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Analysis: Cuts In State Funding To DEP Cannot Continue, Rebalance Needed

The budget passed Tuesday by the House again fully endorsed the loud, but unspoken, message from the General Assembly and recent Governors that it is the policy of state government to use a Fee-For-Protecting The Environment Model for funding programs that protect the environment in Pennsylvania.

For the last 14 years General Fund, that is general taxpayer support for environmental protection programs, has been dramatically reduced.

General taxpayer support for DEP in particular has been cut by 40 percent and its staff reduced by 25 percent significantly impacting the services DEP can provide. 

A cut that size was unthinkable in Pennsylvania 25 even 15 years ago.

Now the result is clear-- 50 percent of DEP’s budget is supported by fees of one kind or another on businesses, local governments, individuals and authorities regulated by DEP.  It was less than half that a decade ago.

And that’s OK with the General Assembly and all three recent Governors, because everyone who voted for or signed each of the state budgets over the last 14 years endorsed, perhaps only with a wink and a nod, the Fee-For-Protecting The Environment Model of funding DEP.

During the House hearings on DEP’s budget this year, Appropriations Majority Chair Stan Saylor (R-York) clearly had no problem with DEP increasing permit fees to support the Safe Drinking Water Program declared deficient by the federal government saying, “Great!”

Every single major environmental statute administered by DEP has authorization for the agency to adopt fees. 

In fact the General Assembly has insisted on it.

DEP’s biggest program-- Oil and Gas Management-- is almost entirely supported by fees on permit reviews-- “each application shall be accompanied by a permit fee… which bears a reasonable relationship to the cost of administering this chapter.”  (Section 3211(d) of Act 13 of 2012)

DEP’s Air Quality Control Program-- “This section also authorizes the [Environmental Quality] Board by regulation to establish fees to support the air pollution control program authorized by this act.”  (Section 6.3 of Act 18 of 1995)

The Safe Drinking Water Program-- “The Environmental Quality Board shall establish fees for permit applications, laboratory certification and other services. Such fees shall bear a reasonable relationship to the actual cost of providing a service.” (Section 1(c) of Act 43 of 1984)

The Solid Waste Management Program-- “Permit and license fees shall be in an amount sufficient to cover the aggregate cost of reviewing all applications, acting on all applications, processing all renewals, and administering all the terms and conditions of all permits and all provisions of this act relating thereto.”  (Section 104(8) Act 97 of 1980)

Dam Safety and Encroachments Act-- Among the duties of DEP are to adopt “Reasonable fees for the processing of applications and periodic inspections, for the purpose of reimbursing the Commonwealth for the costs of administration of this act.” (Section 5(a)(5) of Act 325 of 1978)

Clean Streams Law (basic water quality permits)-- “The department is hereby authorized to charge and collect from persons and municipalities in accordance with its rules and regulations reasonable filing fees for applications filed and for permits issued.” (Section 6 of Act 157 of 1980)

Well, you get the idea.

So after 14 years of heading in this direction, the General Assembly and the last three Governors, are clearly saying we should fully embrace this Fee-For-Protecting The Environment Model because it has become the norm.

While Pennsylvania’s current Fee-For-Protecting The Environment Model is based around permit fees, logically that could be expanded to include other services which clearly incur extensive costs now paid many times by state taxpayers.

The burden, instead, should be placed on those demanding the service from DEP, as the General Assembly and our Governors have clearly said.

Appropriations speak louder than words after all.

If DEP was to fully embrace this policy, it would have to charge--

-- Application Resubmission Fees: 60 to 80 percent of the 30,000 permit applications DEP receives every year are incomplete or deficient and have to be reviewed two, three or more times by DEP staff.  All that costs taxpayers money.  There should be a resubmission fee each and every time an application is returned to DEP to recover these costs.  DEP could give a discount for filing applications electronically.

-- Meeting Fees: Every time a permit applicant meets with DEP staff to consult on a potential application or a pending permit, it costs taxpayers money.  A DEP staff consultation fee seems appropriate.

-- Inspection Fees: Inspections and investigations of companies and local governments that may have caused pollution incidents costs taxpayers money.  You need a vehicle to get there or have to pay staff mileage, laboratory costs are incurred to analyze samples, it takes time for staff to write up inspection reports, etc.  And then there’s the cost of drafting notices of violations and taking any follow up enforcement action.  All that costs taxpayers money.  There should be a flat fee upfront for all investigation work and for each DEP staff member involved.  DEP should be able to recover all its costs, if the responsible party caused the incident, automatically and without question, since that costs taxpayers money too.

-- Report Filing/Review/Storage Fees: DEP gets tens of thousands of reports every year from permit holders to help ensure compliance with Pennsylvania’s environmental laws and regulations.  They need to be reviewed and analyzed and then stored in electronic or paper form.  All that costs taxpayers money.  As a model, courts have had document filing fees for a very long time.  A report filing, review and storage fee to recover these costs seems right.

-- Grant Application Fees: DEP processes thousands of grant applications each year for recycling performance grants, Growing Greener grants, alternative fuel grants and many more.  That all costs staff time and money and those costs should be recovered for taxpayers, successful application or not.

-- Fees For Investigating Citizen Complaints: Last, but not least, DEP gets hundreds of complaints about potential environmental problems every year that cost staff time and laboratory costs to investigate.  The burden of all these costs is now typically borne by taxpayers.  If a citizen files a complaint, perhaps a flat fee of $150 payable by credit card before someone from DEP sets one foot out of the office would be appropriate.  Later any mileage charges can be added on because DEP already has the complainant's credit card.  These charges could be refunded to the complainant if DEP successfully prosecutes the case, at which time the violator will be billed for the costs (including mileage).

Do these examples of the Fee-For-Protecting The Environment Model sound far-fetched, even bonkers? 

So did 40 percent cuts in General Fund support for programs that protect the environment the environment in Pennsylvania a decade ago.

But, this is clearly the policy Pennsylvania has adopted in the last 14 years, fully endorsed by the General Assembly and the last three Governors.

At some point this equation needs to be rebalanced and there must be a more thoughtful approach besides across-the-board cuts.

There also needs to be a conversation about investments that will make DEP more efficient and effective without losing its mission of protection.

If we don’t have these reasonable conversations, the Fee-For-Protecting The Environment Model and its ever-increasing fees will be a real problem for those regulated by DEP and the public.


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[Posted: April 5, 2017]


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