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Legislation approved by the Senate Environment and Public Works Committee June 30 would require the federal government to pay local fees for treating and managing stormwater runoff.

Sen. Ben Cardin (D-Md.) said in a statement June 30 that the legislation “will remove all ambiguity about the responsibility of the federal government to pay the normal and customary stormwater fees administered by local governments forced to deal with this pollution.”

Initially introduced June 10 as a separate bill (S. 3481) by Cardin, the legislation was rolled into the broader Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816), approved by the committee June 30. (See related story in this issue.)

According to Cardin, the legislation is a response to written decisions that left ambiguous or rebuffed the need for federal agencies to pay such fees (112 DEN A-7, 6/14/10).

In April, three federal agencies—the General Services Administration, the Defense Department, and the Government Accountability Office—told the District of Columbia Water and Sewer Authority they would not pay new fees set to take effect in 2011 because they considered them a tax, not a fee for services rendered.

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.

The Senate legislation states that “reasonable service charges … include any requirement to pay a reasonable fee, assessment, or charge imposed by any state or local agency to defray or recover the cost of stormwater management in the same manner and to the same extent as any nongovernmental entity.”

Such a fee, assessment, or charge “shall not be considered to be a tax or other levy subject to an assertion of sovereign immunity, and may be paid using appropriated funds,” Section 5 of the bill states.
A recent survey by the National Association of Clean Water Agencies found that while a majority of federal facilities currently pay for local clean water services, a growing number are contesting these charges as unconstitutional.

NACWA has written to 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 association sent copies of its letter to Environmental Protection Agency Administrator Lisa Jackson, the White House Council on Environmental Quality, and other officials (84 DEN A-13, 5/4/10).

By Linda Roeder