National Conference of State Legislatures
Office of State-Federal Relations
June 30, 2010
On June 10, 2010, Senator Ben Cardin (Maryland), chairman of the Environment and Public Works Water and Wildlife Subcommittee, introduced bipartisan legislation (S. 3481) to amend the Clean Water Act to require the federal government to comply with local stormwater fees that are collected to manage and treat runoff stormwater pollution. This legislation removes any of the ambiguity concerning the classification of these fees.
According to the Environmental Protection Agency (EPA), stormwater runoff is the most common cause of pollution in many of the country’s waterways, including the Great Lakes, the Chesapeake Bay, coastal areas, and rivers and lakes across the country. And as the EPA continues to require more communities to address this pollution, the communities are enacting fee based systems to pay for the programs.
In the past, the federal government has argued that these fees resemble property taxes, as they are paid on property size, which it is immune from paying based on the concept of “sovereign immunity.” However, the Clean Water Act explicitly allows wastewater fees to be paid by property size, hence, they are not taxes and therefore localities are allowed to collect the fees from federal agencies.
When initially enacted, The Clean Water Act allowed local governments to implement “reasonable service charges” on federal agencies to improve the quality of the nation’s water sources. As fixing stormwater pollution would drastically improve the nation’s water supply, this measure would ensure that the federal government is accountable for such fees in the same manner and to the same extent as any nongovernmental entity.
On June 30th, S. 3481 was passed out of the Environment and Public Works Committee on a unanimous voice vote. House legislation on this issue is expected to be introduced shortly. Given the limited time remaining on the congressional calendar it is unclear whether this issue will continue to move as a standalone bill or as part of a broader legislative package.
For more information contact Max Behlke (Max.Behlke@ncsl.org) or
Tamra Spielvogel (Tamra.Spielvogel@ncsl.org) or call NCSL’s Washington DC office (202) 624-5400.