Congress Approves Legislation to Require Federal Payment of Local Stormwater Fees

Legislation that would require federal agencies to pay local fees for treating and managing stormwater runoff was approved by Congress Dec. 22, sending the bill to President Obama.

The Senate passed the bill (S. 3481) Dec. 21 by unanimous consent, followed by House passage Dec. 22, also by unanimous consent.

S. 3481, sponsored by Sen. Benjamin Cardin (D-Md.), clarifies that reasonable service charges, as described in Section 313 of the Clean Water Act, include reasonable fees or assessments for the purpose of stormwater management and that appropriated funds may be used to pay such fees, which are not considered a tax.

The issue emerged in April when several federal agencies announced they would not pay stormwater fees assessed by the District of Columbia, claiming the fees amounted to a tax that the agencies were not required to pay (81 DEN A-4, 4/29/10).

An amendment to the Senate-passed bill offered by Sen. Tom Harkin (D-Iowa) states that such fees should be based on some fair approximation of the proportionate contribution of the federal property or facility to stormwater pollution in the local area. The fees also are to be used to pay or reimburse the costs of any stormwater management program that manages a combination of stormwater and sanitary waste.

This includes the full range of program and structural costs of collecting stormwater, reducing pollutants in stormwater, and reducing the volume and rate of stormwater discharge, regardless of whether that reasonable fee, charge, or assessment is denominated a tax, the amendment states.

According to Cardin, the legislation is a response to written decisions that left ambiguous or rebuffed the obligation of federal agencies to pay such fees.

In a statement following House passage Dec. 22, Cardin said, “At stake has been a fundamental issue of equity: polluters should be financially responsible for the pollution they cause, including the federal government.

“From Washington, D.C., to Washington state, the failure of the federal government to pay localities for reasonable costs associated with the control and abatement of pollution that originated on its properties has taken its toll.”

Sue Walitsky, a spokeswoman for Cardin, told BNA that President Obama is expected to sign the bill, but the White House could not be reached for comment.

The largest amount owed is for stormwater charges in Washington, D.C., where the outstanding balance is $2.4 million.

According to Cardin's office, among communities in billing disputes with federal agencies are the Bureau of Prisons in Lexington-Fayette County in Kentucky, which owes $3,369 in stormwater fees. The city of Aurora, Colo., has billed the Buckley Air Force Base for $143,445 in outstanding stormwater fees as of May 2010.

The city of Tampa Bay is owed $21,000 for stormwater services provided to federal facilities owned by the Naval Reserve Center, the Department of Housing and Urban Development, Department of Veterans Affairs, the U.S. Postal Service, and other federal buildings, Cardin's office said.

In addition, Cardin's office said Seattle has an outstanding bill of $1.9 million from 2006-2010 for the National Oceanic and Atmospheric Administration, the Veterans Administration, the U.S. Army Corps of Engineers, and the U.S. Navy.

The office also said the Bonneville Power Authority owes the city of Eugene, Ore., $2.500, and Gwinnet County, Ga., is owed $160,000.

The National Association of Clean Water Agencies, which represents municipal wastewater treatment agencies, commended the bill's passage.

Wastewater Utilities Praise Passage

“We agree with Congress that it is unfair for the federal government to require cities and utilities to undertake these investments and then exempt themselves from payment,” Ken Kirk, executive director of the National Association of Clean Water Agencies, said in a Dec. 22 statement. He said the action “will help communities in 15 states currently dealing with this issue and will lay a foundation for a stronger partnership moving forward.”

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 help 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.

A survey by the National Association of Clean Water Agencies found that while a majority of federal facilities pay for local clean water services, a growing number are contesting these charges as unconstitutional.

By Linda Roeder