Federal Agencies Refusing to Pay Local Stormwater Fees

Federal government agencies in Washington, DC, and around the country are refusing to pay fees for stormwater related infrastructure, even though cities are charging the fees to pay for federal mandates.

Pennwell web 90 135

Federal government agencies in Washington, DC, and around the country are refusing to pay fees for stormwater related infrastructure, even though cities are charging the fees to pay for federal mandates.

The problem has been growing for the past few years. In 2006 the U.S. Government Accountability Office (GAO) ruled that surface water management fees assessed by King County, Washington, against national forest lands and other Forest Service properties were actually a tax on property owners. Land and property owned by the Federal government is exempt from local property taxes.

In a letter to King County written last year, a GAO attorney wrote that the county's surface water management program provided no "direct, tangible service or convenience in exchange for payment" and therefore the fee was a form of taxation.

A copy of the GAO's 2006 ruling in the King County case can be found on the agency's website, www.gao.gov/decisions/appro/306666.htm.

An extreme example of non-payment is in the District of Columbia, where the federal government owns nearly 20 percent of the land. The stormwater fees levied by the DC Water and Sewer Authority (DCWASA) are based on the impervious surface area of a property.

In a letter earlier this year to DCWASA, the GAO stated the "Impervious Surface Area charges adopted by the District appears to be a tax on property owners … Accordingly, we are instructing the Department of Treasury not to make a payment to the District."

The National Association of Clean Water Agencies (NACWA) has sent a letter to U.S. Attorney General Eric Holder urging him to review the GAO decision. The Department of Justice (DOJ) also is reviewing that decision.

The NACWA letter argues the federal government's refusal to pay the stormwater fee is not only legally unjustified but also conflicts with the Obama Administration's public commitment to improve the water quality within the Chesapeake Bay and nationally.

The letter calls on DOJ to find that the stormwater charge issued by DCWASA is a fee and not a tax, and further direct all federal facilities in the district, and around the nation, to pay stormwater fees charged by local stormwater utilities.

In an ironic twist, in April the EPA issued a proposed new permit that requires the District of Columbia to improve its stormwater program.

Among other things, the permit directs the district to require "90 percent on-site retention of storm flows at non-federal facilities for new development, redevelopment and retrofit projects, to avoid pollutant runoff and stream damage."

According to an EPA press release "The new permit conditions are necessary because large portions of impervious surfaces such as roads, rooftops and parking lots in the District channel stormwater directly into local streams, and rivers."

While the changes in stormwater control and treatment may be needed to protect the Chesapeake Bay, it is a lot to ask an agency already struggling to make ends meet. Especially when local rate payers have to subsidize the largest polluter in the District.

It occurs to me that DCWASA could dramatically reduce the pollutant load coming out of DC by simply getting rid of all those pesky government agencies….

Pennwell web 90 135James Laughlin, Editor

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