REIMBURSEMENT OR PAYMENT OBLIGATION OF THE FEDERAL 

GOVERNMENT UNDER SECTION 313(C)(2)(B) OF THE CLEAN WATER ACT 

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

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

stormwater assessments from annual—including current—lump-sum appropriations. 

February 25, 2011 

MEMORANDUM OPINION FOR THE GENERAL COUNSEL, 

ENVIRONMENTAL PROTECTION AGENCY 

Congress recently passed “An Act To amend the Federal Water Pollution Control Act to 

clarify Federal responsibility for stormwater pollution,” Pub. L. No. 111-378, 124 Stat. 4128 

(2011) (the “Stormwater Amendment”), which revised section 313 of the Clean Water Act 

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

agencies, as described in section 313(a), include certain stormwater assessments. Section 

313(c)(2)(B), enacted as part of this amendment, provides that federal agencies may not pay 

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

any appropriations Act to pay or reimburse the fee, charge, or assessment.” You have asked 

whether section 313(c)(2)(B) bars federal agencies from paying stormwater assessments unless 

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

payments, or instead whether agencies may “use general, lump-sum appropriations” for such 

payments.1 We believe that the best reading of section 313(c)(2)(B), when construed in accord 

with the structure, purpose, and history of the Stormwater Amendment, is that the provision does 

not impose a specific-appropriation requirement. In our view, federal agencies may pay 

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

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

Counsel, from Scott C. Fulton, General Counsel, Environmental Protection Agency at 1 (Jan. 21, 2011) (“EPA 

Letter”). In preparing this opinion, we have received comments from the Tax Division, see Memorandum for John 

A. DiCicco, Acting Assistant Attorney General, Tax Division, from David A. Hubbert, Chief, Special Litigation 

(Jan. 26, 2011) (“Tax Memorandum”); the Bonneville Power Administration, see Letter for Jonathan Cedarbaum, 

Principal Deputy Assistant Attorney General, Office of Legal Counsel, from Randy A. Roach, General Counsel, 

Bonneville Power Administration (Feb. 2, 2011); the Environment and Natural Resources Division, see 

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

Division, from Peter J. McVeigh, Attorney, Law & Policy Section (Feb. 3, 2011) (“ENRD Memorandum”); the U.S. 

General Services Administration, see Letter for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal 

Counsel, from Kris Durmer, General Counsel, General Services Administration (Feb. 3, 2011) (“GSA Letter”); 

the U.S. Postal Service, see Letter for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, 

from Carrie M. Branson, Attorney, U.S. Postal Service Law Department (Feb. 3, 2011) (“Postal Service Letter”); 

the Council on Environmental Quality, see Letter for Caroline Krass, Principal Deputy Assistant Attorney General, 

Office of Legal Counsel, from Nancy H. Sutley, Chair, Council on Environmental Quality (Feb. 3, 2011) (“CEQ 

Letter”); the U.S. Department of Agriculture, see Letter for Daniel Koffsky, Deputy Assistant Attorney General, 

Office of Legal Counsel, from James Michael Kelly, Associate General Counsel, U.S. Department of Agriculture 

(Feb. 7, 2011) (“USDA Letter”); and the U.S. Department of Defense, see Letter for Caroline Krass, Principal 

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

Counsel, Department of Defense (Feb. 8, 2011) (“DOD Letter”). 
 

Opinions of the Office of Legal Counsel in Volume 35 

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

the application of that subsection. 

I. 

A. 

The CWA, as amended, established a National Pollution Discharge Elimination System 

(“NPDES”) that is “designed to prevent harmful discharges into the Nation’s waters.” Nat’l 

Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). As a general matter, 

“the NPDES requires dischargers to obtain permits that place limits on the type and quantity of 

pollutants that can be released into the Nation’s waters.” S. Fla. Water Mgmt. Dist. v. 

Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). Because stormwater runoff collects 

debris, chemicals, and other pollutants and therefore may be a source of pollution when 

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

Environmental Protection Agency (“EPA”) to issue rules requiring and governing NPDES 

permits for certain categories of discharges of stormwater, including municipal and industrial 

discharges. See 33 U.S.C. § 1342(p)(3)(B) (2006); Final Rule, National Pollutant Discharge 

Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 

47,990 (Nov. 16, 1990); Final Rule, National Pollutant Discharge Elimination System— 

Regulations for Revision of the Water Pollution Control Program Addressing Storm Water 

Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999); see also Natural Res. Defense Council v. EPA, 

526 F.3d 591, 594-601 (9th Cir. 2008) (recounting statutory and regulatory history of EPA 

stormwater regulations). 

The EPA has issued regulations that, among other things, require municipalities operating 

separate storm sewer systems to obtain NPDES permits and undertake certain control measures 

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

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

conveyances or systems of conveyances that discharge to waters of the U.S. and are designed or 

used for collecting or conveying storm water, are not combined sewers, and are not part of a 

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

Including Discharges From New Development and Redevelopment, 74 Fed. Reg. 68,617, 68,619 

(Dec. 28, 2009); see 40 C.F.R. § 122.26(b)(8) (defining “municipal separate storm sewer”). 

Under this federal regulatory scheme, municipalities operating municipal separate storm 

sewer systems are required to undertake costly control efforts to minimize pollution from 

stormwater discharges into the Nation’s waters. In response, many municipalities have adopted 

local stormwater ordinances that attempt to recover the costs of these compliance efforts from 

property owners, including federal agencies. 

B. 

The efforts by municipalities to recover stormwater assessments from federal agencies 

gave rise to a controversy whether federal agencies could be required to pay such assessments. 

The Supreme Court has explained that as a general matter “the activities of the Federal 

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

2
 
 

 

 

Federal Agency Payment of Stormwater Assessments Under the Clean Water Act 

(1943), and that a state or local law that “regulate[s] the [federal] Government directly” “run[s] 

afoul of the Supremacy Clause.” North Dakota v. United States, 495 U.S. 423, 434 (1990) 

(citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 425-37 (1819)); see also Penn Dairies, 

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

consent, there is an implied constitutional immunity of the national government from state 

taxation and from state regulation” of federal entities). Nevertheless, “a clear congressional 

mandate” divests the presumptive immunity of federal agencies from state and local regulatory 

compulsion. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1956). 

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

whether section 313(a) of the CWA, 33 U.S.C. § 1323(a), divested the immunity of federal 

agencies with respect to stormwater assessments. See ENRD Memorandum at 2-3; EPA Letter 

at 5-7; USDA Letter at 1-2. Section 313(a), in relevant part, provides that federal agencies 

owning property or engaged in activities that may result 

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

all Federal, State, interstate, and local requirements, administrative authority, and 

process and sanctions respecting the control and abatement of water pollution in 

the same manner, and to the same extent as any nongovernmental entity including 

the payment of reasonable service charges. 

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

“notwithstanding any immunity of such agencies, officers, agents, or employees under any law 

or rule of law.” Id.; see Dep’t of Energy v. Ohio, 503 U.S. 607 (1992) (interpreting section 

313(a) of the CWA). In dispute was whether the phrase “reasonable service charges” in section 

313(a) included stormwater assessments, thereby waiving federal immunity and requiring federal 

agencies to pay such assessments.2 

As we explain further in part II below, the Stormwater Amendment reflected an effort 

by Congress to resolve the controversy whether local governments could levy stormwater 

assessments against the federal Government for its facilities. On June 10, 2010, Senator Cardin 

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

responsibility for stormwater pollution.” See 156 Cong. Rec. S4855 (daily ed. June 10, 2010) 

(statement of Sen. Cardin). He explained that “the issue of polluted stormwater runoff from 

federal properties has . . . gained significant attention” and that he had “grave concerns about 

the failure of the Federal Government to pay localities for reasonable costs associated with the 

control and abatement of pollution that is originating on its properties.” Id. Senator Cardin 

stressed that “Uncle Sam must pay his bills” and that he was “introducing legislation that makes 

[that] clear.” Id.; see also id. at S4856 (“Adopting the legislation that I am introducing today 

will remove all ambiguity about the responsibility of the Federal Government to pay these 

2

 For example, the U.S. Government Accountability Office (“GAO”) had concluded that federal agencies 

could not pay the District of Columbia’s stormwater assessment because it was a “tax” for which “Congress has not 

. . . legislated a waiver of sovereign immunity.” Letter for David A. Lebryk, Commissioner, Financial Management 

Service, U.S. Department of Treasury, from Lynn H. Gibson, Acting General Counsel, Government Accountability 

Office, B-320868, at 1 (Sept. 29, 2010); see also Letter for Peter J. Nickles, Attorney General of the District of 

Columbia, from Lynn H. Gibson, Acting General Counsel, Government Accountability Office, B-320795 (Sept. 29, 

2010). 

3
 
Opinions of the Office of Legal Counsel in Volume 35 

normal and customary stormwater fees.”). At that time, S. 3481 would have accomplished 

this objective by adding a subsection (c) to section 313 of the CWA to make explicit that the 

“reasonable service charges” described in section 313(a) include certain stormwater assessments. 

S. 3481 also stated that such stormwater assessments “may be paid using appropriated funds.” 

Id. at S4856 (text of S. 3481). 

The Senate amended S. 3481 in the nature of a substitute, S. Amdt. 4917, on Dec. 21, 

2010, a day before its passage. The apparent aim of the last-minute revision was to address 

certain appropriations issues that might otherwise arise with the payment of stormwater 

assessments. Like the original amendment, the substitute bill, which was introduced on behalf 

of Senator Cardin, contained language in proposed section 313(c)(1) to make explicit that the 

phrase “reasonable service charges” includes certain stormwater assessments. See 156 Cong. 

Rec. S10,932 (daily ed. Dec. 21, 2010) (text of amendment).3 

 

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

Accounts,” containing the appropriations language that is at issue here. See id. Proposed section 

313(c)(2) provided in full: 

(2) LIMITATION ON ACCOUNTS.— 

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

or assessment described in paragraph (1) shall not be made using funds 

from any permanent authorization account in the Treasury. 

(B) REIMBURSEMENT OR PAYMENT OBLIGATION OF FEDERAL 

GOVERNMENT.—Each department, agency, or instrumentality of the 

executive, legislative, and judicial branches of the Federal Government, 

as described in [section 313(a)], shall not be obligated to pay or reimburse 

any fee, charge, or assessment described in paragraph (1), except to the 

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

pay or reimburse the fee, charge, or assessment. 

 3

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

(1) IN GENERAL.—For the purposes of this Act, reasonable service charges described in [section 

313(a)] include any reasonable nondiscriminatory fee, charge, or assessment that is— 

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

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

stormwater discharge or runoff from the property or 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. 

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

p. 3. 

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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act 

Id. The substitute bill passed the Senate by unanimous consent on December 21, 2010, and 

passed the House by unanimous consent on December 22, 2010 (the last day of the 111th 

Congress). The President signed the enrolled bill into law on January 4, 2011. 

On January 21, 2011, you requested our opinion whether “it is permissible to construe . . . 

section 313(c)(2)(B) as authorizing federal governmental entities to use general, lump-sum 

appropriations to pay the reasonable service charges described in . . . section 313(c)(1),” EPA 

Letter at 1, or instead whether section 313(c)(2)(B) “requires a specific appropriation”—for 

example, a line-item appropriation—“for the payment of the stormwater charges,” id. at 12. 

II. 

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

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

by any appropriations Act to pay or reimburse the fee” forbids federal agencies from paying 

stormwater assessments from annual lump-sum appropriations. We conclude that it does not. 

The Stormwater Amendment contains two principal provisions. The first provision, 

section 313(c)(1), instructs that the “reasonable service charges described in [section 313(a)] 

include any reasonable nondiscriminatory fee, charge, or assessment that is . . . based on some 

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

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

management program.” The first provision thus resolves the dispute over federal agencies’ duty 

to pay stormwater assessments, by making clear that the phrase “reasonable service charges” in 

section 313(a)—which is an unambiguous waiver of immunity—includes certain stormwater 

assessments. See 33 U.S.C. § 1323(a) (requirements of section 313(a) apply “notwithstanding 

any immunity of such agencies, officers, agents, or employees under any law or rule of law”).4 

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

stormwater assessments by federal agencies. After stating in section 313(c)(2)(A) that federal 

agencies may not pay these assessments from “any permanent authorization account in the 

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

advance by any appropriations Act to pay or reimburse the fee, charge, or assessment.” Section 

313(c)(2)(B) could be read to allow federal agencies to pay stormwater assessments out of lumpsum appropriations, but could also be read to impose a rule that Congress must annually enact a 

specific appropriation (for example, a line item) for such payments. In our view, the best reading 

of the text, structure, purpose, and history of the Stormwater Amendment, taken together, is that 

Congress did not intend to require a specific appropriation. 

4

 Some agencies providing views on EPA’s opinion request suggested that this Office clarify the meaning 

of certain terms in section 313(c)(1) and address other legal issues under the Stormwater Amendment. See, e.g., 

GSA Letter at 2-5; Postal Service Letter at 1-3; USDA Letter at 5. To respond to EPA’s request expeditiously, we 

confine this opinion to the interpretation of the appropriations language in section 313(c)(2)(B). GSA, for example, 

asked us to advise whether the Federal Buildings Fund may be used to pay stormwater assessments in light of 

section 313(c)(2)(A). See GSA Letter at 4-5. Although we recognize the importance of this question, it lies beyond 

the scope of EPA’s request, which is focused on section 313(c)(2)(B). 

5
 
 

 

Opinions of the Office of Legal Counsel in Volume 35 

A. 

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

Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotation marks omitted), our analysis of the 

Stormwater Amendment, “begin[s], as always, with the text of the statute.” Hawaii v. Office 

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

alone, does not unambiguously resolve the issue before us. On the one hand, the phrase “except 

to the extent and in an amount provided in advance by any appropriations Act” might be read 

to authorize the payment of stormwater assessments only when Congress makes a specific 

appropriation of funds for that purpose. See Postal Service Letter at 1 (“The language lends 

itself to only one logical interpretation, i.e., federal entities are not required to pay stormwater 

fees unless Congress has provided specific appropriations for that purpose.”); USDA Letter at 

2-4. On the other hand, the phrase might be interpreted as authorizing federal agencies to pay 

stormwater assessments, not from a “permanent authorization account in the Treasury,” declared 

off limits by section 313(c)(2)(A),5 but instead from annual lump-sum appropriations. 

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

the section to allow payment from annual lump-sum appropriations is ultimately the better 

reading of the text. First, such a reading accords with basic principles of appropriations law. 

The “except to the extent and in an amount” language can be read to clarify that the Stormwater 

Amendment provides spending authority for payment of stormwater assessments, but is not itself 

an appropriation. See U.S. General Accounting Office, GAO-04-261SP, Principles of Federal 

Appropriations Law, at 2-5 (3d ed. 2004) (“Principles of Federal Appropriations Law”) (“While 

other forms of budget authority may authorize the incurring of obligations, the authority to incur 

obligations by itself is not sufficient to authorize payments from the Treasury. Thus, at some 

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

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

of the Treasury or to authorize making a contract for the payment of money in excess of an 

appropriation only if the law specifically states that an appropriation is made or that such a 

contract may be made.”). The phrase further can be understood to embody the basic principle 

that any stormwater assessments paid by federal agencies must come from and may not exceed 

an actual appropriation. See, e.g., Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 14 

(1990) (noting that a statute providing that payments “are effective only ‘in such amounts as are 

provided in advance in appropriation Acts’” reflects a “concept that mirrors Art. I, § 9, of the 

Constitution (‘No Money shall be drawn from the Treasury, but in Consequence of 

Appropriations made by Law’)”). See generally EPA Letter at 12; CEQ Letter at 6; Tax 

Memorandum at 5. 

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

other authorization or appropriations provisions. For instance, faced with a statute that 

authorized the Secretary of Defense to make available five million dollars out of previously 

5

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

Treasury,” we note that Senator Cardin explained section 313(c)(2)(A) as “rectify[ing] a specific problem in the 

District of Columbia, where the Department of Treasury has been paying some stormwater fees” and as reflecting 

“that agencies and departments should use their annual appropriated funds to pay for stormwater fees.” 156 Cong. 

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

6
 
 

 

 

 

 

 

 

 

 

Federal Agency Payment of Stormwater Assessments Under the Clean Water Act 

appropriated funds to the Director of the National Science Foundation “[t]o the extent provided 

in appropriations Acts,” this Office concluded that this condition did not require that there have 

been a specific line-item appropriation in those appropriations acts. See Funding for the Critical 

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

(interpreting section 822(d)(1) of the National Defense Authorization Act for Fiscal Years 1992 

and 1993, Pub. L. No. 102-190, § 822, 105 Stat. 1290, 1435 (1991)). In reaching this 

conclusion, we noted that the term “provided” can mean “to make a proviso or stipulation,” but 

can also mean, more generally, “to make preparation to meet a need.” Id. at 81 (citing Webster’s 

Ninth New Collegiate Dictionary 948 (1986)). Construing the term against the background of 

the “fundamental principle of appropriations law” that “Congress is not required to enact a 

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

intended to depart from this principle, we concluded that a lump-sum appropriation was 

sufficient to meet the condition. Id. at 81-82; see also id. at 79-80 (observing that it is 

“axiomatic” that Congress uses lump-sum appropriations to “cover[] a wide range of activities 

without specifying precisely the objects to which the appropriation may be applied”).6 

Finally, section 313(c)(2)(B)’s limitation that stormwater assessments can be paid only 

“to the extent and in an amount provided in advance by any appropriations Act to pay or 

6

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

(“EAJA”)—which provided that the payment of fees as provided by the statute was “effective only to the extent and 

in such amounts as are provided in advance in appropriations Acts,” 94 Stat. 2330—is to the contrary. See Funding 

of Attorney Fee Awards Under the Equal Access to Justice Act, 6 Op. O.L.C. 204, 208-09 (1982) (“Olson 

Memorandum”). Although this Office observed in Critical Technologies Institute that the Department of Defense’s 

reliance on the Olson Memorandum was inapposite because the different statutory language presented a 

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

degree of precision than ‘to the extent provided’ would alone,” 16 Op. O.L.C. at 83, we do not believe that this 

analysis, which effectively was dicta, precludes the interpretation of section 313(c)(2)(B) we set forth here. 

As explained in Critical Technologies Institute, section 207 of EAJA had not been “interpreted” by the Olson 

Memorandum to “require a specific line-item appropriation.” Id. at 83. Rather, “the concern motivating section 

207’s clause was not,” we said, “whether a line-item appropriation rather than a lump-sum appropriation was 

required, but instead whether an appropriation was necessary at all.” Id. On this view, section 207 was an effort 

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

EAJA bill ruled out of order because it contained appropriations, in violation of House rules.” Id. For these 

reasons, far from mandating that section 313(c)(2)(B) be interpreted to impose a specific-appropriation requirement, 

Critical Technologies Institute, read as whole, supports our conclusion that section 313(c)(2)(B)’s function is not to 

impose a rigid specific-appropriation requirement but rather to clarify that the Stormwater Amendment “merely 

authorized funds, but did not appropriate them.” Id. at 82. 

The GAO has suggested a contrary interpretation of similar language in other statutory contexts, see, e.g., 

Letter for Hon. William Lehman, Chairman, Subcommittee on Transportation and Related Agencies, Committee on 

Appropriations, House of Representatives, from Milton J. Socolar, Acting Comptroller General of the United States, 

B-204078 (May 6, 1988) (construing a similar phrase as reflecting “a clear prohibition on the obligation or 

expenditure of funds . . . unless specifically provided for in an appropriation act”), but the GAO has not addressed 

this particular statutory context and, to the extent that its interpretation of other provisions might be extended here, 

its interpretation is not binding in any event, see, e.g., Memorandum Opinion for the General Counsel, Small 

Business Administration, from Jeannie Rhee, Deputy Assistant Attorney General, Office of Legal Counsel, 

Permissibility of Small Business Administration Regulations Implementing the Historically Underutilized Business 

Zone, 8(A) Business Development, and Service-Disabled Veteran-Owned Small Business Concern Programs at 

13 (Aug. 21, 2009) (“Our Office has on many occasions issued opinions and memoranda concluding that GAO 

decisions are not binding on Executive Branch agencies and that the opinions of the Attorney General and of this 

Office are controlling.”), available at http://www.justice.gov/olc/opinions.htm; see also Critical Technologies 

Institute, 16 Op. O.L.C. at 84 (disagreeing with GAO advice). 

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Opinions of the Office of Legal Counsel in Volume 35 

reimburse the [stormwater assessment],” which makes clear that the amendment itself is not 

an appropriation, plainly responded to the need to ensure that the statute conformed to the 

requirements of 2 U.S.C. § 651 (2006). See EPA Letter at 7-8. That section provides that 

“[i]t shall not be in order in either the House of Representatives or the Senate to consider any 

bill . . . that provides,” among other things, “new authority to incur indebtedness . . . for the 

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

authority is to be effective for any fiscal year only to the extent or in the amounts provided in 

advance in appropriation Acts.” 2 U.S.C. § 651(a) (emphasis added). Under section 651, 

“legislation providing new [spending] authority will be subject to a point of order in either the 

Senate or the House of Representatives unless it also provides that the new authority will be 

effective for any fiscal year only to such extent or in such amounts as are provided in advance 

in appropriation acts.” Principles of Federal Appropriations Law, at 2-6 (emphasis added).7 

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

thus served the important function of avoiding a point of order, thereby enabling passage of the 

bill. See EPA Letter at 8 (setting forth this explanation); accord DOD Letter at 3.8 

B. 

Our textual interpretation is supported by consideration of the text in the context of the 

Stormwater Amendment’s overall structure, purpose, and legislative history. The structure of the 

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

appropriations and undermines a specific-appropriation interpretation of that section. See FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must . . . interpret the 

statute as a symmetrical and coherent regulatory scheme and fit, if possible, all parts into an 

harmonious whole.”) (internal quotation marks and citations omitted). Reading section 

313(c)(2)(B) to restrict payment of stormwater assessments unless and until a future Congress 

makes a specific appropriation for that purpose would be in considerable tension with Congress’s 

decision in the immediately preceding subsection—section 313(c)(1)—to clarify that federal 

agencies are responsible for paying reasonable stormwater assessments. Such a restriction would 

frustrate the ability of federal agencies to pay those assessments, and “[w]e are disinclined to say 

that what Congress imposed with one hand . . . it withdrew with the other.” Logan v. United 

States, 552 U.S. 23, 35 (2007); see Greenlaw v. United States, 554 U.S. 237, 251 (2008) (“We 

resist attributing to Congress an intention to render a statute so internally inconsistent.”). Rather, 

7

 Section 651 traces its statutory lineage to section 401(a) of the Congressional Budget Act of 1974 

(originally codified at 31 U.S.C. § 1351(a) (Supp. IV 1974)). The legislative history of the 1974 statute explains 

that the purpose of the requirement was to ensure that “backdoor spending authority (such as contract authority, loan 

authority, and mandatory or open-ended entitlements) could not take effect until funds were provided through the 

appropriations process.” H.R. Rep. No. 93-658, at 17 (1973), reprinted in 1974 U.S.C.C.A.N. 3462, 3463. 

8

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

clarifying that the Stormwater Amendment authorizes spending but is not itself an appropriation; forbidding federal 

agencies from incurring any stormwater assessment obligations in excess of their appropriations; and conforming 

with the requirements of 2 U.S.C. § 651—we do not believe that this reading gives no effect to, and thus renders 

surplusage, the phrase “except to the extent and in an amount provided in advance by any appropriations Act.” Cf. 

DOD Letter at 4. Indeed, we rejected a similar objection lodged against our interpretation of the phrase “[t]o the 

extent provided in Appropriations acts” in Critical Technologies Institute, reasoning, among other things, that the 

phrase “makes clear that the act merely authorized funds, and that a further appropriation is required.” 16 Op. 

O.L.C. at 82. In any event, “[s]urplusage does not always produce ambiguity and [a] preference for avoiding 

surplusage constructions is not absolute.” Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004). 

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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act 

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

statutory scheme . . . because only one of the permissible meanings produces a substantive effect 

that is compatible with the rest of the law.” Koons Buick Pontiac GMC, 543 U.S. at 60. 

 Interpreting section 313(c)(2)(B) to require a specific appropriation also would 

substantially conflict with the general purpose of the Stormwater Amendment. See Stafford v. 

Briggs, 444 U.S. 527, 535 (1980) (statutory interpretation must take account of the “‘the objects 

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

McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 861 (2005) 

(“[e]xamination of purpose is a staple of statutory interpretation”). The central purpose of the 

Stormwater Amendment was to resolve the controversy surrounding the payment of stormwater 

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

amendment—“[a]n Act To . . . clarify Federal responsibility for stormwater pollution”—show 

Congress’s purpose to resolve the dispute regarding stormwater assessments and make clear 

that the federal Government as an owner of federal facilities is responsible for the payment of 

stormwater assessments. Although “[t]he title of an act cannot control its words,” it “may 

furnish some aid in showing what was in the mind of the legislature.” United States v. Palmer, 

16 U.S. (3 Wheat.) 610, 630 (1818) (C.J. Marshall); see Holy Trinity Church v. United States, 

143 U.S. 457, 462 (1892) (“title of the act” may shed light on the “intent of the legislature”). 

The title here does just that. See ENRD Memorandum at 4 (arguing that the “purpose is readily 

apparent from the title of the act”). 

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

Congress’s purpose.9

 The Senate sponsor of the bill, Senator Cardin, explained in introducing 

the bill: “Adopting the legislation that I am introducing today will remove all ambiguity about 

the responsibility of the Federal Government to pay these normal and customary stormwater 

fees.” 156 Cong. Rec. S4856 (daily ed. June 10, 2010).10 Several members of the House 

repeated this understanding of the objective of the Stormwater Amendment, including after the 

substitute version of the bill passed the Senate. Representative Oberstar, for example, noted that 

“[s]everal states and municipalities . . . have taken aggressive action to address ongoing sources 

of stormwater pollution” but that such action is undermined “when a significant percentage of 

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

pollution.” 156 Cong. Rec. H8978 (daily ed. Dec. 22, 2010). He explained that the amendment 

would “clarif[y] that Federal agencies and departments are financially responsible for any 

9

 This Office has previously found legislative history one potentially instructive factor to consider, along 

with other evidence, when confronted with ambiguous appropriations language. See Critical Technologies Institute, 

16 Op. O.L.C. at 80 (relying on legislative history in ascertaining the meaning of similar appropriations language); 

see also Authority of Chrysler Corporation Loan Guarantee Board to Issue Guarantees, 43 U.S. Op. Att’y Gen. 

219, 219-23 (1980) (construing phrase “to the extent such amounts are provided in advance in appropriations acts” 

based principally on legislative history). 

10 Although some of the legislative history we cite here was in connection with the bill as it existed prior to 

the last-minute addition of section 313(c)(2)(B), that does not render that prior history irrelevant. Senator Cardin’s 

explanation of the purpose of the Stormwater Amendment was the same before and after the addition of the relevant 

appropriations language (which was added at Senator Cardin’s request), and is consistent with statements made by 

members of the House after the revised language was added. Standing alone, the fact that Congress revised the 

Stormwater Amendment provides no basis for adopting a restrictive interpretation of section 313(c)(2)(B), 

especially when all available legislative evidence is to the contrary. 

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reasonable . . . charges for treating or otherwise addressing stormwater pollution that emanates 

from Federal property.” Id. Other statements in the legislative record are to the same effect.11 

Indeed, after the Senate’s passage of the Stormwater Amendment, Senator Cardin again 

explained the purpose of the amendment in similar terms: 

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

responsibility to pay for stormwater pollution. This legislation, which will soon 

become law, requires the Federal government to pay localities for reasonable 

costs associated with the control and abatement of pollution that is originating 

on its properties. At stake is a fundamental issue of equity: polluters should be 

financially responsible for the pollution that they cause. That includes the Federal 

Government. 

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

(the federal responsibility “to manage . . . stormwater pollution . . . needs to translate into 

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

consistent, public, and unambiguous articulation of the intended purpose and effect of the 

Stormwater Amendment confirms our view that Congress intended the Stormwater Amendment 

to facilitate the payment of stormwater assessments by the federal Government. See N.L.R.B. v. 

Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 66 (1964) (“It is the sponsors that we look 

to when the meaning of the statutory words is in doubt.”) (internal quotation marks omitted); see 

also H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238 (1989) (relying on the stated understanding 

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

single legislator who sponsors a bill” may not be “controlling in analyzing legislative history,” 

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980), Senator 

Cardin’s remarks accord with all of the available legislative history. There is no indication in 

the legislative record that the understanding of the Stormwater Amendment offered by Senator 

Cardin and others was not shared universally in Congress. 

Reading the statute to impose a specific-appropriation requirement would frustrate that 

purpose. Such a requirement would place a substantial obstacle in the path of payment of 

stormwater assessments because of the practical burdens associated with attaining specificity in 

annual appropriations, especially specificity in appropriations bills applying to a range of federal 

agencies. See, e.g., Critical Technologies Institute, 16 Op. O.L.C. at 80 (“A rule requiring 

greater specificity in appropriations would create extreme obstacles for the functioning of the 

Federal Government.”). Indeed, we note that, to the extent some federal agencies were paying 

stormwater assessments from lump-sum appropriations prior to the passage of the Stormwater 

Amendment, a specific-appropriation interpretation would require ascribing to Congress an 

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

as “a simple effort to clarify . . . that the Federal Government bears a proportional responsibility for addressing 

pollution originating from its facilities”); id. at E2258 (statement of Rep. Johnson) (explaining that the “common 

sense bill” would “ensure[] that the Federal Government maintains its equitable responsibility for stormwater 

pollution runoff originating or emanating from its property”); 156 Cong. Rec. E2245 (daily ed. Dec. 22, 2010) 

(statement of Del. Norton, who sponsored the Stormwater Amendment in the House) (“The consequence of failing 

to pass this bill is that we give the Federal Government a free ride and pass its fees on to our constituents throughout 

the United States.”). 

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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act 

intent to forbid such ongoing payments unless and until Congress made a specific appropriation. 

We can find no indication of such a congressional intent. Equally important, a specificappropriation interpretation of section 313(c)(2)(B), rather than resolving once and for all the 

obligation of the federal Government as an owner of federal facilities to pay certain stormwater 

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

Congresses the task of determining, on an annual basis, whether stormwater assessments should 

be paid. Such a reading of section 313(c)(2)(B) would reintroduce the same cloud of legal 

uncertainty Congress intended the Stormwater Amendment to dispel. 

Furthermore, the legislative history relating specifically to the addition of section 

313(c)(2)(B) weighs heavily against interpreting the section to impose a specific-appropriation 

requirement. Senator Cardin explained the appropriations language at issue here as follows: 

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

District of Columbia, where the Department of Treasury has been paying some 

stormwater fees. The provision simply says that agencies and departments should 

use their annual appropriated funds to pay for stormwater fees. This is exactly 

what they all do today in paying for their drinking water and wastewater bills or 

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

make available, in appropriations acts, the funds that could be used for this 

purpose. It does not mean that the appropriations act would need to state 

specifically or expressly that the funds could be used to pay these charges. The 

legislative language doesn’t say that, and I want to be perfectly clear that such a 

restrictive reading is not our intent. 

156 Cong. Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added).12 Senator Cardin’s view 

was echoed by several members of the House of Representatives, including the House sponsor of 

the Stormwater Amendment, Delegate Norton. She explained: “The bill requires that Congress 

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

management charges, but not that the appropriations act would need to state specifically or 

expressly that the funds could be used to pay these charges.” Id. at H8979 (daily ed. Dec. 22, 

2010) (emphasis added).13 There is no legislative history pointing to a contrary result. See CEQ 

Letter at 5 (canvassing legislative history supporting an interpretation of section 313(c)(2)(B) as 

authorizing annual appropriations to pay stormwater assessments and noting “[n]o comments 

to the contrary appear anywhere in the legislative history” of the Stormwater Amendment). 

12 Although Senator Cardin’s statement was made after the passage of the Senate version of the bill, his 

description is consistent with the understanding expressed by members of the House, including the sponsor, prior to 

passage there. See infra n. 13 and accompanying text. 

13 See also 156 Cong. Rec. H8979 (daily ed. Dec. 22, 2010) (statement of Rep. Oberstar) (“In addition, 

the intent of subsection (c)(2)(B) of Section 313 of the Clean Water Act, as added by S. 3481, is to require that 

Congress make available, in appropriations acts, the funds that could be used to pay stormwater fees, but not that the 

appropriations act would need to state specifically or expressly that the funds could be used to pay these charges.”); 

id. at H8980 (daily ed. Dec. 22, 2010) (statement of Rep. Johnson) (“This new language requires that Congress 

make available, in appropriations acts, the funds that could be used for this purpose. It should not be interpreted as 

requiring appropriations act [sic] to state specifically or expressly that the funds could be used to pay these charges. 

The statutory language does not require this, and such a restrictive reading is not intended.”). 

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In sum, we conclude that the best reading of the text of the appropriations provision 

in section 313(c)(2)(B), in light of the structure, purpose, and history of the Stormwater 

Amendment, is that Congress did not intend to impose a specific-appropriation requirement. 

Indeed, a specific-appropriation requirement—that, as we have noted, would have the predictable 

effect of restricting payment by federal agencies and would leave the status of future stormwater 

payments in legal limbo—would undermine Congress’s central aims in enacting the Stormwater 

Amendment. We therefore believe that federal agencies may pay stormwater assessments out of 

annual—including current—lump-sum appropriations.14 

C. 

One significant argument might be advanced against our reading of the Stormwater 

Amendment. It might be said that, if the plain text of section 313(c)(2)(B) does not definitively 

resolve the source of payment, then we must embrace a construction that restricts payment on 

the ground that “a condition to [a] waiver of sovereign immunity . . . must be strictly construed.” 

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990). We disagree that this rule of 

construction justifies reading section 313(c)(2)(B) to impose a specific-appropriation 

requirement. 

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

understood as a condition on the waiver of immunity. Sections 313(a) and 313(c)(1), read 

together, accomplish that waiver for stormwater assessments. See supra p. 5. Section 

313(c)(2)(B) serves a different function, operating as an internal accounting provision, directing 

when and how federal agencies may pay such assessments. Cf. Henderson v. United States, 517 

U.S. 654, 667-68 (1996) (holding that, notwithstanding that the Suits in Admiralty Act is a broad 

waiver of sovereign immunity, the provisions in section 742 of the statute governing service of 

process are not “sensibly typed ‘substantive’ or ‘jurisdictional’”—and therefore a condition on 

the waiver—but “[i]nstead, they have a distinctly facilitative, ‘procedural’ cast” as “[t]hey deal 

with case processing, not substantive rights or consent to suit”). The heading of section 

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

on a waiver of immunity but rather that it governs the sources from which federal agencies may 

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

stormwater assessments because an “additional act of Congress is required.” USDA Letter at 4. But the conclusion 

does not follow from the premise. It is true that an “additional act of Congress is required”—because the 

Stormwater Amendment is not an appropriation, a point that is central to our reading of section 313(c)(2)(B)—but 

the view that section 313(c)(2)(B) may be satisfied by a lump-sum appropriation leads logically to the conclusion 

that such an appropriation may be a current or future lump-sum appropriation. Payment of stormwater assessments 

from a current appropriation would not countermand the statutory requirement that funds be “provided in advance 

by any appropriations Act” because federal agencies’ payments of stormwater assessments going forward would 

be made from appropriations acts previously enacted by Congress. This same analysis largely responds to DOD’s 

concern that section 313(c)(2)(B) “clearly require[s] some additional action by Congress.” DOD Letter at 3. DOD 

appears to posit that the “shall not be obligated” clause in section 313(c)(2)(B) means that federal agencies may pay 

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

Congress enacts specific “appropriations act language.” Id. at 4. As we have explained, we agree that “additional 

action by Congress” is required, but that additional action may be a current or future general lump-sum 

appropriation. Therefore, we disagree with DOD’s suggested interpretation of the “shall not be obligated” phrase 

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

stormwater assessments. Id. 

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Federal Agency Payment of Stormwater Assessments Under the Clean Water Act 

pay stormwater assessments. See U.S. Government Accountability Office, GAO-05-734SP, A 

Glossary of Terms Used in the Federal Budget Process, at 2 (Sept. 2005) (defining account as 

“[a] separate financial reporting unit for budget, management, and/or accounting purposes”); see 

also Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (noting that the “heading of 

a section” is a “tool[] available for the resolution of a doubt about the meaning of a statute”) 

(internal quotation marks omitted); ENRD Memorandum at 4. For these reasons, reading section 

313(c)(2)(B) not as a condition on the waiver of immunity, but as a separate internal accounting 

provision specific to stormwater assessments, is most faithful to the Supreme Court’s instruction 

to “interpret [a] statute as a symmetrical and coherent regulatory scheme” that “fit[s] . . . all parts 

into a harmonious whole.” Brown & Williamson Tobacco Corp., 529 U.S. at 133 (internal 

quotation marks and citations omitted). 

We recognize that section 313(c)(2)(B)’s direction that federal agencies “shall not be 

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

advance by any appropriations Act” might be read as a condition on the waiver of immunity. 

See DOD Letter at 4; cf. Tax Memorandum at 4 (suggesting that section 313(c)(2)(B) “read[s] 

more like a traditional waiver given the context of the amendment”). But we believe, in this 

statutory context, that the phrase “shall not be obligated to pay . . . except to the extent and in 

an amount provided in advance by any appropriations Act” is instead a textual cue that the 

Stormwater Amendment is not an appropriation and that stormwater assessment payments 

require a separate appropriation by Congress. In other words, the “shall not be obligated to pay” 

phrase is an instruction that federal agencies may not pay stormwater assessments unless there 

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

313(c)(2)(B) as a condition on the waiver of immunity effected by sections 313(a) and 313(c)(1), 

the strict construction canon governing conditions on waivers of immunity is inapposite. 

For these reasons, we conclude that section 313(c)(2)(B) of the CWA does not impose a 

specific-appropriation requirement. Instead, federal agencies may pay appropriate stormwater 

assessments from annual—including current—lump-sum appropriations. 

/s/ 

CAROLINE D. KRASS

 Principal Deputy Assistant Attorney General 

13