Lewiston councilors will have to decide next month whether to pay back nearly $1.2 million collected by its now-defunct stormwater utility fee.

Refunding the fee, which the Idaho Supreme Court ruled last week was instead an unconstitutional tax, would essentially mean the return of about $54 to most residents who paid it on their city utility bills.

City Manager Jim Bennett said the Dec. 5 meeting will be the first chance for the council to really address the issue and determine whether that money should be returned to those who paid it.

The court wasn't asked to take a stance on whether money collected under the stormwater utility was to be returned.

The fee was still being phased in when the city suspended collection after a lower court struck it down, and city administrative services director Daniel Marsh said residents were still paying $3 a month. That's less than the $6.35 that would have been the eventual monthly rate.

Money collected from January 2009 to July 2010 has already been spent, going to fund stormwater work including street sweeping and maintenance of the existing system. Street repairs downtown were completed because of extra money in the street department, Marsh said.

"It helped to offset those costs that normally the street department would pay," Marsh said.

Commercial and governmental users were charged under a calculation called the equivalent residential unit of measurement, equal to 4,000 square feet of impervious surface, such as roofs and paved areas. A commercial building with 20,000 square feet would have likely paid $15 per month or $180 per year.

The Lewiston School District, Lewis-Clark State College, Nez Perce County, the Port of Lewiston and the Lewiston Orchards Irrigation District, who sued the city would have been among the highest ratepayers under the fee. The five entities successfully argued the fee was an unconstitutional tax that they were exempt from paying.

The city has not asked the high court to reconsider its ruling.

Ted Creason, one of the attorneys representing the agencies who filed the suit, noted the court did not direct the city one way or another. But if the ordinance was declared invalid, Creason said fees charged under the code would also be invalid.

"As a preliminary matter it looks to me like those folks are entitled to have their money back," Creason said.

He said his clients either paid nothing or very little toward the bills assessed under the fee.

Bennett said he couldn't forecast what the council's decision might be.

If the city council chooses to repay the money, Bennett said the $1.186 million would likely come from the streets budget. But how the city would go about refunding the money, and what such a refund would do to the city's budget, are among the issues to be ironed out.

"Certainly it would effect the ability of the city to do street projects for the next year or two perhaps, but the money's got to come from some place," he said.

The city also has to look at other options to fund stormwater improvements.

Discussion of whether to allow backyard hens in all residential neighborhoods in the city, and whether to hire a consultant to look at options for the future of the Normal Hill Cemetery will also be on the agenda at the Dec. 5 meeting.

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Gary may be contacted at bgary@lmtribune.com or (208) 848-2262.