting interest. Id. at 1387. Section

1323 contains no language regarding interest that would make it more helpful to

Wilmington than the language at issue in Smith was helpful to the plaintiff in that case.

Indeed, if anything, Section 1323 makes clear, in defining the charges for which

sovereign immunity is waived, that interest is not available. Accordingly, Smith all but

precludes interpreting Section 1323 as waiving sovereign immunity for interest.

Wilmington’s other arguments similarly fail to overcome the no-interest rule.

The government correctly observes that “[t]he plain language of ‘service charges’

encompasses charges for service — not charges for ‘the time value of money and loss of

use of amounts not paid when they are due.’” Def. Mot. at 47 (quoting Am. Airlines,

Inc. v. United States, 77 Fed. Cl. 672, 684 (2007)). In response, Wilmington argues that

“Congress statutorily defin[ed] . . . ‘reasonable service charge’ in Section 1323(c)(1) to

include a qualifying ‘fee, charge, or assessment’ even if ‘denominated a tax,’ which

supplants any alternative ‘typical’ meanings.” Pl. Resp. at 43 (citing Van Buren v. United

States, 593 U.S. --, 141 S. Ct. 1648, 1657 (2021)). This argument fails. Even if “service

charge” were defined broadly, as Wilmington urges, the statute nowhere mentions

interest — and the “fee, charge, or assessment” language Wilmington points to is

plainly not a waiver of immunity for a plaintiff to collect interest on any amounts owed.

See, e.g., Shaw, 478 U.S. at 314.

Wilmington also takes a stab at a negative implication argument, noting that

Section 1323(a) does not explicitly bar recovery of interest like the Federal Tort Claims

Act does. Pl. Resp. at 44–45; see also 28 U.S.C. § 2674 (“The United States shall be liable

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. . . in the same manner and to the same extent as a private individual . . . but shall not

be liable for interest prior to judgment . . . .”).

Wilmington apparently fails to grasp that the no-interest rule means exactly that.

A statute must explicitly authorize interest for a plaintiff to collect it; statutes do not

need to explicitly preclude interest because that is the default setting. As the

government correctly responds, “[t]he question is not whether Congress prohibited

interest under the [Clean Water Act], but whether Congress expressly and affirmatively

allowed it.” Def. Rep. at 17 (emphasis added) (first citing Marathon Oil, 374 F.3d at 1126;

then citing Shaw, 478 U.S. at 314).41

Finally, Wilmington argues that a Supreme Court case from 1921, Missouri Pacific

Railroad Company v. Ault, is “more instructive” than the no-interest rule reinforced by

Shaw. Pl. Resp. at 46 (citing Missouri Pac. R.R. Co. v. Ault, 256 U.S. 554 (1921)). This

argument fails to overcome the no-interest rule. First, Missouri Pacific Railroad Company

was decided over a century ago; to the extent the case conflicts with either Shaw or 28

U.S.C. § 2516(a), the latter case and statute are controlling.42

This Court reaffirms that absent an express statutory waiver of sovereign

immunity for a plaintiff to charge or claim interest, a party cannot succeed on a claim of

interest against the federal government. Blueport Co., LLP v. United States, 71 Fed. Cl.

768, 780 (2006) (explaining that plaintiff’s “‘waiver-through-statutory construction’

arguments” demonstrated that the statutory language at issue was “at best ambiguous

[and thus] not enough to constitute a waiver of sovereign immunity” (citing Lane, 518

U.S. at 195)). Because the Clean Water Act lacks such a waiver of sovereign immunity,

Wilmington cannot recover interest from the United States in this case even if it were

entitled to the principal charges.

VII. CONCLUSION

The bottom line is that the statute at issue, Wilmington’s litigation strategy, and

the evidence presented at trial collectively tie the Court’s hands. Section 1323 requires

that stormwater charges assessed against federal properties be based upon their

proportional contribution to stormwater pollution. At trial, however, Wilmington

41Contrary to Wilmington’s contention, this Court did not previously “acknowledge[]” that the

Clean Water Act lacks a “prohibit[ion] of interest.” Pl. Resp. at 45 (citing Wilmington I, 136 Fed.

Cl. at 635).

42Additionally, Shaw does not cite or address Missouri Pacific, which indicates that the Court did

not recognize Missouri Pacific to be a case about interest claims against the government.

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failed to provide any evidence linking its charges at issue to the Properties’ contribution

to Wilmington’s stormwater pollution.

For the above reasons, Wilmington has failed to prove that the charges it

assessed the government qualified as “reasonable service charges” pursuant to the

Federal-Facilities Section and, accordingly, the government’s RCFC 52(c) motion for

judgment on partial findings is GRANTED. The Clerk is directed to enter judgment for

defendant, the United States.

IT IS SO ORDERED.

s/ Matthew H. Solomson

Matthew H. Solomson

Judge

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