[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Rules and Regulations]
[Pages 95860-95863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31146]


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DELAWARE RIVER BASIN COMMISSION

18 CFR Parts 401 and 420


Regulatory Program Fees and Water Supply Charges

AGENCY: Delaware River Basin Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends the Rules of Practice and Procedure and 
the Basin Regulations--Water Supply Charges, respectively, to adopt a 
new project review fee structure and provide for automatic inflation 
adjustments. These changes are also incorporated into the Commission's 
Comprehensive Plan.

DATES: This final rule is effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT: Richard C. Gore, Director of 
Administration and Finance, 609-883-9500, ext. 201.

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 on behalf of the federal government, the North 
Atlantic Division Commander of the U.S. Army Corps of Engineers.
    By Resolution No. 2016-8 on December 14, 2016 the Commission 
approved a comprehensive revision of its project review fee structure, 
including an automatic annual indexed inflation adjustment for most 
fees. An inflation adjustment was also approved for DRBC's water supply 
charges rates applicable to consumptive and non-consumptive surface 
water withdrawals. The changes to DRBC's regulatory program fees are 
designed to provide a more predictable and sustainable source of 
revenues and to close the annual gap in funding needed to support 
DRBC's project review program. They also adjust the fees program to 
better align with the One Process/One Permit Program instituted earlier 
in 2016. The changes to DRBC's water supply charges regulations are 
designed to help revenues assigned to DRBC's Water Supply Storage 
Facilities Fund keep pace with inflation.
    Public Process. A Notice of Proposed Rulemaking and Public Hearing 
was posted to the Commission's Web site on May 9, 2016. A detailed set 
of questions and answers about the proposal (``FAQs'') and a press 
release accompanied the May 9, 2016 web posting. On May 10, 2016, an 
email alert, including a link to the notice and supporting documents, 
was transmitted to all parties subscribed to DRBC's list serve. Notice 
of the proposed rules was published in the Federal Register at 81 FR 
35662, June 3, 2016 and appeared in the Delaware Register of 
Regulations, 19 DE Reg., 1052, June 1, 2016; New Jersey Register, 48 
N.J.R. 949, June 6, 2016; New York State Register, May 25, 2016 (page 
1); and Pennsylvania Bulletin, 46 Pa.B. 2967, June 11, 2016. DRBC staff 
hosted a public informational meeting on the proposal on Wednesday, 
June 15, 2016 in Washington Crossing, Pa., including presentations by 
staff and informal questions and answers. The FAQs posted on the 
Commission's Web site were thereafter supplemented with questions and 
responses offered during the informational meeting. A public hearing on 
the proposed amendments took place at the Commission's office building 
in West Trenton, N.J. on July 27, 2016 and written comments were 
accepted through August 12, 2016.
    In response to the written and oral comments submitted on the draft 
rules, staff developed a detailed comment and response document, 
including modest changes to the rule text. After careful consideration 
and consultation with staff on the comments and proposed changes to the 
draft rules, the Commissioners determined that the changes were 
appropriate, responsive to the public's concerns and a logical 
outgrowth of the rules as proposed. The changes and the staff response 
to comments were adopted by unanimous vote of the Commissioners to 
approve Resolution No. 2016-8 at the Commission's public business 
meeting on December 14, 2016.
    Additional materials. The following additional materials can be 
found on the Commission's Web site, www.drbc.net:

[[Page 95861]]

     Resolution No. 2016-8, at http://www.nj.gov/drbc/library/documents/Res2016-09_Fee-Rule.pdf. Attachments to the resolution 
include a redline version of the regulatory program fees rule text, 
showing changes between the draft and final versions of the new rule; 
and a redline version of the schedule of water charges, comparing the 
text that has been in place since 2011 with the text of this final 
rule.
     The detailed comment and response document prepared by 
staff and adopted by the Commission when it approved the final rule on 
December 14, 2016, at http://www.nj.gov/drbc/library/documents/regs/CR_fees-rulemaking121416.pdf.
     A questions and answers document (``FAQs'') prepared by 
staff to explain the purpose and effect of the rule changes, at http://www.nj.gov/drbc/library/documents/FAQ_fees-charges121416.pdf.
     The Commission's press release dated December 14, 2016, 
announcing adoption of the project review fees restructuring and 
amendment of the schedule of water charges, at http://www.nj.gov/drbc/home/newsroom/news/approved/20161214_newsrel_fees.html.
     Updated versions of the Rules of Practice and Procedure 
and the Basin Regulations--Water Supply Charges, at http://www.nj.gov/drbc/about/regulations/.

List of Subjects

18 CFR Part 401

    Administrative practice and procedure, Project review, Water 
pollution control, Water resources.

18 CFR Part 420

    Water supply.

    For the reasons set forth in the preamble, the Delaware River Basin 
Commission amends parts 401 and 420 of title 18 of the Code of Federal 
Regulations as set forth below:

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.

Subpart C--Project Review Under Section 3.8 of the Compact

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) Project requiring a DRBC-issued docket or permit. 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) Project requiring inclusion in the comprehensive plan. 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 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

[[Page 95862]]

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 
(c), a revised fee schedule will be published in the Federal Register 
by July 1 and posted on the Commission's Web site. Interested parties 
may also obtain the fee schedule 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-Wilmington-Atlantic City, PA-
NJ-DE-MD/Item: All items/Base Period: 1982-84 = 100.
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    (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:

         Table 1 to Sec.   401.43--Docket Application Filing Fee
------------------------------------------------------------------------
                                  Docket application
          Project type                    fee             Fee maximum
------------------------------------------------------------------------
Water Allocation................  $400 per million    Greater of:
                                   gallons/month of    $15,000 \1\ or
                                   allocation,\1\      Alternative
                                   not to exceed       Review Fee.
                                   $15,000.\1\ 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\.
Other...........................  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
                                   $10,000,000 (if
                                   applicable), not
                                   to exceed $75,000
                                   \1\.
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.


    Table 2 to Sec.   401.43--Annual Monitoring and Coordination Fee
------------------------------------------------------------------------
                                      Annual fee         Allocation
------------------------------------------------------------------------
Water Allocation..................        \1\ $300  <4.99 mgm.
                                           \1\ 450  5.00 to 49.99 mgm.
                                           \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
------------------------------------------------------------------------
Wastewater Discharge..............        \1\ $300  < 0.05 mgd.
                                           \1\ 610  0.05 to 1 mgd.
                                           \1\ 820  1 to 10 mgd.
                                         \1\ 1,000  >10 mgd.
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.


                Table 3 to Sec.   401.43--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............
Modification of a DRBC Approval.  At Executive        Alternative Review
                                   Director's          Fee.
                                   discretion,
                                   Docket
                                   Application Fee
                                   for the
                                   appropriate
                                   project type.
Name change.....................  $1,000 \1\........
Change of Ownership.............  $1,500 \1\........
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.


[[Page 95863]]

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 (c), revised consumptive and non-consumptive use rates will 
be published in the Federal Register by July 1 and posted on the 
Commission's Web site. Interested parties may also obtain the 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-Wilmington-Atlantic City, PA-
NJ-DE-MD/Item: All items/Base Period: 1982-84 = 100.

    Dated: December 20, 2016.
Pamela M. Bush,
Commission Secretary.
[FR Doc. 2016-31146 Filed 12-23-16; 4:15 pm]
BILLING CODE 6360-01-P