City of Wilmington v. United States

Clean Water Act

Issue(s) Presented

1. “Whether the court erred by applying the Contract Disputes Act’s appellate standard of de novo  review.”

2. “Whether the court erred by (a) disregarding as irrelevant or giving little weight to Wilmington’s circumstantial and contemporaneous evidence, and (b) giving dispositive weight to the United States’ speculation and conjecture.”

3. “Whether the court correctly construed ‘proportionate’ and ‘nondiscriminatory’ in 33 U.S.C. § 1323 when assessing the burdens of persuasion and production regarding affirmative defenses of, and presumptions of correctness of government records and reasonableness of ordinances’ utility rates and procedures against, the United States.”

4. “Whether 33 U.S.C. § 1323 obligated the United States to exhaust administrative remedies available via Wilmington’s appeal process before contesting stormwater charges at trial by arguing entitlement to those remedies.”

5. “If 33 U.S.C. § 1323 obligated the United States to exhaust Wilmington’s administrative remedies:

a. Whether the court abused its discretion by excusing the United States’ failure to exhaust those administrative remedies that (i) involve administrative expertise or discretion and (ii) would not necessarily have been futile if an appeal had been filed between January 4 and March 18, 2011; and

b. Whether the court should have entered judgment under RCFC 52(c) against (not for) Wilmington based in part on the United States’ affirmative defense that its failure to exhaust administrative remedies was excusable.”

6. “Whether Congress’ command that 33 U.S.C. § 1323(a) ‘shall apply notwithstanding any immunity . . . under any law or rule of law’ can be plausibly interpreted as excluding the United States’ traditional immunity from interest awards from this waiver.”


1. “[W]e reject the city’s argument that the trial court erroneously “assessed issues under the de novo standard of review.” Appellant’s Br. 43. The court appropriately conducted a trial and made factual findings on a clean slate.”

2. “The trial court correctly found that the 2008 publication predates the 2011 amendments’ definition of “reasonable service charges” and, in any event, does not satisfy the city’s burden.”

3. “Wilmington’s methodology, as applied, led to charges that are not a fair approximation of the Properties’ proportionate contribution to stormwater pollution.”

4. “The USACE was not required to exhaust the appeal process.”

5. “Because Wilmington’s stormwater management fees are not “reasonable service charges” under 33 U.S.C. § 1323, the CWA does not waive the USACE’s sovereign immunity.”