March 27, 1996
Mr. Robert E. Hagemann Office of the City Attorney 600 East Fourth Street Charlotte, NC 28202
RE: Advisory Opinion: Application of Stormwater Utility Fees to State PropertyG.S. 143-215.1
Dear Mr. Hagemann:
You have requested this office to review the legal issues surrounding the relationship between municipalities operating storm sewer systems in accordance with federal and state water quality laws and state agencies which are property owners within those jurisdictions. The issues involve an analysis of the stormwater discharge program and the obligation of state agencies to pay fees imposed by municipalities for services rendered.
BACKGROUND The regulation of stormwater discharges for point sources of pollution began in earnest in 1990, when the Environmental Protection Agency first required permits in connection with the administration of the National Pollutant Discharge Elimination System (NPDES) program. Studies in the 1980’s had shown that stormwater had the capability to carry both toxic and conventional pollutants to the waters of the United States, and that many municipal storm sewer systems were contributing to these discharges. The first stage of permitting began during 1992, with the focus being on general permits for covered industrial dischargers. By 1994, all permits were in place for large and medium municipal separate storm sewer systems.
The State of North Carolina has been delegated the authority to administer the NPDES program, including stormwater. Article 21 of Chapter 143 of the General Statutes provides the general authority and framework for the North Carolina program, with G.S. 143-215.1 governing the permitting requirements. 15A NCAC 2H .0126 establishes the North Carolina stormwater program, by adoption of the applicable federal requirements, as a component of the NPDES program. In North Carolina, permits for discharges of pollutants are required for any "person" by
G.S. 143-215.1(a); and "person" is defined in G.S. 143-212(5) to include "individuals, firms, partnerships, associations, institutions, corporations, municipalities and other political subdivisions, and governmental agencies."
Activities which are required to have stormwater permits include those discharges 1) associated with an industrial activity, 2) from a large or medium municipal separate storm sewer system, or 3) determined to be contributing to a water quality standard violation or to otherwise be a significant contributor of pollutants. See 40 CFR §122.26(l)(1)(i). The remainder of this opinion will focus on the second listed category — stormwater discharges from municipal separate storm sewer systems. In North Carolina, large and medium municipal separate storm sewer systems (MS4s) — those with populations exceeding 100,000 persons — are Charlotte, Durham, Fayetteville, Greensboro, Raleigh, Winston-Salem and Cumberland County.
PERMITTING REQUIREMENTS Pursuant to 40 CFR §122.21(c), "[a]ny person who discharges or proposes to discharge pollutants…, except persons covered by general permits under §122.28, excluded under §122.3…, shall submit a complete application…to the Director [of the State Program] in accordance with this section and Part 124." The operator of a discharge from a MS4 must either participate in a permit application with one or more of the other dischargers from that system, or submit a distinct permit application for the individual discharge. See 40 CFR §122.26(a)(3)(iii). "Where more than one public entity owns or operates a municipal separate sewer within a geographic area…, such operators may be a coapplicant to the same application…". 40 CFR 122.26(d). Permits for a MS4 may be issued on a system-wide, jurisdiction-wide, watershed-wide or other basis. See 40 CFR §122.26(a)(v).
In North Carolina, all covered MS4s submitted applications for their respective jurisdictions. The premise of each program is that all contributing sources of stormwater discharges from "persons" within the applicable jurisdiction will be permitted. State agencies within these jurisdictions are "persons" by the definition found at G.S. 143-212(5).
The application requirements for a MS4 are extensive, and beyond the scope of this analysis. Suffice it to say the MS4 must provide, inter alia, information concerning the location and description of discharge sources and controls, the receiving watercourses, the impacts from discharges, the legal authority it possesses to control pollutant contribution to its system and to prohibit illicit discharges, and its complete management program. Importantly for this discussion, although the Department of Environment, Health and Natural Resources has no control over the type of funding mechanism selected, the MS4 must provide a fiscal analysis of the expenditures that will be necessary to satisfy program objectives and detail the source of funds. See 40 CFR §122.26(d)(vi). In North Carolina, some MS4s (including Charlotte) indicated they would establish a jurisdiction-wide stormwater utility and charge pro rata user fees to each person owning property within the jurisdiction.
Cities may operate public enterprises, including structural and natural stormwater drainage systems, under the authorities of G.S. 160A-311, -312 and -314. Counties have similar powers in
G.S. 153A-274, -275 and -277. These authorities clearly include municipal storm sewer systems, which are defined under federal regulations, in pertinent part, as follows:
…a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains):
- (i)
- Owned or operated by a State, city, town, borough, county, parish, district, association, or other public body…having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes…;
- (ii)
- Designed or used for collecting or conveying storm water;…. 40 CFR §122.26(b)(8).
RELATIONSHIP OF MUNICIPALITIES AND STATE AGENCIES With this background in mind, we turn to your specific inquiry, which is whether state agencies are obligated to pay stormwater utility fees to those municipalities selecting the utility option for operating these programs. We do not find that this office has answered this specific question previously, although on at least two separate occasions (September 27, 1993 to Bill Steimer, attorney for UNC-Charlotte; and September 21, 1994 to Ken Wright, engineer for City of Durham), we have indicated that universities and the Department of Transportation are not expressly obligated by provisions within Chapter 160A to pay utility fees to municipalities. For the reasons stated in those opinions, we believe that state agencies cannot be legally required to pay stormwater utility fees imposed by local governments. State agencies, however, are obligated to pay for such city or county services rendered to the agency.
The statutory provisions of GS. 160A and G.S. 153A which authorize cities and counties to establish and operate stormwater systems do not specifically authorize service charges against state agencies. It is a well-established principle of statutory construction that statutory provisions do not apply to the State unless the legislature has expressly declared an intent to do so. United States v. Herron, 20 Wall l (U.S.) 251, 22 L.Ed. 275 (1874). North Carolina courts have consistently reaffirmed this rule. Rowan County Board of Education v. U.S. Gypsum Company, 332 N.C. 1 (1992); State v. Taylor, 322 N.C. 433 (1988); Davidson County v. City of High Point, 85 N.C. App. 26 (1987); Yancey v. Highway and Public Works Commission, 222 N.C. 106 (1942); State v. Garland, 29 N.C. 48 (1846). In State v. Garland, Chief Justice Ruffin wrote:
"But it is a known and firmly established maxim that general statutes do not bind the
sovereign unless expressly mentioned in them. Laws are prima facie made for the
government of the citizen and not of the State itself."
Id. at 50. It is therefore our opinion that cities and counties cannot enforce the payment of stormwater service fees assessed against State agencies.
This opinion should not be construed to imply that state agencies are exempt from compliance with the permitting requirements of G.S. 143-215.1. As previously stated, the legislature has expressly included "governmental agencies" within the definition of a "person" required to obtain a permit prior to the discharge of pollutants. The Department of Transportation, as an example, has worked directly with DEHNR in order to obtain a state-wide Highway System Stormwater Discharge Permit which covers all highway rights of way and other property allocated to the Department. The Department is required by G.S. 136-66.1 to be responsible for all maintenance of state system streets inside municipal corporate limits, including drainage systems. Nor is there any legal prohibition against state agencies meeting their responsibilities for compliance with Chapter 143, Article 21, through agreements with cities or counties to pay for stormwater services rendered. It is the opinion of this office that state agencies are obligated to pay for such city or county services as are utilized. It is within the administrative discretion of the agency, however, to determine whether to utilize local services or to meet their statutory responsibilities through other resources.
This opinion does not concern the separate, individual permitting requirements for industrial activity. Covered industries are defined at 40 CFR §122.26(b)(14), and it is our understanding that industries may have both individual permits and MS4 participation requirements. See EPA Stormwater Application Rule Preamble, 55 FR 47990, November 16, 1990, Part VI(C).
We trust this is responsive to your question. We will be glad to discuss this further with you if necessary. Andrew A. Vanore, Jr. Chief Deputy Attorney General
Daniel C. Oakley Senior Deputy Attorney General
Grayson G. Kelley
Special Deputy Attorney General