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Sen. Benjamin Cardin (D-Md.) introduced legislation June 10 that would require the federal government to pay local fees used for treating and managing stormwater runoff.

According to Cardin's office, the bill (S. 3481) is a response to written decisions that rebuffed or left ambiguous the need for federal agencies to pay such fees.

The issue arose in April when three federal agencies—the General Services Administration, the Defense Department, and the Government Accountability Office—told the District of Columbia Water and Sewer Authority that they would not pay new fees set to take effect in 2011 because they considered them a tax, not a fee for services rendered (81 DEN A-4, 4/29/10).

S. 3481 states that reasonable service charges include reasonable fees or assessments made for the purpose of stormwater management “in the same manner and to the same extent as any nongovernmental entity.”

Under the bill, such a fee or assessment shall not be considered a tax or other levy subject to an assertion of sovereign immunity, and may be paid using appropriated funds.

“I continue to have grave concerns about the failure of the federal government to pay localities for reasonable costs associated with the control and abatement of pollution that is originating on its properties,” said Cardin, who is chairman of the Senate Environment and Public Works Subcommittee on Water and Wildlife.

“At stake is a fundamental issue about equity: polluters should be financially responsible for the pollution that they cause. That must include the federal government,” he said in a statement June 11.

The National Association of Clean Water Agencies June 11 expressed strong support for the bill. NACWA has long advocated that federal facilities are obligated to pay local stormwater fees. A recent NACWA survey found that while a majority of federal facilities currently pay for local clean water services, a growing number are contesting these charges as unconstitutional.

Clean Water Needs Growing
In addition to financial challenges, NACWA said U.S. clean water needs continue to grow. EPA's recently released 2008 Clean Water Needs Survey indicated a total of $298.1 billion in unmet clean water needs over the next 20 years (84 DEN A-13, 5/4/10).

“We believe the refusal of the federal government to pay for a critically important local environmental service is not only legally unjustified but also significantly undercuts the administration's commitment to improve water quality throughout the nation,” NACWA Executive Director Ken Kirk said in a statement June 11.

On April 30, NACWA 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.

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 (84 DEN A-13, 5/4/10).

NACWA maintains 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.

Sutley wrote June 10 in a letter to Cardin: “In passing the Clean Water Act, Congress provided clear authority to impose ‘reasonable service charges' on federal agencies to support the goal of improving the nation's water resources.”

However, Sutley's letter, which responded to a letter on the issue from Cardin, did not explicitly say that agencies would be required to pay such fees.

Sutley said the Council on Environmental Quality “is coordinating with executive agencies to answer questions these agencies have concerning stormwater pollution generally and the obligation that agencies have to pay reasonable fees to support local infrastructure.”

Agencies involved in the coordination effort include the Environmental Protection Agency, the National Capital Planning Commission, the General Services Administration, and the departments of Defense, Agriculture, Treasury, and Justice.

Stormwater control and treatment are important elements of a federal program to restore the health of the Chesapeake Bay watershed, Sutley wrote.

By Linda Roeder