Jubilee Housing, Inc. v. District of Columbia Water & Sewer Authority

PER CURIAM: This appeal for review challenges the District of Columbia Water and Sewer Authority’s (WASA’s) adoption of interim water and sewer rates in December 1996, shortly after it was formed to take over the duties of the Water and Sewer Utility Administration (WASUA). The events leading up to creation of the new entity and the course of agency proceedings that resulted in adoption of the interim rates are set out in Part I (“Factual Summary”) of the dissent, which we incorporate by reference. We agree as well with the analysis, discussed in Part II of the dissent, that the Council of the District of Columbia by legislative enactment terminated the preferential water rates previously established for charitable organizations and churches, see former D.C.Code § 43-1545 (1990), and the preferential water and sewer rates for certain nonprofit housing organizations (such as appellant, Jubilee Housing, Inc.), see former D.C.Code § 43-1522.(b), 43-1522.5 and 43-1605(a) (1990), and gave to WASA the authority to “collect and abate fees,” D.C.Code § 43-1686(a) (1998 Repl.), and, “following notice and public hearing” to “establish and adjust retail water and sewer rates,” D.C.Code § 43-1686(b) (1998 Repl.).1 As discussed in Part III of the dissent, we conclude that the manner in which WASA adopted the interim rates complied with the emergency rule making procedures of the District of Columbia Administrative Procedures Act, D.C.Code § 1-1506(c) (1999 Repl.). We conclude, however, that those procedures were not in conformity with the express statutory provisions in the WASA Act that require “notice and public hearing” before establishing rates. D.C.Code § 43-1686(b). We therefore hold that the 1996 interim water and sewer rates were invalid and remand the case to the Superior Court for further proceedings consistent with this opinion. Did WASA establish and adopt rates in 1996? It is undisputed that although WASA provided some notice on December 13, 1996 to the prior beneficiaries of preferential water and sewer rates of its intention to eliminate those preferential rates, it did not hold a public hearing prior to adopting the interim rates on December 19, 1996, to become effective December 27, 1996. Therefore, the remaining question is whether WASA’s adoption of the interim rates on December 19, 1996 constituted the “establishment of rates” for purposes of D.C.Code § 43-1686(b). We consider that the only answer is affirmative. Because the Council abolished the preferential rates to nonprofit housing organizations by legislation (indeed abolished all rates), effective 90 days after the initial meeting of the Board of WASA, see D.C. Law 11283 111, §§ 306, 601, there would be no rates in existence — for any consumers — as of December 27, 1996 unless WASA took action. That WASA did when, after it decided not to continue the policy of preferential rates for certain consumers on December 5, 1996, and thus established that appellants’ future rates would not be preferential but on the same basis as those of other consumers, it adopted interim rates for all consumers on December 19, 1996. Particularly with respect to consumers such as appellants, which previously paid no or reduced fees for water and sewer services, the interim rates imposed a new obligation. That the rates were temporary in nature and were at the same level as those previously charged to paying consumers does not, in our view, exempt them from the statutory requirement that they be preceded by notice and public hearing. Unlike the Administrative Procedures Act, which expressly provides for emergency rule making, see D.C.Code § 1—1506(c) (permitting emergency rule making, without the usually required prior notice and publication, if “necessary for the immediate preservation of the public peace, health, safety, welfare, or morals”), nothing in the legislation creating WASA and giving it the authority to “establish” rates “following notice and public hearing” similarly excuses these requirements in exigent situations.2 Although we sympathize with the practical difficulties faced by a new entity busy with the task of organizing itself and adjusting to a new statutory framework, we cannot, in the face of express and unqualified statutory language, relax what the legislature has mandated. Any relief must come from that body. Reversed and remanded. Footnotes [1] The repealing provisions of the "Water and Sewer Authority Establishment and Department of Public Works Reorganization Act of 1996”, D.C. Law 11-111 §§ 301-306, are not codified. [2] The requirement for a "public hearing” in the WASA Act is different from the APA's requirement of notice and publication for comment. We also note that a public hearing need not have delayed WASA’s decision to adopt interim rates in the same way as a notice and comment period under the APA. We are not free to substitute the APA scheme or import APA exceptions into the WASA Act.