Information_Notice_DRB Notice of Proposed Rulemaking and Public Hearing
5/25/16 N.Y. St. Reg. Information Notice DRB
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 21
May 25, 2016
INFORMATION NOTICE
Notice of Proposed Rulemaking and Public Hearing
Proposed Amendments to the Rules of Practice and Procedure Concerning Regulatory Program Fees and to the Basin Regulations – Water Supply Charges Concerning Rates
Summary: The Commission will hold a public hearing to receive comments on proposed amendments to the Rules of Practice and Procedure to adopt a new project review fee structure and to the Basin Regulations – Water Supply Charges to provide for automatic inflation adjustments. These changes also are proposed to be incorporated into the Commission’s Comprehensive Plan.
Dates: The public hearing will be held at 1:00 P.M. on Wednesday, July 27, 2016. The hearing will continue until all those wishing to testify have had an opportunity to do so. Written comments will be accepted and must be received by 5:00 P.M. on Friday, August 12, 2016.
Addresses: The public hearing will be held at the Commission’s office building located at 25 State Police Drive, West Trenton, NJ. As Internet mapping tools are inaccurate for this location, please use the driving directions posted on the Commission’s website.
Oral Testimony and Written Comments: Persons wishing to testify at the hearing are asked to register in advance by phoning Paula Schmitt at 609-883-9500, ext. 224. Written comments may be submitted as follows: If by email, to paula.schmitt@drbc.nj.gov; if by fax, to Commission Secretary at 609-883-9522; if by U.S. Mail, to Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 08628-0360; and if by overnight mail, to Commission Secretary, DRBC, 25 State Police Drive, West Trenton, NJ 08628-0360. Comments also may be delivered by hand at any time during the Commission’s regular office hours (Monday through Friday, 8:30 A.M. through 5:00 P.M. except on national holidays) until the close of the comment period at 5:00 P.M. on Friday, August 12, 2016. In all cases, please include the commenter’s name, address and affiliation, if any, in the comment document and “Fees Rulemaking” in the subject line.
For Further Information, Contact: An FAQ document explaining this proposal in further detail is available on the Commission’s website, www.drbc.net. For queries about the rulemaking process, please contact Pamela Bush at 609-477-7203.
Supplementary Information:
Background. The Delaware River Basin Commission (“DRBC” or “Commission”) is a federal interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states – Delaware, New Jersey, New York and Pennsylvania – and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the federal government. DRBC is proposing a comprehensive revision of its project review fee structure, including an automatic annual indexed inflation adjustment for most fees. The inflation adjustment is also proposed for DRBC’s water supply charges rates applicable to consumptive and non-consumptive surface water withdrawals.
Current fees. DRBC’s current project review fee structure was adopted by the Commission in 2009 by (uncodified) Resolution No. 2009-2. For projects involving total costs of $250,000 or less, it consists of a flat project review fee of $1,000 for privately sponsored projects and $500 for publicly sponsored projects. For projects with total costs greater than $250,000, DRBC’s current project review fee is based upon a percentage of the costs of the project attributable to project components physically located within the basin, and is capped at $75,000. However, projects for which the review is exceptionally involved may be charged DRBC’s actual costs, which may exceed $75,000. The current fee structure generates an uneven revenue stream that produced average annual revenues of $610,843 for the years 2011 through 2015. The Commission’s total cost associated with project reviews required by the Delaware River Basin Compact and DRBC regulations is estimated to equal $1.15 million annually. This estimate takes into consideration administrative cost savings expected to accompany implementation of the One Process/One Permit Program (also “One Process/One Permit”), recently authorized by the Commission through its adoption of the one permit program rule, 18 CFR 401.42.
DRBC’s water supply charges are used to pay debt service, annual operation and maintenance costs, and the costs of required improvements, repairs and replacements associated with water supply storage owned by the Commission in two reservoirs – Blue Marsh and Beltzville – located in Pennsylvania and operated by the U.S. Army Corps of Engineers. Water supply charges revenues also support DRBC activities related to water supply planning and operations. DRBC’s current water supply charges rates, in effect since January 1, 2011, are $80 per million gallons for consumptive use and $0.80 per million gallons for non-consumptive use. The previous rates, $60 per million gallons for consumptive use and $0.60 per million gallons for non-consumptive use, were adopted in 1978 and remained unchanged for more than 30 years. DRBC’s water supply charges revenues have lagged significantly behind inflation.
Proposed changes. The proposed project review fee restructuring includes: for wastewater discharge projects, elimination of DRBC project review fees for applications that undergo coordinated review pursuant to the One Process/One Permit Program; and for water withdrawal projects, (1) for those projects for which DRBC continues to act as lead review agency, replacement of the current fee structure with fees based on monthly water allocation limits; and (2) for renewals subject to coordinated review under One Process/One Permit, elimination of the project review fee. DRBC is simultaneously proposing an Annual Monitoring and Coordination Fee for all water withdrawal and wastewater discharge projects subject to DRBC review and approval, including projects that receive permits from a signatory party agency under the One Process/One Permit Program. The annual fee will range from $300 to $1,000 per year, depending upon the permitted discharge capacity or monthly water allocation. The fee for DRBC’s review of “Other” projects – those that involve no ongoing withdrawals or discharges – will continue to be calculated on the basis of project cost. The Annual Monitoring and Coordination Fee will not apply to such “Other” projects. In instances where the Commission’s activities and related costs associated with the review of an existing or proposed project are expected to involve extraordinary time and expense, the Executive Director will continue under the proposed rule to have the discretion to impose an Alternative Review Fee equal to the Commission’s actual costs. Finally, an annual, indexed, automatic inflation adjustment is proposed for most project review fees.
The proposed regulatory program fees structure is expected to provide a more predictable and sustainable source of revenues and to help close the annual gap in funding needed to support DRBC’s project review program.
No increase is proposed to DRBC’s current water supply charges rates, set forth at 18 CFR 420.41. However, an annual, indexed, automatic inflation adjustment is proposed, applicable to both the consumptive and non-consumptive use rates for surface water withdrawals.
For the reasons set forth in the preamble, the Delaware River Basin Commission proposes to amend parts 401 and 420 of title 18 of the Code of Federal Regulations and the corresponding sections of the New York Codes, Rules and Regulations (21 NYCRR Ch. XVIII, Subchapters A and D), as set forth below. Note that although the affected NYCRR sections are indicated in the paragraphs introducing the proposed rule text, the rule text itself, including internal references, is shown with Code of Federal Regulations numbering. When proposed amendments are adopted in final form, NYCRR numbering will be applied.
Part 401 – Rules of Practice and Procedure (21 NYCRR Ch. XVIII, Subchapter A) is proposed to be amended by the addition of a new § 401.43 (21 NYCRR 833.12) to read as follows:
§ 401.43 Regulatory program fees.
(a) Purpose. The purpose of this section is to provide an adequate, stable and reliable stream of revenue to cover the cost of the Commission’s regulatory program activities, an important means by which the Commission coordinates management of the shared water resources of the Basin. Activities to be covered by the fees include the review of applications for projects that are subject to review under the Delaware River Basin Compact and implementing regulations; and ongoing activities associated with such projects, including but not limited to, effluent and ambient monitoring, data analysis, hydrodynamic and water quality modeling, and coordination with state and federal agencies.
(b) Types of fees. The following types of fees are established by this section:
(1) Docket Application Fee. Except as set forth in paragraph (b)(1)(iii) of this section, the Docket Application Fee shall apply to:
(i) Any project that, in accordance with the Delaware River Basin Compact and DRBC regulations, requires a Commission-issued docket or permit, whether it be a new or existing project for which the Commission has not yet issued an approval or a project for which the renewal of a previous Commission approval is required.
(ii) Any project that in accordance with section 11 or section 13.1 of the Delaware River Basin Compact and DRBC regulations must be added to the Comprehensive Plan (also, “Plan”). In addition to any new project required to be included in the Plan, such projects include existing projects that in accordance with section 13.1 of the Compact are required to be included in the Plan and which were not previously added to the Plan. Any existing project that is changed substantially from the project as described in the Plan shall be deemed to be a new and different project for purposes of this section.
(iii) Exemptions. The Docket Application Fee shall not apply to:
(A) Any project for which the Signatory Party Agency serves as lead under the one permit program rule (§ 401.42), unless such project must be added by the Commission to the Comprehensive Plan.
(B) Any project for which an agency, authority or commission of a signatory to the Compact is the primary sponsor. Projects sponsored by political subdivisions of the signatory states shall not be included in this exemption. For purposes of this section “political subdivisions” shall include without limitation municipalities, municipal utility authorities, municipal development corporations, and all other entities not directly under the budgetary and administrative control of the Commission’s members.
(2) Annual Monitoring and Coordination Fee. An Annual Monitoring and Coordination Fee shall apply to each withdrawal and/or discharge project for which a water allocation or wastewater discharge approval issued pursuant to the Compact and implementing regulations is in effect, regardless of whether the approval was issued by the Commission in the form of a docket, permit or other instrument, or by a Signatory Party Agency under the one permit program rule (§ 401.42). The fee shall be based on the amount of a project’s approved monthly water allocation and/or approved daily discharge capacity.
(3) Alternative Review Fee. In instances where the Commission’s activities and related costs associated with the review of an existing or proposed project are expected to involve extraordinary time and expense, an Alternative Review Fee equal to the Commission’s actual costs may be imposed. The Executive Director shall inform the project sponsor in writing when the Alternative Review Fee is to be applied and may require advance payment in the amount of the Commission’s projected costs. Instances in which the Alternative Review Fee may apply include, but are not limited to, matters in which:
(i) DRBC staff perform a detailed pre-application review, including but not limited to the performance or review of modeling and/or analysis to identify target limits for wastewater discharges;
(ii) DRBC staff perform or review complex modeling in connection with the design of a wastewater discharge diffuser system;
(iii) DRBC manages a public process for which the degree of public involvement results in extraordinary effort and expense, including but not limited to costs associated with multiple stakeholder meetings, special public hearings, and/or voluminous public comment;
(iv) DRBC conducts or is required to engage third parties to conduct additional analyses or evaluations of a project in response to a court order.
(4) Additional fees.
(i) Emergency approval. A request for an emergency certificate under § 401.40 to waive or amend a docket condition shall be subject to a minimum fee in accordance with paragraph (e) of this section. An Alternative Review Fee also may be charged in accordance with paragraph (b)(3) of this section.
(ii) Late filed renewal application. Any renewal application submitted fewer than 120 calendar days in advance of the expiration date or after such other date specified in the docket or permit or letter of the Executive Director for filing a renewal application shall be subject to a Late Filed Renewal Application charge in excess of the otherwise applicable fee.
(iii) Modification of a DRBC approval. Following Commission action on a project, each project revision or modification that the Executive Director deems substantial shall require an additional Docket Application Fee calculated in accordance with paragraph (e) of this section and subject to an Alternative Review Fee in accordance with paragraph (b)(3) of this section.
(iv) Name change. Each project with a docket or permit issued by the DRBC or by a Signatory Party Agency pursuant to the one permit program rule (§ 401.42) will be charged an administrative fee as set forth in paragraph (e) of this section.
(v) Change of ownership. Each project that undergoes a “change in ownership” as that term is defined in section 5.2.1 E.2 of the Commission’s Water Supply Charges Regulations will be charged an administrative fee as set forth in paragraph (e) of this section.
(c) Indexed adjustment. On July 1 of every year, beginning July 1, 2017, all fees established by this section will increase commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia, published by the U.S. Bureau of Labor Statistics during that year.1 In any year in which the April 12-month CPI for Philadelphia declines or shows no change, the Docket Application Fee and Annual Monitoring and Coordination Fee will remain unchanged. Following any indexed adjustment made under this paragraph, a revised fee schedule will be posted on the Commission’s website. Interested parties may also obtain the current fee schedule by contacting the Commission directly during business hours.
(d) Late payment charge. When any fee established by this section remains unpaid 30 calendar days after the payment due date provided on the Commission’s invoice, an incremental charge equal to 2% of the amount owed shall be automatically assessed. Such charge shall be assessed every 30 days thereafter until the total amount owed, including any late payment charges, has been paid in full.
(e) Fee schedules. The fees described in this section shall be as follows.
DOCKET APPLICATION FILING FEE
Project Type
Docket Application Fee
Fee Maximum
Water Withdrawal
$400 per million gallons/month of allocation1, not to exceed $15,0001. Fee is doubled for any portion to be exported from the basin.
Greater of: $15,0001 or Alternative Review Fee
Wastewater Discharge
Private projects: $1,0001 Public projects: $5001
Alternative Review Fee
Other
0.4% of project cost up to $10,000,000 plus 0.12% of project cost above $10,000,000 (if applicable), not to exceed $75,0001
Greater of: $75,0001 or Alternative Review Fee
1 Subject to annual adjustment in accordance with paragraph (c) of this section.
ANNUAL MONITORING AND COORDINATION FEE
Annual Fee
Allocation
Water Withdrawal
$3001 $4501 $6501 $8251 $1,0001
< 4.99 mgm 5.00 to 49.99 mgm 50.00 to 499.99 mgm 500.00 to 9,999.99 mgm > or = to 10,000 mgm
Annual Fee
Discharge Design Capacity
Wastewater Discharge
$3001 $6101 $8201 $1,0001
< 0.05 mgd 0.05 to 1 mgd 1 to 10 mgd >10 mgd
1 Subject to annual adjustment in accordance with paragraph (c) of this section.
ADDITIONAL FEES
Proposed Action
Fee
Fee Maximum
Emergency Approval Under 18 CFR 401.40
$5,000
Alternative Review Fee
Late Filed Renewal Surcharge
$2,000
--
Modification of a DRBC Approval
At Executive Director’s discretion, Docket Application Fee for the appropriate project type.
Alternative Review Fee
Name change
1,0001
--
Change of Ownership
$1,5001
--
1 Subject to annual adjustment in accordance with paragraph (c) of this section.
Part 420 – Basin Regulations – Water Supply Charges (21 NYCRR Ch. XVIII, Subchapter D) is proposed to be amended by revising § 420.41 (21 NYCRR 883.1) to read as follows:
§ 420.41 Schedule of water charges.
The schedule of water charges established in accordance with § 420.22 shall be as follows:
(a) $80 per million gallons for consumptive use, subject to paragraph (c) of this section; and
(b) $0.80 per million gallons for non-consumptive use, subject to paragraph (c) of this section.
(c) On July 1 of every year, beginning July 1, 2017, the rates established by this section will increase commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia, published by the U.S. Bureau of Labor Statistics during that year.1 In any year in which the April 12-month CPI for Philadelphia declines or shows no change, the water charges rates will remain unchanged. Following any indexed adjustment made under this paragraph, revised consumptive and non-consumptive use rates will be posted on the Commission’s website. Interested parties may also obtain the current rates by contacting the Commission directly during business hours.
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1 Consumer Price Index – U / Series ID: CWURA102SA0 / Not Seasonally Adjusted / Area: Philadelphia-Wilminton-Atlantic City, PA-NJ-DE-MD / Item: All items / Base Period: 1982-84=100.
