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EPA's Proposed Rule on Permit Fees Comes Under Attack at Public Meeting
A proposed Environmental Protection Agency rule that would give states additional funds for charging "adequate" fees to process permits received unfavorable comments at a public meeting Feb. 21.
The proposal, which EPA released Dec. 21, 2006, was described as "ineffective, inappropriate, and unnecessary."
Under the rule, states that certify they are recovering at least
75 percent of the funds spent on operating the National Pollutant Discharge
Elimination System program are eligible to receive additional water pollution
control funds under Section 106 of the Clean Water Act (246 DEN A-6, 12/22/06 ).
Section 106 authorizes EPA to amend the formula to allocate grants to states for
water pollution control programs (40 C.F.R. ยง35.62).
The proposal would give EPA the flexibility to set aside funds within the Section 106 pool of money to reward states that are recouping at least 75 percent of their permit program costs through fees, Len Bechtel, director of planning, information, and resources management within EPA's Office of Wastewater Management told meeting attendees.
For EPA to distribute incentive funds to eligible states, Congress must appropriate more money for the Section 106 program for fiscal year 2007 than it appropriated in FY 2006, according to the agency. In fiscal year 2006, funding for Section 106 totaled $169.3 million. EPA plans to set aside up to 3 percent of any Section 106 program funds that exceed the total appropriated in FY 2006. The agency intends to start the incentive program in FY 2008.
States Question Concept of 'Incentives.'
Linda Eichmiller, executive director of the Association of State and Interstate Water Pollution Control Administrators, said the "deepest concern" among states is the administration's overall intent.
She noted that EPA's proposal responds to a White House Office of Management and Budget directive issued in February 2006 that ordered EPA to propose the rule by Dec. 31, 2006.
Eichmiller said states believe the administration's attempt to "substantially reduce" federal funding is an effort to make the states pay for implementing federal rules issued under the Clean Water Act.
She questioned EPA's concept of "incentives," saying the proposal would create rather than ease regulatory burdens and paperwork. "New accounting systems, new reporting systems, and new monitoring protocols" would be needed to implement this rule, she added.
Eichmiller and the other commenters said the agency's proposal places "unnecessary emphasis" on states' ability to generate funds rather than demonstrating environmental improvement.
Bethany Card, water quality programs director for the New England Interstate Water Pollution Control Commission, questioned how the revision of the allotment formula would result in "improved environmental results."
Will Rule Improve Water Quality?
Jeffrey S. Longsworth, of the Washington, D.C., law firm Barnes & Thornburg, questioned whether EPA could demonstrate that an increase in permit fees would improve the permitting program and water quality. Longsworth was representing the Federal Water Quality Coalition, which consists of industrial companies, municipalities, agricultural groups, and trade associations.
"This is important to us as permit holders," Longsworth said.
Longworth's remarks resonated with Paul Noe, of lobbying firm C&M Capitolink, who at the meeting represented an array of industries, including the Edison Electric Institute, the National Association of Clean Water Agencies, and the National Pork Producers Council.
Noe and some state officials questioned whether it was "appropriate" for the federal government to "intrude" into state affairs. "Deciding the appropriate mix of state and federal fee funding for NPDES programs is a state public policy decision."
Card added that EPA was stepping on the toes of the state legislatures.
Card and Eichmiller noted that five states, including Massachusetts and New Hampshire, as well as the District of Columbia would receive fewer dollars under the Section 106 program because they would not be eligible for incentives. EPA issues permits for these states; therefore they are ineligible for the program.
Bechtel and James Hanlon, director of EPA's Office of Wastewater Management, also came under criticism for professing to engage states in crafting the proposed rule.
"When you inform states about what you intend to do, that is not participation," said Sandra Allen, director of the water division at New York's Department of Environmental Conservation.
Noe told the meeting, "I have worked on many regulations during my career, but it is rare when such a diverse group comes together against a proposed rule."
By Amena H. Saiyid