b'The Attorney General\xe2\x80\x99s Duty to Defend\nthe Constitutionality of Statutes\nThe Department o f Justice has a duty to defend the constitutionality of an Act of\nCongress whenever a reasonable argument can be made in its support, even if the\nAttorney General concludes that the argument may ultimately be unsuccessful in the\ncourts. The statute at issue in the instant case could be held constitutional as applied in\ncertain situations, and accordingly the Department will defend it.\n\nApril 6, 1981\nH o n o ra ble St r o m T h u r m o n d\nC h a ir m a n\nC o m m it t e e o n t h e J u d ic ia r y\nU n it e d St a t e s S e n a t e\nW a s h i n g t o n , D.C. 20510\nH o n o r a b l e J o s e p h R . B id e n , J r .\nC o m m it t e e o n t h e J u d ic ia r y\nU n it e d St a t e s S e n a t e\nW a s h i n g t o n , D.C. 20510\n\nD e a r M r. C h a ir m a n a n d S e n a t o r B id en : I am pleased to re\xc2\xad\nspond to your letter o f F ebruary 3, 1981, requesting that I reconsider\nthe decision o f the D epartm ent o f Justice not to defend the constitu\xc2\xad\ntionality o f 47 U.S.C. \xc2\xa7 399(a) in the case o f League o f Women Voters v.\nFCC, No. 80-5333 (9th Circuit).* Please forgive the delay in respond\xc2\xad\ning, but w e have undertaken a thorough review o f the question. I have\ndeterm ined that the D epartm ent will participate in the litigation and\ndefend the statute.\n\nThe Departm ent appropriately refuses to defend an act of Congress\nonly in the rare case when the statute either infringes on the constitu\xc2\xad\ntional power of the Executive or when prior precedent overwhelmingly\nindicates that the statute is invalid. In my view, the Department has the\nduty to defend an act of Congress whenever a reasonable argument can\nbe made in its support, even if the Attorney General and the lawyers\n\xe2\x80\xa2 N o t e * The Departm ent of Justice\xe2\x80\x99s decision not to defend the constitutionality of \xc2\xa7 399 had been\nconveyed to Congress in an October 11, 1979, letter from Attorney General Civiletti to Senate\nMajority Leader Byrd. Ed.\n\n25\n\n\x0cexamining the case conclude that the argument may ultimately be\nunsuccessful in the courts.\nThe prior decision not to defend \xc2\xa7 399(a) was made by virtue of the\nconclusion that no reasonable defense of the constitutionality of this\nprovision as a whole could be made. Under applicable Supreme Court\nprecedent, however, even a statute that could have some impermissible\napplications will not be declared unconstitutional as a whole unless the\nprovision is substantially overbroad and no limiting construction of the\nlanguage o f the statute is possible. Here, for example, the statute\xe2\x80\x99s\napplication to political endorsements by government-owned broadcast\xc2\xad\ners might well be held by a court to be constitutional. In that event, the\nfact that the statute permissibly could be applied in some instances may\nbe sufficient to preclude a finding that the provision as a whole is\nunconstitutional.\nAccordingly, we will advise the Ninth Circuit of our position and\nrequest that the case be remanded to the district court to allow us to\npresent our defense.**\nSincerely,\nW il l ia m F r e n c h S m it h\n\n\xe2\x80\xa2 \xe2\x80\xa2 N o t e - Pursuant to the governm ent\'s request, the case w a s remanded by the court of appeals to\nthe district court, whose judgment, holding \xc2\xa7 399\xe2\x80\x99s ban on editorializing by noncommerical stations\nunconstitutional, was ultimately affirmed by the Supreme Court. FCC v. League o f Women Voters o f\nCalifornia.------U .S .-------, 104 S. C t. 3106 (1984), a ffg 547 F. Supp. 379 (C.D. Cal. 1982). Section 399\xe2\x80\x99s\nseparate ban on political endorsements by noncommercial stations was by then no longer at issue in\nthe case, and the Supreme Court \xe2\x80\x9c express[ed] no view " on the constitutionality of that provision. 104\nS. Ct. at 3113. n 9. Ed.\n\n26\n\n\x0c'


b'Operation of the Twenty-Fifth Amendment\nRespecting Presidential Succession\nThe Twenty-Fifth Amendment to the Constitution provides the mechanism for Presidential\nsuccession by the Vice President in the event the Office o f the President becom es vacant or\nthe President becomes unable to perform the duties of his office.\nUpon the death, resignation, or removal of the President, the Vice President immediately and\nautomatically assum es the Office o f President and relinquishes the office of Vice President.\nThe taking o f the oath o f office is not a necessary precondition to assuming the office o f the\nPresident under these circumstances, but is an obligation which should be promptly dis\xc2\xad\ncharged.\nFor purposes o f declarations that the President is unable to discharge the powers and duties o f his\noffice under \xc2\xa7 4 of the Twenty-Fifth Amendment, \xe2\x80\x9cthe principal officers o f the executive\ndepartments\xe2\x80\x9d are the heads o f the departm ents listed in 5 U.S.C. \xc2\xa7 101.\nThe written declarations of Presidential inability triggering succession procedures under \xc2\xa7 4 of\nthe Twenty-Fifth Amendment need not necessarily be personally signed by the Vice President\nand a majority o f the principal officers o f the executive departments. The only requirements\nare that their assent to the declaration be established in a reliable fashion and that they direct\nthat their names to be added to the document.\n\nJune 14, 1985\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nAttorney G eneral\n\nThe purpose of this memorandum is to provide you with background infor\xc2\xad\nmation on the requirements and operation of Presidential succession under the\nTwenty-Fifth Amendment to the Constitution. The Twenty-Fifth Amendment\nprovides a mechanism for Presidential succession by the Vice President in the\nevent that the office of President is vacant or the President becomes unable to\nperform his Presidential duties, and a mechanism for filling the office of Vice\nPresident when the Vice President dies, resigns, or is removed from office. In\nthis memorandum, we incorporate and expand upon analysis done by this\nOffice in April 1981, in the wake of the assassination attempt on President\nReagan. See \xe2\x80\x9cPresidential Succession and Delegation in Case of Disability,\xe2\x80\x9d 5\nOp. O.L.C. 91 (1981). Although we cannot predict in advance every question\nthat might arise in a situation that triggers the Twenty-Fifth Amendment, we\noutline the operation of the Amendment and discuss the major procedural\nissues that might arise.\n65\n\n\x0cI. Smunmnniffliry off Provisions\nW ith respect to succession to the Presidency, the Twenty-Fifth Amendment\nis intended to govern two situations: (1) when the office of President is vacant,\nbecause o f the death, resignation, or removal from office of the President; and\n(2) when the President becomes unable to perform his constitutional duties. In\naddition, the Amendment provides a means for filling the office of Vice\nPresident when that office is vacant. It does not, however, include any provi\xc2\xad\nsion for assumption o f the powers and duties of the Vice President if the Vice\nPresident becomes unable to discharge his duties, but remains in office.\nA. Sections 1 and 2\n\nSections 1 and 2 of the Twenty-Fifth Amendment deal with vacancies in the\noffice o f President or Vice President. Section 1 provides that the Vice President\n\xe2\x80\x9cshall become President\xe2\x80\x9d if the President is removed from office, dies, or\nresigns. U.S. Const, amend. XXV, \xc2\xa7 1. Pursuant to \xc2\xa7 2, the President \xe2\x80\x9cshall\nnominate a Vice President\xe2\x80\x9d whenever a vacancy occurs in the office of Vice\nPresident; the nominee takes office upon confirmation by a majority vote of\nboth Houses o f Congress. Id. \xc2\xa7 2.\nB. Sections 3 an d 4\n\nSections 3 and 4 provide for Presidential succession when the President\nremains in office, but is unable to discharge his constitutional duties. Succes\xc2\xad\nsion may occur in two ways. First, under \xc2\xa7 3, the President, if he is able and\nwilling to do so, may provide fo r the temporary assumption of the powers and\nduties o f his office by the Vice President by \xe2\x80\x9ctransmit[ting] to the President pro\ntempore of the Senate and the Speaker of the House his written declaration that\nhe is unable to discharge the powers or duties of the President.\xe2\x80\x9d Id. \xc2\xa7 3. When\nthe President transmits such a declaration, the powers and duties of the Presi\xc2\xad\ndent devolve upon the Vice President as Acting President until the President\ntransmits an additional written declaration stating that he has become able to\nperform his responsibilities.\nSecond, under \xc2\xa7 4, if the President is unable or unwilling to transmit a\ndeclaration of his inability to perform his duties, the Vice President will\nbecome Acting President if he and a majority of the \xe2\x80\x9cprincipal officers of the\nexecutive departments\xe2\x80\x9d transmit to the President p ro tempore of the Senate and\nthe Speaker of the House a written declaration that the President is unable to\ndischarge the powers and duties of his office. Id. \xc2\xa7 4. The President may\nsubsequently transm it a declaration to the President pro tempore and the\nSpeaker of the House that he is able to discharge his duties, whereupon he may\nresume the powers o f his office, unless, within four days, the Vice President\nand a majority of the principal officers of the executive departments transmit an\nadditional written declaration stating that the President is unable to discharge\n66\n\n\x0chis powers and duties. At that point, Congress must decide the issue within\nspecified time limits. The Vice President would remain Acting President until\nthe congressional vote. If, within the required time period, Congress votes by a\ntwo-thirds majority that the President is unable to discharge the powers and\nduties of his office, the Vice President would continue to serve as Acting\nPresident; otherwise, the President would resume the powers and duties of his\noffice. Id.\n\nn . Procedural Requirements\nWe focus on the procedures that would be used under the Twenty-Fifth\nAmendment for assumption by the Vice President of the powers and duties of\nthe President, either because of a vacancy in the office under \xc2\xa7 1, or because of\na Presidential disability under \xc2\xa7\xc2\xa7 3 or 4 .1\nA. Succession by the Vice President Under \xc2\xa7 1\n\nSection 1 imposes no specific procedural requirements on a Vice President\nwho assumes the Presidency because of the death, resignation, or removal from\noffice of the President. Under the clear and simple terms of that section, the\nVice President \xe2\x80\x9cshall become\xe2\x80\x9d President upon creation of a vacancy in the\noffice of President. The Vice President thereupon relinquishes all duties and\nresponsibilities as Vice President, and there is a vacancy in the office of Vice\nPresident that triggers the mechanism in \xc2\xa7 2 for nomination and confirmation\nof a new Vice President.\nTo our knowledge, all Vice Presidents who have succeeded to the Presi\xc2\xad\ndency, whether pursuant to Article II, \xc2\xa7 1, cl. 6 of the Constitution or pursuant\nto the Twenty-Fifth Amendment, have taken the Presidential oath of office as\none o f their first actions, although the taking of the oath is not, strictly\nspeaking, a prerequisite to assumption of the powers and duties of the Presi\xc2\xad\ndency.2 Although Article II, \xc2\xa7 1, cl. 8, which sets forth the Presidential oath, is\nnot entirely clear on the effect of taking the oath, the weight o f history and\nauthority suggests that taking the oath is not a necessary step prior to the\nassumption of the office of President and is not an independent source of\nPresidential power. It is, nonetheless, an obligation imposed on the President\nby the Constitution, and should be one of the first acts performed by the new\nPresident. See R. Silva, Presidential Succession 37-38 (1951); E. Corwin, The\nPresident: Office and Powers 72 (1948); E. Corwin, The Constitution and\nWhat It M eans Today 155-56 (14th ed. 1978).\nThe text o f the Presidential oath is set forth in Article II, \xc2\xa7 1, cl. 8: \xe2\x80\x9cI do\nsolemnly swear (or affirm) that I will faithfully execute the Office of President\n1W e do not address in this m emorandum the specific procedural requirem ents that w ould be im posed for\nnom ination and confirm ation o f a new Vice President under \xc2\xa7 2 o f the Tw enty-Fifth A mendment.\n2 W ith respect to succession by the Vice President, A rticle II, \xc2\xa7 1, cl. 6 states: \xe2\x80\x9c In Cases o f the R em oval of\nthe President from Office, o r o f his Death, Resignation, o r Inability to discharge the Pow er and D uties o f the\nsaid O ffice, the Sam e shall devolve on the Vice President."\n\n67\n\n\x0co f the United States, and will to the best o f my Ability, preserve, protect and\ndefend the Constitution of the United States.\xe2\x80\x9d Several categories o f persons are\nem powered to administer the Presidential oath of office.3 Such an oath may be\nadministered by any person who is authorized to administer oaths by the laws\no f the locality where the oath is taken. 5 U.S.C. \xc2\xa7 2903(c)(2). This would\ninclude, for example, justices o f the peace, state judges, and other officials\nauthorized to administer oaths under the laws of the particular state.\nIn addition, the head of any executive agency or military department may\ndesignate in writing any employee of that agency or department to administer\noaths, including the Presidential oath. See 5 U.S.C. \xc2\xa7 2903(b)(2). For this\npurpose, the term \xe2\x80\x9cexecutive agency\xe2\x80\x9d is broader than the traditional Cabinet\ndepartments and includes all the independent agencies and the quasi-govemmental corporations whose stock is owned by the government. Thus, virtually\nany federal employee may administer the oath of office if the agency head has\npreviously prepared the proper written designation.4\nFinally, the Vice President may administer any oath required by the laws of\nthe United States. 5 U.S.C. \xc2\xa7 2903(c)(1). This authority would appear to be of\nlittle use in swearing in a new President, however, because a Vice President\nwould, if able to act at all, be taking the oath, not giving it.\nB. Succession by the Vice P resident Under \xc2\xa7\xc2\xa7 3 and 4\n\nThe procedure for a Presidential declaration of his own disability under \xc2\xa7 3\nis fairly straightforward: the President makes a written declaration of his\ndisability, which is transmitted to the President p ro tempore of the Senate and\nthe Speaker of the House, and the Vice President thereupon becomes Acting\nPresident until the President transmits a second written declaration stating that\nhe is once again able to discharge the powers and duties of his office. We\nbelieve that a written declaration pursuant to \xc2\xa7 3 could be prepared by the\nPresident in anticipation of an expected temporary disability, for example, if\nthe President were scheduled to undergo surgery that would require general\nanesthetic and would result in the President\xe2\x80\x99s being unconscious for a signifi\xc2\xad\ncant length of time.\nThe most difficult procedural questions are presented by the mechanism in\n\xc2\xa7 4 for determining a Presidential disability when the President does not or\ncannot make his own declaration of disability. The first question is, who are the\n\xe2\x80\x9cprincipal officers o f the executive departments\xe2\x80\x9d who must participate with the\nVice President in the determination of disability?\n3 T here is no requirem ent that the presidential oath be sworn on a Bible. U se o f the B ible is a tradition begun\nby G eorge W ashington and observed by P residents-elect since that time as a symbol o f the solemn and sincere\nnature o f the obligations they w ere undertaking. W e do not know w hether all Presidents have used the Bible\nw hen they w ere sw om in.\n4 The authority given to agency heads by 5 U.S.C. \xc2\xa7 2903(b)(2) may be delegated to lower-ranking\nofficials. In the D epartm ent o f Justice, for exam ple, general authority to designate officers or em ployees to\na dm in ister oaths p ursuant to \xc2\xa7 2903(b)(2) has been delegated to the A ssistant Attorney General, Justice\nM anagem ent D ivision. See 28 C.F.R. \xc2\xa7 0.151.\n\n68\n\n\x0cWe believe that the \xe2\x80\x9cprincipal officers of the executive departments\xe2\x80\x9d for the\npurposes of the Twenty-Fifth Amendment are the heads of the departments\nlisted in 5 U.S.C. \xc2\xa7 101, presently the Secretary of State, Secretary of the\nTreasury, Secretary of Defense, Attorney General, Secretary of the Interior,\nSecretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secre\xc2\xad\ntary of Health and Human Services, Secretary of Housing and Urban Develop\xc2\xad\nment, Secretary o f Transportation, Secretary o f Energy, and Secretary of\nEducation. This view is supported by the legislative history of the Amendment.\nSee H.R. Rep. No. 203, 89th Cong., 1st Sess. 3 (1965); 111 Cong. Rec. 7938\n(1965) (Rep. Waggoner); id. at 7941 (Rep. Poff); id. at 7944 45 (Rep. Webster);\nid. at 7952, 7954 (Rep. Gilbert); id. at 3282-83 (Sen. Hart and Sen. Bayh).\nAt present, this list is identical to the list of statutory Presidential successors\nunder 3 U.S.C. \xc2\xa7 19, except that it does not include the Speaker of the House of\nRepresentatives or the President p ro tempore of the Senate. Furthermore,\nalthough the acting heads of departments and recess appointees are not Presi\xc2\xad\ndential successors, see 3 U.S.C. \xc2\xa7 19(e), the legislative history of the TwentyFifth .Amendment suggests that, in the event of a vacancy in office or the\nabsence or disability of a department head, the acting department head, at least\nat the level of undersecretary, principal deputy, or recess appointee might be\nentitled to participate in determinations of Presidential disability. See H.R.\nRep. No. 203 at 3; 111 Cong. Rec. 15380 (1965) (Sen. Kennedy \xe2\x80\x94 acting\nheads); id. at 3284 (Sen. Hart and Sen. Bayh \xe2\x80\x94 interim appointees). But see id. at\n3284 (Sen. Bayh \xe2\x80\x94 acting heads not entitled to participate). As a practical matter,\nand in order to avoid any doubt regarding the sufficiency of any given declaration, it\nwould be desirable to obtain the assent of a sufficient number of officials to satisfy\nany definition of the term \xe2\x80\x9cprincipal officers of the executive departments.\xe2\x80\x9d\nA second issue that is not clear from the language of \xc2\xa7 4 is the form that the\n\xe2\x80\x9cwritten declaration\xe2\x80\x9d should take. We believe that there is no requirement that\nthe requisite written declaration o f disability called for by \xc2\xa7 4 be personally\nsigned by the Vice President and a majority of the principal officers of the\nexecutive departments. The only requirements are that their assent to the\ndeclaration be established in a reliable fashion and that they direct their names\nto be added to the document. Moreover, the Vice President and the Cabinet\nheads may send separate declarations if necessary. See Hearings on Presiden\xc2\xad\ntial Inability and Vice Presidential Vacancy Before the House Comm, on the\nJudiciary , 89th Cong., 1st Sess. 79-80 (1965) (1965 House Hearings).\n\nThird, we believe that under both \xc2\xa7\xc2\xa7 3 and 4 of the Amendment, the transfer\nof authority to the Vice President takes effect \xe2\x80\x9cimmediately\xe2\x80\x9d when the declara\xc2\xad\ntion is transmitted or sent, and is not delayed until receipt of the document by\nthe President pro tempore of the Senate and the Speaker of the House. Al\xc2\xad\nthough the question is not free from doubt, the language and the history of the\nAmendment tend to support this conclusion. See S. Rep. No. 66, 89th Cong.,\n1st Sess. 12 (1965); H.R. Rep. No. 203, 89th Cong., 1st Sess. 3 (1965). But see\nH.R. Rep. No. 564, 89th Cong., 1st Sess. 3 (1965) (statement of Managers on\nthe Part of the House to the effect that \xe2\x80\x9cafter receipt of the President\xe2\x80\x99s written\n69\n\n\x0cdeclaration of his inability . . . such powers and duties would then be dis\xc2\xad\ncharged by the Vice President as Acting President\xe2\x80\x9d) (emphasis added). The\nbetter construction would allow the devolution of powers \xe2\x80\x9cimmediately\xe2\x80\x9d (the\nword used in \xc2\xa7 4 o f the Amendment) upon transmittal. No meaningful purpose\nwould be served by awaiting the arrival of the document. The alternative\nconstruction allows a more rapid transition of Presidential power when the\nnational interest requires it.\nFinally, neither \xc2\xa7 3 nor \xc2\xa7 4 states expressly whether the Vice President can\nor must take the Presidential oath of office when he becomes Acting President.\nIf the Vice President is serving as Acting President pursuant to the disability\nprovisions of the Twenty-Fifth Amendment because of a temporary inability\non the part of the President, however, the legislative history of the TwentyFifth Amendment suggests that the Vice President would not have to take the\nPresidential oath. See 1965 House Hearings at 87; Hearings on Presidential\nInability and Vacancies in the Office o f Vice President Before the Subcomm. on\nConstitutional Amendments o f the Senate Comm, on the Judiciary, 88th Cong.,\n\n2d Sess, 215, 232 (1964). Congress reasoned that in those circumstances the\nVice President would only be acting temporarily as President, and that his\noriginal oath as Vice President would be sufficient to give legitimacy to actions\ntaken on behalf o f the disabled President.\nThe Twenty-Fifth Amendment does not require a Vice President to relin\xc2\xad\nquish the office o f Vice President when he becomes Acting President because\nof a temporary Presidential disability; in fact, the Amendment and its legisla\xc2\xad\ntive history clearly contemplate that the Vice President will continue to serve\nas Vice President during and subsequent to the Presidential disability. See 1965\nHouse Hearings at 87; S. Rep. No. 1382, 88th Cong., 2d Sess. 11-12 (1964).\nThe Vice President would, however, lose his title as President of the Senate.\nSee 111 Cong. Rec. 3270 (remarks of Sen. Saltonstall); J. Ferrick, The TwentyFifth Am endm ent 199 (1965).\nThis outline o f the operation o f \xc2\xa7\xc2\xa7 1, 3, and 4 of the Twenty-Fifth Amend\xc2\xad\nment is intended only as an overview of the mechanisms provided by those\nsections for succession to the responsibilities of the President by a Vice\nPresident.\nR alph W . T arr\n\nActing A ssistant Attorney General\nOffice o f Legal Counsel\n\n70\n\n\x0c'


b'Obligation of Federal Agencies to Pay Stormwater\nAssessments Under the Clean Water Act\nSection 313(c)(2)(B) of the Clean Water Act does not impose a specific-appropriation\nrequirement for the payment of stormwater assessments. Federal agencies may pay\nappropriate stormwater assessments from annual\xe2\x80\x94including current\xe2\x80\x94lump-sum appropriations.\nFebruary 25, 2011\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nENVIRONMENTAL PROTECTION AGENCY\nCongress recently passed \xe2\x80\x9cAn Act To amend the Federal Water Pollution Control Act to clarify Federal responsibility for stormwater pollution,\xe2\x80\x9d Pub. L. No. 111-378, 124 Stat. 4128 (2011) (the \xe2\x80\x9cStormwater\nAmendment\xe2\x80\x9d), which revised section 313 of the Clean Water Act\n(\xe2\x80\x9cCWA\xe2\x80\x9d), 33 U.S.C. \xc2\xa7 1323 (2006), to clarify that reasonable service\ncharges payable by federal agencies, as described in section 313(a), include certain stormwater assessments. Section 313(c)(2)(B), enacted as\npart of this amendment, provides that federal agencies may not pay certain\nstormwater assessments \xe2\x80\x9cexcept to the extent and in an amount provided\nin advance by any appropriations Act to pay or reimburse the fee, charge,\nor assessment.\xe2\x80\x9d You have asked whether section 313(c)(2)(B) bars federal\nagencies from paying stormwater assessments unless Congress makes a\nspecific appropriation (for example, a line-item appropriation) for such\npayments, or instead whether agencies may \xe2\x80\x9cuse general, lump-sum\nappropriations\xe2\x80\x9d for such payments. 1 We believe that the best reading of\nSee Letter for Jonathan Cedarbaum, Principal Deputy Assistant Attorney General,\nOffice of Legal Counsel, from Scott C. Fulton, General Counsel, Environmental Protection Agency at 1 (Jan. 21, 2011) (\xe2\x80\x9cEPA Letter\xe2\x80\x9d). In preparing this opinion, we have\nreceived comments from the Tax Division, see Memorandum for John A. DiCicco, Acting\nAssistant Attorney General, Tax Division, from David A. Hubbert, Chief, Special Litigation (Jan. 26, 2011) (\xe2\x80\x9cTax Memorandum\xe2\x80\x9d); the Bonneville Power Administration, see\nLetter for Jonathan Cedarbaum, Principal Deputy Assistant Attorney General, Office of\nLegal Counsel, from Randy A. Roach, General Counsel, Bonneville Power Administration (Feb. 2, 2011); the Environment and Natural Resources Division, see Memorandum\nfor Karen Wardzinski, Section Chief, Law & Policy Section, Environment and Natural\nResources Division, from Peter J. McVeigh, Attorney, Law & Policy Section (Feb. 3,\n2011) (\xe2\x80\x9cENRD Memorandum\xe2\x80\x9d); the General Services Administration, see Letter for\n1\n\n1\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nsection 313(c)(2)(B), when construed in accord with the structure, purpose, and history of the Stormwater Amendment, is that the provision\ndoes not impose a specific-appropriation requirement. In our view, federal\nagencies may pay appropriate stormwater assessments from annual\xe2\x80\x94\nincluding current\xe2\x80\x94lump-sum appropriations consistent with section\n313(c)(2)(B) of the CWA. We emphasize that our opinion is limited to the\napplication of that subsection.\nI.\nA.\nThe CWA, as amended, established a National Pollution Discharge\nElimination System (\xe2\x80\x9cNPDES\xe2\x80\x9d) that is \xe2\x80\x9cdesigned to prevent harmful\ndischarges into the Nation\xe2\x80\x99s waters.\xe2\x80\x9d Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Home Builders v.\nDefenders of Wildlife, 551 U.S. 644, 650 (2007). As a general matter, \xe2\x80\x9cthe\nNPDES requires dischargers to obtain permits that place limits on the type\nand quantity of pollutants that can be released into the Nation\xe2\x80\x99s waters.\xe2\x80\x9d\nS. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95,\n102 (2004). Because stormwater runoff collects debris, chemicals, and\nother pollutants and therefore may be a source of pollution when discharged into the Nation\xe2\x80\x99s waters, Congress amended the CWA in 1987 to\ndirect the Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) to issue rules requiring and governing NPDES permits for certain categories of discharges of\nstormwater, including municipal and industrial discharges. See 33 U.S.C.\nDaniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Kris\nDurmer, General Counsel, General Services Administration (Feb. 3, 2011) (\xe2\x80\x9cGSA Letter\xe2\x80\x9d); the U.S. Postal Service, see Letter for Daniel Koffsky, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Carrie M. Branson, Attorney, Law Department,\nU.S. Postal Service (Feb. 3, 2011) (\xe2\x80\x9cUSPS Letter\xe2\x80\x9d); the Council on Environmental\nQuality, see Letter for Caroline Krass, Principal Deputy Assistant Attorney General,\nOffice of Legal Counsel, from Nancy H. Sutley, Chair, Council on Environmental Quality\n(Feb. 3, 2011) (\xe2\x80\x9cCEQ Letter\xe2\x80\x9d); the U.S. Department of Agriculture, see Letter for Daniel\nKoffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from James\nMichael Kelly, Associate General Counsel, U.S. Department of Agriculture (Feb. 7, 2011)\n(\xe2\x80\x9cUSDA Letter\xe2\x80\x9d); and the Department of Defense, see Letter for Caroline Krass, Principal\nDeputy Assistant Attorney General, Office of Legal Counsel, from Robert S. Taylor,\nPrincipal Deputy General Counsel, Department of Defense (Feb. 8, 2011) (\xe2\x80\x9cDOD Letter\xe2\x80\x9d).\n\n2\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\n\xc2\xa7 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\nDischarge Elimination System\xe2\x80\x94Regulations for Revision of the Water\nPollution Control Program Addressing Storm Water Discharges, 64 Fed.\nReg. 68,722 (Dec. 8, 1999); see also Natural Res. Def. Council v. EPA,\n526 F.3d 591, 594\xe2\x80\x93601 (9th Cir. 2008) (recounting statutory and regulatory history of EPA stormwater regulations).\nThe EPA has issued regulations that, among other things, require municipalities operating separate storm sewer systems to obtain NPDES\npermits and undertake certain control measures designed to minimize the\ndischarge of pollution from stormwater into the Nation\xe2\x80\x99s waters. See,\ne.g., 40 C.F.R. \xc2\xa7 122.34 (2010). Municipal separate storm sewer systems\nare \xe2\x80\x9cpublicly owned conveyances or systems of conveyances that discharge to waters of the U.S. and are designed or used for collecting or\nconveying storm water, are not combined sewers, and are not part of a\npublicly owned treatment works.\xe2\x80\x9d Notice, Stakeholder Input; Stormwater\nManagement Including Discharges From New Development and Redevelopment, 74 Fed. Reg. 68,617, 68,619 (Dec. 28, 2009); see 40 C.F.R.\n\xc2\xa7 122.26(b)(8) (defining \xe2\x80\x9cmunicipal separate storm sewer\xe2\x80\x9d).\nUnder this federal regulatory scheme, municipalities operating municipal separate storm sewer systems are required to undertake costly control\nefforts to minimize pollution from stormwater discharges into the Nation\xe2\x80\x99s waters. In response, many municipalities have adopted local stormwater ordinances that attempt to recover the costs of these compliance\nefforts from property owners, including federal agencies.\nB.\nThe efforts by municipalities to recover stormwater assessments from\nfederal agencies gave rise to a controversy whether federal agencies could\nbe required to pay such assessments. The Supreme Court has explained\nthat as a general matter \xe2\x80\x9cthe activities of the Federal Government are free\nfrom regulation by any state,\xe2\x80\x9d Mayo v. United States, 319 U.S. 441, 445\n(1943), and that a state or local law that \xe2\x80\x9cregulate[s] the [federal] Government directly\xe2\x80\x9d \xe2\x80\x9crun[s] afoul of the Supremacy Clause.\xe2\x80\x9d North Dakota\nv. United States, 495 U.S. 423, 434 (1990) (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 425\xe2\x80\x9337 (1819)); see also Penn Dairies, Inc.\n3\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nv. Milk Control Comm\xe2\x80\x99n, 318 U.S. 261, 269 (1943) (\xe2\x80\x9cin the absence of\nCongressional consent, there is an implied constitutional immunity of the\nnational government from state taxation and from state regulation\xe2\x80\x9d of\nfederal entities). Nevertheless, \xe2\x80\x9ca clear congressional mandate\xe2\x80\x9d divests\nthe presumptive immunity of federal agencies from state and local regulatory compulsion. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122\n(1956).\nPrior to Congress\xe2\x80\x99s enactment of the Stormwater Amendment, there\nwas some doubt whether section 313(a) of the CWA, 33 U.S.C. \xc2\xa7 1323(a),\ndivested the immunity of federal agencies with respect to stormwater\nassessments. See ENRD Memorandum at 2\xe2\x80\x933; EPA Letter at 5\xe2\x80\x937; USDA\nLetter at 1\xe2\x80\x932. Section 313(a), in relevant part, provides that federal agencies owning property or engaged in activities that may result\nin the discharge or runoff of pollutants . . . shall be subject to, and\ncomply with, all Federal, State, interstate, and local requirements,\nadministrative authority, and process and sanctions respecting the\ncontrol and abatement of water pollution in the same manner, and to\nthe same extent as any nongovernmental entity including the payment of reasonable service charges.\n33 U.S.C. \xc2\xa7 1323(a). The section further mandates that these requirements\nattach \xe2\x80\x9cnotwithstanding any immunity of such agencies, officers, agents,\nor employees under any law or rule of law.\xe2\x80\x9d Id.; see Dep\xe2\x80\x99t of Energy v.\nOhio, 503 U.S. 607 (1992) (interpreting section 313(a) of the CWA). In\ndispute was whether the phrase \xe2\x80\x9creasonable service charges\xe2\x80\x9d in section\n313(a) included stormwater assessments, thereby waiving federal immunity and requiring federal agencies to pay such assessments. 2\nAs we explain further in Part II below, the Stormwater Amendment\nreflected an effort by Congress to resolve the controversy whether local\n\nFor example, the Government Accountability Office (\xe2\x80\x9cGAO\xe2\x80\x9d) had concluded that\nfederal agencies could not pay the District of Columbia\xe2\x80\x99s stormwater assessment because\nit was a \xe2\x80\x9ctax\xe2\x80\x9d for which \xe2\x80\x9cCongress has not . . . legislated a waiver of sovereign immunity.\xe2\x80\x9d Letter for David A. Lebryk, Commissioner, Financial Management Service, U.S.\nDepartment of the Treasury, from Lynn H. Gibson, Acting General Counsel, Government\nAccountability Office, B-320868, at 1 (Sept. 29, 2010); see also Letter for Peter J.\nNickles, Attorney General of the District of Columbia, from Lynn H. Gibson, Acting\nGeneral Counsel, Government Accountability Office, B-320795 (Sept. 29, 2010).\n2\n\n4\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\ngovernments could levy stormwater assessments against the federal\ngovernment for its facilities. On June 10, 2010, Senator Cardin introduced S. 3481, \xe2\x80\x9cA bill to amend the Federal Water Pollution Control Act\nto clarify Federal responsibility for stormwater pollution.\xe2\x80\x9d See 156 Cong.\nRec. S4855 (daily ed. June 10, 2010). He explained that \xe2\x80\x9cthe issue of\npolluted stormwater runoff from federal properties has . . . gained significant attention\xe2\x80\x9d and that he had \xe2\x80\x9cgrave concerns about the failure of the\nFederal Government to pay localities for reasonable costs associated with\nthe control and abatement of pollution that is originating on its properties.\xe2\x80\x9d Id. Senator Cardin stressed that \xe2\x80\x9cUncle Sam must pay his bills\xe2\x80\x9d and\nthat he was \xe2\x80\x9cintroducing legislation that makes [that] clear.\xe2\x80\x9d Id.; see also\nid. at S4856 (\xe2\x80\x9cAdopting the legislation that I am introducing today will\nremove all ambiguity about the responsibility of the Federal Government\nto pay these normal and customary stormwater fees.\xe2\x80\x9d). At that time,\nS. 3481 would have accomplished this objective by adding a subsection\n(c) to section 313 of the CWA to make explicit that the \xe2\x80\x9creasonable\nservice charges\xe2\x80\x9d described in section 313(a) include certain stormwater\nassessments. S. 3481 also stated that such stormwater assessments \xe2\x80\x9cmay\nbe paid using appropriated funds.\xe2\x80\x9d Id. at S4856 (text of S. 3481).\nThe Senate amended S. 3481 in the nature of a substitute, S. Amdt.\n4917, on Dec. 21, 2010, a day before its passage. The apparent aim of the\nlast-minute revision was to address certain appropriations issues that\nmight otherwise arise with the payment of stormwater assessments. Like\nthe original amendment, the substitute bill, which was introduced on\nbehalf of Senator Cardin, contained language in proposed section\n313(c)(1) to make explicit that the phrase \xe2\x80\x9creasonable service charges\xe2\x80\x9d\nincludes certain stormwater assessments. See 156 Cong. Rec. S10,932\n(daily ed. Dec. 21, 2010) (text of amendment). 3\n\n3\n\nSection 313(c)(1) provided in full:\n(1) IN GENERAL.\xe2\x80\x94For the purposes of this Act, reasonable service charges described in [section 313(a)] include any reasonable nondiscriminatory fee, charge, or\nassessment that is\xe2\x80\x94\n(A) based on some fair approximation of the proportionate contribution of the\nproperty or facility to stormwater pollution (in terms of quantities of pollutants,\nor volume or rate of stormwater discharge or runoff from the property or facility); and\n\n5\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nThe substitute bill also added a new subsection (c)(2), with the heading\n\xe2\x80\x9cLimitation on Accounts,\xe2\x80\x9d containing the appropriations language that is\nat issue here. See id. Proposed section 313(c)(2) provided in full:\n(2) LIMITATION ON ACCOUNTS.\xe2\x80\x94\n(A) LIMITATION.\xe2\x80\x94The payment or reimbursement of any\nfee, charge, or assessment described in paragraph (1) shall not be\nmade using funds from any permanent authorization account in\nthe Treasury.\n(B) REIMBURSEMENT OR PAYMENT OBLIGATION OF\nFEDERAL GOVERNMENT.\xe2\x80\x94Each department, agency, or instrumentality of the executive, legislative, and judicial branches of\nthe Federal Government, as described in [section 313(a)], shall\nnot be obligated to pay or reimburse any fee, charge, or assessment described in paragraph (1), except to the extent and in an\namount provided in advance by any appropriations Act to pay or\nreimburse the fee, charge, or assessment.\nId. 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\nthe enrolled bill into law on January 4, 2011.\nOn January 21, 2011, you requested our opinion whether \xe2\x80\x9cit 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),\xe2\x80\x9d EPA Letter at 1,\nor instead whether section 313(c)(2)(B) \xe2\x80\x9crequires a specific appropriation\xe2\x80\x9d\xe2\x80\x94for example, a line-item appropriation\xe2\x80\x94\xe2\x80\x9cfor the payment of the\nstormwater charges,\xe2\x80\x9d id. at 12.\n\n(B) used to pay or reimburse the costs associated with any stormwater management program (whether associated with a separate storm sewer system or a\nsewer 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\nand rate of stormwater discharge, regardless of whether that reasonable fee,\ncharge, or assessment is denominated a tax.\n156 Cong. Rec. S10,932 (daily ed. Dec. 21, 2010). The relevant text of section 313(a) is\nset forth above. See supra p. 4.\n\n6\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\nII.\nThe issue we address here is whether section 313(c)(2)(B)\xe2\x80\x99s language\nlimiting the payment of stormwater assessments \xe2\x80\x9cexcept to the extent\nand in an amount provided in advance by any appropriations Act to pay\nor reimburse the fee\xe2\x80\x9d forbids federal agencies from paying stormwater\nassessments from annual lump-sum appropriations. We conclude that it\ndoes not.\nThe Stormwater Amendment contains two principal provisions. The\nfirst provision, section 313(c)(1), instructs that the \xe2\x80\x9creasonable service\ncharges 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\nstormwater pollution\xe2\x80\x9d and that is \xe2\x80\x9cused to pay or reimburse the costs\nassociated with any stormwater management program.\xe2\x80\x9d The first provision thus resolves the dispute over federal agencies\xe2\x80\x99 duty to pay stormwater assessments, by making clear that the phrase \xe2\x80\x9creasonable service\ncharges\xe2\x80\x9d in section 313(a)\xe2\x80\x94which is an unambiguous waiver of immunity\xe2\x80\x94includes certain stormwater assessments. See 33 U.S.C. \xc2\xa7 1323(a)\n(requirements of section 313(a) apply \xe2\x80\x9cnotwithstanding any immunity of\nsuch agencies, officers, agents, or employees under any law or rule of\nlaw\xe2\x80\x9d). 4\nThe second provision, section 313(c)(2), sets forth requirements for the\npayment of such stormwater assessments by federal agencies. After stating in section 313(c)(2)(A) that federal agencies may not pay these assessments from \xe2\x80\x9cany permanent authorization account in the Treasury,\xe2\x80\x9d\nsection 313(c)(2)(B) allows payment only \xe2\x80\x9cto the extent and in an amount\nprovided in advance by any appropriations Act to pay or reimburse the\nfee, charge, or assessment.\xe2\x80\x9d Section 313(c)(2)(B) could be read to allow\nSome agencies providing views on EPA\xe2\x80\x99s opinion request suggested that this Office\nclarify the meaning of certain terms in section 313(c)(1) and address other legal issues\nunder the Stormwater Amendment. See, e.g., GSA Letter at 2\xe2\x80\x935; USPS Letter at 1\xe2\x80\x933;\nUSDA Letter at 5. To respond to EPA\xe2\x80\x99s request expeditiously, we confine this opinion to\nthe interpretation of the appropriations language in section 313(c)(2)(B). GSA, for\nexample, asked us to advise whether the Federal Buildings Fund may be used to pay\nstormwater assessments in light of section 313(c)(2)(A). See GSA Letter at 4\xe2\x80\x935. Although we recognize the importance of this question, it lies beyond the scope of EPA\xe2\x80\x99s\nrequest, which is focused on section 313(c)(2)(B).\n4\n\n7\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nfederal agencies to pay stormwater assessments out of lump-sum appropriations, but could also be read to impose a rule that Congress must\nannually enact a specific appropriation (for example, a line item) for such\npayments. In our view, the best reading of the text, structure, purpose, and\nhistory of the Stormwater Amendment, taken together, is that Congress\ndid not intend to require a specific appropriation.\nA.\nAlthough \xe2\x80\x9c[s]tatutory construction is a holistic endeavor,\xe2\x80\x9d Koons Buick\nPontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (internal quotation\nmarks omitted), our analysis of the Stormwater Amendment, \xe2\x80\x9cbegin[s], as\nalways, with the text of the statute.\xe2\x80\x9d Hawaii v. Office of Hawaiian Affairs,\n129 S. Ct. 1436, 1443 (2009). The text of section 313(c)(2)(B), standing\nalone, does not unambiguously resolve the issue before us. On the one\nhand, the phrase \xe2\x80\x9cexcept to the extent and in an amount provided in advance by any appropriations Act\xe2\x80\x9d might be read to authorize the payment\nof stormwater assessments only when Congress makes a specific appropriation of funds for that purpose. See USPS Letter at 1 (\xe2\x80\x9cThe language\nlends itself to only one logical interpretation, i.e., federal entities are not\nrequired to pay stormwater fees unless Congress has provided specific\nappropriations for that purpose.\xe2\x80\x9d); USDA Letter at 2\xe2\x80\x93 4. On the other\nhand, the phrase might be interpreted as authorizing federal agencies to\npay stormwater assessments, not from a \xe2\x80\x9cpermanent authorization account\nin the Treasury,\xe2\x80\x9d declared off limits by section 313(c)(2)(A), 5 but instead\nfrom annual lump-sum appropriations.\nWhile the text of section 312(c)(2)(B), standing alone, does not resolve\nthe issue, reading the section to allow payment from annual lump-sum\nappropriations is ultimately the better reading of the text. First, such a\nreading accords with basic principles of appropriations law. The \xe2\x80\x9cexcept\nto the extent and in an amount\xe2\x80\x9d language can be read to clarify that the\nStormwater Amendment provides spending authority for payment of\n5 Although we do not address here the meaning of the phrase \xe2\x80\x9cpermanent authorization\naccount in the Treasury,\xe2\x80\x9d we note that Senator Cardin explained section 313(c)(2)(A) as\n\xe2\x80\x9crectify[ing] a specific problem in the District of Columbia, where the Department of\nTreasury has been paying some stormwater fees\xe2\x80\x9d and as reflecting \xe2\x80\x9cthat agencies and\ndepartments should use their annual appropriated funds to pay for stormwater fees.\xe2\x80\x9d 156\nCong. Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added).\n\n8\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\nstormwater assessments, but is not itself an appropriation. See U.S. General Accounting Office, GAO-04-261SP, Principles of Federal Appropriations Law 2\xe2\x80\x935 (3d ed. 2004) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d) (\xe2\x80\x9cWhile\nother 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\npaid, they are paid by and from an appropriation.\xe2\x80\x9d) (internal citations\nomitted); 31 U.S.C. \xc2\xa7 1301(d) (2006) (\xe2\x80\x9cA law may be construed to make\nan appropriation out of the Treasury or to authorize making a contract for\nthe 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\nmade.\xe2\x80\x9d). The phrase further can be understood to embody the basic principle that any stormwater assessments paid by federal agencies must come\nfrom and may not exceed an actual appropriation. See, e.g., Preseault v.\nInterstate Commerce Comm\xe2\x80\x99n, 494 U.S. 1, 14 (1990) (noting that a statute\nproviding that payments \xe2\x80\x9care effective only \xe2\x80\x98in such amounts as are\nprovided in advance in appropriation Acts\xe2\x80\x99\xe2\x80\x9d reflects a \xe2\x80\x9cconcept that\nmirrors Art. I, \xc2\xa7 9, of the Constitution (\xe2\x80\x98No Money shall be drawn from\nthe Treasury, but in Consequence of Appropriations made by Law\xe2\x80\x99)\xe2\x80\x9d).\nSee generally EPA Letter at 12; CEQ Letter at 6; Tax Memorandum at 5.\nSecond, this reading of the text comports with earlier opinions of this\nOffice interpreting other authorization or appropriations provisions. For\ninstance, faced with a statute that authorized the Secretary of Defense to\nmake available five million dollars out of previously appropriated funds\nto the Director of the National Science Foundation \xe2\x80\x9c[t]o the extent provided in appropriations Acts,\xe2\x80\x9d this Office concluded that this condition\ndid not require that there have been a specific line-item appropriation in\nthose appropriations acts. See Funding for the Critical Technologies\nInstitute, 16 Op. O.L.C. 77, 79\xe2\x80\x9383 (1992) (\xe2\x80\x9cCritical Technologies Institute\xe2\x80\x9d) (interpreting section 822(d)(1) of the National Defense Authorization Act for Fiscal Years 1992 and 1993, Pub. L. No. 102-190, 105 Stat.\n1290, 1435 (1991)). In reaching this conclusion, we noted that the term\n\xe2\x80\x9cprovided\xe2\x80\x9d can mean \xe2\x80\x9cto make a proviso or stipulation,\xe2\x80\x9d but can also\nmean, more generally, \xe2\x80\x9cto make preparation to meet a need.\xe2\x80\x9d Id. at 81\n(citing Webster\xe2\x80\x99s Ninth New Collegiate Dictionary 948 (1986)). Construing the term against the background of the \xe2\x80\x9cfundamental principle of\nappropriations law\xe2\x80\x9d that \xe2\x80\x9cCongress is not required to enact a specific\n9\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nappropriation for a program,\xe2\x80\x9d and in the absence of any textual indication\nthat Congress intended to depart from this principle, we concluded that a\nlump-sum appropriation was sufficient to meet the condition. Id. at 81\xe2\x80\x93\n82; see also id. at 79\xe2\x80\x9380 (observing that it is \xe2\x80\x9caxiomatic\xe2\x80\x9d that Congress\nuses lump-sum appropriations to \xe2\x80\x9ccover[] a wide range of activities\nwithout specifying precisely the objects to which the appropriation may\nbe applied\xe2\x80\x9d). 6\n6 Nor do we think this Office\xe2\x80\x99s interpretation of section 207 of the Equal Access to\nJustice Act (\xe2\x80\x9cEAJA\xe2\x80\x9d)\xe2\x80\x94which provided that the payment of fees as provided by the statute\nwas \xe2\x80\x9ceffective only to the extent and in such amounts as are provided in advance in\nappropriations Acts,\xe2\x80\x9d Pub. L. No. 96-481, 94 Stat. 2321, 2330 (1980)\xe2\x80\x94is to the contrary.\nSee Funding of Attorney Fee Awards Under the Equal Access to Justice Act, 6 Op. O.L.C.\n204, 208\xe2\x80\x9309 (1982) (\xe2\x80\x9cOlson Memorandum\xe2\x80\x9d). Although this Office observed in Critical\nTechnologies Institute that the Department of Defense\xe2\x80\x99s reliance on the Olson Memorandum was inapposite because the different statutory language presented a \xe2\x80\x9csignificantly\ndifferent question\xe2\x80\x9d and that the addition of the phrase \xe2\x80\x9cand in such amounts\xe2\x80\x9d requires \xe2\x80\x9ca\ngreater degree of precision than \xe2\x80\x98to the extent provided\xe2\x80\x99 would alone,\xe2\x80\x9d 16 Op. O.L.C. at\n83, 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\nInstitute, section 207 of EAJA had not been \xe2\x80\x9cinterpreted\xe2\x80\x9d by the Olson Memorandum to\n\xe2\x80\x9crequire a specific line-item appropriation.\xe2\x80\x9d 16 Op. O.L.C. at 83. Rather, \xe2\x80\x9cthe concern\nmotivating section 207\xe2\x80\x99s clause was not,\xe2\x80\x9d we said, \xe2\x80\x9cwhether a line-item appropriation\nrather than a lump-sum appropriation was required, but instead whether an appropriation\nwas necessary at all.\xe2\x80\x9d Id. On this view, section 207 was an effort to \xe2\x80\x9cmake clear that the\nbill merely authorized funds, but did not appropriate them\xe2\x80\x9d and thus to avoid \xe2\x80\x9chav[ing]\nthe EAJA bill ruled out of order because it contained appropriations, in violation of House\nrules.\xe2\x80\x9d Id. For these reasons, far from mandating that section 313(c)(2)(B) be interpreted\nto impose a specific-appropriation requirement, Critical Technologies Institute, read as\nwhole, supports our conclusion that section 313(c)(2)(B)\xe2\x80\x99s function is not to impose a\nrigid specific-appropriation requirement but rather to clarify that the Stormwater Amendment \xe2\x80\x9cmerely authorized funds, but did not appropriate them.\xe2\x80\x9d 16 Op. O.L.C. at 82.\nThe GAO has suggested a contrary interpretation of similar language in other statutory\ncontexts, see, e.g., Letter for Hon. William Lehman, Chairman, Subcommittee on Transportation and Related Agencies, Committee on Appropriations, House of Representatives,\nfrom Milton J. Socolar, Acting Comptroller General of the United States, B-204078\n(May 6, 1988) (construing a similar phrase as reflecting \xe2\x80\x9ca clear prohibition on the\nobligation or expenditure of funds . . . unless specifically provided for in an appropriation\nact\xe2\x80\x9d), but the GAO has not addressed this particular statutory context and, to the extent\nthat its interpretation of other provisions might be extended here, its interpretation is not\nbinding in any event, see, e.g., Prioritizing Programs to Exempt Small Businesses from\nCompetition in Federal Contracts, 33 Op. O.L.C. 284, 302 (2009) (\xe2\x80\x9cOur Office has on\nmany occasions issued opinions and memoranda concluding that GAO decisions are not\nbinding on Executive Branch agencies and that the opinions of the Attorney General and\n\n10\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\nFinally, section 313(c)(2)(B)\xe2\x80\x99s limitation that stormwater assessments\ncan be paid only \xe2\x80\x9cto the extent and in an amount provided in advance by\nany appropriations Act to pay or reimburse the [stormwater assessment],\xe2\x80\x9d\nwhich makes clear that the amendment itself is not an appropriation,\nplainly responded to the need to ensure that the statute conformed to the\nrequirements of 2 U.S.C. \xc2\xa7 651 (2006). See EPA Letter at 7\xe2\x80\x938. That\nsection provides that \xe2\x80\x9c[i]t shall not be in order in either the House of\nRepresentatives or the Senate to consider any bill . . . that provides,\xe2\x80\x9d\namong other things, \xe2\x80\x9cnew authority to incur indebtedness . . . for the\nrepayment of which the United States is liable . . . unless that bill . . . also\nprovides that the new authority is to be effective for any fiscal year only\nto the extent or in the amounts provided in advance in appropriation\nActs.\xe2\x80\x9d 2 U.S.C. \xc2\xa7 651(a) (emphasis added). Under section 651, \xe2\x80\x9clegislation providing new [spending] authority will be subject to a point of order\nin 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\nsuch extent or in such amounts as are provided in advance in appropriation acts.\xe2\x80\x9d Federal Appropriations Law at 2\xe2\x80\x936 (emphasis added). 7 Section\n313(c)(2)(B)\xe2\x80\x99s confirmation that the Stormwater Amendment is not an\nappropriation thus served the important function of avoiding a point of\norder, thereby enabling passage of the bill. See EPA Letter at 8 (setting\nforth this explanation); accord DOD Letter at 3. 8\nof this Office are controlling.\xe2\x80\x9d); see also Critical Technologies Institute, 16 Op. O.L.C. at\n84 (disagreeing with GAO advice).\n7 Section 651 traces its statutory lineage to section 401(a) of the Congressional Budget Act of 1974 (originally codified at 31 U.S.C. \xc2\xa7 1351(a) (Supp. IV 1974)). The legislative history of the 1974 statute explains that the purpose of the requirement was to\nensure that \xe2\x80\x9cbackdoor spending authority (such as contract authority, loan authority, and\nmandatory or open-ended entitlements) could not take effect until funds were provided\nthrough the appropriations process.\xe2\x80\x9d H.R. Rep. No. 93-658, at 17 (1973), reprinted in\n1974 U.S.C.C.A.N. 3462, 3463.\n8 Because we understand section 313(c)(2)(B) to be serving several purposes on this\nreading\xe2\x80\x94including clarifying that the Stormwater Amendment authorizes spending but is\nnot itself an appropriation; forbidding federal agencies from incurring any stormwater\nassessment obligations in excess of their appropriations; and conforming with the requirements of 2 U.S.C. \xc2\xa7 651\xe2\x80\x94we do not believe that this reading gives no effect to, and\nthus renders surplusage, the phrase \xe2\x80\x9cexcept to the extent and in an amount provided in\nadvance by any appropriations Act.\xe2\x80\x9d Cf. DOD Letter at 4. Indeed, we rejected a similar\nobjection lodged against our interpretation of the phrase \xe2\x80\x9c[t]o the extent provided in\n\n11\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nB.\nOur textual interpretation is supported by consideration of the text in\nthe context of the Stormwater Amendment\xe2\x80\x99s overall structure, purpose,\nand legislative history. The structure of the Stormwater Amendment\nfavors reading section 313(c)(2)(B) to allow payment from lump-sum\nappropriations and undermines a specific-appropriation interpretation of\nthat section. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S.\n120, 133 (2000) (\xe2\x80\x9cA court must . . . interpret the statute as a symmetrical\nand coherent regulatory scheme and fit, if possible, all parts into an harmonious whole.\xe2\x80\x9d) (internal quotation marks and citations omitted). Reading section 313(c)(2)(B) to restrict payment of stormwater assessments\nunless and until a future Congress makes a specific appropriation for that\npurpose would be in considerable tension with Congress\xe2\x80\x99s decision in the\nimmediately preceding subsection\xe2\x80\x94section 313(c)(1)\xe2\x80\x94to clarify that\nfederal agencies are responsible for paying reasonable stormwater assessments. Such a restriction would frustrate the ability of federal agencies to pay those assessments, and \xe2\x80\x9c[w]e are disinclined to say that what\nCongress imposed with one hand . . . it withdrew with the other.\xe2\x80\x9d Logan\nv. United States, 552 U.S. 23, 35 (2007); see Greenlaw v. United States,\n554 U.S. 237, 251 (2008) (\xe2\x80\x9cWe resist attributing to Congress an intention\nto render a statute so internally inconsistent.\xe2\x80\x9d). Rather, here, a provision\nthat \xe2\x80\x9cseem[s] ambiguous in isolation is . . . clarified by the remainder of\nthe statutory scheme . . . because only one of the permissible meanings\nproduces a substantive effect that is compatible with the rest of the law.\xe2\x80\x9d\nKoons Buick Pontiac GMC, 543 U.S. at 60.\nInterpreting section 313(c)(2)(B) to require a specific appropriation also would substantially conflict with the general purpose of the Stormwater\nAmendment. See Stafford v. Briggs, 444 U.S. 527, 535 (1980) (statutory\ninterpretation must take account of the \xe2\x80\x9c\xe2\x80\x98the objects and policy of the\nlaw\xe2\x80\x99\xe2\x80\x9d) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857));\nMcCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844,\nAppropriations acts\xe2\x80\x9d in Critical Technologies Institute, reasoning, among other things,\nthat the phrase \xe2\x80\x9cmakes clear that the act merely authorized funds, and that a further\nappropriation is required.\xe2\x80\x9d 16 Op. O.L.C. at 82. In any event, \xe2\x80\x9c[s]urplusage does not\nalways produce ambiguity and [a] preference for avoiding surplusage constructions is not\nabsolute.\xe2\x80\x9d Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004).\n\n12\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\n861 (2005) (\xe2\x80\x9c[e]xamination of purpose is a staple of statutory interpretation\xe2\x80\x9d). The central purpose of the Stormwater Amendment was to resolve\nthe controversy surrounding the payment of stormwater assessments by\nrequiring that federal agencies pay such assessments. The very first words\nof the amendment\xe2\x80\x94\xe2\x80\x9c[a]n Act To . . . clarify Federal responsibility for\nstormwater pollution\xe2\x80\x9d\xe2\x80\x94show Congress\xe2\x80\x99s purpose to resolve the dispute\nregarding stormwater assessments and make clear that the federal government as an owner of federal facilities is responsible for the payment of\nstormwater assessments. Although \xe2\x80\x9c[t]he title of an act cannot control its\nwords,\xe2\x80\x9d it \xe2\x80\x9cmay furnish some aid in showing what was in the mind of the\nlegislature.\xe2\x80\x9d United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818)\n(Marshall, C.J.); see Holy Trinity Church v. United States, 143 U.S. 457,\n462 (1892) (\xe2\x80\x9ctitle of the act\xe2\x80\x9d may shed light on the \xe2\x80\x9cintent of the legislature\xe2\x80\x9d). The title here does just that. See ENRD Memorandum at 4 (arguing\nthat the \xe2\x80\x9cpurpose is readily apparent from the title of the act\xe2\x80\x9d).\nIn addition to the title, all of the available legislative history confirms\nthis account of Congress\xe2\x80\x99s purpose. 9 The Senate sponsor of the bill,\nSenator Cardin, explained in introducing the bill: \xe2\x80\x9cAdopting the legislation that I am introducing today will remove all ambiguity about the\nresponsibility of the Federal Government to pay these normal and customary stormwater fees.\xe2\x80\x9d 156 Cong. Rec. S4856 (daily ed. June 10,\n2010). 10 Several members of the House repeated this understanding of the\nobjective of the Stormwater Amendment, including after the substitute\n9 This Office has previously found legislative history one potentially instructive factor\nto consider, along with other evidence, when confronted with ambiguous appropriations\nlanguage. See Critical Technologies Institute, 16 Op. O.L.C. at 80 (relying on legislative\nhistory in ascertaining the meaning of similar appropriations language); see also Authority\nof Chrysler Corporation Loan Guarantee Board to Issue Guarantees, 43 Op. Att\xe2\x80\x99y Gen.\n219, 219\xe2\x80\x9323 (1980) (construing phrase \xe2\x80\x9cto the extent such amounts are provided in advance in appropriations acts\xe2\x80\x9d based principally on legislative history).\n10 Although some of the legislative history we cite here was in connection with the bill\nas it existed prior to the last-minute addition of section 313(c)(2)(B), that does not render\nthat prior history irrelevant. Senator Cardin\xe2\x80\x99s 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\xe2\x80\x99s request), and is consistent with\nstatements 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\nadopting a restrictive interpretation of section 313(c)(2)(B), especially when all available\nlegislative evidence is to the contrary.\n\n13\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nversion of the bill passed the Senate. Representative Oberstar, for example, noted that \xe2\x80\x9c[s]everal states and municipalities . . . have taken aggressive action to address ongoing sources of stormwater pollution\xe2\x80\x9d but that\nsuch action is undermined \xe2\x80\x9cwhen a significant percentage of Federal\nproperty owners take the position that they cannot be held responsible for\ntheir pollution.\xe2\x80\x9d 156 Cong. Rec. H8978 (daily ed. Dec. 22, 2010). He\nexplained that the amendment would \xe2\x80\x9cclarif[y] that Federal agencies and\ndepartments are financially responsible for any reasonable . . . charges\nfor treating or otherwise addressing stormwater pollution that emanates\nfrom Federal property.\xe2\x80\x9d Id. Other statements in the legislative record are\nto the same effect. 11\nIndeed, after the Senate\xe2\x80\x99s passage of the Stormwater Amendment, Senator Cardin again explained the purpose of the amendment in similar\nterms:\n[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\nto pay localities for reasonable costs associated with the control and\nabatement of pollution that is originating on its properties. At stake\nis a fundamental issue of equity: polluters should be financially responsible for the pollution that they cause. That includes the Federal\nGovernment.\n156 Cong. Rec. S11,023 (daily ed. Dec. 22, 2010); see id. at S11,024\n(statement of Sen. Cardin) (the federal responsibility \xe2\x80\x9cto manage . . .\nstormwater pollution . . . needs to translate into payments to the local\ngovernments that are forced to deal with this pollution\xe2\x80\x9d). Senator Cardin\xe2\x80\x99s\nconsistent, public, and unambiguous articulation of the intended purpose\n11 See 156 Cong. Rec. E2259 (daily ed. Dec. 29, 2010) (statement of Rep. Johnson)\n(describing the bill as \xe2\x80\x9ca simple effort to clarify . . . that the Federal Government bears a\nproportional responsibility for addressing pollution originating from its facilities\xe2\x80\x9d); id. at\nE2258 (statement of Rep. Johnson) (explaining that the \xe2\x80\x9ccommon sense bill\xe2\x80\x9d would\n\xe2\x80\x9censure[] that the Federal Government maintains its equitable responsibility for stormwater pollution runoff originating or emanating from its property\xe2\x80\x9d); 156 Cong. Rec.\nE2245 (daily ed. Dec. 22, 2010) (statement of Del. Norton, who sponsored the Stormwater Amendment in the House) (\xe2\x80\x9cThe consequence of failing to pass this bill is that we\ngive the Federal Government a free ride and pass its fees on to our constituents throughout the United States.\xe2\x80\x9d).\n\n14\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\nand effect of the Stormwater Amendment confirms our view that Congress intended the Stormwater Amendment to facilitate the payment of\nstormwater assessments by the federal government. See NLRB v. Fruit &\nVegetable Packers, Local 760, 377 U.S. 58, 66 (1964) (\xe2\x80\x9cIt is the sponsors\nthat we look to when the meaning of the statutory words is in doubt.\xe2\x80\x9d)\n(internal quotation marks omitted); see also H.J. Inc. v. Nw. Bell Tel. Co.,\n492 U.S. 229, 238 (1989) (relying on the stated understanding of \xe2\x80\x9cthe\nprincipal sponsor of the Senate bill\xe2\x80\x9d in interpreting a statute). Although\nthe \xe2\x80\x9cremarks of a single legislator who sponsors a bill\xe2\x80\x9d may not be \xe2\x80\x9ccontrolling in analyzing legislative history,\xe2\x80\x9d Consumer Prod. Safety Comm\xe2\x80\x99n\nv. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980), Senator Cardin\xe2\x80\x99s remarks accord with all of the available legislative history. There is no\nindication in the legislative record that the understanding of the Stormwater Amendment offered by Senator Cardin and others was not shared\nuniversally in Congress.\nReading the statute to impose a specific-appropriation requirement\nwould frustrate that purpose. Such a requirement would place a substantial obstacle in the path of payment of stormwater assessments because of\nthe practical burdens associated with attaining specificity in annual appropriations, especially specificity in appropriations bills applying to a\nrange of federal agencies. See, e.g., Critical Technologies Institute, 16\nOp. O.L.C. at 80 (\xe2\x80\x9cA rule requiring greater specificity in appropriations\nwould create extreme obstacles for the functioning of the Federal Government.\xe2\x80\x9d). Indeed, we note that, to the extent some federal agencies were\npaying stormwater assessments from lump-sum appropriations prior to the\npassage of the Stormwater Amendment, a specific-appropriation interpretation would require ascribing to Congress an intent to forbid such ongoing payments unless and until Congress made a specific appropriation. We\ncan find no indication of such a congressional intent. Equally important, a\nspecific-appropriation interpretation of section 313(c)(2)(B), rather than\nresolving once and for all the obligation of the federal government as an\nowner of federal facilities to pay certain stormwater assessments, would\neffectively leave the issue where Congress found it\xe2\x80\x94passing on to future\nCongresses the task of determining, on an annual basis, whether stormwater assessments should be paid. Such a reading of section 313(c)(2)(B)\nwould reintroduce the same cloud of legal uncertainty Congress intended\nthe Stormwater Amendment to dispel.\n15\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nFurthermore, the legislative history relating specifically to the addition\nof section 313(c)(2)(B) weighs heavily against interpreting the section to\nimpose a specific-appropriation requirement. Senator Cardin explained\nthe appropriations language at issue here as follows:\n[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\nhas been paying some stormwater fees. The provision simply says\nthat agencies and departments should use their annual appropriated\nfunds to pay for stormwater fees. This is exactly what they all do today in paying for their drinking water and wastewater bills or any\nother utility bill, for that matter. This new language requires that\nCongress make available, in appropriations acts, the funds that could\nbe used for this purpose. It does not mean that the appropriations act\nwould need to state specifically or expressly that the funds could be\nused to pay these charges. The legislative language doesn\xe2\x80\x99t say that,\nand I want to be perfectly clear that such a restrictive reading is not\nour intent.\n156 Cong. Rec. S11,024 (daily ed. Dec. 22, 2010) (emphasis added). 12\nSenator Cardin\xe2\x80\x99s view was echoed by several members of the House of\nRepresentatives, including the House sponsor of the Stormwater Amendment, Delegate Norton. She explained: \xe2\x80\x9cThe bill requires that Congress\nmake available, in appropriations acts, the funds that could be used to pay\nfor stormwater management charges, but not that the appropriations act\nwould need to state specifically or expressly that the funds could be used\nto pay these charges.\xe2\x80\x9d Id. at H8979 (daily ed. Dec. 22, 2010) (emphasis\nadded). 13 There is no legislative history pointing to a contrary result. See\nAlthough Senator Cardin\xe2\x80\x99s statement was made after the passage of the Senate version of the bill, his description is consistent with the understanding expressed by members\nof the House, including the sponsor, prior to passage there. See infra n. 13 and accompanying text.\n13 See also 156 Cong. Rec. H8979 (daily ed. Dec. 22, 2010) (statement of Rep. Oberstar) (\xe2\x80\x9cIn addition, the intent of subsection (c)(2)(B) of Section 313 of the Clean Water\nAct, as added by S. 3481, is to require that Congress make available, in appropriations\nacts, the funds that could be used to pay stormwater fees, but not that the appropriations\nact would need to state specifically or expressly that the funds could be used to pay these\ncharges.\xe2\x80\x9d); id. at H8980 (daily ed. Dec. 22, 2010) (statement of Rep. Johnson) (\xe2\x80\x9cThis\nnew language requires that Congress make available, in appropriations acts, the funds\n12\n\n16\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\nCEQ Letter at 5 (canvassing legislative history supporting an interpretation of section 313(c)(2)(B) as authorizing annual appropriations to pay\nstormwater assessments and noting \xe2\x80\x9c[n]o comments to the contrary appear\nanywhere in the legislative history\xe2\x80\x9d of the Stormwater Amendment).\nIn 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,\nand history of the Stormwater Amendment, is that Congress did not intend\nto impose a specific-appropriation requirement. Indeed, a specificappropriation requirement\xe2\x80\x94which, as we have noted, would have the\npredictable effect of restricting payment by federal agencies and would\nleave the status of future stormwater payments in legal limbo\xe2\x80\x94would\nundermine Congress\xe2\x80\x99s central aims in enacting the Stormwater Amendment. We therefore believe that federal agencies may pay stormwater\nassessments out of annual\xe2\x80\x94including current\xe2\x80\x94lump-sum appropriations. 14\nthat 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\ncharges. The statutory language does not require this, and such a restrictive reading is\nnot intended.\xe2\x80\x9d).\n14 USDA suggests that section 313(c)(2)(B), in all events, forbids the use of current\nappropriations to pay stormwater assessments because an \xe2\x80\x9cadditional act of Congress is\nrequired.\xe2\x80\x9d USDA Letter at 4. But the conclusion does not follow from the premise. It is\ntrue that an \xe2\x80\x9cadditional act of Congress is required\xe2\x80\x9d\xe2\x80\x94because the Stormwater Amendment is not an appropriation, a point that is central to our reading of section\n313(c)(2)(B)\xe2\x80\x94but the view that section 313(c)(2)(B) may be satisfied by a lump-sum\nappropriation leads logically to the conclusion that such an appropriation may be a\ncurrent or future lump-sum appropriation. Payment of stormwater assessments from a\ncurrent appropriation would not countermand the statutory requirement that funds be\n\xe2\x80\x9cprovided in advance by any appropriations Act\xe2\x80\x9d because federal agencies\xe2\x80\x99 payments of\nstormwater assessments going forward would be made from appropriations acts previously enacted by Congress. This same analysis largely responds to the Department of\nDefense\xe2\x80\x99s concern that section 313(c)(2)(B) \xe2\x80\x9cclearly require[s] some additional action by\nCongress.\xe2\x80\x9d DOD Letter at 3. DOD appears to posit that the \xe2\x80\x9cshall not be obligated\xe2\x80\x9d\nclause 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\nevent that Congress enacts specific \xe2\x80\x9cappropriations act language.\xe2\x80\x9d Id. at 4. As we have\nexplained, we agree that \xe2\x80\x9cadditional action by Congress\xe2\x80\x9d is required, but that additional\naction may be a current or future general lump-sum appropriation. Therefore, we disagree with DOD\xe2\x80\x99s suggested interpretation of the \xe2\x80\x9cshall not be obligated\xe2\x80\x9d phrase because,\nin our view, a general lump-sum appropriation is sufficient to trigger the \xe2\x80\x9cmandatory\xe2\x80\x9d\npayment of stormwater assessments. Id.\n\n17\n\n\x0c35 Op. O.L.C. 1 (2011)\n\nC.\nOne significant argument might be advanced against our reading of\nthe Stormwater Amendment. It might be said that, if the plain text of\nsection 313(c)(2)(B) does not definitively resolve the source of payment,\nthen we must embrace a construction that restricts payment on the\nground that \xe2\x80\x9ca condition to [a] waiver of sovereign immunity . . . must\nbe strictly construed.\xe2\x80\x9d Irwin v. Dep\xe2\x80\x99t of Veterans Affairs, 498 U.S. 89,\n94 (1990). We disagree that this rule of construction justifies reading\nsection 313(c)(2)(B) to impose a specific-appropriation requirement.\nIn our view, the appropriations language in section 313(c)(2)(B) is not\nproperly understood as a condition on the waiver of immunity. Sections\n313(a) and 313(c)(1), read together, accomplish that waiver for stormwater assessments. See supra p. 7. Section 313(c)(2)(B) serves a different\nfunction, operating as an internal accounting provision, directing when\nand how federal agencies may pay such assessments. Cf. Henderson v.\nUnited States, 517 U.S. 654, 667\xe2\x80\x9368 (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\nprocess are not \xe2\x80\x9csensibly typed \xe2\x80\x98substantive\xe2\x80\x99 or \xe2\x80\x98jurisdictional\xe2\x80\x99\xe2\x80\x9d\xe2\x80\x94and\ntherefore a condition on the waiver\xe2\x80\x94but \xe2\x80\x9c[i]nstead, they have a distinctly\nfacilitative, \xe2\x80\x98procedural\xe2\x80\x99 cast\xe2\x80\x9d as \xe2\x80\x9c[t]hey deal with case processing, not\nsubstantive rights or consent to suit\xe2\x80\x9d). The heading of section 313(c)(2),\n\xe2\x80\x9cLimitation on Accounts,\xe2\x80\x9d supports the view that section 313(c)(2) is not\na condition on a waiver of immunity but rather that it governs the sources\nfrom which federal agencies may pay stormwater assessments. See Government Accountability Office, GAO-05-734SP, A Glossary of Terms\nUsed in the Federal Budget Process 2 (Sept. 2005) (defining account as\n\xe2\x80\x9c[a] separate financial reporting unit for budget, management, and/or\naccounting purposes\xe2\x80\x9d); see also Almendarez-Torres v. United States, 523\nU.S. 224, 234 (1998) (noting that the \xe2\x80\x9cheading of a section\xe2\x80\x9d is a \xe2\x80\x9ctool[]\navailable for the resolution of a doubt about the meaning of a statute\xe2\x80\x9d)\n(internal quotation marks omitted); ENRD Memorandum at 4. For these\nreasons, reading section 313(c)(2)(B) not as a condition on the waiver of\nimmunity, but as a separate internal accounting provision specific to\nstormwater assessments, is most faithful to the Supreme Court\xe2\x80\x99s instruction to \xe2\x80\x9cinterpret [a] statute as a symmetrical and coherent regulatory\nscheme\xe2\x80\x9d that \xe2\x80\x9cfit[s] . . . all parts into a harmonious whole.\xe2\x80\x9d Brown &\n18\n\n\x0cObligation of Federal Agencies to Pay Stormwater Assessments\n\nWilliamson, 529 U.S. at 133 (internal quotation marks and citations omitted).\nWe recognize that section 313(c)(2)(B)\xe2\x80\x99s direction that federal agencies\n\xe2\x80\x9cshall not be obligated to pay\xe2\x80\x9d stormwater assessments \xe2\x80\x9cexcept to the\nextent and in an amount provided in advance by any appropriations Act\xe2\x80\x9d\nmight be read as a condition on the waiver of immunity. See DOD Letter\nat 4; cf. Tax Memorandum at 4 (suggesting that section 313(c)(2)(B)\n\xe2\x80\x9cread[s] more like a traditional waiver given the context of the amendment\xe2\x80\x9d). But we believe, in this statutory context, that the phrase \xe2\x80\x9cshall not\nbe obligated to pay . . . except to the extent and in an amount provided in\nadvance by any appropriations Act\xe2\x80\x9d is instead a textual cue that the\nStormwater Amendment is not an appropriation and that stormwater\nassessment payments require a separate appropriation by Congress. In\nother words, the \xe2\x80\x9cshall not be obligated to pay\xe2\x80\x9d phrase is an instruction\nthat federal agencies may not pay stormwater assessments unless there is\na separate appropriation of funds by Congress to do so. Because we do not\nread 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\ngoverning conditions on waivers of immunity is inapposite.\nFor these reasons, we conclude that section 313(c)(2)(B) of the CWA\ndoes not impose a specific-appropriation requirement. Instead, federal\nagencies may pay appropriate stormwater assessments from annual\xe2\x80\x94\nincluding current\xe2\x80\x94lump-sum appropriations.\nCAROLINE D. KRASS\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n19\n\n\x0c'