81 FR 35662 - Rules of Practice and Procedure Concerning Regulatory Program Fees and Basin Regulations-Water Supply Charges Concerning Rates

DELAWARE RIVER BASIN COMMISSION

Federal Register Volume 81, Issue 107 (June 3, 2016)

The Commission is proposing 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.

[Federal Register Volume 81, Number 107 (Friday, June 3, 2016)]
[Proposed Rules]
[Pages 35662-35665]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-13012]


=======================================================================
-----------------------------------------------------------------------

DELAWARE RIVER BASIN COMMISSION

18 CFR Parts 401 and 420


Rules of Practice and Procedure Concerning Regulatory Program 
Fees and Basin Regulations--Water Supply Charges Concerning Rates

AGENCY: Delaware River Basin Commission.

ACTION: Proposed rule; notice of public hearing.

-----------------------------------------------------------------------

SUMMARY: The Commission is proposing 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 Commission will hold a public hearing at 1 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 p.m. on Friday, August 12, 
2016.

ADDRESSES: The public hearing will be held in the Goddard Conference 
Room 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 Web site.
    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 [email protected]; 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 Web site, 
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 publically 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 
between 2011 and 2015 produced average annual revenues of $610,843. The 
Commission's total cost associated with

[[Page 35663]]

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 $.80 per million 
gallons for non-consumptive use. The previous rates, $60 per million 
gallons for consumptive use and $.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 coordination, monitoring and assessment 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 coordination, monitoring and assessment fee will not apply to 
such ``Other'' projects. 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 of approximately $539,000 in funding 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.
    Additional information. An FAQ document explaining DRBC's fee 
restructuring proposal in greater detail is available on the 
Commission's Web site, www.drbc.net.

List of Subjects

18 CFR Part 401

    Administrative practice and procedure, Penalties, Water pollution 
control, Water resources.

18 CFR Part 420

    Water Supply.

    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 as follows:

PART 401--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 401 continues to read as follows:

    Authority:  Delaware River Basin Compact (75 Stat. 688), unless 
otherwise noted.

0
2. Add Sec.  401.43 to subpart C to read as follows:


Sec.  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 (Sec.  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 (Sec.  401.42). The fee 
shall be based on

[[Page 35664]]

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 Sec.  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 (Sec.  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 at 18 CFR 420.31(e)(2) 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 Web site. 
Interested parties may also obtain the current fee schedule by 
contacting the Commission directly during business hours.
---------------------------------------------------------------------------

    \1\ Consumer Price Index--U/Series ID: CWURA102SA0/Not 
Seasonally Adjusted/Area: Philadelphia-Wilmington-Atlantic City, PA-
NJ-DE-MD/Item: All items/Base Period: 1982-84=100.
---------------------------------------------------------------------------

    (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
------------------------------------------------------------------------
                                  Docket application
          Project type                    fee             Fee maximum
------------------------------------------------------------------------
                                  $400 per million    Greater of:
                                   gallons/month of    $15,000 \1\ or
                                   allocation,\1\      Alternative
                                   not to exceed       Review Fee
                                   $15,000. \1\
Water Withdrawal................  Fee is doubled for
                                   any portion to be
                                   exported from the
                                   basin.
Wastewater Discharge............  Private projects:   Alternative Review
                                   $1,000 \1\ Public   Fee
                                   projects: $500
                                   \1\.
                                  0.4% of project     Greater of:
                                   cost up to          $75,000 \1\ or
                                   $10,000,000 plus    Alternative
                                   0.12% of project    Review Fee
                                   cost above.
Other...........................  $10,000,000 (if
                                   applicable), not
                                   to exceed
                                   $75,000. \1\
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.


                 Annual Monitoring and Coordination Fee
------------------------------------------------------------------------
                                      Annual fee           Allocation
------------------------------------------------------------------------
                                               \1\$300  <4.99 mgm.
                                                \1\450  5.00 to 49.99
                                                         mgm.
Water Withdrawal.............                   \1\650  50.00 to 499.99
                                                         mgm.
                                                \1\825  500.00 to
                                                         9,999.99 mgm.
                                             \1\1,000;  > or = to 10,000
                                                         mgm.
                                 Annual fee             Discharge design
                                                         capacity
                                                \1\300  <0.05 mgd.
Wastewater Discharge.........                   \1\610  0.05 to 1 mgd.

[[Page 35665]]

 
                                                \1\820  1 to 10 mgd.
                                              \1\1,000  >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   $5,000............  Alternative Review
 401.40.                                               Fee.
Late Filed Renewal Surcharge....  $2,000............
                                  At Executive        Alternative Review
                                   Director's          Fee.
                                   discretion,
                                   Docket
                                   Application Fee
                                   for the
                                   appropriate
                                   project type.
Modification of a DRBC Approval.
Name change.....................  $1,000, \1\
Change of Ownership.............  $1,500. \1\
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.

PART 420--BASIN REGULATIONS--WATER SUPPLY CHARGES

0
3. The authority citation for part 420 continues to read as follows:

    Authority:  Delaware River Basin Compact, 75 Stat. 688.
0
4. Revise Sec.  420.41 to read as follows:


Sec.  420.41  Schedule of water charges.

    The schedule of water charges established in accordance with Sec.  
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 Web site. Interested parties may also obtain 
the current rates by contacting the Commission directly during business 
hours.
---------------------------------------------------------------------------

    \1\ Consumer Price Index--U/Series ID: CWURA102SA0/Not 
Seasonally Adjusted/Area: Philadelphia-Wilmington-Atlantic City, PA-
NJ-DE-MD/Item: All items/Base Period: 1982-84=100.

    Dated: May 26, 2016.
Pamela M. Bush,
Commission Secretary.
[FR Doc. 2016-13012 Filed 6-2-16; 8:45 am]
 BILLING CODE 6360-01-P