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CHAPTER 11-DELAWARE RIVER BASIN

COMMISSION

Part 401 410

Rules of practice and procedure.
Basin regulations—water quality.

PART 401-RULES OF PRACTICE AND

Sec.

401.53 Form of request. PROCEDURE

401.54 Report. Sec.

401.55 Form and contents of report. 401.0 Introduction.

401.56 Protection of trade secrets; conf. Subpart A-Comprehensive Plan

dential information.

401.57 Failure to furnish report. 401.1 Scope.

401.58 Informal conference. 401.2 Concept of the Plan.

401.59 Consolidation of hearings. 401.3 Other agencies. 401.4 Amendments and revisions.

Subpart E-Conduct of Hearings 401.5 Review of proposal.

401.61 Hearings generally. 401.6 Further action.

401.62 Hearing officer. 401.7 Public projects under Article 11 of

401.63 Hearing procedure. the Compact.

401.64 Staff and other expert testimony. 401.8 Custody and availability.

401.65 Record of proceedings. Subpart B-Water Resources Program

401.66 Findings and report.

401.67 Action by the Commission. 401.21 Scope. 401.22 Concept of the Program.

Subpart F-General Provisions 401.23 Procedure.

401.71 Definitions. 401.24 Preparation and adoption.

401.72 Supplementary detalls. 401.25 Alternatives for public projects. 401.73 Waiver of rules. 401.26 Inventory of other projects.

401.74 Construction, Subpart C-Project Review Under Section 3.8

AUTHORITY: The provisions of this part of the Compact

401 issued under sec. 14.2, Delaware River 401.31 Scope.

Basin Compact, 75 Stat. 708. 401.32 Concept of section 3.8.

SOURCE: The provisions of this part 401 401.33 Administrative Agreements.

appear at 29 F.R. 3568, Mar. 20, 1964, unless 401.34 Submission of project required. otherwise noted. 401.35 Classification of projects for review under section 3.8 of the Compact.

$ 401.0 Introduction. 401.36 Sequence of approval.

(a) The regulations in this part gov401.37 Form of referral by State or federal

ern the process whereby the Commission agency.

will include projects in the Comprehen401.38 Form of submission of projects not

sive Plan and extend them into an anrequiring prior approval by State or federal agencies.

nual Water Resources Program. Also 401.39 Preliminary action; informal con- set forth herein are the procedures and ference; emergencies.

definitions that the Commission will use 401.40 Hearings.

in screening projects proposed by others 401.41 Objections.

to test their compatibility with the Com401.42 Limitation of approval.

prehensive Plan. An interrelationship Subpart D-Review in Water Quality Cases among these three requirements is ap401.51 Scope.

parent in the Delaware River Basin 401.52 Notice and request for hearing.

Compact.

(b) Article 13 of the Compact calls for cedures that the Commission will follow the adoption of the Comprehensive Plan in developing the Water Resources Proand Water Resources Program. These gram are contained in Subpart B of this documents are defined as follows:

part. (1) Comprehensive Plan: A plan that (e) The regulatory power of the Comincludes all public and private projects mission under section 3.8 of the Compact and facilities which are required in the extends to all public and private projects. judgment of the Commission for opti- However, since the Compact also promum planning, development, conserva- vides for cooperative planning of public tion, use, management, and control of projects (Article 11), a special procedure the water resources of the Delaware to accelerate Commission approval of Basin to meet present and future needs. such projects is provided as part of the The Comprehensive Plan is dynamic and process of adoption of a Water Resources will be periodically revised.

Program. Under Subpart B and Sub(2) Water Resources Program: An part C of this part, the sponsor of a annual presentation, based upon the public project has a choice of routes for Comprehensive Plan, of the quantity and Commission approval: where advance quality of water resources needs of the approval is necessary or desirable, the area to be served during the ensuing six sponsor may secure approval through vears or for such reasonably foreseeable the process of project inclusion in the period as the Commission may deter- Water Resources Program; and this is an mine, balanced by existing and proposed opportunity that will be available at a projects required to satisfy such needs, specified time each year. Where the including all public and private projects sponsor may for any reason prefer the to be anticipated, together with a sepa- alternate course, the public project may rate statement of the projects proposed be submitted for review under section 3.8 to be undertaken by the Commission dur- of the Compact. In brief, approval of a ing such period.

public project as ready for action within (c) To protect the integrity of the the Water Resources Program will have Comprehensive Plan and avoid conflicts the effect of approval for purposes of of jurisdiction, the Compact provides section 3.8, but omission of a project generally, in Article 11, for cooperative from the Water Resources Program will planning of all public projects, and more still leave the door open for the project specifically, in section 3.8 of the Com- sponsor to proceed under section 3.8. pact, confers certain regulatory author- Finally, under the regulations in this ity upon the Commission. Section 3.8 part, private projects are required to proprovides for a review of water resources ceed under section 3.8. projects to determine two matters: First

Subpart A-Comprehensive Plan whether the project will have “a substantial effect on the water resources of

$ 401.1 Scope. the basin”; and secondly, whether a proj- This subpart shall govern the submisect having such an effect would “sub

sion, consideration, and inclusion of stantially impair or conflict with the

projects into the Comprehensive Plan. Comprehensive Plan.” The basic concept is thus both comprehensive and in

§ 401.2 Concept of the Plan. tegrated planning and development.

(a) The Comprehensive Plan, as re(d) A project may enter the Compre- quired in section 13.1 of the Compact, will hensive Plan in the discretion of the provide for the immediate and longCommission whenever the project is range development and use of the water ready for such action, both on its own resources of the basin. The Plan will inmerits and in relation to other projects clude all public and private projects and which are part of the Plan. Subpart A facilities which are required, in the judgof this part develops the concept of the ment of the Commission, for the optiComprehensive Plan and the procedure mum planning, development, conservato be followed for inclusion of new proj- tion, use, management, and control of ects or modification of existing ones. the water resources of the basin, in light The Water Resources Program repre- of present and foreseeable future needs. sents a selection of projects by the Com- It will consist of statements of policy, mission taken from the Comprehensive criteria, and standards, as well as the Plan. These are projects which the principal physical projects, objectives, Commission recommends for action dur- and programs that will be involved in the ing the ensuing six-year period. Pro- development of the river basin.

(b) The Plan will be a body of documents expressing a systematic set of policies and programs for the future, and the means for carrying them out. It will be expressed through narrative text, maps, charts, schedules, budgets, and other means.

(c) From time to time specific projects and facilities and programs may be incorporated, deleted, or modified to reflect changing conditions, research results, and new technology. At any given time the degree of detail describing particular projects will vary depending upon the state of their development. § 401.3 Other agencies.

For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the Commission as a regional agency of the signatory parties to the Compact, federal, State, and local agencies shall follow the requirements of Article 11 of the Compact.

NOTE: As to Federal agencies, the Compact provides: "No expenditure or commitment shall be made for or on account of the construction, acquisition or operation of any project or facility nor shall it be deemed authorized, unless it shall have first been included by the Commission in the CompreDensive Pian."

As to State and local agencies, the Compact provides: “No expenditure or commitment shall be made for or on account of the construction, acquisition or operation of any project or facility unless It shall have first been included by the Commission in the Comprehensive Plan.”

As to federal, State, and local agencies the Compact provides: "The planning of all projects related to powers delegated to the Commission by this Compact shall be undertaken in consultation with the Commis" Each

* "agency otherwise authorized by law to plan, design, construct, operate or maintain any project or facility in or for the basin shall continue to have, exercise and discharge such authority except as specifically provided by this section." § 401.4 Amendments and revisions.

The Comprehensive Plan will be open, upon application of any interested party, for review and inclusion of new projects and for deletion or alteration of previously included projects. To this end, the Commission will receive and consider proposals for changes and additions to the Comprehensive Plan which may be submitted by any agency of the signatory parties, or any interested person, organization, or group. Any such proposal shall be submitted in such form as may be required by the Executive Direc

tor to facilitate consideration by the Commission, and shall include at least the following information:

(a) Purpose or purposes, including quantitative measures of physical benefits anticipated from the proposal.

(b) Approximate location, dimensions (if a structural project) and land area required.

(c) Draft or description of a proposed standard, policy or other nonstructura! measure.

(d) Forecast of the cost (if structural) or effect on the utilization of water resources (if a nonstructural measure).

(e) Relation to other parts of the existing Comprehensive Plan. $ 401.5 Review of proposal.

Following staff study, examination, and review of each proposal, the Commission will take such action on the proposal as may be appropriate, and will hold such public hearings thereon as are required by the Compact. S 401.6 Further action.

The Commission will review the comprehensive Plan in its entirety at least once every six years from the date of the initial adoption of the Comprehensive Plan (Phase I, March 28, 1962). The amendments, additions, and deletions will be compiled and the Plan as so revised will be republished annually. § 401.7 Public projects under Article 11

of the Compact. (a) After a project of any federal. State, or local agency has been included in the Comprehensive Plan, no further action will be required by the Commission or by the agency to satisfy the requirements of Article 11 of the Compact, except as the Comprehensive Plan may be amended or revised pursuant to the Compact and the regulations in this part. Any project which is changed substantially from the project as described in the Comprehensive Plan will be deemed to be a new and different project for the purposes of Article 11 of the Compact. Whenever a change is made the sponsor shall advise the Executive Director who will determine whether the change is deemed substantial within the meaning of the regulations in this part.

(ti Any project not having a substantial effect on the water resources of the basin, as defined in Subpart of this part, may proceed without reference to Article 11 of the Compact.

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& 401.8 Custody and availability.

(e) Suficient data to indicate a workThe Comprehensive Plan shall be and

able financial plan under which the remain in the custody of the Executive

project will be carried out. Director. The Plan including all maps,

(f) A timetable for implementation, charts, descriptions and supporting data $ 401.24 Preparation and adoption. shall be and remain a public record open

The Water Resources Program will be to examination during the regular busi

prepared and considered by the Comness hours of the Commission, under such

mission for adoption annually during the safeguards as the Executive Director may

month of February. Projects required determine to be necessary to preserve

to satisfy the basin needs during the and protect the Plan against loss, damage

period covered by the Program may be or destruction. Copies of the Compre

classified as follows: hensive Plan or any part or parts thereof

A list: This shall include public projects shall be made available by the Executive

which require no further review, and incluDirector for public sale at a price

sion in such list shall be deemed to be apcovering the cost of production and

proval for the purposes of section 3.8 of the distribution.

Compact;

B list: This shall include public projects Subpart B-Water Resources Program

not included in the A list and privately spon$ 401.21 Scope.

sored projects which are proposed or antici

pated by the Commission. This subpart shall govern the submission, consideration and inclusion of proj

§ 401.25 Alternatives for public proj.

ects. ects into the Water Resources Program.

Any public project which has been in$ 401.22 Concept of the Program.

cluded in the Comprehensive Plan but is The Water Resources Program, as de- not on the “A” list of the current Water fined and described in section 13.2 of the Resources Program, at the option of the Compact, will be a reasonably detailed sponsor, may be submitted for review and

olification of that part of the Com- approval under section 3.8 of the Comprehensive Plan which the Commission pact in accordance with Subpart of recommends for action within the en- this part. suing six-year period. That part of the

$ 401.26 Inventory of other projects. Program consisting of a presentation of the water resources needs of the basin

Each Water Resources Program will will be revised only at such intervals as

include, for information purposes only,

an inventory of projects approved during may be indicated to reflect new findings

the previous year pursuant to section 3.8 and conclusions, based upon the Com

of the Compact but which are not part mission's continuing planning programs.

of the Comprehensive Plan or Water Re8 401.23 Procedure.

sources Program. Each project included in the Water Subpart C-Project Review Under Resources Program shall have been pre- Section 3.8 of the Compact viously included in the Comprehensive

$ 401.31 Scope. Plan, except that a project may be added to both the Plan and the Program by

This subpart shall govern the submisconcurrent action of the Commission.

sion and review of projects under section The project's sponsor shall furnish the

3.8 of the Delaware River Basin Comfollowing information prior to the in

pact. clusion of the project in the Water § 401.32 Concept of section 3.8. Resources Program:

Section 3.8 is intended to protect and (a) The Comprehensive Plan data

preserve the integrity of the Comprebrought up-to-date for the period of the

hensive Plan. This section of the ComWater Resources Program.

pact provides: (b) Specific location and dimension

No project having a substantial effect on of a structural project, and specific lan- the water resources of the basin shall hereguage of a standard, policy or other non- after be undertaken by any person, corporastructural proposal.

tion or governmental authority unless it shall (c) The plan of operation of a struc

have been first submitted to and approved

by the Commission, subject to the provisions tural project.

of sections 3.3 and 3.5. The Commission (d) The specific effects of a non-struc

shall approve a project whenever it finds and tural project.

determines that such project would not sub

stantially impair or conflict with the Com- (b) Where no other State or federal prehensive Plan and may modify and approve

agency has jurisdiction to review and as modified, or may disapprove any such project whenever it finds and determines

approve a project, or no Administrative that the project would substantially impair

Agreement is in force, the project or conflict with such Plan. The Commis

sponsor shall apply directly to the sion shall provide by regulation for the pro

Commission. cedure of submission, review and considera- (c) Any project proposal, which may tion of projects, and for its determinations have a substantial effect on the water pursuant to this section. Any determination

resources of the basin, may be received of the Commission hereunder shall be sub

and reviewed by the staff Informally in ject to judicial review in any court of com- conference with the project sponsor petent jurisdiction.

during the preliminary planning phase $ 401.33 Administrative Agreements. to assist the sponsor to develop the projThe Executive Director is authorized

ect in accordance with the Commission's and directed to enter into cooperative

requirements. Administrative Agreements with federal

(d) Whenever a project sponsored by and State regulatory agencies concerned

one of the signatory parties, or by any with the review of projects under fed

agency, political subdivision or public eral or State law as follows:

corporation thereof, has been included in (a) To facilitate the submission and

the Water Resources Program in the "A review of applications and the deter- List” classification, the project, to the exminations required under section 3.8 of

tent of such inclusion and as described the Compact;

in the Program, shall be deemed ap(b) To avoid unnecessary duplication

proved for the purpose of section 3.8 of of staff functions and hearings required

the Compact. by law;

§ 401.35 Classification of projects for (c) For such other and different pur

review under section 3.8 of the Composes as he may deem feasible and ad

pact. vantageous for the administration of the

(a) Except as the Commission may Compact or any other law;

specially direct by notice to the project (d) Provided that any such Administrative Agreement shall be effective

owner or sponsor, or as a state or fed

eral agency may refer under paragraph solely for purposes of intergovernmental

(c) of this section, a project in any of cooperation and the failure of any ap

the following classifications will be plicant to comply with the provisions of

deemed not to have a substantial effect any such agreement shall not prejudice

on the water resources of the basin and his application or the consideration

is not required to be submitted under thereof.

section 3.8 of the Compact: & 401.34 Submission of project

(1) The construction of new impoundquired.

ments or the enlargement or removal of Any project which may have a sub- existing impoundments, for whatever stantial effect on the water resources of purpose, when the storage capacity is less the basin, except as provided in para

than 100 million gallons. graph (d) of this section, shall be sub- (2) A withdrawal from ground water mitted to the Commission for a deter- for any purpose when the daily average mination as to whether the project will gross withdrawal during any calendar have a substantial effect on the water month does not exceed 100,000 gallons. resources of the basin and, if so, whether (3) A withdrawal from impoundments the project impairs or conflicts with the or running streams for any purpose when Comprehensive Plan, as follows:

the daily average gross withdrawal dur(a) Where the project is subject to re- ing any calendar month does not exceed view by a State or federal agency which 100,000 gallons. has entered into Administrative (4) The construction of new municipal Agreement with the Commission, such sewage treatment facilities or alteration project will be referred to the Commis- or addition to existing municipal sewage sion in accordance with the terms of the treatment facilities when the design caAdministrative Agreement, and appro- pacity of such facilities is less than a priate instructions will be prepared and daily average rate of 50,000 gallons, and issued by the Executive Director for all local sewage collector systems and guidance of project sponsors and appli- improvements discharging into authorcants.

ized trunk sewage systems.

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