BNA

The National Association of Clean Water Agencies on April 30 asked U.S. Attorney General Eric Holder Jr. for a ruling on whether the federal government is subject to local fees charged to support the collection and disposal of stormwater runoff.

The request comes in the wake of the Department of Defense and Government Accountability Office making “preliminary determinations” that a District of Columbia impervious surface fee imposed on property owners is a tax, not a fee, and that federal property is exempt from the charge (81 DEN A-4, 4/29/10).

NACWA Executive Director Ken Kirk, in the letter to Holder, maintained that the agencies erred. The letter added that the General Services Administration, the federal government's landlord, has reached the same conclusion as DOD and GAO.

Water bills from the D.C. Water and Sewer Authority now include an impervious surface fee to pay for the costly replacement of the city's antiquated combined sewer/stormwater system with separate systems. The fee would apply to federal properties for the first time in 2011.

Tax Determination ‘Legally Unjustified.'

NACWA's letter suggests that federal agencies' refusal to pay such fees is “legally unjustified.”

According to NACWA, Section 313 of the Clean Water Act “clearly states that the federal government is obligated to pay reasonable fees to local governments related to runoff control and pollution abatement.”

The association also maintains that the District of Columbia fee passes the Supreme Court test for determining whether a charge is an unconstitutional intergovernmental tax or a fee for services rendered, citing the 1978 Supreme Court decision Massachusetts v. United States (435 U.S. 444).

That case concerned federal taxes imposed on commercial, private, and governmental aircraft operations. Massachusetts argued that the federal government could not impose the tax on the state. However, the court upheld the charge on Massachusetts state police helicopter operations, finding that it applied on all users of federal aviation services and paid for services rendered.

NACWA Calls Policy Hypocritical
Kirk maintained that the GAO and DOD positions undercut Obama administration initiatives, including the federal initiative to restore the Chesapeake Bay laid out in Executive Order 13508.

Kirk noted that on April 21 the Environmental Protection Agency proposed a “next generation” Municipal Separate Storm Sewer System (MS4) permit for the District of Columbia. Kirk called it a “very stringent” permit proposal.
He also noted that WASA's impervious surface fee is paying for replacement of the combined sewer/stormwater system—a project required under a consent decree with the federal government.

“It is hypocritical for the federal government to impose such an unfunded mandate on the District of Columbia and then at the same time, as the largest land owner in the District, refuse to pay its fair share of the cost necessary to address this critical environmental issue within the Chesapeake Bay watershed,” Kirk wrote.

The NACWA letter urges the Justice Department to declare that WASA's impervious surface charge is a fee for service, not a tax, and order all federal agencies to pay their WASA water bills in full. Kirk urged the department to extend its directive nationwide by instructing all federal facilities across the nation to pay “appropriate” local stormwater fees.

“The refusal of federal government agencies to pay local stormwater fees is an issue that has frustrated utilities in many parts of the country for years. NACWA believes the current discussion on the DCWASA fee presents a valuable opportunity for the federal government to make clear on a nationwide basis, once and for all, that it is legally obligated to pay local stormwater fees,” Kirk wrote.

NACWA sent copies of its letter to EPA Administrator Lisa Jackson and White House Council on Environmental Quality Chair Nancy Sutley, among other federal officials.

Senator Wants U.S. to Pay Fee
Sen. Ben Cardin (D-Md.), sponsor of legislation to reauthorize and strengthen the Chesapeake Bay Program (S. 1816), said he is determined to see that the federal government pays its fair share of the District's impervious surface fee, his press secretary told BNA April 27 (73 DEN A-8, 4/19/10).

Cardin has said he is trying to build greater support among farmers and developers before he introduces legislation to reauthorize the Chesapeake Bay Program and expand the Environmental Protection Agency's authority to restore the estuary.