[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Rules and Regulations]
[Pages 17403-17405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8644]



40 CFR Part 35

[EPA-HQ-OW-2006-0765; FRL-8792-3]
RIN 2040-AE99

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is taking final action on withdrawal of a regulation 
revising the allotment formula contained in EPA's Clean Water Act (CWA) 
Section 106 Water Pollution Control grant regulations. The current 
regulations include a financial incentive for States to voluntarily 
collect adequate National Pollutant Discharge Elimination System 
(NPDES) permit fees. This final rule withdraws the financial incentive 
for States to voluntarily collect permit fees.

DATES: This rule is effective on April 15, 2009 without further notice.

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,

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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].


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 [footnote 1 (CWA Sections 106 and 518 
authorize EPA to award such grants to eligible Indian Tribes, but this 
rule does not affect those grants)] 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.
    EPA proposed a 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 can be found 
at Docket No. EPA-HQ-OW-2006-0765. There were also two changes to the 
final rule which EPA determined necessary. These changes involved 
delaying implementation of the rule until FY 2009 and changing the base 
fiscal year which the Agency would use to determine if an allotment for 
this purpose should be made. EPA's responses to all comments received 
on the rulemaking are included in the docket described above.
    The final rule promulgated September 10, 2008 (73 FR 52584) amended 
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, 
the final rule was purely an incentive; it was voluntary and would not 
have impacted States' base funds. The incentive allotment could only be 
funded after an increase above the FY 2008 level in the total amount of 
funds allotted to States under 40 CFR 35.162(b). Additionally, the 
Agency had discretion regarding whether to fund the incentive 
    Today's final rule withdraws the ``Permit Fee Rule'' promulgated on 
September 10, 2008.
    The Clean Water Act prohibits the discharge of any pollutant from 
point sources to waters of the U.S. 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, 46 States are authorized 
by EPA to administer all or some parts of the NPDES program.
    Federal funds under the Water Pollution Control grants, together 
with State resources, are used to establish and maintain adequate 
measures to prevent, reduce and eliminate water pollution. 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. The 
growing complexity of water quality issues has prompted more States to 
implement NPDES permit fee programs. An estimated 42 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 


    After careful evaluation, EPA is withdrawing the Permit Fee Rule. 
EPA has maintained an on-going discussion with the States throughout 
the rulemaking process and has heard the States' concern with the rule. 
EPA respects and values this feedback from the States and looks forward 
to continuing the successful partnership with them. EPA also notes the 
lack of congressional support for the rule. The FY 2008 Congressional 
Budget language directed EPA to use the same allocation method as used 
in prior years and the Conference Report for the Omnibus Appropriations 
Act for 2009 includes language stating Congress does not support the 
creation of an incentive pool with 2009 funds. At a time when State 
budgets are already strained, EPA continues to encourage States to 
develop sustainable programs that share the cost with those who benefit 
from NPDES permits. The Agency applauds the 42 States that already 
collect some form of fees for NPDES permits.
    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and is therefore not subject to OMB review. 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

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State, local, or Tribal governments or the private sector. In addition, 
this rule does not significantly or uniquely affect small governments. 
This rule does not create new binding legal requirements and does 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 April 15, 

List of Subjects in 40 CFR Part 35

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

    Dated: April 9, 2009.
Michael H. Shapiro,
Acting Assistant Administrator, Office of Water.

EPA amends 40 CFR part 35 as follows:


1. The authority for 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).

Sec.  35.162  [Amended]

2. Section 35.162 is amended by removing paragraph (e).
[FR Doc. E9-8644 Filed 4-14-09; 8:45 am]