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According to a February 25, 2011 Department of Justice (DOJ) memorandum, federal agencies may pay from their general lump-sum appropriations local fees for treating and managing stormwater runoff. The process will make it simpler for localities to obtain federal payments. The document, Reimbursement or Payment Obligation of the Federal Government Under Section 313(c)(2)(b) the Clean Water Act, addresses a recently enacted law (Pub. L. 111-378) that clarifies federal responsibility for stormwater pollution. It specifically clarifies that reasonable service charges payable by federal agencies include certain stormwater assessments. DOJ's memorandum opinion responds to a request by EPA, which asked the department to determine whether the new law bars federal agencies from paying stormwater assessments unless Congress makes a specific appropriation or whether agencies may use general, lump-sum appropriations for these payments. DOJ indicated that section 313Ic)(2)(b) does not impose a specific-appropriation requirement and federal agencies may pay appropriate stormwater assessments from annual, including current, lump-sum appropriations. The DOJ opinion stated that the stormwater amendment passed by the Senate (S. 3481)and House last December reflected an effort by Congress to resolve the controversy over whether local governments could levy stormwater assessments against the federal government for its facilities.


The issue emerged in April 2010 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. The Government Accounting Office (GAO) had sent a letter on March 14 to the District of Columbia Department of Environment stating that as a result of the recent enactment of legislation requiring federal facilities to pay local stormwater fees, the GAO was reversing its prior refusal to pay the city's stormwater charge and will now pay the fee without further legislative action.