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Alabama Supreme Court Upholds Storm Water Act
Densmore v. Jefferson County, 2001 Ala. LEXIS 365 (Sept. 21, 2001).

Kristen M. Fletcher, J.D., LL.M.

Last September, the Alabama Supreme Court upheld the constitutionality of the state’s Storm Water Act, the statute created to supplement the authority of counties and municipalities to enable them to implement storm water laws.1 In upholding the Act, the court found that it is a validly-created law and provides for a valid funding mechanism through its fee system.

Background
Storm water discharges result from runoff caused by rainfall which flows over land and is not absorbed into the soil. Uncontrolled storm water discharges can severely impact water quality, especially in the early part of a runoff event when pollutant concentrations are high. Subsequent to the 1972 enactment of the Clean Water Act, the Environmental Protection Agency (EPA) resisted applying permitting requirements to storm water discharges because the application of the program would potentially require the issuance of millions of additional permits.2 Congress resolved the issue in the 1987 amendments to the Clean Water Act which confirmed that “storm water” discharges are encompassed by the federal permitting program. However, because of the challenges posed by including such discharges, Congress and the EPA embarked on a phased approach to allow the agency and the states to first focus their attention on the most serious storm water discharges.3

In an effort to comply with this federal process, the Alabama legislature adopted the Storm Water Act “to assist the state in its implementation of the storm water laws, and to supplement the authority of the governing bodies of all the counties and municipalities in the state to enable them to implement the storm water laws.”4 The statute also authorized certain governing bodies to establish procedures to carry out the storm water laws and to determine how to fund the operations of the program. In 1997, Jefferson County took action. The county joined twenty-three municipalities located with the county to form the Storm Water Management Authority and, within a few months, the County Commission approved an ordinance authorizing fees ranging from $5 to $15 to pay for the program.5 The next year, this class action suit was filed challenging the constitutionality of the Storm Water Act and the fee imposed by the ordinance.

Constitutional Challenge
The plaintiffs, primarily property owners, argued that the Storm Water Act had not been properly adopted by the Alabama legislature, claiming that the statute was a “local law” instead of a “general law.” Under Alabama law, a general law is one which “in its terms and effect, applies either to the whole state or to one or more municipalities of the state less than the whole in a class.”6 A local law is one which is not general in its scope and does not apply to an individual, association or corporation. The significance of claiming that the Storm Water Act is general law lies in the requirements for passing a local law: to adopt a local law, the governing body must provide public notice which was not provided for the Storm Water Act.

The court ultimately deferred to the justification of the trail court that any constitutional infirmities in the adoption of the Act were cured by its codification as part of the Code of Alabama. Because the legislature adopted the Act as part of the state code, the court refused to define the Act as either a local or general law and, instead, held it constitutionally valid.

Storm Water Fees
The Act gave Jefferson County the authority to determine its financial needs to fund the program, including the powers to tax and to pay for such programs. The county, through its ordinance, levied a fee upon each parcel of real property ranging from $5 to $15 per parcel of land. The plaintiffs argued that the storm water fee was an illegal tax because its primary purpose was to raise revenue and the assessment of the tax lacked any relationship between the amount of the storm water fee and the benefit each property owner received from the Storm Water Management Authority.7 The county countered that the fees collected were a result of complying with the Clean Water Act and that the fees collected were used “exclusively to fund the storm water program mandated by state and federal law.”8

While Alabama law distinguishes between taxes that are purely revenue measures and fees or charges that are principally regulatory in purpose and effect, the court determined that Jefferson County properly established the fee structure based on requirements from the EPA that the Storm Water Management Authority have a stable funding source, “to make sure that the storm water program would operate without interruption.”9

Furthermore, the court found that Alabama law does not require that fees precisely comport with the benefits provided to property owners. Rather, the court need only find a “substantial indirect benefit” to a property owner to uphold the validity of a fee such as the storm water fee. Relying on its own precedent that found a fee valid when it provided a benefit to the public by reducing pollution, the Alabama Supreme Court upheld the fee structure because it was “based upon the indirect benefit or a public benefit to the persons assessed the fee.”10

Dissent & the Act’s Future
The Supreme Court Chief Justice Moore dissented to the court’s decision, possibly paving the way for future challenges to the Storm Water Act. He found that the Act was “clearly and unambiguously a local act, and calling it a ‘general act’ does not make it one”11 and raised an issue that had not been raised by the parties to the case. Moore claimed that the Act contains an inherent defect that limits its scope to only Alabama counties containing Class 1 municipalities. Alabama law defines a Class 1 municipality as one with a population of 300,000 inhabitants or more. According to the 1990 and 2000 Federal Censuses, the city of Birmingham had under 300,000 inhabitants. Thus, Moore found that the law currently applies to no county in Alabama. While the majority opinion declined to respond to this issue because the Supreme Court cannot reverse a trial court’s judgment on a claim raised for the first time on appeal, the dissent may be forecasting a future challenge to the Act’s validity.

ENDNOTES
1. Ala. Code § 11-89C-1 (2001).
2. See Hughey v. JMS Dev. Corp., 28 F.3d 1523 (11th Cir. 1996).
3. National Pollution Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, at 47,997 (1990).
4. Ala. Code § 11-89C-1 (b) (2001).
5. Jefferson County Ordinance No. 97-783 (1997).
6. Ala. Const. Am. 397.
7. Densmore v. Jefferson County, 2001 Ala. LEXIS 365 at *21.
8. Id. at *23.
9. Id.
10. Id. at *28.
11. Id. at *31.

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