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DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES

Notice of Final Policy for the Imposition of Convenience Charge for PNDI Receipts Generated through the PA Conservation Explorer

[46 Pa.B. 1222]
[Saturday, March 5, 2016]

Background

 On September 19, 2015, the Department of Conservation and Natural Resources (Department) published a notice of an interim final Policy for the imposition of fees for PNDI receipts generated through the PA Conservation Explorer at 45 Pa.B. 5688 (September 19, 2015) seeking public comment. The Department developed a new tool to replace the current Pennsylvania Natural Diversity Inventory (PNDI) Environmental Review tool, now called the PA Conservation Explorer. The PA Conservation Explorer tool is an ArcGIS Server based interactive mapping application that anyone can use to map the conservation status and conservation values of lands. The PA Conservation Explorer includes both conservation planning and PNDI environmental review components, and will provide improved access to visible conservation information, leading to better project planning and fewer impacts on threatened and endangered species as well as species and resources of special concern.

 The Department proposed a policy to impose a $40 convenience charge on users who receive a PNDI Receipt generated through the new PA Conservation Explorer. The policy applies only to users who use the PA Conservation Explorer to obtain a PNDI Receipt. Users without access to a computer or users who do not wish to use the PNDI Receipt convenience option in the PA Conservation Explorer may submit their project for review directly to each of the four jurisdictional agencies (the Department, the Game Commission, the Fish and Boat Commission and the United States Fish and Wildlife Service).

 This document summarizes the written comments received from the public by e-mail or letter. Department staff reviewed the public comments that were received and distilled them into this single response document. Some comments were combined or generalized for purposes of providing a response, and some comments were edited for length, clarity, relevance or format.

Commentators

Name Affiliation
Christopher Kraft C.S. Davidson, Inc.
Adam Smith C.S. Davidson, Inc.
Daniel Fischman Bankson Engineers, Inc.
Jeffrey DeAngelo Alfred Benesch and Company
Roger Varner Larson Design Group
Jim Gillis United States Department of
 Agriculture, Natural
 Resources Conservation
 Service
Namita Sinha Susquehanna Civil, Inc.
Hylton Hobday ASC Group, Inc.
Daniel Swift Consulting Forester
Chad Yurisic Deiss & Halmi Engineering,
 Inc.
Jim Welty Marcellus Shale Coalition
John Arway Fish and Boat Commission
Christopher Carusone Cohen Seglias Pallas Greenhall
 & Furman, PC
Kevin Moody Pennsylvania Independent Oil
 and Gas Association
Paul Lyskava Pennsylvania Forest Products
 Association
Joseph Glover Association of Consulting
 Foresters, Pennsylvania
 Chapter; Fountains Forestry
Eric Easton Pennsylvania College of
 Technology, Forest
 Technology
Stephanie Gundling KU Resources

General Comments

Comment 1: How will the user pay for the PNDI Convenience Charge, via credit card only or can the user be billed?

Response: Payment for a PNDI Receipt will be accepted by credit card only (Visa, MasterCard, or Discover).

Comment 2: How and when will the convenience charge be applied? For example: When will the convenience charge begin? Is it a yearly charge or per PNDI Receipt charge? Can a PNDI Receipt be updated without paying another charge?

Response: The convenience charge for the PNDI Receipt will begin when the new PA Conservation Explorer is released, which is anticipated for early 2016. At that time, the current PNDI tool will be replaced with the new PA Conservation Explorer. The convenience charge is applied when the user creates a PNDI Receipt. Payment will be accepted by credit card (Visa, MasterCard, or Discover). The user will be able to update the PNDI Receipt after payment, if necessary, for permitting or siting purposes at no additional charge.

Comment 3: How did the Department determine the $40 convenience charge?

Response: The Department looked at several factors in formulating the $40 convenience charge: what it cost to develop the new PA Conservation Explorer as well as on-going maintenance costs; and what surrounding states charge for similar or like services.

 1. The Department expended approximately $400,000 to develop the PA Conservation Explorer tool. These one-time, start-up costs included the development of the tool itself, software hosting and maintenance fees as well as perpetual ESRI ARC GIS server license. In addition, the Department needs to defray on-going annual costs for support and maintenance of the PA Conservation Explorer, estimated at $675,000. These annual costs include data management, tool maintenance, web hosting fees and overall coordination of the tool and associated staff. In contrast, the Department anticipates revenue received from the convenience charge at only $520,000.

 2.  Across the United States, several states provide species habitat information similar to Pennsylvania—but each state provides different levels of species habitat visibility, has different avenues of providing that information and different costs to access it. The Department researched the costs charged by other states' Natural Heritage Programs, which range from $30 per project site review (where no species habitat information is shared) to $6,000 a year for access to visible species habitat information statewide. Typically, the cost is $30—$300 for information or assessment of a specific site. For example, Delaware charges $35/hr. of time spent per project; New Jersey's is $70/hr. for review of projects; Virginia provides a subscription service as well as fees associated with the number of species in your project area ranging from $120—190 per project; New Hampshire's fee is $25 per species in the project area; and Massachusetts' fees are based on the size of the project ranging from 5 acres for $300 up to 20 acres for $4,000.

 In light of fees charged by other states, the Department's proposed $40 convenience charge is reasonable.

Comment 4: Can you please clarify the exemptions for government? Our company's clients are often state, county or local governmental agencies or authorities. Will a consultant be able to obtain an exemption from the PNDI Receipt convenience charge when working on behalf of government?

Response: Federal, state and local government agencies that are performing a governmental function in the normal course of business, including but not limited to, permitting, planning, grants or land management, are exempt from the convenience charge. The convenience charge exemption applies only to staff working within the governmental agency. Government employees or contract staff working as a government employee or embedded within the governmental agency may request a convenience charge exemption through an online request form, and the requestor's supervisor may be contacted to verify employment within the agency and need for exemption. Consultants working outside of the agency—not as an embedded employee—are not part of the convenience charge exemption.

Comment 5: Can the convenience charge be applied to only certain user groups and not others (i.e., groups whose work is more lucrative than others)?

Response: The PA Conservation Explorer exempts the convenience charge for federal, state, county and local governmental agencies that are performing a governmental function in the normal course of business. No other groups are eligible for an exemption.

Comment 5: Will the Department partner with the PA Department of Environmental Protection to create PNDI Receipts at the request of permittees and if so, will there be a charge?

Response: The only item for which there is a $40 convenience charge is when the user obtains a PNDI Receipt. There is no need for the Department to partner with its sister agency, the Pennsylvania Department of Environmental Protection (PA DEP). If a user goes directly to PA DEP, PA DEP will advise the user that, as a user, it has three options to obtain a PNDI Receipt: 1. Request an exemption from the convenience charge from the Department (if applicable); 2. Submit the project manually to each of the four jurisdictional agencies (PA Department of Conservation and Natural Resources, PA Fish and Boat Commission, PA Game Commission and the U. S. Fish and Wildlife Service) for review at no charge; or 3. Obtain a PNDI Receipt using the online PA Conservation Explorer, in which case the $40 convenience charge would apply.

Comment 6: Could you clarify the difference of what information is found on a PNDI Receipt versus information found in the Conservation Planning Report? Do I need a PNDI Receipt or can I just use the planning report?

Response: Whether a user needs a PNDI Receipt or a Conservation Planning Report depends on the user's needs. For the purpose of obtaining certain PA DEP permits, PNDI Receipts or letters of coordination from the 4 jurisdictional agencies are required.

 The PNDI Receipt and letters of coordination provide information on endangered species, threatened species and species of special concern found in the project vicinity. Conservation Planning Reports have information that can be found in the Conservation Planning portion of the PA Conservation Explorer, which includes but is not limited to, information regarding Natural Heritage Areas, Public Resources (State Parks, Local parks, protected lands), Exceptional Value/High Quality streams, Wild Trout streams, and Important Bird Areas. If your project area contains any of these special features or designations, the Conservation Report will provide data on those areas that are found in your project area. The Conservation Planning reports are used more often during the planning or early assessment stages of a project, or to obtain general conservation knowledge of an area.

Comment 7: Does the PNDI process or requirements change if the Conservation Planning section of the PA Conservation Explorer shows there are no concerns? Do I still need to obtain a PNDI Receipt?

Response: It is important to note that the information found within the Conservation Planning section of the PA Conservation Explorer does not have PNDI information on endangered, threatened or species of special concern. Specific species habitat location information for endangered, threatened or species of special concern is found within the PNDI Environmental Review portion of PA Conservation Explorer, so if a user's work or project needs to assess information on endangered and threatened species and species of special concern for environmental permits, a PNDI Receipt or letters showing coordination with the four jurisdictional agencies is required. The PNDI Receipt, in this commentator's example, would verify that there are no potential impacts, and agency coordination is not necessary. The Conservation Planning section of the PA Conservation Explorer provides information on protected lands, important waters and other conservation data, but does not display the information that is found on a PNDI Receipt.

Comment 8: Our group uses the PNDI Tool frequently and is interested in learning about the new PA Conservation Explorer. Will there be informational meetings about the new format or PNDI process?

Response: Yes, there have been and will continue to be informational presentations regarding the new PA Conservation Explorer and the PNDI Environmental Review process. Please check the PA Natural Heritage Program web site http://www.naturalheritage.state.pa.us for upcoming notices or contact Kent Taylor at kenttaylor@pa.gov to schedule. Several video tutorials can be found within the PA Conservation Explorer web site which take the user through the process of using the tool.

Comment 9: We support the Department's intent to support the robust improvements in providing information through the PA Conservation Explorer by imposing a convenience charge for the PNDI Receipt.

Response: The Department appreciates your support.

Comment 10: The Department should direct a portion of the convenience charge proceeds from the PNDI Receipts to the PA Fish and Boat Commission to cover the commission's data management efforts that are fundamental to the new PA Conservation Explorer. The Department should also consider the fee at an amount higher than $40 to capture an even greater percentage of the true costs of collecting and managing the data that serve as the cornerstone of the PA Conservation Explorer.

Response: The PA Natural Heritage Program (PNHP) is a partnership between the Department of Conservation and Natural Resources, the PA Fish and Boat Commission, the PA Game Commission and the Western Pennsylvania Conservancy. The Department appreciates the PA Fish and Boat Commission's spirit of cooperation within PNHP, however, the Department commits over $2 million annually to manage the PA Natural Heritage Program as a whole. The PA Conservation Explorer is just one function of the program and will cost the Department approximately $675,000 annually to maintain it and its data, with a one-time development cost of approximately $400,000. The Department assumes the sole burden of the expenses associated with the current PNDI Tool, the new PA Conservation Explorer, and the core funding of the PA Natural Heritage Program. The Department declines to direct a portion of the convenience charge to any of the other jurisdictional agencies because none of the jurisdictional agencies share the burden of those expenses. Information explaining the determination of the convenience charge amount is explained above. At this time, the Department is not considering a change in the amount of the $40 convenience charge.

Comment 11: The existing PNDI Tool has proven to be adequate and free of charge since its inception. Why invest time and money into development of a new system if the existing one works just fine? Perhaps if time and money are not invested into development and management of a new system, a convenience charge would not be necessary.

Response: The Department agrees that the current PNDI Tool has proven itself to be a very good tool since its inception in 2004. However, as is the case with most technology and software, the current technology and software is out of date and needs to be replaced; it is no longer supported by its developer. Consequently, the time will come in the very near future when the current PNDI Tool will no longer function. In addition, not every current PNDI user believes that the current PNDI Tool meets all of the planning and conservation needs. For example, the current tool lacks a visual representation of sensitive areas and species habitats, which has been requested by users. The new PA Conservation Explorer meets those needs. The convenience charge is only assessed when the user obtains a PNDI receipt; the Department will maintain a no-charge option (i.e., the user manually submits projects to the four jurisdictional agencies for review).

Comment 12: If we are trying to encourage more environmental awareness within the forestry field, this new convenience charge will probably have the opposite effect. My thought is that most individuals involved with timber sales will save the $40 and not conduct a PNDI search, which will not help further the cause of environmental awareness and good stewardship of our forested areas.

Response: The Department acknowledges this comment. However, the PA Conservation Explorer is designed so that a user can log into the PNDI Environmental Review portion and see the conservation information found in the Conservation Planning side as well as the species habitat locations of the endangered and threatened species and species of special concern during planning stages. The PA Conservation Explorer enables timber harvesters to view the information at any time. If PNDI coordination is necessary, the user has two choices: either pay the $40 convenience charge or submit the timber project to the four jurisdictional agencies to receive letters showing PNDI coordination. Unlike the current PNDI tool, the PA Conservation Explorer now offers users the ability to view conservation information for general planning, the ability to see PNDI species habitat information and obtain a PNDI Receipt instantaneously while also being able to upload projects for further review to the state jurisdictional agencies through the tool. The Department recognizes that not all users will want to pay a $40 convenience charge, and offers the no-charge option of submitting projects to the applicable jurisdictional agency for review.

Comment 13: The costs incurred by landowners, foresters and conventional oil and gas operators impact their management decisions. When adding the costs together, the cost of completing a project can and does become so burdensome that the project becomes undesirable and unfeasible. The PNDI system should remain a beneficial tool that we can utilize free of charge.

Response: The Department agrees that the PNDI review should remain a beneficial tool that users can use free of charge, and has designed the PA Conservation Explorer to do just that. For those users who see an advantage to receiving their PNDI Receipt electronically, there will be a $40 convenience charge.

Comment 14: I worry that the currently proposed process will impose significant costs on sawmills or loggers. The revenue generated from private forestry activities is often modest compared to the revenue generated from other development industries. My suggestion is to provide the option for an annual permit for PNDI searches that provides a limit on what a company can be charged.

Response: The Department acknowledges your concern. The PA Conservation Explorer tool has been designed so that a user can receive a PNDI Receipt free of charge. No user is required to take advantage of the convenience charge option. However, should a user elect to do so, the program has been designed to require a charge per PNDI Receipt. Please note that not all timber activities require a PA DEP permit, which means those activities would not require a PNDI Receipt or coordination letters from the four jurisdictional agencies.

Comment 15: We appreciate the Department's improvements to the PA Conservation Explorer, however, we oppose the imposition of the convenience charge through a policy. The only way this convenience charge implementation can be lawful is to permit users who need the PNDI Receipts to receive those receipts for free if they choose not to pay.

Response: The Department is within its authority to propose a convenience charge through a published policy. The convenience charge is not a mandatory charge but is optional. A user of the PA Conservation Explorer can elect to manually submit projects to the four jurisdictional agencies and receive a PNDI coordination letter free of charge.

Comment 16: The Interim Final Policy provides: ''PNDI reviews can still be obtained free-of-charge for users without access to a computer using the standard process of requesting project review directly from the jurisdictional agencies—DCNR, PA Game Commission, PA Fish and Boat Commission and the U. S. Fish and Wildlife Service instead of generating a PNDI Receipt instantly through the PA Conservation Explorer.'' However, this system is entirely too cumbersome to be used effectively.

Response: The Department acknowledges your comment. The Department thoughtfully designed the PA Conservation Explorer to offer an option to bypass the manual project submission to each agency and allow for electronic project submission to the three state jurisdictional agencies. The PA Conservation Explorer was specifically designed so that all users have access to visual conservation and species habitat information for early planning prior to obtaining a PNDI Receipt. At that point, the user can decide if it prefers manual submission to each of the jurisdictional agencies or if it will submit a project taking advantage of the convenience option of the PA Conservation Explorer.

CINDY ADAMS DUNN, 
Secretary

[Pa.B. Doc. No. 16-370. Filed for public inspection March 4, 2016, 9:00 a.m.]



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