The City of Covington may have to sue Newton County and the Newton County School System if it wants to receive the more than $120,000 in stormwater fees it says it’s owed.
Ever since Covington first began charging for stormwater service in March 2005, the county and school system have refused to pay the charges, because they argue stormwater charges are a tax, not a fee. Governmental entities are exempt from paying taxes, but not fees.
On Feb. 24, NCSS Superintendent Dr. Steve Whatley wrote an e-mail to Mayor Kim Carter: "At this time on the advice of legal counsel the BOE (Board of Education) does not intend to make payment."
When asked for further comment, Sherri Viniard, NCSS’s director of public relations, responded on Tuesday: "Because this could become a legal matter we cannot discuss the situation or provide further information at this time."
County Chairman Kathy Morgan said she hoped the county would not have to go litigation, but said the county also took the position that it is exempt from paying stormwater fees.
"We feel we are exempt from stormwater utilities. That‘s based on advice not only from our attorney but from other legal counsel," Morgan said. "We don’t take this matter lightly … I would think at best we need to sit down and have a discussion about it and understand where they see that this is something we owe."
As of last December, the county owed a total of $56,047 on 35 properties and NCSS owed a total of $63,956 on seven properties. Most of this money is in the form of fees years late. The city normally adds a 10 percent penalty onto late fees, but as of yet had not done so.
Normally, when a property owner has not paid their stormwater bills, the city will place a lien on the owner’s property. However, liens cannot be placed on public property. At Monday’s council meeting City Manager Steve Horton said it appeared the NCSS had taken the position that city basically has no recourse to collect the stormwater charges.
When Councilman Chris Smith asked if the city had exhausted all means, Carter said no - litigation was an option.
"Litigation would certainly be a means. That hasn’t been discussed," she said. "I’m awaiting a letter from Chairman Morgan. I do think they’re probably going to take the same position, that we can’t lien public property. It’s a tough, difficult time for all of us in our budgets, but it’s disheartening sometimes that we as individuals pay our utility (and stormwater) bills and government won’t."
According to a series of emails between City Engineer Tres Thomas and County Engineer Kevin Walter spanning late 2005 and early 2006, the two entities had been discussing the possibility of giving the county stormwater credits on certain properties. Essentially, if properties were still in a mostly natural state and had few or no impervious surfaces, the county was asking that the stormwater bill be eliminated or reduced.
The last email is from Thomas and is dated July 7, 2006. It asks for more documentation on two properties before any credits are given. According to a recent email from Thomas, the county never gave a reply. Now it appears they feel they don’t have to pay at all.
Stormwater fees have long been a source of conflict between governments across the nation. According to a December 2009 article in The Gainseville Sun, multiple school systems in Florida have stopped paying stormwater fees. However in the same article a city attorney is quoted as saying that the Florida Supreme Court has found stormwater fees are valid and can be charged to any user of the stormwater system.
In the Georgia Supreme Court case McLeod. v. Columbia County, the court ruled on June 28, 2004 that the charge was a fee and not a tax.
Here’s Covington’s official take via its Web site: "Though a stormwater utility fee resembles a tax, it is not. A tax is based on property value, and a stormwater fee is tied to the amount of stormwater runoff generated by a property. In most cases, the fee system allows for much of the financial burden to be allocated to those parcels having the greatest impact on the drainage system. Unlike a tax, a fee is assessed to all property owners. The collected revenue is isolated from the General Fund and must be used to support the stormwater program; nothing else."
Government entities aren’t the only groups that aren’t paying their stormwater fees.
Last July, the city placed liens on thousands of delinquent stormwater accounts. At the time, 3,544 accounts were past due, adding up to $679,020 in unpaid fees. Many property owners paid their fees after a warning letter was sent out; the rest of the properties had liens placed on them. When liens are placed on a property, they must be paid off when the property is sold or changes hands. As of Thursday, 2,442 accounts were still late, totaling $508,724.
At the time, Horton said the city has been trying to collect delinquent bills for the past few years, but employees have been trying to educate residents and other property owners as to why they must pay the bills and how the bills should be paid.
"It would have been better to place liens every year, but I believe our folks we’re trying to give people a chance to understand and take care of bills on their own," Horton said previously. "A lot of people don’t understand why they had to pay … but eventually we realized some people would never pay."
Liens are used because the city can’t simply cut off stormwater service like it can electricity and gas. Horton said the city has stormwater bills to pay for maintenance of the stormwater system, inspections of runoff sources and costs to clean water that reaches the city’s water plant, which are required by state law.
Stormwater is essentially rain runoff. Because environmental officials realized runoff can cause flooding and bring more pollution into the water supply, a fee began to be charged in some places of the country in the mid- 1980s.
The standard stormwater rate for property owners is $3 for every 2,600 ft. of impervious surface. Impervious surfaces are hardened, artificial surfaces that prevent water from filtering through them into the ground. Unique property conditions can raise or lower this rate. Pervious surfaces are no longer assessed a stormwater fee.
Many residents in Covington’s poorer communities complain about stormwater because they argue there is no stormwater infrastructure in their yards. They say the water simply sits in their yards as opposed to flowing to city pipes or into bodies of water.
For more information visit the city’s stormwater page at cityofcovington.org/departments/stormwater.