Compact either before or after any other State or Federal review, in accordance with the provisions of the Administrative Agreement applicable to such project.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

§ 401.40 Form of referral by State or Federal agency.

Upon approval by any State or Federal agency of any project reviewable by the Commission under this part, if the project has not prior thereto been reviewed and approved by the Commission, such agency shall refer the project for review under section 3.8 of the Compact in such form and manner as shall be provided by Administrative Agreement.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

8 401.41 Form of submission of projects not requiring prior approval by State or Federal agencies.

Where a project does not require approval by any other State or Federal agency, or where such approval is required but an Administrative Agreement is not in force, the project shall be submitted directly to the Commission for review and determination of compatibility with the Comprehensive Plan, in such form of application, with such supporting documentation, as the Executive Director may reasonably require for the administration of the provisions of the Compact. These shall include without limitation thereto:

(a) Exhibits to accompany application. The application shall be accompanied by the following exhibits:

(1) Abstract of proceedings authorizing project, where applicable.

(2) General map showing specific location and dimension of a structural project, or specific language of a standard or policy in the case of a nonstructural proposal.

(3) Section of the United States Geological Survey topographic map showing the territory and watershed affected.

(4) Maps, drawings, specifications and profiles of any proposed structures, or a description of the specific effects of a non-structural project.

(5) Written report of the applicant's engineer showing the proposed plan of operation of a structural project.

(6) Map of any lands to be acquired or occupied.

(7) Estimate of the cost of completing the proposed project, and sufficient data to indicate a workable financial plan under which the project will be carried out.

(8) A description of the construction procedures to be followed in excavating, backfilling, retention of sediment, reseeding and landscaping, all with particular reference to minimizing soil erosion and sedimentation in the stream.

(b) Letter of transmittal. The application shall be accompanied by a letter of transmittal in which the applicant shall include a list of all enclosures, the names and addresses to which communications may be directed to the applicant, and the names and addreses of the applicant's engineer and counsel, if any.

(c) Number of copies. Unless otherwise ordered by the Commission, two copies of the application and accompanying papers shall be filed. If any application is contested, the Commission may require additional copies of the application and all accompanying papers to be furnished by the applicant. In such cases, certified copies or photographic prints or reproductions may be used.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

§ 401.42 Preliminary action; informal conference; emergencies.

(a) Whenever the Executive Director shall deem necessary, or upon request of the applicant, an informal conference may be scheduled to explain, supplement or review an application.

(b) The appropriate agency of a signatory party shall perform a technical review for the Commission, in accordance with Administrative Agreement, of each project finally determined to have a substantial effect on the water resources of the basin; except that the Commission staff will perform the technical review: (1) Whenever the agency of the signatory party is itself the sponsor, or (2) whenever the

agency of the signatory party does not have the necessary regulatory jurisdiction, or (3) upon request of the agency of the signatory party; and (4) as to those projects which are subject to an environmental assessment or environmental impact statement under these Rules of Practice and Procedure and the National Environmental Policy Act.

(c) Upon completion of its technical review, the agency of the signatory party shall, in accordance with Administrative Agreement, prepare and file with the Executive Director an action report with respect to the project. The Executive Director shall prepare a memorandum of comment stating his concurrence or nonconcurrence with the findings and recommendations of the action report. The report, memorandum, and a proposed docket decision with reference thereto shall be placed before the Commission by the Executive Director at its next regular meeting. Whenever time permits, a copy of the proposed docket decision shall be furnished to the applicant, and the applicant shall be given an opportunity to comment thereon and to consent to the conditions stated therein, before action by the Commission. The Commission will act upon the project in accordance with Section 3.8 and Article 11 of the Compact (to the extent applicable).

(d) In the event of an emergency requiring immediate action to protect the public interest or to avoid substantial and irreparable injury to any private person or property, and the circumstances do not permit a review, hearing and determination in the regular course of the regulations in this part, the Executive Director with the approval of the chairman of the Commission may issue an emergency certificate authorizing an applicant to take such action as the Executive Director may deem necessary and proper in the circumstances, pending review, hearing and determination by the Commission as otherwise required in this part.

[39 FR 25474, July 11, 1974, as amended at 42 FR 15311, Mar. 21, 1977. Redesignated at 46 FR 25439, May 7, 1981]

§ 401.43 Hearings.

(a) The Executive Director may, and whenever any substantial objection is filed pursuant to this section shall, cause a hearing to be scheduled upon an application received under § 401.41. He may, and at the request of the applicant shall, cause a hearing to be scheduled as to any application referred under § 401.40. Notice of the intention of the Commission to act upon an application received pursuant to § 401.41, or upon a request for a hearing with regard to an application received pursuant to § 401.40, shall be published by the Executive Director in one or more newspapers of general circulation in the area affected, at least once a week for two successive weeks, which publications shall not be less than seven nor more than 21 days prior to the date on which action is proposed to be taken. Such notice shall direct any person objecting to the application to file his objection with the Commission not later than two days before the scheduled date of action. If the Executive Director determines that any filed objection is substantial, he shall defer consideration by the Commission, furnish a copy of each such objection to the applicant, and schedule a hearing on the application to be held not less than ten nor more than 30 days after the last day for filing objections. Notice of the hearing shall be served forthwith by certified mail upon the applicant and each person filing a substantial objection. Proof of such publication and of service of notice shall be filed with the Commission on or before the date for which the hearing is scheduled.

(b) The application and supporting documents, maps and data, as filed or amended shall be open to inspection by any interested person prior to the hearing.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

§ 401.44 Objections.

Every objection filed pursuant to § 401.43 shall be in writing and shall particularly specify the ground thereof. Amendments to the objections may be permitted by the Commission. All

objections and supporting documents shall be filed in duplicate in such form as the Executive Director may prescribe. No person may be heard in opposition to an application except on objections so filed. Such objections shall be heard and determined under the procedure prescribed by Subpart F, Hearings.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

§ 401.45 Limitation of approval.

Approval by the Commission under this part shall expire three years from the date of Commission action unless prior thereto the sponsor has expended substantial funds (in relation to the cost of the project) in reliance upon such approval. An approval may be extended or renewed by the Commission upon application.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

§ 401.46 Certificate of compliance.

The Executive Director, upon application duly made to him, and after appropriate inspection and such other proof as may be required, may certify to any applicant that the applicant has duly complied with the requirements of any action or determination by the Commission pursuant to this part. The Executive Director may make such certification whenever he finds and determines that there has been sufficient compliance to satisfy the purposes and objectives of the Commission's action or determination notwithstanding the existence of any technical variation or omission in the work done. All such certifications shall be reported to the Commission at its next meeting thereafter.

[39 FR 25474, July 11, 1974. Redesignated at 46 FR 25439, May 7, 1981]

fullest extent possible, direct their policies, plans and programs so as to meet national environmental goals. Section 105 of the Act provides that "The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.” Section 102(2)(C) of the Act and the Council on Environmental Quality's Guidelines of April 23, 1971, (36 FR 7724) require that all Federal agencies prepare environmental statements on all major Federal actions significantly affecting the quality of the human environment. The objective of the Act is to build into the agency decision-making process, beginning at the earliest possible point, an appropriate and careful consideration of the environmental aspects of proposed actions and to assist agencies in implementing the policies as well as the letter of the Act.

(b) Policy. The Delaware River Basin Commission will, in consultation with other appropriate Federal, State and local agencies and the public, assess the environmental impacts of any proposed action concurrent with initial technical and economic studies in order that adverse effects will be avoided, and environmental quality will be maintained, restored or enhanced, to the fullest extent practicable. In particular, alternative actions that will minimize adverse impacts will be explored and both the long and short-range implications to man, his physical and social surroundings, and to nature, will be evaluated in order to avoid, to the fullest extent practicable, undesirable consequences as they relate to the quality of the human environment. This assessment shall take place as early as possible and in all cases prior to any decision that may significantly affect the environment and, where required, a draft environmental impact statement will be prepared and circulated in accordance with the regulations in this part.

(c) Definitions. "Action" is a resolution by the Commission approving, disapproving, modifying or otherwise disposing of a project, program, legislation or any part thereof.

"Applicant" is proposed action's sponsor, including the Commission when it sponsors an action.

"Environment" for the purposes of the regulations in this part is the major natural, man-made or affected environment as implied by the National Environmental Policy Act of 1969. "Environmental assessment" is an analysis by the Commission prior to the preparation of an environmental impact statement, of an applicant's environmental report or of a Commission-sponsored action to determine whether the action proposed will have a significant effect involving the quality of the human environment.

"Environmental impact statement" is a document prepared by the Commission which identifies and analyzes in detail the environmental impacts of a major action by the Commission having significant effects involving the quality of the human environment.

"Environmental report" is a document to be submitted by applicants proposing an action which requires an environmental assessment.

"Negative declaration" is a determination by the Executive Director, based upon an environmental assessment, that a proposed action will not require an environmental impact statement.

"Notice of intent" is an announcement to other Federal, State and local agencies and to the public that the Commission will be preparing an environmental impact statement for a given action.

"Responsible official" is the Executive Director or his designee of the Delaware River Basin Commission.

"Significant effect" is that degree of impact upon the quality of the human environment determined by the Commission or the Executive Director as sufficient to justify an environmental impact statement.

§ 401.52 Actions requiring an environmental report.

The applicant for any action within the following classifications shall submit not later than the completion of preliminary engineering or feasibility studies, an environmental report.

(a) All action required by the regulations in this part to include an environmental impact statement.

(b) Major actions the Commission may wish to initiate.

(c) Action to include in the Commission's Comprehensive Plan the following:

(1) Major policy or regulations significantly affecting the quality of the human environment.

(2) Master plans including a sequence of the contemplated projects which together may have a significant effect upon the quality of the human environment.

(d) When requested by the Executive Director based upon an environmental review of the action.

§ 401.53 Applicant's environmental report.

Upon receipt of the report, the Executive Director shall prepare an environmental assessment of the action. Additional information, studies, maps, etc., may be requested from the applicant. The environmental assessment will be the basis for the determination of the need for an environmental impact statement. A supplemental guideline covering the substantive contents of an environmental report will be made available to all applicants. In brief, an environmental report will include the following:

(a) A description of the proposed action, including the decision-making process, discussing alternatives to illustrate why the proposed action was chosen.

(b) A description of the existing environmental setting without the proposed action.

(c) The probable anticipated environmental impact primary and secondary, including both beneficial and unavoidable adverse effects from the proposed action and the basis for the conclusion. Resources irreversibly and irretrievably committed should be identified.

(d) All reasonable alternatives to the proposed action that have been considered including that of no action.

(e) An evaluation of environmental benefits, costs and risks, including short-term uses versus long-term productivity, weighing the proposed action and the alternatives considered against the quality of the human environment.

(f) Any other information, data, maps, charts, etc., which may be re

quested by the Commission for use in their analysis of the proposed action.

§ 401.54 Environmental assessment.

An environmental review will be made for those actions requiring an environmental report. The assessment is made to identify and evaluate the expected and potential environmental impacts of the action and the alternatives considered. The assessment will determine whether significant impact upon the environment can be anticipated from the proposed action. The results of an environmental assessment will be either the preparation of the environmental impact statement or a negative declaration. The contents of an environmental assessment will include the following:

(a) Description of the project. (b) Analysis of significant impacts. (c) Summation of any objections. (d) Agencies consulted and their concerns, if any, including interested State, regional, county and local agencies. The Environmental Protection Agency will be consulted in all instances.

(e) Conclusions.

§ 401.55 Negative declaration.

(a) A negative declaration may be issued by the Executive Director prior to taking any official action on a project which, as a result of an environmental assessment (§ 401.54), has been determined will not cause significant environmental impacts. The assessment will become a part of the project's records and be available for public inspection.

(b) Prior to the issuance of a negative declartion, the Executive Director shall publish notice of his intent to do so unless good cause to proceed with an environmental impact statement is submitted in writing by any interested person or agency within 15 days from the date of the notice publication.

(c) The negative declaration will include the environmental assessment, copies of any relevant correspondence and the official determination by the Executive Director that the proposed action is not a major action significantly affecting the quality of the human environment.

(d) Once a negative declaration has been made, the proposed project may immediately proceed to Commission action.

(e) When a negative declaration has been made for a proposed action ordinarily requiring the preparation of an environmental impact statement under the provisions of § 401.56, the declaration, complete with the environmental assessment, will be made available to the public.

§ 401.56 Actions requiring an environmental impact statement.

The list of general classifications which require an environmental impact statement is based upon the reviewable projects activity of the Commission. These actions have been identified by an analysis of environmental impacts typically associated with the principal types of Commission action. Where an environmental impact statement is prepared for a master plan or program having a chain of contemplated projects, subsequent statements on major components will be required only where significant impacts were not adequately evaluated in the overview statement relating to the total plan or program. Inclusion of the action in the Comprehensive Plan prior to January 1, 1970, does not exempt the action from an environmental impact statement. Actions identified as requiring an environmental impact statement include the following:

(a) Any project, plan, regulation or policy identified via the process of an environmental assessment as having significant effect upon the quality of the human environment.

(b) Major large-scale programs or master plans involving a sequence of contemplated projects including new towns, watershed programs, wastewater and water supply plans and recreation plans.

(c) Impoundments. (d) Diversions.

(e) Fossil-fueled electric generating stations.

(f) Liquid petroleum products pipelines.

(g) Draining or filling or otherwise altering marshes or wetlands.