[Federal Register Volume 73, Number 176 (Wednesday, September 10, 2008)]
[Rules and Regulations]
[Pages 52584-52591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21046]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[EPA-HQ-OW-2006-0765; FRL-8712-7]
RIN 2040-AE99


NPDES Voluntary Permit Fee Incentive for Clean Water Act Section 
106 Grants; Allotment Formula

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule revises the allotment formula contained in 
EPA's Clean Water Act (CWA) Section 106

[[Page 52585]]

Water Pollution Control grant regulations to include a financial 
incentive for States to voluntarily collect adequate National Pollutant 
Discharge Elimination System (NPDES) permit fees. EPA is amending its 
existing CWA Section 106 grant allotment. This amendment provides the 
Agency with the flexibility to annually allot separately an amount up 
to three percent of the FY 2008 base funds allocated to States from CWA 
Section 106 grants appropriated by Congress. This rule will begin in FY 
2009. The incentive will not impact the FY 2008 base funds. It will be 
set-aside for allotment only if funds allotted to the States are 
greater than the amount allotted in FY 2008.

DATES: This rule is effective on September 10, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2006-0765. All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g. , CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
through www.regulations.gov or in hard copy at the Water Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Robyn Delehanty, Office of Water, 
Office of Wastewater Management, 4201M, U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone 
number: (202) 564-3880; fax number: (202) 501-2346; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    Affected Entities: State Agencies that are eligible to receive 
grants under Section 106 of the Clean Water Act (CWA).

II. Background

    Section 106 of the CWA authorizes the EPA to provide grants to 
State and interstate agencies \1\ to administer programs for the 
prevention, reduction, and elimination of water pollution, including 
the development and implementation of groundwater protection 
strategies. Section 106(b) of the CWA directs the EPA Administrator to 
make allotments ``in accordance with regulations promulgated by him on 
the basis of the extent of the pollution problem in the respective 
States.'' EPA's regulations implementing Section 106 can be found at 40 
CFR 35.160 et seq. EPA's current allotment formula for Section 106 
grants includes an allotment ratio for each State based on six 
components selected to reflect the extent of the water pollution 
problem in the respective States. These six components are surface 
water area, ground water use, water quality impairment, potential point 
sources, nonpoint sources, and the population of urbanized areas. 40 
CFR 35.162(b)(1)(i). By including a component related to point sources, 
EPA recognizes the important role they play in determining the extent 
of pollution in a State.
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    \1\ CWA Sections 106 and 518 authorize EPA to award such grants 
to eligible Indian Tribes, but this rule does not affect those 
grants.
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    EPA proposed this rule amending the CWA Section 106 allotment 
formula on January 4, 2007 (72 FR 293) and requested comments from 
interested parties. EPA received 717 comments on the proposed rule. A 
summary of the significant public comments and the Agency's responses 
are included in this preamble in Section III below. This preamble also 
summarizes the two changes to the final rule which EPA determined 
necessary. These changes involve delaying implementation of this rule 
until FY 2009 and changing the base fiscal year which the Agency will 
use to determine if an allotment for this purpose should be made. EPA's 
responses to all comments received on this rulemaking are included in 
the docket described above.
    This final rule amends the State allotment formula to incorporate 
financial incentives for States to implement adequate NPDES fee 
programs. The Agency recognizes the importance of States' flexibility 
in program management. Therefore, this final rule is purely an 
incentive; it is voluntary and will not impact State's base funds. This 
rule will only be invoked if there is an increase above the FY 2008 
level in the total amount of funds allotted to States under 40 CFR 
35.162(b).
    The Clean Water Act prohibits the discharge of any pollutant from 
point sources except in compliance with other provisions of the 
statute. 33 U.S.C. 1311(a). One of these provisions is CWA Section 402, 
under which pollutant discharges can be authorized by an NPDES permit. 
33 U.S.C. 1342(a). EPA oversees the NPDES program and also approves 
applications from States to administer and enforce the NPDES program in 
those States. Currently, 45 States are authorized by EPA to administer 
all or some parts of the NPDES program.
    State water quality programs are funded with a mixture of State and 
federal dollars. The growing complexity of water quality issues has 
prompted more States to implement NPDES permit fee programs. An 
estimated 41 States currently have permit fee programs in place, with 
such fees paying for all or a portion of the cost of the State's permit 
program.
    A number of States still operate their permit programs with little 
or no reliance on permit fees. States can address permit program budget 
shortfalls through the implementation of permit fee programs that 
collect funds to cover the cost of issuing and administering permits. 
Funding permit programs with the support of permit fees allows States 
to use CWA Section 106 funds for other critical water quality programs, 
which address the prevention, reduction, and elimination of water 
pollution.
    EPA is committed to making State surface water protection programs 
more sustainable through better resource management. As State agencies 
carry out most of the day-to-day aspects of water quality functions, 
their responsibilities are expanding while they are simultaneously 
facing increasingly severe funding constraints. As a nation, billions 
of federal funds under the Water Pollution Control grants, together 
with State resources, have been spent to establish and maintain 
adequate measures for the prevention and control of surface and 
groundwater resources. Federal and State governments cannot carry out 
this responsibility alone. EPA is committed to finding effective and 
efficient solutions to maintaining sustainable State water pollution 
control programs that continue to provide this nation with clean and 
protected water. All levels of government and the private sector must 
share in this commitment.
    The purpose of this rule is to encourage States to voluntarily 
collect NPDES permit fees adequate to meet their program costs. This 
amendment to the allotment formula is designed to provide an incentive 
for States to voluntarily move toward greater sustainability in the way 
they manage

[[Page 52586]]

and budget for environmental programs and to shift part of the 
financial burden to those who benefit from NPDES permits. No State is 
required to collect permit fees under this rule. To ensure that no 
States receive a reduction from their current allotment amount, no 
funds will be set aside for this permit fee incentive unless funds 
designated for distribution in FY 2009 and subsequent fiscal years 
under 40 CFR 35.162(b) are greater than $171 million, which is the 
amount of funds set aside under 40 CFR 35.162(b) in FY 2008. If 40 CFR 
35.162(b) funds in FY 2009 or later fiscal years are not greater than 
$171 million, then EPA will not be able to invoke the permit incentive. 
This rule is intended to increase overall available funding for CWA 106 
eligible activities.
    The amount of any permit fee incentive allotment set-aside would be 
limited to three percent of the funds allotted under 40 CFR 35.162(b) 
in FY 2008, or $5.1 million. And, in order to ensure that the incentive 
to each qualifying State is modest, the rule caps the maximum share of 
the incentive at 50% of the amount a State received under 40 CFR 
35.162(b) in the previous year. As a result of this rule, beginning in 
FY 2009, EPA would allot the State and interstate CWA 106 grant funds 
in the following order: 2.6 percent will be set aside for allotment to 
the eligible interstate agencies in accordance with the existing 
interstate allotment formula in 40 CFR 35.162(c); next, funds may be 
allotted for specific water pollution control elements under 40 CFR 
35.162(d); next, funds may be allotted to States in accordance with the 
permit fee incentive allotment formula under 40 CFR 35.162(e), which 
requires that ``there is an increase above the FY 2008 level in the 
total amount of funds allotted to States under subsection (b)''; and 
finally, the balance will be allotted to the States in accordance with 
the existing allotment formula under 40 CFR 35.162(b).
    The only States which will be eligible for this set-aside are those 
States which have been authorized by EPA to implement the NPDES program 
by the first day of the fiscal year, October 1, for which funds are 
appropriated by Congress. Under this rule, these States must also 
submit annually a certification to EPA (to the attention of the 
Regional Administrator). For FY 2009, the certification must be 
postmarked by November 14, 2008. For every year thereafter, the 
required certification must be postmarked by October 1. The 
certification must meet the following two requirements. First, the 
certification must include the total NPDES State program costs, the 
percentage of NPDES program costs recovered by the State through permit 
fee collections during the most recently completed State fiscal year, 
and a statement that the amount of permit fees collected is used by the 
State to defray NPDES program costs. This rule defines NPDES program 
costs as all activities relating to permitting, enforcement, and 
compliance. Second, the certification must include a statement that 
State recurrent expenditures for water quality programs have not 
decreased from the previous State fiscal year, or indicate that a 
decrease in such expenditures is attributable to a non-selective 
reduction of the programs of all executive branch agencies of the State 
government. The concept of non-selective reduction is derived from the 
statutory requirements related to maintenance of effort from Clean Air 
Act Section 105 grants and EPA's implementing regulations found at 40 
CFR 35.146. Under the Clean Air Act, EPA is prohibited from awarding 
grants to air pollution control agencies if State recurrent 
expenditures are not at least equal to such expenditures during the 
preceding State fiscal year. EPA can still award a grant even if there 
are decreases in such expenditures if EPA determines that the reduction 
is attributable to a non-selective reduction of all State programs. 
This situation would occur, for example, when a State legislature 
enacts budget cuts across all State agencies and does not target the 
air program. EPA is adopting a similar approach in this rulemaking.
    After EPA determines the number of eligible States which have met 
the certification requirements, each State will be able to receive up 
to a full share of the set-aside amount. EPA will determine the amount 
of a full share by dividing the set-aside amount by the number of 
eligible States which have met the certification requirements. A full 
share will be the same amount for each State. The percent of a full 
share that each State will receive, however, will be determined by the 
following formula, based on the certification information described 
above.
    (A) A State will receive 25 percent of a full share if that State 
has collected permit fees which equal or exceed 75 percent of total 
State NPDES program costs; or
    (B) A State will receive 50 percent of a full share if that State 
has collected permit fees which equal or exceed 90 percent of total 
State NPDES program costs; or
    (C) A State will receive a full share if that State has collected 
permit fees which equal 100 percent of total State NPDES program costs.
    In other words, in its certification, a State must inform EPA of 
its total NPDES program costs and the percentage of which are recovered 
through permit fees. EPA would use the information from this 
certification to determine any additional amount a State would receive 
in its Section 106 grant based on this financial incentive allotment 
formula. If, for example, there is an increase in Section 106 funding 
of $5.1 million and EPA has verified that 5 States will qualify for the 
Permit Fee Incentive, the first step would be to determine the value of 
a full share. This would be calculated by dividing $5.1 million by 5 
states with a full share equaling $1.02 million. Next, based on the 
State's certification, the percent of fees collected will be used to 
calculate the amount of the incentive for each qualifying state. For 
example; State A collects 75% of their NPDES permit program costs, 
State B collects 90%, State C collects 75%, State D collects 100%, and 
State E collects 75%. Once again a full share equals $1.02 million. 
State A will receive 1/4 of $1.02 million which calculates to be 
$255,000. State B will receive 1/2 of $1.02 million or $510,000. State 
C will receive 1/4 of $1.02 million or $255,000. State D will receive a 
full share, $1.02 million and finally, State E will receive 1/4 of 
$1.02 million or $255,000. A total incentive of $2,295,000 will be 
distributed to the 5 States with a remaining balance of $2,805,000. 
Since 100% of the incentive pool was not allotted per 40 CFR 35.162(f) 
(e.g., because some or all qualifying States do not cover 100% of their 
NPDES program costs with fees), then the remainder of the incentive 
pool will be allotted per the formula under 40 CFR 35.162 (b). A more 
simplified example would be if a State's total NPDES program costs are 
$1 million, and the State collected $750,000 in NPDES permit fees, a 
State would receive 25% of a full share in addition to the grant amount 
allotted to it under the current CWA Section 106 allotment formula. It 
should be noted that the rule caps the maximum share of the incentive 
at 50% of the amount a State received under 40 CFR 35.162(b) in the 
previous year. States receiving the incentive, either in part or in 
full, are free to allocate those funds per the individual State's water 
quality program priorities, which address the prevention, reduction, 
and elimination of water pollution and are eligible under CWA Section 
106.

[[Page 52587]]

III. Response to Comments

A. EPA's Authority To Issue This Rule

    Multiple commenters questioned the Agency's authority to create the 
incentive program for various reasons. The Agency maintains that it 
clearly has the legal authority to establish conditions for the 
distribution of grant funding consistent with the approach reflected in 
the rule. Section 106(b) of the CWA states: ``From the sums 
appropriated in any fiscal year, the Administrator shall make 
allotments to the several States and interstate agencies in accordance 
with regulations promulgated by him on the basis of the extent of the 
pollution problem in the respective States.'' 33 U.S.C. 1256(b). EPA 
complies with this statutory requirement and makes allotments on the 
basis of the extent of the pollution problem in the States. EPA has 
codified this basis at 40 CFR 35.162(b)(1), which lists six components 
the agency takes into account to determine this allotment: Surface 
water area, ground water use, water quality impairment, potential point 
sources, nonpoint sources, and population of urbanized areas. We also 
list associated elements, sub elements, and supporting data for each 
component. This is not, however, the only basis the agency uses to make 
allotments to the States, and we do not read the above statutory 
provision as requiring that the extent of pollution be the only basis 
for the allotment process. Section 106(b) does not state that 
allotments shall be made only on the basis of the extent of pollution. 
Thus, we do not read this language to prohibit other bases for the 
overall allotment of Section 106 grant funds. Further, the statutory 
language includes the phrase ``[f]rom the sums appropriated, the 
Administrator shall make allotments [emphasis added] * * *'' implying 
that not all of the funds appropriated must be allotted on this basis.
    In fact, EPA has promulgated other bases for allotting 106 funds. 
For example, our regulation at 40 CFR 35.162(b)(2) imposes a funding 
floor; 40 CFR 35.162(b)(4) includes an inflation adjustment; 40 CFR 
35.162(b)(5) imposes a cap on funding increases; and 40 CFR 
35.162(b)(6) imposes a cap on the component ratio of the six elements. 
In addition, we allot to the interstate agencies based on a percentage 
of funds appropriated for Section 106 purposes (40 CFR 35.162(c)). 
Finally, we also have the ability to use an alternative allotment 
formula when the appropriations process indicates that some of the 
Section 106 funds should be used for specific water pollution control 
elements (40 CFR 35.162(d)).
    Other language in Section 106 also lends support to our 
interpretation of our authority. Section 106(c) authorizes the 
Administrator to pay States for their water quality programs two 
different ways, whichever is the lesser: Either the allotment under 
106(b) or ``the reasonable costs as determined by the Administrator of 
developing and carrying out a [State] pollution program * * *'' Section 
106(g) allows EPA to reallot any sums allotted under 106(b) when funds 
originally allotted are not paid to the State. This reallotment is not 
required to be conducted in accordance with 106(b). Both of these 
provisions indicate to EPA that Congress gave the Agency flexibility to 
allot to the States and interstates not only on the basis of the extent 
of pollution in the States but also on the basis of other factors. 
Further, because the permit fee rule is related to fees charged to 
dischargers, it does, in fact, fit within the extent of pollution basis 
used in the current allotment formula. Under the current allotment 
formula found at 40 CFR 35.162(b), one of the six components evaluated 
is the number of potential point sources. Similarly, the incentive 
allotment is based in part on evaluating the number of point sources in 
a State and collection of fees from dischargers. Finally, no State has 
challenged the allotment formulae summarized above that have been 
implemented by EPA for several years.
    Two commenters, citing 40 CFR 35.162(d), stated that EPA lacks the 
authority to engage in the rulemaking absent Congressional 
authorization and that we failed to consult with States as required 
under this provision. We disagree. No Congressional action is required 
to execute this rulemaking (see discussion above). The President's FY 
2007 Budget Request for EPA did include language directing EPA to 
promulgate this rule, but that language was never enacted into statute. 
As stated above, EPA has the statutory authority to promulgate this 
rule under Section 106 of the Clean Water Act. In addition, EPA will 
submit the final rule to Congress in accordance with the Congressional 
Review Act.
    Regarding the applicability of 40 CFR 35.162(d), this rule does not 
fall within the scope of that provision because this rule does not 
allot a portion of the funds for a specific water pollution control 
element, such as assessment of impaired water bodies. (See, Table 1 of 
40 CFR 35.162, Formula Component No. 3). The provision at 40 CFR 
35.162(d) was promulgated to address a situation like that which 
occurred in FY 2006 in which both the President's Budget Request and 
EPA's Appropriation targeted Section 106 grants funds to support 
enhanced water quality monitoring efforts. As EPA stated when it 
promulgated 40 CFR 35.162(d), the application of 35.162(d) is limited 
to ``situations where the appropriations process has indicated that 
funds should be used for a specific purpose'' (71 FR 17, January 3, 
2006). Because this rule does not fall within this situation, any 
consultation requirement is not applicable.

B. EPA's Rulemaking Process

    Commenters also questioned whether the Agency complied with all 
applicable statutory and executive order reviews relating to the 
rulemaking process. EPA maintains we met all of our obligations and 
have even gone beyond that which is required.
    Some commenters asserted that EPA did not adequately consult with 
the states on the details of the rulemaking as required in Executive 
Order 13132, ``Federalism''. We disagree that this rule has federalism 
implications that would trigger the requirements of Executive Order 
13132. Actions that have ``federalism implications'' are defined in the 
Executive Order to include regulations and regulatory policies that 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
This rule is a voluntary incentive that does not have substantial 
direct compliance costs on States. Nor will this rule substantially 
impact the relationship between the national government and the States 
or the distribution of power between the national government and the 
States, as contemplated under the Executive Order.
    These commenters also suggested that EPA failed to consult under 
Executive Order 13132. Although this Executive Order is not applicable, 
EPA, in fact, took several steps to ensure that input from the States 
was solicited and considered. State representatives nominated by the 
Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA) and the Environmental Council of the States 
were provided an opportunity to provide input at the outset of rule 
development. EPA held a series of work group teleconferences in 2006 
and discussed the proposed rule with attendees at the 2006 annual 
ASIWPCA meeting. EPA carefully considered feedback received during work 
group meetings prior to the publication of the proposed rule. As a 
result of the comments received from the States and

[[Page 52588]]

other entities prior to publication of the proposed rule, the proposal 
was modified significantly.
    Some commenters asserted that EPA did not comply with Executive 
Order 12866, as amended by Executive Order 13258 and Executive Order 
13422. We disagree. EPA disagrees with assertions that the rule will 
have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. However, upon further consideration, the Agency has 
determined that the rule is a ``significant regulatory action'' under 
Executive Order 12866 because it raises novel policy issues. Therefore, 
this rule will be submitted to OMB for review.
    Additionally, some commenters asserted that this rule does not meet 
the ``compelling public need'' test included in Executive Order 12866. 
EPA disagrees that Executive Order 12866 contains a test that mandates 
Agency rules have a compelling public need. The requirements of the 
Executive Order are clearly distinct from the ``Statement of Regulatory 
Philosophy and Principles'' that contains the compelling public need 
language. However, EPA has complied with the Agency responsibilities 
included in Section 6 of Executive Order 12866.
    A few commenters contended that EPA has not complied with the 
Unfunded Mandates Reform Act (UMRA) and the Regulatory Flexibility Act 
(RFA), as amended by the Small Business Regulatory Enforcement Fairness 
Act (SBREFA). We disagree. By its terms, the RFA only applies to 
rulemakings which require notice and comment rulemaking under 5 U.S.C. 
553(b) or any other statute. Grant rules are expressly excluded from 
the coverage of 5 U.S.C. 553(b) by the provisions of 5 U.S.C. 553(a). 
Similarly, UMRA applies to ``federal mandates,'' which exclude 
``conditions of Federal assistance.'' 2 U.S.C. 658(5), (6) & (7). 
Because this is a grant rule, by definition this rule is not subject to 
the RFA or Sections 202 and 205 of UMRA. Additionally, UMRA generally 
excludes from the definition of ``Federal intergovernmental mandate'' 
duties that arise from participation in a voluntary federal program, 
such as the fee incentive program established by this rule.

C. Financial Impact of Proposed Rule

    Many commenters expressed concerns regarding the potential 
financial impact of the proposed rule. Commenters' concerns included: 
That the costs of working to qualify for the incentive would exceed the 
value of the incentive, that increased permit fees would adversely 
impact small communities and businesses, and that States may see a 
decline in general revenue funding from their legislatures if they 
begin collecting permit fees. Many of the comments drew conclusions 
based on the premise that EPA was requiring States to impose permit 
fees on point source-dischargers.
    The incentive program is voluntary. It is designed to encourage 
States to consider establishing or expanding permit fee programs. 
However, States are under no obligation to apply for these funds. Each 
State should continue to make their permit fee decisions based on sound 
economic and programmatic information.
    As a result of comments received during the development of the 
proposed rule, EPA did make changes prior to the proposal of the rule 
to promote responsible decision making regarding permit fees and 
participation in the incentive program. EPA established the pool at a 
modest amount (no more than three percent of FY 2008 core program 
funding). The Agency considers the incentive pool to be sufficient to 
generate State interest but not large enough to significantly impact 
the amount of core Section 106 funding available. The incentive pool 
will not be taken from existing core program funding but will only be 
created from State grant increases above FY 2008 levels. No State will 
receive reduced funding as a result of this rule. The total incentive 
will never exceed approximately $5.1 million. Future increases in 
Section 106 funding above FY 2008 levels may be distributed through the 
current distribution mechanism using the allotment formula found at 40 
CFR 35.162.
    Some comments also focused on the challenges that States may 
potentially encounter in attempting to comply with the rule, including 
collection and reporting of cost information to EPA in a timely manner. 
EPA will work with the States to provide assistance in applying for a 
share of the incentive. As necessary, EPA will provide any 
clarifications on the application process, including guidance and Q&A 
documents. The Agency postponed rule implementation until FY 2009 to 
provide States additional time to establish new or expand existing 
permit fee programs.
    Multiple commenters objected to the use of grant ``set-asides.'' 
The comments suggested that designating funds for specific purposes 
eliminates State flexibility to use the funding to address the highest 
State priorities. As use of approximately 85 percent of State grant 
funding is still at the discretion of the States (with EPA approval), 
EPA has ensured that States continue to have wide latitude in targeting 
funding according to State priorities. EPA has designated the remaining 
funding to address Administration priorities and to ensure that the 
funds are used as Congress intended. In addition, States receiving the 
incentive, either in part or in full are free to allocate those funds 
per the individual State's water quality program priorities. 
Furthermore, recovering permit program costs through fees will make 
resources available for other water quality program activities, 
creating a net increase in the amount of funds that States can devote 
to addressing their water quality priorities.

D. State Discretion and the Role of State Legislatures and General 
Funds

    Commenters provided information regarding how States fund their 
NPDES programs, and the restrictions that some States face in 
implementing or expanding permit fee programs. Some noted that their 
NPDES permits are funded through States' general revenue. Some 
commenters expressed concerns that the proposed rule would interfere 
with State discretion regarding how States manage and fund State water 
quality programs. Commenters also noted that it may be difficult or 
even impossible to receive legislative approval for implementation of a 
permit fee system or increases in existing fees.
    EPA emphasizes that the incentive program is voluntary. The 
incentive program promotes the use of permit fees as a mechanism for 
funding water quality activities. EPA recognizes that there are a 
number of revenue streams that States may employ to support State water 
quality programs, including federal support, State general funds, and 
revenue from those who benefit from the activity (permit fees). EPA 
also recognizes that there may currently be limitations in place that 
prevent States from increasing permit fees or implementing permit fee 
programs in time to qualify for the incentive in FY 2009.
    Ultimately, States have the option to collect fees and apply for 
the incentive funds or to choose other mechanisms for funding their 
activities. States that do not qualify for the incentive during the 
first year that it is available will not be precluded from receiving a 
share of the incentive in future years.
    Recovering permit program costs through fees will make resources

[[Page 52589]]

available for other water quality program activities, creating a net 
increase in the amount of funds that States can devote to addressing 
their water quality priorities. A State may choose not to apply for 
funds if State officials decide that meeting the qualifying threshold 
is not in the best interest of the State. EPA intentionally limited the 
size of the incentive pool to protect core funding for all States, in 
recognition of the fact that not every State will qualify or attempt to 
qualify for the incentive program.

E. Objective and Intent of Proposed Rule

    Many commenters stated that EPA has not clearly articulated the 
objective of the rule or demonstrated that the incentive will serve the 
intended purpose of shifting more of the financial burden for program 
operation to NPDES permit holders. As stated above, the purpose of this 
rule is to encourage States to voluntarily collect NPDES permit fees 
adequate to meet their program costs. This rule is designed to provide 
an incentive for States to move toward greater sustainability in the 
way they manage and budget for environmental programs and to shift part 
of the financial burden to those who benefit from NPDES permits.

F. Promoting Water Quality Protection

    Some commenters contended that the creation of an incentive pool 
would limit funding to State water quality programs, thereby 
potentially adversely impacting a State's ability to protect and 
improve water quality. These comments were based on the belief that the 
incentive pool represents a reduction in 106 funding and may signal 
EPA's intent to eliminate all federal funding for State water quality 
programs in the future. EPA has ensured that the rule creates an 
incentive that is sufficient to encourage States to increase or 
maintain the sustainability of their water quality programs while 
protecting core 106 funding for those States that currently do not, or 
choose not to, qualify for the incentive. The incentive pool will be 
created only from program funding increases above FY 2008 funding 
levels (up to three percent of FY 2008 core program funding) and can 
only be applied to support Section 106 eligible activities. In 
addition, following distribution of incentives to qualifying States, 
all remaining incentive funds will be distributed to all States through 
the existing formula (40 CFR 35.162(b)).
    Some commenters also stated that EPA has failed to demonstrate that 
the incentive program will have a positive environmental impact. EPA 
acknowledges that States which fail to qualify for the incentive will 
receive fewer grant dollars than if all of the funds were distributed 
through the existing formula. However, EPA does not believe that this 
will negatively impact a State's ability to protect water quality or 
unfairly penalize those States that are currently unable to qualify for 
the incentive. Ultimately, the Agency believes that the new fee revenue 
that States will generate, coupled with the incentive, may 
significantly increase the available funding for water quality 
programs, justifying EPA's decision to set aside a modest portion of 
106 funding. EPA also believes that this increase in available funding 
will allow States to build more sustainable water quality programs that 
are better equipped to address water quality problems.

G. Impact on Non-Authorized States

    Some commenters expressed concern regarding the impact of the 
proposed rule on non-authorized States. EPA reiterates that base grant 
funding for State water quality programs is protected under this rule. 
The incentive pool will be created only from future State Section 106 
increases greater than FY 2008 funding. The total incentive will never 
exceed approximately $5.1 million. Therefore, the amount of funding 
diverted from any one State as a consequence of this rule will be 
relatively modest, should not adversely impact a State's ability to 
effectively implement their water quality program, and should not be a 
pivotal factor in any State program approval decision.

H. Permit Fees for EPA-Regulated Dischargers

    Some commenters noted that the rule does not apply to federal 
facilities, tribal lands, and other EPA-regulated dischargers in non-
authorized States. EPA reiterates that this rule is not solely intended 
to collect fees. It is intended to support the implementation of high 
quality NPDES programs in authorized States while at the same time 
build more sustainable State water programs. EPA does not collect user 
fees in non-authorized States. In addition, the distribution of permit 
program responsibilities among the non-authorized States and EPA varies 
by State. While none of the non-authorized States issue permits, many 
carry out a number of permit program-related activities.

I. Resources Needs Gap

    A few commenters were concerned that EPA's focus on permit fees 
detracts from efforts to address the resources needs gap identified in 
the State Water Quality Management Resource Analysis Task Force's 
Interim 2002 report. EPA agrees that action needs to be taken to 
address the resource needs gap and believes that this rule responds 
directly to the State Resource Analysis Report. The Agency asserts that 
if States establish or expand permit fee programs to qualify for the 
incentive funds established under this rule, they will ultimately 
realize a net increase in the amount of funding available for their 
water quality programs. EPA also believes that recovering all or most 
of program costs through permit fees represents a more sustainable 
approach to program management and budgeting.

J. Measuring the Success of NPDES Programs

    A few commenters stated that the success of NPDES programs should 
be measured by improvements in water quality, rather than the amount of 
permit fees a State generates. EPA agrees with this position and does 
not consider the criteria set forth in today's rule regarding permit 
program costs recovered to be an environmental measure of NPDES program 
success or a measure of NPDES program adequacy. The purpose of this 
rule is to encourage States to voluntarily collect NPDES permit fees 
adequate to meet their program costs.

K. Self-Certification and Reporting Requirements

    Many commenters stated that the proposed rule would impose a 
significant administrative burden on the States. Additionally, some 
commenters indicated that the incentive would not be sufficient to 
justify the expenses necessary to meet the certification requirements 
of the proposed rule. In addition to ensuring the integrity of the 
incentive program, EPA believes the reporting required under the 
incentive program will help States to understand and document program 
costs and identify more opportunities to ensure program sustainability.
    The rule provides for a modest incentive to further encourage 
States to establish or expand their permit fee programs. EPA 
anticipates that the additional revenue streams created from both the 
extra fees and the incentive awards will provide sufficient revenue to 
generate interest among States and cover the costs of creating or 
expanding a permit fee program and meeting all accounting and reporting 
requirements outlined in this rule. Since this rule establishes a 
voluntary incentive program, EPA advises States to carefully analyze 
all options before pursuing any fee strategy.

[[Page 52590]]

L. Defining NPDES Activities

    Some commenters requested clarification and definitions for several 
terms used in the proposed rule, including ``NPDES program'' and an 
``adequate'' NPDES fee program. As necessary, EPA will provide 
additional guidance regarding those activities the Agency considers to 
be included in the program's scope.

M. Current Status of State NPDES Programs

    Some commenters provided information regarding the current status 
and structure of, and funding mechanisms for State NPDES programs. This 
information is included in the comments which can be found in the 
public docket, available at www.regulations.gov.

N. Alternatives to Proposed Incentive

    Some commenters suggested alternatives to the proposed rule. While 
the Agency has determined that some of these suggestions are not 
viable, others are not mutually exclusive of the rule we are finalizing 
today. EPA commits to continue to work with the States on these ideas.

 Conclusion

    After careful evaluation of the comments received, the Agency has 
decided to finalize this rule with only two minor modifications: (1) 
Changing the implementation date of the rule from FY 2008 to FY 2009 
(e.g., beginning October 1, 2008) and (2) changing the base fiscal year 
the Agency will use to determine if a permit fee allotment is made from 
FY 2006 to FY 2008.
    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this rule is a ``significant action'' 
because it involves novel policy issues. Accordingly, EPA submitted 
this action to the Office of Management and Budget (OMB) for review 
under Executive Order 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action. 
Because this rule is not subject to notice and comment requirements 
under the Administrative Procedures Act or any other statute, it is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Today's rule contains no Federal mandates (under the regulatory 
provisions of Title 2 of the Unfunded Mandates Reform Act of 1999 
(UMRA)) for State, local, or tribal governments or the private sector 
that would subject the rule to Sections 202 and 205 of the UMRA) (Pub. 
L. 104-4). The rule imposes no enforceable duty on any State, local, or 
Tribal governments or the private sector. In addition, this rule does 
not significantly or uniquely affect small governments. Although this 
rule proposes to create new binding legal requirements, such 
requirements do not substantially and directly affect Indian Tribes 
under Executive Order 13175 (63 FR 67249, November 9, 2000). EPA 
interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as 
applying only to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the 
Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks. This rule will not have federalism implications, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
federal executive policy on environmental justice. EPA has determined 
that this rule will not have disproportionately high and adverse human 
health or environmental effects on minority or low-income populations 
because it is a grant rule that does not affect the level of protection 
provided to human health or the environment. This rule is not a 
``significant energy action'' as defined in Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse energy effects. This rule does 
not involve technical standards; thus, the requirements of Section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
additional information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The 
Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that 
before certain actions may take effect, the agency promulgating the 
action must submit a report, which includes a copy of the action, to 
each House of the Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on September 10, 2008.

List of Subjects in 40 CFR Part 35

    Environmental protection, Administrative practices and procedures, 
Reporting and recordkeeping requirements, Water pollution control.

    Dated: September 4, 2008.
Benjamin H. Grumbles,
Assistant Administrator, Office of Water.

0
EPA amends 40 CFR part 35 as follows:

PART 35--[AMENDED]

Subpart A--[Amended]

0
1. The authority citation for part 35, Subpart A continues to read as 
follows:

    Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42 
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Public Law 104-134, 
110 Stat. 1321, 1321-299 (1966); Public Law 105-65, 111 Stat. 1344, 
1373 (1997).

0
2. Section 35.162 is amended by adding paragraph (e) to read as 
follows:


Sec.  35.162   Basis for allotment.

* * * * *
    (e) Permit fee incentive allotment formula. If there is an increase 
above the FY 2008 level in the total amount of funds allotted to States 
under subsection (b), EPA may award this increase as the permit fee 
incentive allotment to eligible States in accordance with this section. 
The amount of this annual allotment shall not be greater than three 
percent of the funds allotted under paragraph (b) of this section in FY 
2008, and any funds above this amount shall be allotted to States under 
paragraph (b) of this section.
    (1) Each eligible State may receive up to a full share of this 
allotment, as determined by the following formula. A full share is the 
allotment amount divided by the number of eligible States:
    (i) A State will receive 25 percent of a full share if that State 
has collected permit fees which equal or exceed 75 percent of total 
State NPDES program costs; or
    (ii) A State will receive 50 percent of a full share if that State 
has collected permit fees which equal or exceed 90 percent of total 
State NPDES program costs; or
    (iii) A State will receive a full share if that State has collected 
permit fees

[[Page 52591]]

which equal 100 percent of total State NPDES program costs.
    (2) The maximum share to any State under this subsection shall not 
exceed 50 percent of the State's previous year's total Section 106 
allotment determined under paragraph (b) of this section.
    (3) Any funds left remaining after all shares have been allotted 
under this subsection will be re-allotted to the States under paragraph 
(b) of this section.
    (4) In order for a State to be eligible for this incentive, a State 
must: be authorized by EPA to implement the NPDES program by the first 
day of the Federal fiscal year, October 1, for which the funds have 
been appropriated; and submit to EPA a certification meeting the 
requirements of paragraph (e)(5) of this section.
    (5) The certification required under paragraph (e)(4) of this 
section must meet the following requirements:
    (i) The certification must be submitted annually to EPA (to the 
attention of the Regional Administrator). For FY 2009, the 
certification must be postmarked by November, 14, 2008. For every year 
thereafter the certification must be postmarked by October 1; and
    (ii) The certification must include the total NPDES State program 
costs and the percentage of NPDES program costs, as defined in 
paragraph (e)(6) of this section, recovered by the State through permit 
fee collections during the most recently completed State fiscal year, 
and a statement that the amount of permit fees collected is used by the 
State to defray NPDES program costs; and
    (iii) The certification must include a statement that State 
recurrent expenditures for water quality programs have not decreased 
from the previous State fiscal year or indicate that a decrease in such 
expenditures is attributable to a non-selective reduction of the 
programs of all executive branch agencies of the State government.
    (6) NPDES program costs are defined as all permitting, enforcement, 
and compliance costs.

[FR Doc. E8-21046 Filed 9-9-08; 8:45 am]
BILLING CODE 6560-50-P